Court of Arbitration for Sport lifts suspension, allowing figure skater to compete in Olympic Games

During the Beijing 2022 Olympic Winter Games, the Court of Arbitration for Sport (CAS) heard an appeal from a decision to lift the provisional suspension of Kamila Valieva, a 15 year old Russian figure skater, which suspension had been based on a laboratory’s adverse analytical finding of the presence of a prohibited substance.

On 7 February 2022, the day she (and teammates) won gold in the Single Skating team event, a WADA-accredited laboratory in Sweden issued an adverse analytical finding for the presence of trimetazidine in a urine sample that had been collected 44 days earlier, on 25 December 2021 at the Russian Figure Skating Championships (with the delay in analysing the sample said to be because of laboratory personnel shortages due to COVID-19).  

The International Olympic Committee (IOC) provisionally suspended Valieva with immediate effect, preventing her from competing, training and participating in any Olympic Games activities (including medal ceremonies).

Valieva’s provisional suspension came at a critical time for the athlete: the individual figure skating event at the Olympic Games was scheduled for 15 February 2022, and she was the favourite for the gold medal.  

Provisional suspension lifted by the Russian Anti-Doping Agency Disciplinary Anti-Doping Committee

A provisional suspension is an interim measure aimed at prohibiting an athlete from participating in any competition pending a decision on the merits.  Under the World Anti-Doping Code (WADC), [1] it must be immediately imposed on the receipt of an adverse analytical finding. [2]  However a provisional suspension can be lifted if an athlete provides evidence that the violation was likely to have been caused by a “contaminated product”.[3]

The day after the provisional suspension was imposed, the Russian Anti-Doping Agency Disciplinary Anti-Doping Committee lifted it, following a hearing which considered whether Valieva had been inadvertently exposed to trimitazdine. Valieva did not provide a specific explanation for how she came to inadvertently take the drug, but said that her grandfather had been using the drug at that time (although no independent or documentary evidence, such as prescriptions or medical records, were produced). Two scientific experts gave evidence that the concentration in Valieva’s sample was compatible with contamination, although they each also conceded that the concentration was also compatible with the end of the excretion period after a full dose of the drug.

The IOC, the World Anti-Doping Agency (WADA) and the International Skating Union (ISU) each immediately appealed the Russian Anti-Doping Committee’s decision to the CAS Ad Hoc division.

“Protected Person” under the World Anti-Doping Code

Valieva fell within the definition of a “Protected Person” as she was under the age of 16. The WADC treats Protected Persons differently to other athletes, including reducing punishment for Protected Persons for use of prohibited substances (other than substances of abuse) to a range of between a reprimand to a maximum of two years’ suspension, [4]  and removing the burden of having to establish how the prohibited substance entered into the athlete’s system.[5]  National Anti-Doping Organisations are also required to conduct automatic investigations of the athlete’s support personnel in relation to anti-doping violations by Protected Persons.

Notably, however, the WADC does not expressly provide for different treatment of Protected Persons with respect to provisional suspensions.

CAS’s decision: “optional” rather than “mandatory” provisional suspensions for Protected Persons?  

The CAS Panel considered it highly relevant that, as a Protected Person, Valieva faced a minimum possible sanction of a public reprimand and no period of ineligibility. The Panel observed that provisional suspension, which would prevent the athlete from competing for months while their case was being handled, resulted in “different and harsher treatment” for Protected Persons, which was inconsistent with the WADC’s intent of applying the Code “more leniently and flexibly to Protected Persons in light of their age and inexperience”.  The Panel considered that the application of the rules as written for provisional suspensions “would almost certainly in every case” involving an athlete under 16 years of age result in a provisional suspension longer than actual suspension.

The Panel determined that, in light of the WADC’s silence as to the treatment of Protected Persons with provisional suspensions, provisional suspensions should be treated as optional rather than mandatory for Protected Persons, and held that the option not to impose a provisional suspension should have been exercised to allow Valieva to compete in the Olympic Games.

The relevance of Valieva’s chances of winning gold

The Panel also considered that, as an alternative basis for the Panel’s decision, even if provisional suspension should have been mandatory, provisional measures should have been granted to Valieva to lift the suspension “in accordance with regular CAS jurisprudence”, having regard to the following:

• Given the finite and brief careers of most athletes, a suspension can cause irreparable harm especially when it bars the athlete from a major sports event, and that harm would be difficult to remedy (if the suspension was subsequently found to be unjustified);
• The laboratory’s delay of 44 days in reporting put Valieva in a remarkably difficult position. It was only eight days before the Olympic Games women’s single skating event. Valieva was not able to “muster proof to support her defence” in the middle of the Olympic Games, including not having sufficient time to have her B-sample analysed;
• Valieva’s chance to win a medal “and all that comes with that glory, is rare, of limited opportunity, and uncertain of repeating or being on offer again”;
• There was a relatively low level of prohibited substance found in her sample and she had tested negative in multiple tests before and after the test leading to the adverse analytical finding;
• Valieva’s arguments in relation to use of a “contaminated product” were “more than nugatory” and “sufficiently plausible”, which the Panel considered more than sufficient for the purposes of considering whether to lift the suspension.

The CAS Panel was also swayed by the fact that the WADA-accredited laboratory had reported the result outside the time limits recommended by WADA, observing that “athletes should not be subject to the risk of serious harm occasioned by anti-doping authorities’ failure to function effectively at a high level of performance and in a manner designed to protect the integrity of the operation of the Games”.

Conclusion

Regardless of an athlete’s age, the CAS Panel’s decision indicates that being a real contender for a gold medal at the Olympic Games (or other significant sporting event) is a factor that will weigh heavily in that athlete’s favour in seeking to lift any provisional suspension imposed on them, due to a prohibited substance detected in their sample, which would otherwise prevent them from competing. It will be considered a “potential irreparable harm” to the athlete if the suspension were to continue.

In relation to Protected Persons, unless the WADC is amended to expressly provide for Protected Persons to be the subject of mandatory provisional suspensions, the CAS Panel decision will also have the effect of treating the provisional suspension of Protected Persons as outside the “mandatory provisional suspension” rule imposed by article 7.4.1.

[1] The CAS decision also considered the All-Russian Anti-Doping Rules and the International Skating Union Rules. This case note focuses on the World Anti-Doping Code only.

[2] WADC, art 9.4.1.

[3] WADC, art 9.4.3.

[4] WADC, art 10.6.1.3.

[5] WADC definitions of “Fault for Protected Persons”, “No Fault or Negligence”.