The on-going Beijing 2022 Winter Olympic Games have already delivered a number of memorable sporting moments. Not least of these, was 15 year-old Russian figure skater Kamila Valieva first-ever quadruple jump by a woman in figure skating, not only once but twice. Unfortunately, the Athlete will not only remember the on-going Olympic Games due to her sporting exploits, but also due to one of a legal nature, concerning an alleged Anti-Doping Rule Violation on her part.
Ms. Valieva tested positive to trimetazidine, which is a non-specified substance prohibited in and out of the competition pursuant to S4.4 of the World Anti-Doping Agency (WADA) Prohibited List, with a biological sample collected on 25 December 2021 at the Russian National Championships in St. Petersburg and subsequently tested by a WADA-accredited laboratory in Stockholm, Sweden. The results of the same were however only notified to the Athlete on 8 February 2022 together with a provisional suspension by the competent (Russian) anti-doping agency RUSADA, only after she had helped the Russian Olympic Committee to win gold in the team event on the previous day. In the meantime, the Athlete had tested negative for a series of other doping tests. The provisional suspension was challenged by the athlete in order to compete in the on-going winter Olympics and the provisional suspension was lifted by the RUSADA Disciplinary Anti-Doping Committee on 9 February (the “Decision”).
The International Olympic Committee (IOC), International Skating Union (ISU) and WADA subsequently on decided to appeal the Decision before a Beijing 2022 CAS ad hoc panel, requesting the provisional suspension to be reinstated so that the Athlete would not be able to participate in the single events on 15 and 17 February.
According to Article 11 of Arbitration Rules applicable to the CAS Anti-Doping Division Olympic Games Beijing 2022:
“Upon receipt of an application, the President or the Deputy President of the CAS ADD shall appoint a Panel composed either of a Sole Arbitrator or of three arbitrators appearing on the special list described in Article 2 of the Rules, taking into account all the circumstances of the case. If an application is filed which is related to an arbitration already pending before the CAS ADD, the President or the Deputy President of the CAS ADD may assign the second dispute to the Panel appointed to decide the first dispute. In order to decide upon such assignment, the President or the Deputy President of the CAS ADD shall take into account all the circumstances, including the relation between the two cases and the progress already made in the first case. The CAS ADD Court Office shall convey the application to the appropriate arbitral Panel and inform the parties of the arbitrator(s) appointed.”
Such panels are created upon the receipt of an application and holds an expedited hearing which needs to be settled within 24 hours or in exceptional cases, this time limit may be extended by the President, or the Deputy President of the CAS ADD if circumstances so require. Outside the period of the Olympic Games, the Panel shall give a decision within a reasonable time.
All three appeals (CAS OG 22/08 International Olympic committee (IOC) vs Russian Anti-Doping Agency (RUSADA), CAS OG 22/09 World Anti-Doping Agency (WADA) vs Russian Anti-Doping Agency (RUSADA) and Kamila Valieva and CAS OG 22/10 International Skating Union (ISU) vs Russian Anti-Doping Agency (RUSADA) and Kamila Valieva) were merged into a single dispute.
The hearing was conducted on 13 February between 8:34 pm and 2:10 am through a video conference from the temporary CAS offices in Beijing by a panel composed of arbitrators Mr. Fabio Iudica (President), Mr. Jeffrey Benz and Dr. Vesna Bergant Rakocevic. The panel was called upon solely to determine whether the Athlete should be provisionally suspended, and not on the merits of the case, nor any consequences for any Olympic events, which shall form the subject of other procedures.
According to the media release by CAS on 14th February, 2022 , the panel considered that that no provisional suspension should be imposed on the Athlete, whereas:
The Athlete is a “Protected Person” as per the definition of the WADA Code; (An Athlete or other natural Person who at the time of the anti-doping rule violation: (i) has not reached the age of sixteen (16) years;)
The RUSADA Anti-Doping Rules and the WADC are silent with respect to provisional suspension imposed on protected persons, while these rules have specific provisions for different standards of evidence and for lower sanctions in the case of protected persons
The Panel considered fundamental principles of fairness, proportionality, irreparable harm, and the relative balance of interests as between the Applicants and the Athlete, who did not test positive during the Olympic Games in Beijing and is still subject to a disciplinary procedure on the merits following the positive anti-doping test undertaken in December 2021; in particular, the Panel considered that preventing the Athlete from competing at the Olympic Games would cause her irreparable harm in these circumstances;
The CAS Panel also emphasized that there were serious issues of untimely notification of the results of the Athlete’s anti-doping test that was performed in December 2021 which impinged upon the Athlete’s ability to establish certain legal requirements for her benefit, while such late notification was not her fault, in the middle of the Olympic Winter Games Beijing 2022.
The IOC stated, in its reaction to the decision of the CAS Ad Hoc division, that no medal ceremony would be conducted if the athlete should secure any podium position in the individual events, or team events whereas this would not be fair to the other athletes, until the merits of the case shall have been decided on. In any case, it is important to keep in mind that it is so far undisputed that the athlete tested negative to various controls she underwent after the positive sample was collected on 25 December 2021, thus giving rise to the ongoing dispute.
In any case, it is mandatory to bear in mind that through the appeal against the RUSADA Decision of 9 February, the CAS Ad hoc Division was asked to determine whether the provisional suspension should be imposed or not. In fact, the CAS Ad hoc Division wasn’t supposed to decide, in this strand of the proceeding, whether the athlete has committed a doping violation or not. The proceeding concerning the potential doping violation, in fact, is still ongoing before the competent RUSADA Disciplinary Anti-Doping Committee, and only at the outcome of this other proceeding shall it be established whether (and to what extent) the athlete is liable for any anti-doping rules violation and what sanction will be imposed on her, without prejudice, in any case, to the possibility of appeal of the relevant decision.