On Monday 18 July 2016, Canadian lawyer Richard McLaren presented the Independent Person Report to the World Anti-Doping Agency (WADA), regarding the alleged Russian doping program surrounding the 2014 Sochi Winter Olympics. The report was expected to seriously threaten the participation of Russian Athletes to the rapidly approaching Rio Games, starting on 5 August. In the weekend prior to the report’s publishing, Reuters obtained a leaked letter drafted by the CEO’s of the US and Canadian anti-doping agencies, which according to the New York Times was backed by “antidoping officials from at least 10 nations— including those in the United States, Germany, Spain, Japan, Switzerland and Canada — and 20 athlete groups”, urging the International Olympic Committee (IOC) to ban all Russian athletes from the upcoming Olympics.

Source: http://ww4.hdnux.com/photos/50/23/01/10563667/3/920x920.jpg

During the press conference, McLaren listed his main findings, which are shocking, interesting and peculiar at same time. First, “the Moscow Laboratory operated, for the protection of doped Russian athletes, within a State-dictated failsafe system”. Second, “the Sochi Laboratory operated a unique sample swapping methodology to enable doped Russian athletes to compete at the Games”. Third, “the Ministry of Sport directed, controlled and oversaw the manipulation of athlete’s analytical results or sample swapping, with the active participation and assistance of the FSB (Russian federal security service), CSP (Centre of Sports Preparation in Russia), and both Moscow and Sochi Laboratories”.

Though the recent findings of the Independent Person Report should not be underestimated, yet it is only one piece of a complex jigsaw puzzle constituted by many reports and disciplinary decisions involving systemic doping in Russia over the last few years. One could compare it to a snowball rolling down the mountain continuously gaining speed and mass. The ball started rolling in December 2014 with an ARD broadcasted documentary titled Geheimsache Doping: Wie Russland seine Sieger macht (“Top Secret Doping: How Russia makes its Winners”). Less than two years later, Russian athletes might be excluded from participating at the Rio Olympic Games all together. The information now available on Russia’s systematic doping program would make an excellent movie script (one that has probably already been set in motion at a Hollywood studio). This blog, however, will more modestly provide a recap of the events leading up to the Independent Person Report, and assess its potential (short term) legal consequences. 

Episode 1: German investigative journalism and WADA’s response

As stated above, the unravelling of this doping story began in December 2014, with an ARD documentary, Geheimsache Doping: Wie Russland seine Sieger macht (“Top Secret Doping: How Russia makes its Winners”). Filmmaker Hajo Seppelt investigated rumors on widespread doping use by Russian athletes in preparation of and during the Winter Olympics held in Sochi. The film showed athletes, coaches and civil servants testifying, secret camera footage, audio recordings, and official documents, all pointing towards: systemic doping use within the All-Russia Athletics Federation (ARAF), corrupt practices regarding results management and the collection of samples. Implicated parties included athletes, coaches, trainers, doctors, the Russian State, the IAAF, the Moscow accredited laboratory and the Russian Anti-Doping Agency (RUSADA).

In response to the international stir, WADA, in December 2014, launched an Independent Commission to investigate the allegations made. The Commission consisted of former WADA chairman Richard Pound, Richard McLaren and WADA’s Chief Investigations Officer Jack Robertson. The first part of this commission’s findings was published on 9 November 2015.[1] In August 2015 the commission’s mandate was extended following the release of another Seppelt documentary “Doping – Top Secret: The Shadowy World of Athletics”. This resulted in a second report which was published on 14 January 2016.[2] Especially the former of the two “Pound Reports” is of particular interest.

First and foremost, it addresses the existence of “a deeply rooted culture of cheating”. The report insinuates that this culture of cheating existed since well before the Sochi Games. The coaches active in 2014 appear to be the crucial transferors of the knowledge they acquired at the time they were athletes themselves. Medical connections cultivated during their professional careers were passed on to the current generation of athletes. Athletes not wishing to be part of this system were likely to be “excommunicated” from top-level coaches and support.[3]

The second issue addressed is the exploitation of athletes. “Unethical behaviours and practices” by the people involved have become the norm. Coercion has been employed on athletes to make them participate in the doping program, for instance by informing them that “they would not be considered as part of the federation’s national team for competition”.[4]

The report’s third finding is a blatant unwillingness of Russian athletes to cooperate in the investigation. Nonetheless, the Pound Commission confirms a “consistent and systematic use of performance enhancing drugs by many Russian athletes”.[5]

Fourthly, it confirmed that, next to coaches, some Russian doctors and laboratory personnel equally acted as “enablers for systematic cheating”. It also pointed out “inadequate testing and poor compliance around testing standards”, as well as the malicious destruction of over 1400 samples, which were explicitly requested by WADA to be preserved.[6]

A fifth major discovery was the identification of corruption and bribery within the IAAF. The severity of the corruption allegations involving several highly placed members and officials of IAAF and the ARAF was such that this part of the investigation had to be transferred to the competent authorities for “potential criminal prosecutions”, i.e. Interpol (see the second Pound Report).[7]

The first Pound Report recommended provisional suspensions in respect of five athletes, four coaches and one medical doctor and identified some additional suspicious cases. It further asked WADA to declare both ARAF and RUSADA to be “code noncompliant” and to withdraw WADA’s accreditation of the Moscow laboratory, as well as to permanently remove the lab’s director from his position. The Report also recommended that the IAAF should suspend ARAF.[8]

A mere four days after the publication of the first Pound Report (13 November 2015) the IAAF provisionally suspended the Russian ARAF as an IAAF Member. As a result of this decision, athletes, and athlete support personnel from Russia could not compete in International Competitions expected, the Russian Olympic Committee (ROC) as well as its athletes did not take the decision lightly. In a request for arbitration filed at the Court of Arbitration for Sport (CAS) on 3 July 2016, the ROC and the 68 Russian Athletes asked the CAS 1) to review specific legal issues surrounding IAAF’s decision to suspend ARAF, and 2) to order that any Russian athlete who was not currently the subject of any period of ineligibility for the commission of an anti-doping rule violation be declared eligible to participate at the 2016 Olympic Games in Rio.[9] The outcome of the appeal will be discussed further below. 

Episode 2: The Independent Person Report

Meanwhile, on 8 May 2016, new far-reaching allegations concerning Russia’s doping program were made by newsmagazine 60 Minutes, and subsequently on 12 May, by the New York Times.[10] The primary source behind these articles was whistle-blower Grigory Rodchenkov, the former director of the Moscow and Sochi doping control laboratories who found refuge in an undisclosed location in the USA. This time around, the allegations were not limited to athletics, but involved all Russian athletes that competed at the Sochi Olympics.[11] In response to these claims, WADA announced that it would immediately probe the new Russian doping allegations brought forward, once again, by the press, and appointed an Independent Person (i.e. Richard McLaren) supported by a multidisciplinary team to conduct an investigation of the allegations made by Dr. Rodchenkov.[12]

McLaren was presented with a five-point investigation mandate:

“1. Establish whether there has been manipulation of the doping control process during the Sochi Games, including but not limited to, acts of tampering with the samples within the Sochi Laboratory.

2. Identify the modus operandi and those involved in such manipulation.

3. Identify any athlete that might have benefited from those alleged manipulations to conceal positive doping tests.

4. Identify if this Modus Operandi was also happening within Moscow Laboratory outside the period of the Sochi Games.

5. Determine other evidence or information held by Grigory Rodchenkov.”[13]

The Report first mentions the time constraints faced in drafting it. It explains, in relation to the third paragraph of the mandate, that the “compressed timeline” of the investigation (57 days) “did not permit compilation of data to establish an antidoping rule violation”, consequently that third paragraph should be deemed of lesser importance. This shortage of time also resulted in the fact that McLaren had to be selective in examining the large amount of data and information available to it. In other words, it could “only skimmed the surface of the extensive data available”.[14] Be that as it may, McLaren considered the found evidence to be established “beyond a reasonable doubt”.[15]

With due respect to both its mandate and its investigative limitations, McLaren made three key findings[16]:

A) The Moscow Laboratory operated, for the protection of doped Russian athletes, within a State-dictated failsafe system, described in the report as the Disappearing Positive Methodology;

B) The Sochi Laboratory operated a unique sample swapping methodology to enable doped Russian athletes to compete at the Games;

C) The Ministry of Sport directed, controlled and oversaw the manipulation of athlete’s analytical results or sample swapping, with the active participation and assistance of the FSB, CSP, and both Moscow and Sochi Laboratories.

The Independent Person Report makes account of a systemic state directed doping program, incentivized by the “very abysmal” medal count of the Russian Olympic athletes participating in the 2010 Vancouver Olympic Winter Games. A system where, under direction and control of Yuri Nagornykh, Russia’s deputy minister of sport, the laboratory was forced to change any positive result into a negative analytical finding, a method named by the McLaren team the “disappearing positive”.[17]

Nagornykh was informed of every positive analytical finding arising in the Moscow laboratory from 2011 onwards, which in itself is a violation of the WADA International Standard for Laboratories. The deputy minister was the linchpin that decided which athlete would benefit from a cover up and thus be protected and which athlete would not. If ordered to do so, laboratory personnel were required to report the sample as being negative in WADA’s anti-doping management system. Next, the laboratory personnel had to falsify the screen result in the laboratory information management system to show a negative laboratory result.[18] Conclusion, the shielded athlete could continue to compete.

However, at international events independent observers would prevent Russian athletes from slipping through the net. That is why the FSB developed a method for covertly removing the caps of tamper evident sample bottles containing the urine (“without any evidence visible to the untrained eye”). This technique was used to replace positive dirty samples during the Sochi Olympic Games and in December 2014 to cover up some dirty samples out of the Moscow Laboratory, which WADA had aimed to confiscate.[19] The McLaren team subsequently found evidence that this sample swapping also occurred after the 2013 IAAF World Championships in respect of positive samples.

The coordinating role of Irina Rodionova in this sample swapping method is remarkable. She was a staff member of the Russian Olympic Committee during the Sochi Games. During the Games, she served as the head of the Monitoring and Management of Medical Anti-doping Programs Department and is currently deputy director of the “Center of Sports Preparation of National Teams of Russia, a subordinate organisation of the Russian Ministry of Sport”.[20] As the report shows, Rodionova would receive and freeze storage samples, which the athletes thought were “clean urine samples outside of the wash out periods for any PEDs they were using”. The investigation’s main informant, Grigory Rodchenkov would test the samples to make sure they were negative. These samples were then secretly transported to the FSB storage freezer, which coincidentally happened to be in the building located next to the Sochi Laboratory.[21]

The actual swapping occurred by passing the A and B bottles through the “mouse hole” located between the “aliquoting room” inside the Sochi Laboratory secure perimeter into an adjacent operations room, outside that secure perimeter. While an FSB officer would take the B bottles somewhere else, the athlete’s stored clean urine would be taken out of the FSB freezer and brought over to the operations room. The FSB officer would return with B sample bottle to the operations room. The B sample bottle’s cap would be removed. The dirty urine would be replaced by clean urine and put in the A and B bottles. Then, the stopper in the A bottle would be replaced and the B bottle cap screwed back on. Ultimately, the bottles would be brought back to the “aliquoting room” via the mouse hole.[22] Subsequently, Rodchenkov had to manipulate the substituted sample to as closely as possible match the “specific gravity” indicated on the original doping control form. He did this by “adding table salt to raise the clean urine SG or distilled water to dilute the clean urine sample so as to closely match the SG number on the DCF”. A laboratory analysis of the salt content of selected samples revealed that six had “salt contents higher than what should be found in urine of a healthy human”.[23] As the Independent Person Report elucidates: “The Sochi sample swapping methodology was a unique situation, required because of the presence of the international community in the Laboratory. It enabled Russian athletes to compete dirty while enjoying certainty that their antidoping samples would be reported clean”.[24]

The Report notes another incident following a WADA request giving notice to the Moscow laboratory of a forthcoming collection of samples stored in the laboratory for further analysis. This resulted in the laboratory quickly destroying thousands of dirty samples that had been collected and reported negative (use of the Disappearing Positive Methodology). Deputy minister Nagornykh then arranged the FSB to fix the problem of the samples collected between 10 September 2014 and 10 December 2014, which could not be destroyed (as a result of the minimal 90-day period of storage following the ISL). When the WADA investigators came to the laboratory, they found sample bottles without their caps and, moreover, that these samples all had negative findings recorded on WADA’s Anti-Doping Management System. Furthermore, forensic examination confirmed tampering and “a urine examination of 3 of the samples showed that the DNA was not that of the athlete involved”.[25] 

Episode 3: The ball is in the IOC’s corner…

In a statement released shortly after Richard McLaren’s press conference, WADA president Craig Reedie conveyed WADA executive committee’s vision on the Independent Person Report. First it condemned the “public speculation made by certain national anti-doping organizations as to the investigation’s outcome in the days leading up to the report’s publication”. More importantly however, it recommended the IOC (and the International Paralympic Committee, IPC) to decline entry for the 2016 Rio Olympic Games to all athletes wishing to compete under the Russian Olympic Committee banner. Moreover, he added that “any exceptional entry of a Russian athlete should be considered by the IOC and IPC for participation under a neutral flag and in accordance with very strict criteria”.

The IOC responded on 19 July by implementing some provisional measures. It decided amongst others: not to organise or give patronage to any sports event or meeting in Russia, not grant any accreditation to any official of the Russian Ministry of Sport or any person implicated in the Independent Person Report for the Rio Games, and “initiate a full inquiry into all Russian athletes who participated in the Olympic Winter Games Sochi 2014 and their coaches, officials and support staff”.

The key question, however, was whether the IOC would follow WADA’s recommendation and decline entries to all athletes under the Russian Olympic Committee banner to the Rio Games. Even though its president Thomas Bach stated that “the findings of the report show a shocking and unprecedented attack on the integrity of sport and on the Olympic Game” and that “the IOC will not hesitate to take the toughest sanctions available against any individual or organisation implicated”[26], it did not actually do so (yet). Instead, it announced that it would carefully evaluate the Independent Person Report and “explore the legal options” weighing a collective ban against the right to compete of individual athletes. Moreover, the IOC was adamant that it would “take the CAS decision of 21 July 2016 concerning the IAAF rules into consideration”.

Episode 4: Now the CAS has ball possession…

Hence, the IOC’s final decision regarding Russia’s participation at this summer’s Olympic Games depended on a large extent on the CAS decision regarding the ROC and 68 Russian athletes’ appeal against the IAAF ban. On 21 July, the CAS Panel confirmed the validity of the IAAF’s decision to suspend the ARAF from participating at the Games as well as the Russian athletes who do not satisfy the conditions set by IAAF Competition Rule 22.1(A).[27] Nonetheless, the CAS expressed its concern about “about the immediate application with retroactive effect of such Rule [IAAF Rule 22.1(A)], implemented by the IAAF on 17 June 2016, providing for exceptional criteria to grant eligibility to athletes whose national federation is suspended. Since such Rule involves criteria based on long-term prior activity, it left no possibility in practice, and as applied, for the Claimant Athletes to be able to try to comply with them.”

Yet, it clearly refused to weigh in directly on the IOC’s pending decision regarding all Russian athletes. Indeed, “since the IOC was not a party in the arbitrations, the CAS found that it had no jurisdiction to determine whether the IOC is entitled generally to accept or refuse the nomination by ROC of Russian track and field athletes to compete at the Rio 2016 Olympic Games”. In other words, the ball is neatly passed back to the IOC, who will now need to make a definite decision on whether Russian athletes, both for athletics and all the other sports, can compete at the upcoming Games or not. As the public pressure is mounting on the IOC, it is now doomed to decide whether to block the entry of all Russian athletes or to leave this decision to the International Federations on a case-by-case basis, like the IAAF has done in the case of athletics. A story to be continued…

Conclusion: Who is to blame for the systemic failures of the World Anti-Doping System?

Russian athletes are currently bearing the brunt of the blame for the State-sponsored doping system in place in Russia, they are being placated in the media and by the World Anti-Doping Agency as cheats, they are being excluded from the Rio Olympics (and potentially many more international competitions), and they are the ones suffering dire economic losses. Yet, are they truly the main responsible for their unenviable fate?

The first key culprit that comes to mind is obviously the Russian State and its political leaders, who have constructed a demonic system imposed on athletes in their young age to ensure that Russia shines on the global sporting scene. They have done so with the implicit (and in the case of the IAAF explicit) support of the international sports governing bodies, which preferred to look away rather than challenge the Russian political clout inside their executive bodies. One has to remember, for example, that Russia’s sports minister Vitaly Mutko, currently decrying the politicization of sport, is a member of FIFA Council (formerly the FIFA Executive Committee).

Furthermore, this is also the failure of WADA. It was supposed to be the independent global gendarme of the world anti-doping fight. Yet, it comes out of these episodes at best as a toothless paper tiger, at worse as a complacent window dresser. A recent piece in the New York Times highlights very well its passive complicity in maintaining the invisibility of the Russian state doping system. WADA is now front and centre in calling for the harshest sanctions on athletes, but for years it has been ignoring the warning signs and refusing to do its homework as far as the implementation of the WADA Code is concerned. It is only because of the public outrage over Hajo Seppelt’s documentary that WADA finally decided to act. What is the Code worth if its implementation at the local level, where it is supposed to apply on a day-to-day basis, is not closely monitored? Only the paper (or the computer code) on which it is written. The general hypocrisy of having a global set of rules, but very little biting enforcement mechanisms underlies the failure of the current world anti-doping system.  

[1] The Independent Commission Report #1, Final Report, 9 November 2015 (Pound report #1).

[2] The Independent Commission Report #2, 14 January, Amended 27 January 2016 .

[3] Pound report #1, p. 10.

[4] Ibid, p. 11.

[5] Ibid.

[6] Ibid.

[7] Pound report #1, p. 12 and 124.

[8] Ibid, p. 9.

[9] Media Release of the CAS of 21 July 2016, Athletics – Olympic Games Rio 2016 - The Court of Arbitration for Sport (CAS) rejects the claims/appeal of the Russian Olympic Committee (ROC)

and of 68 Russian athletes.

[10] Rebecca R. Ruiz and Michael Schwirtz, “Russian Insider Says State-Run Doping Fueled Olympic Gold”, New York Times, 12 May 2016 < http://www.nytimes.com/2016/05/13/sports/russia-doping-sochi-olympics-2014.html > accessed 21 July 2016.

[11] In this regard, it is also worth mentioning that Russia ended first in the medal table with 33 medals, including 13 gold medals.

[12] The Independent Person Report, p. 2.

[13] Ibid, p. 3.

[14] Ibid, p. 4.

[15] Ibid, p. 6.

[16] Ibid, p. 1.

[17] Ibid, p. 10.

[18] Ibid, p. 11.

[19] Ibid, p. 12.

[20] Ibid, p. 13.

[21] Ibid.

[22] Ibid, p. 14.

[23] Ibid, p. 15.

[24] Ibid.

[25] Ibid, p. 17.

[26] Statement of the executive board of the International Olympic Committee of 19 July 2016 on the WADA Independent Person Report.

[27] IAAF Competition Rule reads as follows: “Any athlete, athlete support personnel or other person shall be ineligible for competitions, whether held under these Rules or the rules of an Area or a Member, whose National Federation is currently suspended by the IAAF”.