Doping Scandal at the Olympic Games: Is the Valieva-decision from the CAS really incomprensible?

Newspapers and the internet are full of it. A doping scandal at the Olympics. The Russian Miss Perfect and top favorite for Olympic gold, figure skater Kamila Valieva, tested on doping. This test result would normally lead directly to a provisional suspension. And yet Valieva is allowed to start at the Olympics.

An emergency appeal from, among others, the IOC to the special Ad Hoc Commission of the CAS failed. This led to quite a bit of commotion and incomprehension. When you take a look at social media, you will immediately see that this decision is a very unpopular. And as unfair as this must feel to some athletes (understandably so), the decision is not entirely incomprehensible. And that is mainly caused by the fact that Kamila Valieva is only 15 years old. A child.

KAMILA VALIEVA'S (ALLEGED) DOPING VIOLATION

What exactly happened? Kamila Valieva has tested positive for the banned substance Trimetazidine. This is a substance that is used against heart disease. However, this substance also has a performance-enhancing effect. That is why it is on the prohibited list of the World Anti-Doping Agency (WADA) as a so-called heavy “Non-Specified Substance”. If you are caught doing with this type of substances, that will normally lead to a suspension of 2 to 4 years for a first violation, according to article 10.2 World Anti-Doping Code (WAD Code)

MANDATORY PROVISIONAL SUSPENSION?

When an athlete takes a positive doping test, this almost automatically leads to a provisional suspension. There are a few exceptions to this, namely when it comes to lighter substances, so-called “Specified Substances”, or where it is likely that the positive test is the result of contaminated product. Remember the story of Alberto Contador where “Zero, zero zero zero zero zero zero zero zero zero zero zero zero zero zero zero zero zero zero zero cinco gramos.” clenbuterol was found. According to Contador due to contaminated meat.

For exactly these two exceptions, there is also a possibility of a reduction in the sanction (art. 10.6.1 and 10.6.2 WAD Code). So much so that the sanction can be limited to just a reprimand without a period of ineligibility. In deviation of the main rule, these exceptions may not lead to a mandatory provisional suspension. And that is understandable because in the end there is a fair chance, that the athlete in question will not be suspended at all.

ALSO AN EXCEPTION FOR VALIEVA?

It is the same article 10.6 WAD Code, in this case the third paragraph, that provides the same sanction reduction rule for so-called “Protected Persons”. These “Protected Persons” include 15-year-olds such as Kamila Valieva.

When Kamila Valieva can demonstrate that she has not made a significant fault, the sanction may be limited to a reprimand. Kamila Valieva states that she has taken a pill from her grandfather. Such a defense seemed sufficient for AJAX goalkeeper Onana to ascertain that there was no significant fault. Hence, there is a reasonable chance of a reduced sanction. And it is not implausible that Valieva’s age still plays a major role in the assessment on how far this reduction should go.

In this case that revolves around the absence of a provisional suspension, the upset is for this absence. However, strangely enough, the WAD-Code rule about provisional suspensions is silent on “Protected Persons”, even though the sanction for a Protected Person could be limited to just a repriamd . This in contrast to the equivalent exceptions of article 10.6 WAD Code for Non-Specified Substances and Contimated Products, for which an exception applies to the mandatory provisional suspension.

b) 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;

Court of Arbitration for Sport

I can imagine that for this reason the CAS has ruled that the WAD-Code is silent on provisional suspensions for Protected Persons and that excluding Valieva may cause irreparable damage. After all, if she is not allowed to participate in the Olympic Games, while there is a fair chance that she will not be suspended at all, Kamila Valieva would be seriously disadvantaged.

Understandable or Inomprehensible decision by the CAS?

So, taken in and of itself, this decision is not completely incomprehensible. It leads to an equal treatment of exceptions found to be equivalent. Moreover, there is a fair chance that it will remain with a reprimand for Kamila Valieva.

On the other hand, a strict interpretation of the rules should lead to a  provisional suspension. And so the frustration with Valieva’s opponents is also understandable. And the same goes for the IOC. Because there is still a good chance that Valieva will be suspended and that also means that she has to hand in all medals after her positive test (art. 10.10 WAD Code). In short, a case in which a CAS panel can never really do well.

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