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A Legal Analysis
THE RUSSIAN FIGURE SKATER, THE POSITIVE TEST AND THE DISMISSED APPEAL
In the middle of the Beijing Olympics, the world watched on as it was revealed 15-year-old Russian figure skater Kamila Valieva had tested positive to a banned substance prior to Games.
Because of the seriousness of the substance involved, Valieva was promptly given a Mandatory Provisional Suspension, designed to prevent her from competing while her case was being resolved.
However, Valieva was ultimately allowed to continue to compete at the Olympics, taking fourth place in the individual event later that week, despite legal challenges from the International Olympic Committee (IOC), the International Skating Union (ISU) and the World Anti-Doping Agency (WADA) in the Court of Arbitration for Sport (CAS).
Here Sport Integrity Australia’s Legal Director Emily Fitton provides an in-depth look into the CAS decision that allowed her to compete.
PROCEDURAL HISTORY
Kamila Valieva is a highly accomplished figure skater, born in Kazan, Russia. She holds the world records for the women’s short program, freeskating and total scores, and in 2022 won the European Championships, the Russian Championships and the team event at the Winter Olympics.
She began figure skating in 2009 and at the age of six, moved to Moscow to pursue her skating. Valieva currently trains in Moscow, coached by Eteri Tutberidze.
On 25 December 2021, at the Russian National Figure Skating Championships, Valieva was selected for a doping control test. The sample was analysed by a WADA-accredited laboratory in Sweden, which, as a result of delays caused by the pandemic, reported a positive result just over six weeks later, on 7 February 2022.
The substance she had tested positive for was Trimetazidine – a metabolic modulator that is believed to enhance oxygen delivery to the heart and improve physical efficiency for athletes.
Importantly, Trimetazidine is classified by WADA as a Non-Specified Substance, a category that also includes serious doping agents like steroids and Selective Androgen Receptor Modulators.
When an athlete tests positive to a Non-Specified Substance, the World Anti-Doping Code 2021 (WADC) states that a Mandatory Provisional Suspension must be imposed promptly after review and notification, meaning the athlete is no longer able to compete or train with their team.
As a result, the day after the positive test result was received, on 8 February 2022, the Russian Anti-Doping Agency (RUSADA) imposed a Mandatory Provisional Suspension on Valieva.
On 9 February 2022, Valieva sought a provisional hearing before the RUSADA Disciplinary Anti-Doping Committee (DADC), were she successfully applied to have the provisional suspension overturned.
By 12 February 2022, WADA, the ISU and the IOC had all filed appeals against the decision in the Ad Hoc Division of CAS.
The hearing occurred on 13 February 2022, with CAS handing down its decision to dismiss the appeals the next day, granting Valieva permission to continue to compete and train while her matter is finalised.
LEGAL REASONING
The legal arguments in this case centred on whether a provisional suspension should be imposed on a ‘Protected Person’. Under the WADC, Valieva met the definition of a Protected Person as she was under the age of 16.
Under Article 7.4.1 of the WADC, a Mandatory Provisional Suspension must be imposed for a positive test involving a Non-Specified Prohibited Substance. Critically, a Mandatory Provisional Suspension can only be removed in certain limited circumstances – for example, if the Athlete demonstrates to a hearing panel that the violation involved a Contaminated Product.
At her provisional hearing before the DADC, Valieva contended that her positive test was a consequence of domestic interaction with her grandfather who uses Trimetazidine after having heart replacement surgery (for example, by using contaminated dishes or glasses).
Valieva’s grandfather gave evidence at the provisional hearing before DADC by way of a pre-recorded video message. As contended by WADA, there was no independent and/or documentary evidence that he used Trimetazidine.
However, CAS did not dismiss the appeal on the ground of contamination, rather, it did so on the basis that Valieva was a Protected Person.
Notably, being a Protected Person is not listed as an explicit reason in the WADC to justify removing a provisional suspension. CAS acknowledged this, however, it also noted a key difference in possible sanctions for Protected Persons.
By way of background, the base period of Ineligibility (a ban) for a positive test for a Non-Specified Substance is four years.
The period can be increased if there are aggravating circumstances or if it is the athlete’s second or third anti-doping rule violation (ADRV). It can also be reduced if factors such as No Fault or Negligence, No Significant Fault or Negligence, Substantial Assistance or other factors apply.
If No Significant Fault or Negligence was found to apply, and the athlete is not a Protected Person and the substance did not originate from a Contaminated Product, the best possible reduction they could receive would be down to a one year period of Ineligibility, provided they also established the ADRV was not intentional.
In contrast, if a Protected Person established that No Significant Fault or Negligence applied, they could receive a reprimand, with no period of Ineligibility from sport.
Specifically, Article 10.6.1.3 of the WADC provides that for a Protected Person, where the violation does not involve a Substance of Abuse and the individual can establish that No Significant Fault or Negligence applies, the period of Ineligibility shall be at a minimum, a reprimand and no period of Ineligibility, and a maximum two years Ineligibility, depending on the individual’s degree of fault.
CAS found this to be a lacuna (a gap) in the WADC.
CAS also found that there was likelihood of irreparable harm if Valieva was unable to compete and that her arguments for eliminating the period of Ineligibility were at least plausible at any hearing on the merits. CAS declined to impose the provisional suspension and dismissed the appeals.
As a result, Valieva was able to compete in the Women’s Single Skating event at the Winter Olympic Games, placing fourth.
It is important to note that this CAS decision did not finally determine Valieva’s matter, and did not consider the ultimate period of Ineligibility to be imposed. The final outcome, including whether she can keep her Beijing gold medal for the teams event, will be determined after the process in its entirety, including any final hearing, has been completed.
It is also important to note that CAS decisions do not operate by way of binding precedent and that a subsequent case could be decided differently, particularly if further guidance is provided from WADA.
Note: Her results at the Winter Olympics remain subject to any final hearing in her anti-doping matter.
Protected Person
Protected Person is a new definition in the 2021 Code for an athlete who is, at the time of the ADRV:
• under 16,
• under 18 and not in any Registered Testing Pool or that has never competed in an open category at an International Event, or
• for reasons other than age, otherwise lacks legal capacity under applicable domestic legislation.
Under the 2021 Code, Protected Persons that commit an ADRV may receive less severe consequences or sanctions, and the details of their violation(s) will ordinarily not be made public.
For cases involving a Protected Person, if No Significant Fault or Negligence is found to apply, the sanction from sport can range from a reprimand to a maximum ban of 2 years, depending on the level of fault.
