CAS 2020_O_6689 WADA vs RUSADA

CAS 2020/O/6689 World Anti-Doping Agency v. Russian Anti-Doping Agency

CAS 2020/O/6689 World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA)

• World Anti-Doping Agency (WADA)
• Russian Anti-Doping Agency (RUSADA)

Intervening Parties:

• International Olympic Committee
• International Paralympic Committee
• Russia Olympic Committee
• Russia Paralympic Committee
• European Olympic Committees
• International Ice Hockey Federation
• Russian Ice Hockey Federation
• Lilya Akhaimova, Regina Isachkina, Elena Osipova, Arina Averina, Olga Ivanova, Yana Pavlova, Dina Averina, Yulia Kaplina, Alexey Rubtsov, Ilya Borodin, Evgeniya Kosetskaya, Ekatarina Selezneva, Artur Dalaloyan, Elena Krasovskaia, Nikita Shleikher, Alina Davletova, Evgeny Kuznetsov, Vladimir Sidorenko, Evgenija Davydova, Sayana Lee, Inna Stepanova, Inna Deriglazova, Vladimir Malkov, Maria Tolkacheva, Yana Egorian, Polina Mikhailova, Dmitry Ushakov, Vladislav Grinev, Andrei Minakov, Sofiya Velikaya, Kristina Ilinykh, Nikita Nagornyy, and Andrey Yudin
• Sasha Gusev, Daniil Sotnikov, Ilya Borisov, Igor Ovsyannikov, Nachyn Coular, Valeria Koblova, Elizaveta Sorokina, Ivan Golubkov, Elena Krutova, and Viktoria Potapova

• Multiple sports
• Doping (non-compliance procedure against RUSADA)
• Opportunity for a third party to take part in the constitution of the Panel
• Appointment of the President of the Panel from a list of arbitrators specifically designated by CAS
• Amendments to prayers for relief
• Interpretation of silence under Swiss law
• Characterisation of the WADC as general terms and conditions and rule of surprise
• Strict liability of a signatory
• Standard of proof that the signatory is non-compliant
• Condition for a measure to qualify as a sanction or disciplinary in nature
• Principles applicable to consequences imposed for non-compliance
• Application of the principle of proportionality
• Restrictions on participation and attendance of athletes
• Requirement to compete as neutral athlete and human rights
• CAS power to review reinstatement conditions

This case deals with RUSADA’s alleged non-compliance of a critical requirement under the International Standard for Code Compliance by Signatories (ISCCS) to procure the delivery to WADA of authentic data from the Moscow Anti-Doping Laboratory.

In January 2020 WADA requested CAS for arbitration against RUSADA. Hereafter also the IOC, IPC, ROC, EOC, IIHF, FHR and two Athletes Groups filed their requests to intervene in the proceedings.

WADA contended that the Moscow Data had been materially and improperly altered prior to a copy being provided to WADA in January 2019. The alleged alterations included:

• back-dating;
• disk formatting;
• deletions of database back-ups;
• secure erasing of files;
• selective removal of user action commands from command logs;
• replacement of databases;
• deletion of records;
• removal of tables; and
• missing command logs.

On that account WADA sought a finding of such non-compliance and the imposition of a number of consequences deriving therefrom. RUSADA opposed WADA’s claims. It denied that the data retrieved by WADA from the Moscow Laboratory was manipulated and, in the alternative, denied any responsibility for manipulations and challenged the validity of the Signatory Consequences sought by WADA.

The Intervening Parties’ submissions, in a number of areas, bore substantial similarity to those made by RUSADA or overlapped with submissions made by other Intervening Parties.

As a result of the Parties’ submissions the CAS Panel examined the following issues:

• the validity of the ISCCS and WADA’s requirement that RUSADA procure the delivery to WADA of authentic data from the Moscow Laboratory;
• whether RUSADA complied with that requirement; and
• if not, what Signatory Consequences can and should be imposed.

At first the CAS Panel in this case dismissed the objections to its jurisdiction and settled a number of other procedural matters raised by the Parties.

The Panel established that RUSADA consented to the 2018 WADC, the ISCCS and the Post Reinstatement Conditions. This consent was not compromised or invalidated by the safegards in its defence.

Also the Panel established that the Post-Reinstatements Data Requirement was valid and binding on RUSADA, and non-compliance could lead to consequences under the ISCCS. The Panel does not accept RUSADA’s submission that there were no changes, losses or deletions of data pertaining to results of doping sample analysis.

Based on the evidence the Panel concludes that RUSADA failed to procure an authentic copy of the Moscow Data and therefore failed to comply with the Post-Reinstatement Data Requirement. The steps taken to manipulate the Moscow Data and deceive WADA could hardly be more serious. For that reason the Panel deems that WADA has established that RUSADA in non-compliance with the 2018 WADC.

The Panel regards that, despite having an opportunity to come clean and draw a line under this scandal by providing access to the Moscow Data, Russian authorities engaged in an extensive manipulation of that data. This conduct is likely to thwart or at least substantially hinder the ability to identify those athletes who participated in the doping scheme.

Having further found that RUSADA failed to comply with the Post-Reinstatement Data Requirement, the Panel has accordingly imposed consequences to reflect the nature and seriousness of the non-compliance and to ensure that the integrity of sport against the scourge of doping is maintained.

Nevertheless the consequences which the Panel has decided to impose are not as extensive as those sought by WADA. This should not, however, be read as any validation of the conduct of RUSADA or the Russian authorities.

Therefore the Court of Arbitrtion for Sport decides on 17 December 2020 that:

1. The Request for Arbitration filed by the World Anti-Doping Agency (“WADA”) dated 9 January 2020 is partially upheld.
2. The Panel has jurisdiction to determine this matter.
3. The Russian Anti-Doping Agency (“RUSADA”) is found to be non-compliant with the World Anti-Doping Code (“WADC”) in connection with its failure to procure that the authentic LIMS data and underlying analytical data of the former Moscow Laboratory was received by WADA.
4. The orders below come into effect on the date of this Award and remain in effect until the second anniversary of that date (the “Two-Year Period”).       [...]
5. RUSADA is required to satisfy the following reinstatement conditions during the Two-Year Period (or any shorter period as agreed between WADA and RUSADA) in order to be reinstated as a compliant Signatory.      [...]
6. RUSADA is to pay a fine to WADA of 10% of its 2019 income or USD 100,000 (one hundred thousand United States dollars) (whichever is lower) within 90 (ninety) days from the notification of the present arbitral award. Such amount shall accrue interest at a rate of 5% per annum in case of non-timely payment.
7. The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne 80% by RUSADA and 20% by WADA.
8. RUSADA is ordered to pay WADA a total amount of CHF 400,000 (four hundred thousand Swiss francs) as contribution towards its legal and other expenses incurred in connection with these arbitration proceedings within 90 (ninety) days from the date the present award. Such amount shall accrue interest at a rate of 5% per annum in case of non-timely payment.
9. RUSADA and each Intervening Party shall bear its own legal costs and other expenses incurred in connection with this arbitration.
10. All other motions or prayers for relief are dismissed.