BEIJING — As close readers of the World Anti-Doping Code (hello!) would know, the right to appeal a provisional suspension is new to the 2021 version.
So.
Here at these 2022 Winter Olympics, amid the latest seemingly explosive crisis involving the Russians, and in this instance the 15-year-old skating sensation Kamila Valieva, we have about the most fascinating test case imaginable.
Before everyone everywhere gets even more carried away — and the past two or three days of fevered speculation and nationalistic moral righteousness, in particular from the U.S. Olympic & Paralympic Committee and the U.S. Anti-Doping Agency, completely unhelpful — this must be said, screamed, shouted from the heavens, because it is the salient fact in the matter, legally, ethically and morally:
Kamila Valieva is 15 years old.
Everything in this case turns on that.
She is 15.
Kamila Valieva during the free skate in the team competition // Getty Images / Asahi Shimbun
In the United States, a 15-year-old is typically a sophomore in high school. She cannot legally drive a car. She cannot be admitted to an R-rated film without her parent or guardian. She cannot legally buy alcohol or cigarettes. You get the point. She is 15. Not an adult. Not even close.
With that in mind, the background facts, per a statement Friday from the International Testing Agency, some Olympic history and just general common sense:
1. RUSADA, the national anti-doping agency that has undergone wholesale reform in the wake of the long-running drama sparked by the scandal tied to the Sochi 2014 Games, collected a sample on Christmas Day from Valieva at the Russian skating championships.
2. That sample was sent to the lab in Stockholm, Sweden.
3. On Feb. 7, Valieva competed in the women’s free skate portion of the team event at the Games. She became the first female competitor to land a quadruple jump in the Winter Olympics. She won the competition, earning the ROC 10 points.
4. Russia is competing here as the ‘ROC’ because of the Sochi 2014 drama, still ongoing.
5. Roughly a week ago, at its general assembly, the IOC president, Thomas Bach, made plain why the Russians, why everyone, is here, amid the Sochi saga. The point of the Games is to bring “humanity together in all our diversity,” he said. All means all. That includes Russians.
6. On Feb. 8, the sample that had been collected on Christmas Day was reported. It came up positive for trimetazidine, an angina treatment used to improve blood flow. Angina is a heart condition.
7. Trimetazidine is a “non-specified substance” banned by WADA.
8. On Feb. 9, a RUSADA disciplinary committee lifted the provisional suspension. Because, for the moment, she’s not suspended, Valieva is free to continue to compete at the Games. Emphasis: for the moment.
9. Under the Code, the World Anti-Doping Agency, the International Skating Union, RUSADA and the IOC have the right to appeal the decision to lift the provisional suspension. The appeal goes to what’s called the Court of Arbitration for Sport.
10. The IOC has decided to exercise that right.
11. The ITA will lead the appeal before CAS on behalf of the IOC.
12. This immediate appeal almost surely will deal with one issue, the lifting of the provisional suspension. Why? Time is of the essence. The individual figure skating competition is due to begin Feb. 15.
Before turning to a lengthy — apologies in advance — breakdown of the legalities at issue, first a pause to assess some of the hypocrisy.
The chronology of everything that has played out here this week — and will keep playing out — is critical.
The ITA release came Friday.
On Thursday, here was the outgoing chair of the USOPC, Susanne Lyons, talking to Karen Rosen of Around the Rings during a break in men’s figure skating, and if you want to know why so much the rest of the Olympic world does not much like or appreciate the heavy-handed American approach, here’s why, in just a few telling paragraphs:
“Clearly, what’s on my mind today, is it is so important to the athletes of the world that the values of this movement be upheld, and one of the most important values is integrity of sport. And it’s just terribly upsetting to the athletes today to have that wound potentially reopened again.
WADA rules, Lyons said, not only must be observed “but that when something does go wrong that the sanctions are even-handed across the world — that they are all treated fairly. It doesn’t matter whose athlete it is or how good they are; if someone does something wrong, it needs to be addressed evenly across all countries.”
She went on: “That’s my great fear. I don’t have information on today’s specific situation, but I think that it’s a conversation we need to reopen again. That really the whole credibility of the Olympic movement and the Paralympic movement stands teetering on the edge of us saying that we really believe and live the values that we say we stand for. And I just hope that’s what we’ll see in this specific situation that’s happening today.”
You don’t know the facts? Then on what basis is the credibility of the movement teetering on the edge? This is the kind of remark you maybe — maybe — make at the end of the matter? Not beforehand. Come on.
When Madisyn Cox, the American swimmer, tested positive for trimetazidine in 2018, did the American authorities say the credibilty of the Olympic movement was teetering on edge? Not hardly. Turned out Cox took contaminated multivitamins and, in the end, got a two-year ban justifiably cut to six months — only after proving contamination and surviving an experience later described in a statement provided by her lawyer as “shock, pain and emotional trauma she has bravely faced [that] are almost incalculable.”
Was there any concern Thursday from Lyons about the welfare of a 15-year-old?
No. None.
But wait. Aren’t we in the midst of a “conversation” about athlete mental health? Wait again — that only applies to Americans? Are Americans the only athletes whose mental and emotional health matters? Not a teenager from somewhere else? Some empathy, maybe, for what she might be going through?
Instead, there was this:
“Honestly, we don’t have enough of the facts today to say what should or should not be done,” Lyons said. “We’re going to see that unspool itself throughout the course of the day, so we’ll probably have more thoughts on that, if something has happened it needs to be dealt with. It’s the most unfair thing that athletes of the world can deal with if there’s not going to be fairness in sport. It’s the thing they care most about.”
If you don’t have enough of the facts to say what should or should not be done, why speak out? Especially when someone who is just 15 is at the center of all this?
Same questions for Travis Tygart at USADA.
Because, like Lyons, the suspicion is that he was simply trying to score political points — as he has, repeatedly, throughout the Russian saga.
“This was a complete catastrophic failure to athletes and public confidence,” he said in a quote reported by the New York Times.
What failure? From the day of collection, Dec. 25, until notice, Feb. 8: 46 days.
Let’s compare timelines:
Cox’s sample was collected Feb. 5, 2018. The Montreal lab reported a positive on March 2. Cox herself was not notified until March 29. From collection to notice: 53 days.
Let’s compare, too: when Shayna Jack, the Australian swimmer, tested positive for the anabolic agent ligandrol — popular with bodybuilders — at the 2019 world swimming championships, Tygart did not call it a complete catastrophic failure to athletes and public confidence. Instead, he would say that Jack, who went on to serve a full two-year ban, had tried to comply with the rules at all times:
“To call that person the same drug cheat as someone who is part of the state-sponsored system in Russia is just simply not fair. It’s not right.
Tygart told SwimSwam: “We’ve had dozens of cases where athletes are dealing with low-level positives caused by meat contamination or intimacy with a partner” — see, for instance, the American track standout Gil Roberts, and his successful use of the “passionate kissing” defense — “multivitamin, mineral or supplement contamination.
“The only question is going to be, how many innocent athletes are railroaded before the rules finally change?”
So. Is it that only Russians are guilty until proven innocent? Only Australians and Americans and other westerners are railroaded?
Which brings us, indeed, to the 2021 rules change about provisional suspensions, doesn’t it?
And “multivitamin, mineral or supplement contamination,” because dollars to doughnuts that is almost surely an angle that is going to be argued in the Valieva matter.
Every person deserves due process. This is the thing Susanne Lyons might want to get a refresher about, because if it was a 15-year-old American in the dock, the odds are very, very good that Ms. Lyons and the USOPC would be seeking all the process and fundamental fairness due that 15-year-old.
To reiterate, time and again, Kamila Valieva is 15.
What does this mean?
She’s going to claim she needed angina medicine for her heart? And, further, needed a TUE? Unlikely.
In Russia and elsewhere, trimetazidine is known to be used like meldonium, whether it works or not. But — and, again — Valieva is 15. Who is ordering her prescriptions? Her supplements? We don’t know.
Let’s say she got a supplement from a compounding pharmacy. Did that increase the risk of a contamination? We don’t know.
The challenge for her lawyer, whoever that might be, is that proving contamination in a matter of days is going to be nigh impossible. It took Madyson Cox’s lawyer months.
So now we have to look, perhaps, at the merits — perhaps months ahead — and work back, to try to decide what might happen — again, might — with the immediate issue: the provisional suspension.
In a typical case, the burden is on the athlete to show that ingestion of the substance was not intentional.
The code section at issue is 10.6.1.2, page 70, running onto 71. If the athlete can meet that burden — first, that the stuff in her was through no significant fault of her own or just negligence and, second, that it came from a contaminated product — then the penalty ranges from a maximum of two years down to a reprimand.
Again, a reprimand.
Or, even, say, a one-month ban. In which case Valieva would have done a back-dated time-served by the time the Games began.
In that typical case, the burden is proving where the stuff came from. Then the authorities look at the level of fault.
What does “no significant fault” mean? The legal jargon in the definitions on page 172 means, in plain English, this: he or she did not know or suspect, and could not reasonably have known or suspected, even with the exercise of utmost caution.
Now, ask yourself: how could a 15-year-old have known she was taking trimetazidine?
In any civilized legal system anywhere, we do not ascribe the same “intent” to minors that we do to adults. We just — don’t. So the “know” or “reasonably have known or suspected” part is not fair to apply — it just isn’t.
We don’t hold 15-year-olds to the same rules. Just like we don’t let them legally drive cars until they are 16 or 18, we don’t hold them to the same rules when they’re 15. Same goes here.
Further:
The 2021 code created a special category of athlete. Valieva fits this category. It’s called a “protected person,” see page 174, someone who is not yet 16. That is expressly the definition. Not 16.
If in the typical case, the athlete — of age — has to show how the stuff got into her system, a 15-year-old does not. She is a “protected person.”
Given all that, it’s much easier — in fact, downright reasonable — to understand the RUSADA decision to lift the provisional suspension.
You may want to scream politics. But there is sound legal reasoning, if CAS wants to find it, for a reprimand, or a warning. She is 15. The rules are different for 15-year-olds. It’s that elemental. In which case it follows that there is ample legal ground to have lifted Kamila Valieva’s provisional suspension. In which case she can skate.
All this may — or may not — be the final word.
But:
Instead of posturing and politicking, if it were your 15-year-old in the dock, wouldn’t you want process and fairness?