WADA v RUSADA – Decision of the Court of Arbitration for Sport

The long awaited decision of the Court of Arbitration for Sport (CAS) in the case between the World Anti-Doping Agency (WADA) and the Russian Anti-Doping Agency (RUSADA) was made in December 2020 before being published on 14 January 2021. It is a decision with considerable and unprecedented ramifications. Not just for the Russian sports authorities, teams and athletes but for sport globally as international sports governing bodies in particular grapple with the impact that the decision will have upon their sport. This includes the eligibility of athletes/teams to compete or the ability to stage certain events in Russia. This note briefly highlights some of the key points from the CAS decision before addressing important steps that governing bodies must now take in light of that decision. CAS decision The proceedings arose following a decision by WADA, on advice from its independent Compliance Review Committee, to declare RUSADA non-compliant with the WADA International Standard for Code Compliance by Signatories. The crux being that the Russian authorities had deliberately manipulated and deleted data from its Moscow anti-doping laboratory. WADA imposed a variety of sanctions before the case was referred to CAS. Key aspects of the CAS decision are as follows:

1. RUSADA was bound by the relevant WADA International Standard and could be held strictly liable under its terms.
2. Deliberate manipulation of data did take place (described as being “breathtaking in its audacity”). The Russian authorities were implicated and saw this manipulation as an opportunity to fraudulently attempt to limit their responsibility for previous findings of state sponsored doping. The actions of the Russian authorities could “hardly be more serious” and undermined the anti-doping systems in a “cynical and sophisticated manner” which required robust sanctions.
3. A series of sanctions were imposed for a two-year period (less than the four-year period sought by WADA). They included restrictions on: a) Russia bidding for and hosting major international sporting events; b) the presence of Russian government representatives on boards/commissions of Signatories to the WADA Code and their attendance at certain events; c) the use of the word “Russia”, the Russian flag, the Russian anthem and other Russian emblems at events or on the clothing worn by Russian athletes; and d) athletes competing for Russia who must instead compete as neutral athletes.

Next Steps for Governing Bodies Sports governing bodies now need to review the CAS decision and, particularly, the accompanying CAS order to assess the impact on their sport. The CAS order does, unfortunately, give rise to questions of interpretation and we have already seen examples of WADA seeking to proactively argue for its own preferred interpretation. It is likely that there will be numerous disputes between governing bodies and WADA around what the CAS order requires in relation to the principal restrictions identified in the section above. Governing bodies may need to react very quickly depending upon when Russian athletes are due to compete or when Russian events are due to be held. As a result, we consider that governing bodies should be mindful of the following:

1. Ensuring that their boards and all key departments are fully informed of the decision and its potential impact on the sport and events they are responsible for.
2. Communicating clearly and effectively with stakeholders – particularly a) from international federations to national federations who may be staging events and responsible for elements of the sport’s compliance and b) from national federations to teams/athletes who will need to know the basis upon which they can compete. The CAS order is likely to affect many, but not all, aspects of a governing body’s programme of events.
3. The risk of commercial arrangements or existing contractual arrangements regarding major sporting events being impacted by the decision. It may be necessary to review existing contractual commitments to establish whether they can still be delivered and review whether proposed new arrangements can be entered into as planned.
4. Monitoring the approach being taken by other sports governing bodies regarding their events in light of the CAS decision.

Onside Law specialises in sports regulatory issues and we are available to advise on the ramifications of the CAS decision for sports governing bodies and other event organisers. Please contact us should you require any assistance. You can read this article as a PDF here.