Contaminated product and lifting a mandatory provisional suspension: Is there a new standard of proof in case of the All-Russian Anti-Doping Rules?

Abstract

The story of the possible temporary suspension of Russian figure skating star Kamila Valieva during the 2022 Olympic Games was discussed as actively as the results of the competitions. The figure skater passed a positive doping test during the competition in December 2021 but only found out about it on February 8. The Russian Anti-Doping Agency (RUSADA) applied a mandatory provisional suspension to the athlete. However, on February 9, the RUSADA Disciplinary Anti-Doping Committee, at the appeal of the skater, lifted the decision of RUSADA on suspension and the athlete was able to take part in the Olympic games. The International Skating Union, the International Olympic Committee, and the World Anti- Doping Agency (WADA) filed appeals against the Anti-Doping Committee’s decision. The Court of Arbitration for Sport denied all appeals and affirmed the decision of the RUSADA Anti-Doping Committee. The key point was the status of the skater a protected person according to the view of the WADA World Anti-Doping Code — a protected person. At the same time, the special regime for a protected person did not extend to the standard of proof. Such an athlete, like any other athlete, must prove on the basic of a “balance of probability” that a prohibited substance was entered through a contaminated product to lift a mandatory provisional suspension. In the opinion of the RUSADA Anti-Doping Committee, the athlete was able to prove a “reasonable possibility” of a prohibited substance entering her body through a contaminated product. The literal application of the norm of the All-Russian Anti-Doping Rules, in contrast to the WADA Code, is required to prove that “the violation most likely occurred due to the use of a contaminated product”. The extraordinary situation is commented on by the author.