The WADA has accused the CAS panel of rewriting the WADA Code ©Getty Images

The World Anti-Doping Agency (WADA) has accused the Court of Arbitration for Sport (CAS) panel in the Kamila Valieva case of rewriting the Code after it decided against reinstating the figure skater’s provisional suspension, following her positive drug test.

The WADA, responding to the publication of the CAS Arbitral Award, claimed the CAS panel had set a dangerous precedent.

The organisation claimed the CAS panel had decided to "ignore the clear and unambiguous terms" of the 2021 World Anti-Doping Code by allowing mandatory provisional suspensions for ‘protected persons’ to now be considered as optional provisional suspensions.

Valieva is considered a protected person under the Code, due to being under the age of 16.

"This is not what the Code says, not what the Code drafters intended and was never proposed by any of WADA’s stakeholders during the three rounds of Code consultation," a WADA statement read.

"This re-writing of the Code, which would apparently allow ‘protected persons’ to continue competing after testing positive for non-specified substances without any clarification of the circumstances, risks undermining the integrity of sporting competition and the confidence of athletes that they are competing on a level playing field.

"The Panel also takes into account that if the athlete’s case had been heard before the CAS Appeals Division rather than the CAS Ad Hoc Division, she could have sought provisional relief (based on different criteria) and therefore competed.

"WADA does not accept this argument for two fundamental reasons.

"First, the criteria for lifting a mandatory provisional suspension, under the Code, simply do not include the criteria for the grant of provisional relief.

WADA has claimed CAS has set a dangerous precedent concerning how cases involving minors are treated  ©Getty Images
WADA has claimed CAS has set a dangerous precedent concerning how cases involving minors are treated ©Getty Images

"Second, in a scenario where WADA (and/or others) had appealed against the decision of the RUSADA Disciplinary Committee to the CAS Appeals Division, the athlete would have had no need to seek provisional relief given the provisional suspension would have been already lifted," the WADA statement continued.

"Furthermore, if the RUSADA Disciplinary Committee had decided not to lift the mandatory provisional suspension, that decision would not have been appealable under the Code at all.

"It is surprising and of serious concern to WADA that a CAS Panel would see fit to depart from the clear terms of the Code, which was subject to three consultation phases involving all anti-doping stakeholders, including athletes, over a period of two years before being unanimously adopted in November 2019.

"This sets a dangerous precedent, which WADA hopes and expects will be corrected by future CAS Panels."

The CAS Ad Hoc Division in the case was presided over by Fabio Iudica, with American Jeffrey Benz and Vesna Bergant Rakočeviċ of Slovakia completing the panel.

The panel had dismissed a WADA argument that the International Standard for Laboratories recommends rather than compels that samples are processed within 20 days.

The panel claimed it was "rather worrying to hear such a submission when athletes are held to a high standard in meeting their anti-doping obligations and at the same time, the anti-doping authorities are subject to mere recommendations on time deadlines that are designed to protect athletes from late or inconveniently-arising claims."

The written judgement criticised anti-doping authorities for the creation of a situation where Valieva, "through no fault of hers, and without any allegation of improper conduct of anyone... finds herself at the Olympic Winter Games being put on notice of an alleged ADRV [anti-doping rule violation] from a sample taken 44 days prior."

Further criticism was given by the panel, which said "athletes should not be subject to the risk of serious harm occasioned by anti-doping authorities’ failure to function effectively at a high level of performance and in a manner designed to protect the integrity of the operation of the Games."

Processing delays at the WADA-accredited laboratory in Stockholm were blamed on staffing problems brought about by the COVID-19 pandemic.

The WADA has repeated its view that the Russian Anti-Doping Agency (RUSADA) should have followed up to ensure Valieva’s sample was tested and a result recorded in advance of the Games.

Karolinska University Hospital, the WADA-accredited laboratory in Stockholm, reportedly had staff shortages due to COVID-19 ©Karolinska University Hospital
Karolinska University Hospital, the WADA-accredited laboratory in Stockholm, reportedly had staff shortages due to COVID-19 ©Karolinska University Hospital

"In relation to the delay between the sample being collected and the anti-doping laboratory in Stockholm reporting the positive test result, as stated on 14 February, WADA reiterates that it is the clear responsibility of the Anti-Doping Organization that initiated the test, in this case RUSADA, to communicate effectively with the laboratory to ensure the timely analysis of samples, especially in the lead-up to a major event," the WADA said.

"Unfortunately, RUSADA did not flag the high-priority nature of the sample despite being informed by the laboratory of delays being caused by a COVID-19 outbreak among its staff."

The RUSADA had firmly suggested delays in the reporting of the positive test by the Stockholm laboratory, due to a COVID-19 wave, had been to blame.

The sample which returned a positive result for banned substance trimetazidine was taken on December 25.

Subsequent samples collected from Valieva on January 13 and February 7 came back negative, the CAS verdict revealed.

With a provisional suspension not imposed, Valieva was able to compete in the Olympic women's singles event.

Having led after the short programme, Valieva fell several times in the free skate to finish outside the podium positions.

Fellow ROC skater Anna Shcherbakova won the event, with compatriot Alexandra Trusova second and Japan's Kaori Sakamoto third.

A decision on whether an anti-doping rule violation occurred will be made by RUSADA.