WADA v. RUSADA: An Analysis of the Principle of Proportionality in the Court of Arbitration for Sport
Vol. 42 Associate Editor
In 2016, Grigory Rodchenkov, the former head of Russia’s national anti-doping laboratory, exposed an extensive and systematic state-sponsored doping program. The revelation and the uncovered extent of the conspiracy, fraud, and cover-up resulted in an international effort to sanction and penalize Russian athletics, spearheaded by the World Anti-Doping Agency (WADA). Several years after the scandal erupted and after numerous prior proceedings, in January 2020 WADA filed a “Request for Arbitration” with the Court of Arbitration for Sport (CAS) against RUSADA, Russia’s anti-doping agency, seeking significant sanctions for RUSADA’s non-compliance in procuring authentic data from the Moscow Anti-Doping Laboratory. The CAS released its findings nearly a year later in a 163-page long decision. The CAS Panel affirmed the facts of the case and harshly condemned Russia’s actions. The case facts describe “an institutional conspiracy…within the Ministry of Sport and its infrastructure…[including] RUSADA and the Moscow Laboratory.” The CAS scathingly reproached the Russian authorities, affirming their participation in “deliberate” and “brazen” obfuscation of evidence, “egregious” misconduct, and in orchestrating “a contrived extortion scheme” among other misdeeds. Interestingly, despite disapproval of Russia’s behavior, the Panel effectively halved Russia’s penalties from those proposed by WADA. In its prayer for relief, WADA requested, inter alia, that Russia be banned from participating in any Youth Olympic Games, Paralympic Games, Olympic Games, and any other major international sporting event for a period of four years, that Russian athletes must attend any international sporting event in a neutral capacity, and that no uniform shall contain the word ‘Russia’ in any language, the Russian flag or colors, or any Russian national symbol. Despite a sharp denunciation of Russia’s conduct, the Panel shortened the sanctions’ duration to only two years, determined that Russia’s participation in the Youth Olympic Games would be excluded from sanction, and, while maintaining that Russian athletes must compete in a neutral capacity, allowed the display of Russian colors and the name ‘Russia’ to appear on the uniform if followed by the words, ‘neutral athlete’. The decision has faced sharp criticism from various onlookers from WADA, itself, to popular news media outlets such as the New York Times, and some commentators have described the penalties as a mere “slap on the hand.” The CAS’s reasoning behind the decision arises in part from a question of proportionality. Proportionality, in brief, refers to the principle that there ‘must be a reasonable balance between the nature of the misconduct and the sanction.’ The World Anti-Doping Code (WADC) introduced the ‘principle of proportionality’ as a means to allow some leniency in sanctioning what is otherwise a strict-liability offense. In practice, the application of ‘proportionality’ has proven to be flexible and continuously evolving. When the WADC first introduced the principle into the code, proportionality was a rare and exceptional tool used to reduce a sanction when there was no significant fault on the part of the athlete. The Panel has slowly loosened its restrictive application beginning with the Puerta case. In Puerta, the Panel reduced an eight-year ban to two years after a tennis player tested positive for miniscule, non-performing enhancing amounts of a known stimulant. The player had no recollection of ingesting the stimulation except for the knowledge that his wife often took the drug by dripping it in water where it is tasteless and undetectable. When compared to Puerta, the WADA v. RUSADA decision represents a significant leap towards a less-restrictive application of the principle, imposing a sanction of similar duration for a far more extensive offense. This disparity occurred because the court in WADA v. RUSADA considered the athletes’ position when determining the scope of a proportionate sanction, rather than solely accounting for RUSADA’s actions. It is understandable that the court would adopt a humanitarian approach sympathetic to athletes who either were uninvolved in the scandal or victims with little choice in their participation. However, in this effort to protect the athletes, the panel allowed the Russian Federation and RUSADA to effectively ‘get away’ with what could be classed as the largest systematic doping cover-up of all time, imposing a seemingly wildly disproportionate and lenient punishment. This raises the question for future proceedings—how can the anti-doping regime sufficiently penalize an overseeing agency without disproportionately harming the athletes under that agency? One possibility is to seek a compromise—for instance, to allow the athletes to compete but harshly restrict Russia’s visibility and strictly enforce the athlete’s neutrality. More broadly, it appears that there could be greater clarity and consistency in the meaning and application of proportionality. While understanding that its application is fact-specific and will yield unique results in each case, the Puerta case reveals a dramatically differing understanding of the principle than that applied in WADA v. RUSADA. Such disparities threaten the fairness of CAS’ imposed sanctions, demonstrating the need for clearer guidelines in determining the appropriate factors to be considered and resulting reductions in penalties. While the ‘principle of proportionality’ is an important tool in combatting the imposition of draconian penalties on athletes, its application in WADA v. RUSADA inadvertently benefitted the offending anti-doping agency and resulted in an egregiously lenient penalty. Consequently, WADA v. RUSADA plainly shows that the CAS, WADA, and the global anti-doping regime still have significant work to do in striking an appropriate balance between enforcement and leniency. The suggestions canvassed above may act as useful signposts toward fairer outcomes. However, it is incumbent upon the CAS to apply the proportionality principle in a more consistent and less arbitrary manner if they are to uphold their mandate and purpose.
 Russian Whistleblower Grigory Rodchenkov opens up: I have physical threats to be assassinated, Associated Press (Aug. 12, 2020), https://www.espn.com/olympics/story/_/id/29638553/russian-whistleblower-grigory-rodchenkov-opens-physical-threats-assassinated.  WADA v. RUSADA, No. 2020/O/6689, ¶66 (CAS Arb. 2020).  Id. at ¶35.  Id. at ¶¶613-617.  Id. at ¶124.  Id. at ¶745.  Id. at ¶793.  Jason Albert, Full CAS Ruling for WADA v. RUSADA Released, Faster Skier (Jan.15, 2021), https://fasterskier.com/2021/01/full-cas-ruling-for-wada-v-rusada-released/. “The principle of proportionality implies that there must be a reasonable balance between the nature of the misconduct and the sanction. In order to be respected, the principle of proportionality requires that (i) the measure taken by the governing body is capable of achieving the envisaged goal, (ii) the measure taken by the governing body is necessary to reach the envisaged goal, and (iii) the constraints which the affected person will suffer as a consequence of the measure are justified by the overall interest to achieve the envisaged goal. In other words, to be proportionate a measure must not exceed what is reasonably required in the search of the justifiable aim.” WADA v. RUSADA, No. 2020/O/6689, ¶725 (CAS Arb. 2020).  See World Anti-Doping Code [WADC], art. 9-10; Jannica Houben, Proportonality in the World of Anti-Doping Code: Is There Enough Room for Flexibility?, 1 Int’l Sports L. J. 10, 11 (2007).  See Houben supra note 11, at 16.  Puerta v. ITF, No. 2006/A/1025, ¶¶7-23 (CAS Arb. 2020).  This would have been the athlete’s second offense, resulting in a harsher than usual sanction; Houben, supra note 11, at 16.  Puerta v. ITF, No. 2006/A/1025, ¶11(CAS Arb. 2020).  WADA v. RUSADA, No. 2020/O/6689, ¶¶733-34 (CAS Arb. 2020). The views expressed in this post represent the views of the post’s author only.