By Prof Dr Steve Cornelius, Sports Law Centre, University of Pretoria, South Africa
I recall a sports law conference in Milwaukee more than 20 years ago, when I was still very much a young unseasoned academic, eager to find my feet and make a name for myself in a highly competitive and uncertain world. Probably due to youthful inexperience and exuberance and, perhaps partly due to my slightly abrasive nature, I took an opportunity to pose a question to Dick Pound, who had not long since taken the helm of the newly established World Anti-doping Agency. It was more of a comment than a question, really. When I was handed the microphone, I said: “WADA is just a dishonest attempt by the International Olympic Committee and international sports federations to portray a clean image while actually hiding the true extent of doping in sport”.
Of course, Pound responded with the utmost indignation and then stated: “rest assured, if you are doping, we will find you and we will ban you from competing in sport”. Even today, I often question why I simply made the blunt comment that I did. On the surface, at least, it would appear that WADA has come a long way and done a tremendous amount of work to clean up sport and get rid of the drug cheats.
Then a headline hits home and reminds me why I acted like a bull in a china shop: “WADA to review Chinese doping case after global backlash”. Then I reflect on the work of WADA and begin to wonder anew whether WADA truly has any credibility.
The matter revolves around 23 Chinese swimmers, who tested positive for trimetazidine (TMZ), shortly before the Tokyo Olympic games in 2021. The Chinese anti-doping authority CHINADA conducted an investigation and discovered traces of TMZ in the kitchen of the hotel where the swimmers had stayed. As a result, CHINADA cleared the swimmers of any wrongdoing and many of them were cleared to take part in the Olympic Games where some of them won medals.
WADA accepted the CHINADA results and did not appeal the matter. Now, this is where it becomes strange. TMZ is a heart medication that is most commonly used to treat angina pectoris. It is not the kind of substance that one would ordinarily expect to find in a hotel kitchen. Secondly, TMZ has an extremely short elimination half-life that is usually calculated in hours, rather than days. If athletes had ingested trace amounts of TMZ, it would most likely have cleared their systems before any doping tests. Longer clearance times would suggest that more than trace amounts had been ingested.
The matter would have rested there, had it not been for that one thorn in WADA’s and many an athlete’s side, Travis Tygart, the chief executive officer of the US Anti-doping Agency (USADA), who uncovered the matter and openly accused WADA of a cover-up. As a result, WADA has now announced that it has appointed retired Swiss prosecutor, Eric Cottier, to conduct an independent review of all the files from the case, whilst WADA would conduct an audit of CHINADA’s processes.
The so-called independent review is highly questionable. Cottier is a former lead prosecutor for the Swiss canton, Vaud, which coincidentally is where Lausanne is located, and where the International Olympic Committee, the Court of Arbitration for Sport and many international sports federations, including World Aquatics, are based. The regional government also donates significant amounts of money to these sports bodies. Cottier was also involved in the case of Paolo Barelli, who was accused of irregularities during his time at the helm of European Aquatics.
This is not the first time that WADA has appointed someone with ties to an international sports federation, to oversee so-called “independent” reviews. In 2016, WADA appointed Jonathan Taylor to head the Independent Observer Team at the 2016 Olympic Games and Taylor also chaired the WADA Compliance Review Committee. By the way, Taylor has also acted as attorney of record for World Athletics.
In addition, the “independent” investigation into the Russian doping scandal was headed by former WADA president Dick Pound. In 2016, the lead investigator, Jack Robertson, detailed how he struggled to get information from WADA and how he felt that he was often frustrated in his efforts to obtain the necessary information.
So somehow, WADA either does not understand what the term “independence” means, especially when used in a legal sense, or WADA, once again, is trying to blow smoke over a matter to portray an image to the public which it does not uphold. I for one, share the concerns of Travis Tygart that this so-called independent review is only a public relations exercise, and nothing will come of it. I also have little faith that the Chinese government, which is notorious for the strict control of information, will provide much useful assistance in any independent audit.
In dealing with matters, such as the one involving Chinese swimmers in the way it did, WADA has also shown the hidden racism prevalent in sport. If this was South Africa, Kenya or any other African country, WADA would, no doubt, have appealed the matter to CAS. WADA, in the past, has not hesitated to appeal independent decisions involving individual athletes made by the South African Institute for Drug-free Sport, to CAS. Yet, a potential incidence of institutional doping gets swept under the rug. If WADA is serious about this investigation, let them appoint one of the prosecutors of the International Court of Justice to investigate it. A lawyer with ties to the sports federation concerned is not independent.
To add salt to the wounds, it should also be noted, that none of the high-profile doping cases, such as Lance Armstrong, came to light thanks to WADA. They were all the result of others who worked tirelessly to safeguard sport against the scourge of doping!
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