A little more than a week ago, it became known that 16-year-old Jamaican swimmer Mackenzie Headley took two anti-doping rule violations committed in 2022 received a warning without any period of Ineligibility from her country's National Anti-Doping Panel. Can this case set a precedent for the Court of Arbitration for Sport (CAS) in the course of proceedings against the Russian figure skater Kamila Valieva, who passed a positive doping test at the same age, which caused perhaps the loudest scandal in Russian sports in recent years? The correspondent understands.
Information about the decision on Headley was published by the Jamaica Observer, as well as a number of other Jamaican media, on July 21. For the information field, at first glance, the topic is insignificant, at least in the Russian media no one paid attention to it. But we'll start by giving the full text.
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«An independent anti-doping panel has ruled that Jamaican swimmer Mackenzie Headley will not serve a suspension for two doping tests she passed last year, in which prohibited substances were found, but will receive a warning.
According to the panel's release, while there is no significant fault or negligence on the part of the athlete, the results shown at the CARIFTA Swimming Games on April 17, 2022 and the Caribbean Games on June 30, 2022 have been voided.
During the doping control at the CARIFTA Games in Barbados, Headley's test showed the presence of prohibited preparations GW0742, GW501516 and SARM LGD-4033 (metabolites of sulfone, sulfoxide and ligandrol — ed.).
At the Caribbean Games in Guadeloupe on June 30, the athlete was also subjected to a doping test after the competition. The sample was found substances GW1516 — metabolites of sulfone and sulfoxide.
During the proceedings, Headley did not dispute the results of doping testing, but stated that she did not use intentionally prohibited drugs, and called the cause of their discovery in the body accidental hit or sabotage.Let's fix the key points. A Jamaican swimmer at the age of 15 passes two positive doping tests with a difference of two and a half months. In the first, three banned substances are found in her, in the second — two. During the proceedings, she names an accident or someone's wrecking as a reason. The National Independent Anti-Doping Panel issues a Minor Fault or Negligence verdict against her, annuls the results of the competition in which these two samples were taken, and punishes her with a warning without any period of Ineligibility.
Now let's recall the main thing in the case of Kamila Valieva and try to understand whether it is possible to draw analogies here.
Valieva passed a positive doping test at the Russian Figure Skating Championships in St. Petersburg on December 25, 2021. Trimetazidine was found in it at a microscopic concentration (five times less than the detection threshold). This became known only on February 8, 2022 — the day after the end of the team tournament at the Beijing Olympics. The delay was explained by technical problems in the laboratory in Stockholm, where at that time a significant part of the staff was ill with covid.
Immediately after the positive doping test was reported, a temporary suspension was imposed on Valieva. However, a day later, by decision of the Disciplinary Anti-Doping Committee (DAK) of the Russian Anti-Doping Agency (RUSADA), it was withdrawn. This decision was challenged by the International Olympic Committee (IOC), the International Skating Union (ISU) and the World Anti-Doping Agency (WADA) at CAS. The court ruled in favor of Valieva, allowing her to compete in the individual tournament of the Olympic Games.
As arguments that were taken into account, the CAS panel, consisting of three arbitrators, called the following:
— according to the WADA anti-doping code, the athlete is a «protected person», which implies weaker sanctions and other standards of proof of innocence, while the anti-doping rules do not say anything about a provisional suspension in relation to «protected persons»;
— the fundamental principles of fairness, proportionality and irreparable harm that could be caused to a skater in case of non-admission to an individual tournament;
— the delay in notification of a positive test result was also taken into account, which affected the ability of the skater to legal protection.
The IOC, after this verdict, announced that the results of the competition with the participation of Valieva at the Olympic Games in Beijing will be considered preliminary until the end of the trial. Also, until this moment, there will be no ceremony of awarding the winners and prize-winners of the team tournament of figure skaters at the Olympics, where the Russian team with Valieva won gold medals, the US team won silver, and the Japanese team won bronze.
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According to the rules, the anti-doping organization investigating the case, namely RUSADA, had to do everything to hold a hearing within six months from the notification of a positive sample. However, this condition is not mandatory, and on August 8 — six months after the information about Valieva's doping violation appeared — the investigation was not completed. In September 2022, RUSADA nevertheless announced its completion, but at the same time announced that all information on the case would be closed.
As a result, WADA, after a warning, announced that it would exercise its right to redirect the case directly to CAS. This happened in November 2022. And in January 2023, it became known that DAK RUSADA ruled that there was no fault or negligence in Valieva's actions, which meant her full acquittal and no punishment. The only sanction against her was the deprivation of the gold medal of the Russian championship — the tournament at which she passed a positive test.
Not only WADA and ISU disagreed with this decision, but also, which came as a surprise to many, RUSADA itself (note that DAK is formally an independent structure). On appeal, the World Anti-Doping Agency demanded a four-year ban for Camila and the annulment of the results from the date of the sample. International Skating Union — verdict at the discretion of CAS. And RUSADA noted that, in his opinion, the side of the athlete could not prove at the required level the absence of her guilt, but this guilt is insignificant, therefore a warning would be an appropriate punishment.
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So, hearings on Valieva's case at CAS will take place at the end of September this year. And a logical question arises — will the arbitrators take into account the story of the Jamaican swimmer as a precedent? At least one fact in these two cases is identical: both athletes were 15 years old at the time of the doping violation (Hidley turned 16 in December 2022, Valieva in April 2023). Both are «Protected Persons» under the WADA Anti-Doping Code. This, as we have repeatedly analyzed, implies in some cases softer standards for confirming the absence or minimum of guilt. In particular, «protected persons» do not need to prove the presence of a specific source in case of suspected accidental ingestion of doping. Also, special attention is paid to the actions of the athlete's environment, which, due to infancy, may not be aware of responsibility for the actions taken or not be able to counteract the actions of adults.
There are, of course, differences in these cases. Somewhere they are obvious, somewhere there is not enough documented information to draw an analogy. Still, in both cases, the detailed results of the investigation remain closed.
Nevertheless. A Jamaican swimmer has two positive doping tests. In the first, three prohibited drugs were found (means for quickly gaining lean muscle mass, increasing strength and burning fat). In the second — two. There are two and a half months between these trials. By the way, a month after the second positive doping test, Headley performed at such a major tournament as the Commonwealth Games in Birmingham. News of her suspension only surfaced at the end of 2022, with hearings on its removal taking place in February 2023. After that, the athlete again participated in the competition.
But we will not delve into the surprising procedural issues of the case of the Jamaican athlete now, although, of course, the fact that in the case of Valieva WADA did not wait and forwarded the case from RUSADA to CAS almost as soon as such an opportunity arose. In the case of Headley, a year and three months passed from the delivery of the first positive doping test to the verdict of the national anti-doping panel, and no reaction was received from WADA.
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Valieva has one positive doping test, she has one heart drug at a concentration five times lower than the detection threshold. As we have already noted, the temporary suspension imposed on the Russian figure skater was removed very quickly — in just a day, and CAS has already managed to agree with this, allowing her not only to the individual competitions of the Beijing Olympics, but also to all subsequent tournaments where Valieva with full right spoke and continues to do so.
The next important point: Headley stated that she did not knowingly take illegal drugs, citing an accident or sabotage as a possible reason for their entry into the body. A detailed document submitted by CAS states that Valieva's side at the Beijing Olympics also claimed an accidental exposure to trimetazidine, which her grandfather was taking as a medication at the time. It was assumed that traces of this substance could be on a glass of water. What line the Russian figure skater and her representatives are now following is not known for certain, this information is closed, but some experts have criticized the version with a glass.
It should be mentioned that the practice of issuing verdicts in doping cases involving «protected persons» can be said to be non-existent. This concept appeared in the WADA code only in 2021. Young athletes competed at the Olympics and other major competitions before, but the same rules applied to them as for adults. And among the high-profile doping stories, only the case of the Romanian gymnast Andrea Raducan at the 2000 Games in Sydney, where a 16-year-old athlete lost gold in the individual all-around due to a cold medicine with pseudoephedrine, is remembered.
Now we have two cases of «protected persons» at the same age, in both the national anti-doping authorities consider the athletes' guilt either absent or minimal, not involving any period of Ineligibility. So, will the case of the Jamaican swimmer set a precedent for CAS in deciding on the Valieva case? And is it possible to talk about this at all without knowing the details of the investigation into the circumstances of these cases?
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“In principle, the stated goal of both the World Anti-Doping Code and the CAS Code is uniformity of practice. Therefore, of course, the case of the swimmer from Jamaica will be taken into account during the consideration of Valieva’s case,” said sports lawyer Anna Antseliovich. «, each case is considered individually. And when making a decision, the arbitrators take into account a huge number of factors. It is difficult to comment on this situation, since we do not see the rationale for the decision in the Jamaican swimmer — whether the source of the prohibited substance in the body was established. But minor fault or negligence — precedent that speaks for itself.
“In any case, many other factors are taken into account, so there will never be a full tracing paper,” the lawyer added. “In some cases, the characteristics of the athlete from teammates are taken into account. The impression that the athlete made on the arbitrators can affect. For example, in the decision on the case Australian swimmer Shayna Jack CAS stated that she does not come across as a person who deliberately deceives, and they believe her. Under the WADA Code, a «protected person» in determining no fault or negligence or no significant fault or negligence is not required to prove that the substance entered the body from any particular source. But ignoring questions on this topic and saying “I don’t know anything, figure it out for yourself” will also fail. Antseliovich also drew attention to this.
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“In practice, you still need to demonstrate certain factors of the absence or insignificance of guilt, and if you don’t know the source, how can you demonstrate it? Therefore, these articles are rarely used without specifying the source of the prohibited substance,” the lawyer emphasized. this happened to a Jamaican swimmer, then this, of course, is a precedent. But I think that with a high degree of probability the decision of the national anti-doping agency of Jamaica will be appealed by WADA. They rarely allow such a complete forgiveness from the national authorities. They believe that if there is no guilt or minimal , then let CAS confirm it.
It remains to wait for the hearings on the case of Valieva in the Court of Arbitration for Sport, which will be held at the end of September, and the subsequent verdict. The idea that Camila may be to blame for something cannot come to any adequate person. Once the CAS arbitrators showed adequacy in relation to her, so we hope for justice even now.