BEIJING — The vice-president of the United States and I were in law school together a few years back. It was in San Francisco, at the University of California’s Hastings College of the Law. She is two years behind me. I am class of 1987. She is 1989. Let’s just say she has gone on to greater heights.
But there’s this: I did pass the California Bar, and on the very first try! You can look up my license (inactive) at the State Bar website. It’s number 130832. After not even a year of practicing law with a big firm in San Francisco, I went back to journalism. The rest is history, or something like that.
I relate these matters not because being a lawyer makes me brilliant, or smarter than the average bear. We all know a lot of dumb lawyers. And there are a lot of good lawyer jokes. The point is this: having gone to law school means I was taught the ways of systems and to appreciate in particular the value of the rights of an individual. In legal systems, this means in particular the rights of an accused.
This brings us to the case of the 15-year-old Russian skater Kamila Valieva, who rightly and appropriately was cleared Monday by a three-judge panel of the Swiss-based Court of Arbitration for Sport to keep competing at these 2022 Olympic Winter Games, the panel citing her status as a “protected person” and, among other things, issues of “fundamental principles of fairness.”
Kamila Valieva at practice Monday with choreographer Daniil Gleikhengauz, left, and coaches Eteri Tutberidze, center, and Sergei Dudakov, right // Getty Images
As this column — alone from the start in the western press — has outlined, the key to the matter is that Valieva is 15. Thus, per the 2021 version of the World Anti-Doping Code, that makes her a “protected person.” A “protected person” is someone who is not yet 16. Under the rules, a “protected person” has special status when it comes to what she (or he) might have to prove, or not, and what penalties she might get, or maybe even not.
To be clear, there are different sets of rules at the Olympics for different things. One set relates to age-related eligibility to compete; for figure skating, those are set by the International Skating Union. Doping rules across the board, no matter the sport, are governed by the World Anti-Doping Code. The current edition of the Code took effect on Jan. 1, 2021. That’s where you find “protected person.”
Valieva tested positive Dec. 25 for trimetazidine, a drug used to treat angina, a heart condition. The level has not been made public. A trace? Who knows? The sample was not returned by the Stockholm lab until Feb. 8. That is the day after — Feb. 7 — her skate helped the ROC win gold in the team competition.
On Feb. 9, a Russian Anti-Doping Agency, or RUSADA, commission lifted a provisional suspension. With time of the essence, CAS met Sunday and issued a ruling at 2 p.m. Beijing time today, the 14th. The individual event begins at 6 p.m. tomorrow, the 15th. Valieva, who can throw quads the way the rest of us breathe through K95 masks, is a favorite.
The ruling Monday noted that the facts in the matter remain “very limited.”
It also went on, first beat, to underscore her status as a “protected person,” with those different standards.
It then declared it would cause Valieva “irreparable harm in these circumstances” not to be able to compete — after taking into account “fundamental principles of fairness, proportionality, irreparable harm and the relative balance of interests,” making a point to note that she, one, has not tested positive in-competition here at the Games and, two, is 100% at some point down the road going to have to go through a full hearing on the merits.
With that in mind, it also offered clues about the direction of that hearing — saying there were “serious issues of untimely notification of the results” of her Dec. 25 test, it not being reported until the day after she had competed, “which impinged upon [her] ability to establish certain legal requirements for her benefit, while such late notification was not her fault, in the middle of the Olympic Winter Games Beijing 2022.” [emphasis mine]
Later Tuesday, the IOC announced that if Valieva medals in the individual event, there will be no medals or flowers at the women’s individual event at these 2022 Games. Because, of course. What else?
Back to the CAS statement: nowhere, of course, did the panel say anything about “state-sanctioned doping.”
Why would it?
It was not at issue.
To read the press, to watch the TV, to hear the politicking from U.S. Olympic leaders, you surely would have thought it was.
So this must be said:
All this discourse, this bombast, has been a disservice, and on so many levels.
This matter is not — repeat, not — a matter of Russia, Russia, Russia, bad, bad, bad.
This is, always was, a matter of a 15-year-old girl entitled to due process and fairness.
If it was you — if it was your 15-year-old — if it was an American 15-year-old — in the dock, all of you with your outrage would be screaming for due process and fairness.
There’s no assertion that the Swedish lab was in on anything. This case is a vivid reminder that anyone anywhere — American, say — can be one missing FedEx shipment away from catastrophe. One pandemic-stricken lab away from chaos. One bureaucratic foul-up away from disruption.
And there’s always a real person at the center of things.
Everyone — anyone, everyone, especially a 15-year-old girl, unable under any western legal notion of offering an adult formation of “intent” — is innocent until proven otherwise.
As Sting once memorably reminded us in song, the Russians love their children, too.
Further: if two years of death and illness amid a global pandemic has taught us anything, it is that we need more empathy in our world, not less. More of the aspirational ideal of the Olympics.
Less politicking and hypocritical, sanctimonious, righteous nationalism.
To quote one of the hardest hard-liners of the moralist anti-doping crusaders, Bill Bock, the former U.S. Anti-Doping Agency counsel, in a piece he published literally hours before the decision that predicted — just as I did — that Valieva not only would but should be allowed to skate, literally and figuratively: “… the for-public-consumption position of the sport executives is that a 15-year-old athlete should be perp-walked out of the Olympics because the adults did not handle her case in a timely fashion.”
That’s what we want?
That’s what Sarah Hirshland, the chief executive of the U.S. Olympic & Paralympic Committee, wants?
Apparently so.
This, in a Twitter post, is what she had to say in response to the CAS decision, and the opinion here is that it’s appalling:
“We are disappointed by the message this decision sends. It is the collective responsibility of the entire Olympic community to protect the integrity of sport and to hold our athletes, coaches and all involved to the highest of standards. Athletes have the right to know they are competing on a level playing field. Unfortunately, today that right is being denied. This appears to be another chapter in the systemic and pervasive disregard for clean sport by Russia.
“We know this case is not yet closed, and we call on everyone in the Olympic Movement to continue to fight for clean sport on behalf of athletes around the world.”
This is unbelievable, really. Hirshland has no facts, zero, to assert with any credibility that this appears to be another chapter in the Sochi 2014-linked Russian saga. If there are those facts, she has a moral and legal obligation to bring such evidence forward. Otherwise, what? It’s rhetoric. Empty rhetoric.
If Hirshland really wanted to show the world the highest of standards, the best that America stands for, she could have offered this, what the vice-president and I learned in law school in San Francisco:
In systems, the authorities typically wield tremendous power. Mechanisms can be devised to afford an accused certain protections. Since 1776, when we declared that we were all equal, and all the more so since 1791 and the ratification of the Bill of Rights, the United States of America has been the world leader in not just affirming but giving voice to the rights of the individual, particularly our 4th, 5th and 6th Amendment rights. Those rights have taken on deeper and richer meaning since the enactment of the 14th Amendment, after the Civil War, and even more profound meaning since the 1960s, since Gideon, Miranda, Katz and other cases all but revolutionized criminal procedure. Are we flawed as a society? Surely. Can we do better? Certainly. But we mean it, dammit, we mean it, when we say you are innocent until proven otherwise. And the authorities have to prove otherwise.
Especially when you are, you know, 15.
At 15, in the United States, you would be maybe, probably in ninth grade.
You know what’s a really typical book to read in freshman English all across the United States? The Catcher in the Rye, J.D. Salinger’s 1951 masterpiece. How appropriate for these Olympics. What are the two main themes of that book?
Isolation.
And protecting the innocent.
Back to Hirshland, and the “unfortunately” — what’s most here is precisely the narrative she and USOPC board chair Susanne Lyone have helped amplify, one that has driven much of the mainstream media, particularly the American press, over the past several days in its reporting over the Valieva matter.
We will all do well when this matter is over to engage in some serious study and reflection because pack journalism is a deadly menace to democracy.
You don’t have to go to law school to know that the First Amendment charges us in the American press to hold people accountable — to try to get to the truth.
Nowhere in its Feb. 11 Page One story on Valieva do the words “protected person” appear in The New York Times — though the fact that she is 15 is the key to unwinding the case. Instead, the Times reprises in the third paragraph, what journalists call the nut graf, the essence of the story, the “state-sponsored doping scheme” that has been an eight-year saga.
In all, 27 paragraphs. The focus: “an embarrassing failure” of systems. What about the 15-year-old at the center of it? What about her? Her humanity?
In the 13th and final paragraph of what in journalism is called a “sidebar,” a story that accompanies the main story, the Times gets around to noting Valieva’s status as a “protected person.” That story did not run on the front page of the printed editions. It ran on page 6 of the D section — for all intents and purposes, buried.
The Wall Street Journal’s Feb. 10 article? Nothing about Valieva’s “protected person” status. But two full paragraphs about the case potentially presenting “a potentially explosive controversy because it involves Russia.”
USA Today’s anti-Russia coverage has been so brutally over the top it’s — it’s just over the top, that’s all.
What’s in these East Coast-based print outlets typically serves as feed for broadcasters, including CNN, NPR and more. The circle completes itself because typically no one feels they’re getting beat on the story. But this doesn’t necessarily create journalism of service. This creates a narrative.
There have been exceptions. The Washington Post, in its Feb. 11 story, noted that Valieva was a “protected person.” Of course, the ITA had made it easy — it said so in the very first sentence [emphasis mine] of the statement it had issued that very day. Which, of course, was available to the Post, Times and everyone.
So why the harsh and unyielding spotlight on Russia, Russia, Russia?
Predictably, what that sort of focus leads to is what we got Monday in the Journal, in the aftermath of the CAS announcement — furious backtracking, the journalistic equivalent of the Flintstones, the second paragraph saying that the ruling “came as a surprise,” the third graf offering that the panel “appears to have relied on a novel provision in the anti-doping code that created room to arrive at a solution other than an automatic suspension for ‘protected persons,’ specifically athletes under the age of 16.”
Novel provision? It’s February 2022. It was new for the 2021 version. Which took effect 13 months ago.
The Russia-is-bad narrative is, to be honest, evocative of the movie Rocky IV, and Ivan Drago is not gonna pop out here any moment to get whacked by Rocky Balboa. That movie was made in 1985. The Soviet Union fell in 1991. Enough already.
The president of the IOC, Thomas Bach, has made it abundantly clear, time and again, why the Russians are at the Games, Summer and Winter. By now, no one is questioning a state-associated doping story. That’s established. It’s also completely, thoroughly irrelevant — at least to the matter of why the Russians are in Beijing and were in Tokyo last summer, too, as ‘ROC.’ If you don’t like it, get over it. As Bach said last week at the IOC general assembly, the point of an Olympics is to gather all of humanity together in all its diversity. All means everyone. Everyone includes Russians as ROC.
Moreover, if more of us in the press were paying closer attention to what the IOC was saying the last couple of days instead of, again, beating the Russia-is-bad drum, the clues that Valieva was gonna be cleared to skate were all there.
The IOC almost always speaks in code. Even this week, when it purportedly was saying nothing about Valieva, it spoke loud and clear, if you were listening. That is, the IOC was not dropping any clues about Valieva herself. But its generalized observations were elsewhere.
On Saturday, IOC spokesman Mark Adams said at a news conference, “Entourage has been overlooked in the past. The IOC, as ever, would welcome investigation into the entourage in all cases where it’s relevant. In this case, as in all cases, we would welcome a strong line from WADA,” the World Anti-Doping Agency, “on that.
“Entourage ranges from doctors and coaches, parents, everyone.”
Indeed, as the New York Times wrote in the very last two paragraphs [again: emphasis mine] of its story Monday after the CAS announcement dropped, and this is the real fight in the Valieva case, not a skater who on ice has proved herself an artist but, let’s be clear, is still just 15:
“Because she is only 15 she is recognized as a ‘protected person’ under anti-doping rules, so her case will meet different standards of evidence and she would face lesser penalties if any, than adults would. It is also possible that she could receive only a reprimand for using the banned drug or for having it in her system.
“The people more likely to face punishment would be any of her coaches, trainers and medical personnel who might have known about her using the drug or who might have given it to her.”
Valieva is in the last group Tuesday scheduled to take to the ice. The call sheet says it’s her turn at 9:52 p.m.
It ought to make for compelling theater. She is, one more time, just 15.