BEIJING — People, let’s smell the coffee, please. The world is not black and white. Them and us. Americans: you want to make like U.S. Olympic athletes have never, ever used performance-enhancing drugs. Like no one in a position of authority at the U.S. Olympic & Paralympic Committee has ever had a doping run-in.
The glass house thing is truly unbelievable.
In the run-up to the 2004 Olympics, it was BALCO this, BALCO that. Any number of U.S. track and field standouts, as the U.S. Anti-Doping Agency would be glad to tell you, were kept out of the Athens Games. Did the U.S. press bray for the American team to be banned from the Athens Games? The 2006 Torino Winter Olympics? The 2008 Beijing Games? No. Why not?
At those 2004 Games, Tyler Hamilton would win the road race time trial. After years of denials — the vanishing twin in utero! — he acknowledged in 2011 that he repeatedly had used performance-enhancing drugs. Lance Armstrong won bronze in the time trial in Sydney in 2000. In 2012, USADA busted Lance big-time. In 2013, he returned the medal. Did the U.S. press scream that the American team should be banned from Rio in 2016? No. Why not?
In 2000, it was well-known in Olympic circles that a U.S. track athlete had run at the Sydney Games after testing positive for a banned drug — that is, cleared to run by American authorities despite a positive test. It took nearly three years to unearth his identity: Jerome Young, winner of the 400 at the Paris 2003 worlds. Young ran in the early rounds of the 1,600-meter Sydney relay, anchored in the final by Michael Johnson. I wrote the Young story. The Americans lost their medals.
To reiterate: Young ran in the relay even though he had tested positive and the U.S. authorities fully knew it. They cleared him to run. They kept news of the positive hidden and hoped to keep it under wraps, presumably forever. When the news came out, were there widespread calls from American outlets to ban the Americans from future Games? Uh, no.
Kamila Valieva at the close of Tuesday’s short program // Getty Images
On Tuesday night, 15-year-old Russian Kamila Valieva took to the ice here at Capital Indoor Stadium amid one of the most frenzied, bizarre, manic environments the Olympic Games has witnessed since perhaps Tonya and Nancy in Lillehammer in 1994.
For a precious few minutes, the focus was where it should be — on the skating, and the short program. There was a glitch on Valieva’s first element, a step out on her triple axel; aside from that, she was simultaneously as ragged and as elegantly fluid as you would expect a 15-year-old who has been through the wringer, and who was in tears at the end, to be. She earned a score of 82.16 and heads into the free skate in first place.
In second and third, Russia’s Anna Shcherbakova, 80.2, and Japan’s Kaori Sakamoto, 79.84.
With two days to go until the free skate, this prediction: we quickly will slide back to the regrettable status quo that has seized the 2022 Olympics.
Perhaps it’s because of the closed-loop, or robot noodles, or because it’s the second week of the Games and people are maybe stir-crazy, or because this case involves the big bear Russia, or because Vladimir Putin’s military has massed near Ukraine, the Valieva matter has caused a lot of people, especially in the United States, particularly in the American press, to rush to unwarranted judgment in a case involving a girl who is just 15.
That rush to judgment is deeply unsettling.
All the more so if you care about perspective, about context and, especially amid a global pandemic, empathy — not sympathy, empathy — for a teen who could be anyone’s daughter or niece or next-door neighbor but just happens in this instance to be Russian.
A huge part of the challenge in the Valieva matter has been getting readers (and viewers) to the intersection of the very few facts available with the readily accessible rules.
Here, for instance, was a column Tuesday in one mainstream outlet:
“What the Court of Arbitration for Sport essentially said in deciding figure skater Kamila Valieva can compete in the Olympic women’s singles event despite having tested positive for a banned stimulant in December is that it’s OK to be a drug cheat if you’re 15 and you have ‘protected person’ status under the rules of the World Anti-Doping Agency. That’s reprehensible on more levels than Valieva has quadruple jumps in her repertoire.”
That’s an excellent hot take. But that’s not remotely what the three-judge CAS panel said. And, critically, Valieva is not a “cheat.” Under no theory is she — at least yet — a “cheat.” The A sample in her case turned up positive for trimetazidine. The B sample is yet to be opened. There has been no adjudication of any sort on the merits. To call her a “cheat” is simply incorrect.
Here was another column:
The IOC, in allowing an extra skater in the long program was “basically telegraphing its opinion that Valieva is radioactive” — she’s 15, under what theory should a teen ever be described that way? — “and might well end up being disqualified later,” then pronouncing, “Valieva is no doubt a pawn in Russia’s awful system of abuse, lies and denial, but the fact is she tested positive for a banned performance-enhancing drug less than two months ago. That’s the very definition of cheating.”
No, it’s not.
Her A sample is the only thing at issue so far. As the International Testing Agency said in the statement it issued last Friday, “The proceedings on the merits of the apparent anti-doping rule violation, including the athlete’s right to request the analysis of the B-sample, will be pursued by RUSADA,” the Russian Anti-Doping Agency, “in due course.”
As for the theory that Valieva might one day be disqualified? Maybe. If her sample levels are proven consistent with use and fault under the rules, she should be no different than anybody anywhere.
The sample was collected Dec. 25. Valieva skated here Feb. 7 in the team competition. The sample was not returned by the Stockholm lab until Feb. 8, the day after. Is it fair to sanction her for a sample that didn’t come back until after she had already performed?
it’s surely interesting to read the didn’t-need-to-be-there suggestion in the ruling the CAS panel issued Monday.
Paragraph 2(d): “The CAS Panel also emphasized that there were serious issues of untimely notification of the results of the Athlete’s anti-doping test that was performed in December 2021, which impinged upon the Athlete’s 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]
The very next words of this ruling:
The panel was “requested to determine the narrow issue as to whether a provisional suspension should be imposed on the athlete. It was not requested to rule on the merits of this case, nor to examine the legal consequences relating to the results of the team event in figure skating, as such issues will be examined in other proceedings.
This — this paragraph — is why far-reaching pronouncements related to “What the Court of Arbitration essentially said …” are entirely off-base.
It’s also why it’s essential to understand what it really did say, and how we can all best understand the situation.
CAS did not — repeat, not — say it is OK to cheat if you are 15 or 14 or 13 or whatever.
Whether Valieva committed a rules violation will be determined in a merits hearing.
The process of getting to and through that merits hearing, to determine if there was a doping violation, and if there is a violation she should then be found at fault will take months. If not longer.
Reminder: everyone hates process unless that process applies to them, in which case suddenly they find they want all the process that’s due.
The only — “narrow” — issue CAS decided Monday was whether she should skate in women’s singles. In legalese, there was a provisional suspension. RUSADA had lifted it. CAS decided to keep it that way while the merits hearing plays out.
Here is what CAS has said it knows:
Not much.
It made the Tuesday ruling “on the basis of the very limited facts of this case,” it said.
The Dec. 25 A sample showed the presence — unclear how much — of trimetazidine. The substance is used for the heart condition angina. For purposes of this discussion, it’s reasonable to assume it’s consistent with contamination, because that’s the argument her lawyers surely are going to make.
Her test results since, including here at the Games, have been clean. CAS said so.
The Dec. 25 B sample — see above.
Denis Oswald, a Swiss lawyer and longtime IOC member who in 2017 had chaired a commission investigating cases tied to the Sochi 2014 disclosures, said after the regular IOC briefing Tuesday that Valieva’s argument at the CAS hearing was “contamination which happened with a product her grandfather was taking.”
The English version of Pravda elaborated:
“Kamila Valieva’s mother, Alsu Valieva, and lawyer, Anna Kozmenko, spoke at court during the hearing of the skater’s case. They said that the concentration of trimetazidine, which was found in the athlete’s doping sample, was negligibly small. It was her grandfather who may have caused the substance to end up in Kamila’s body, they said. He could allegedly drink something from a glass, having left traces of his saliva on the glass before Kamila drank from the glass as well.
“Kamila’s grandfather has an artificial heart: he takes the drug when he hears noises in it. Kamila’s grandfather lives 40 kilometers from the athlete’s house in Moscow. He takes his granddaughter to training sessions every day or stays with her at times while her parents are not at home.
“Experts do not believe this version. Trimetazidine comes available in film-coated tablets or capsules. The drug can only dissolve in the intestines. The only way to transfer the active substance to another person is through vomiting, experts believe.”
Artificial heart? No way. Vomit transfer from grandpa? This version of events ranks right up there with the vanishing twin. Give this to the Russians — they called the BS flag on that version, and pronto.
Another Russian outlet, the Dossier Center, suggested that Valieva was taking another substance, a drug called hypoxen, for heart function. Why? Unclear. Was it listed on her Dec. 25 test forms? Were any other substances?
At any rate, all this is just so much more rank speculation. It’s not — fact. We don’t even know for a fact who, exactly, spoke at the hearing.
The point of hearings is to get to the facts. The first dose of facts we will get: when the CAS ruling more fully explaining Monday’s decision is delivered, it is hoped by the end of these Beijing Olympics.
After that:
Here is how the rules can work when the A and B are positive, and in this context for an in-competition test like the one Valieva took Dec. 25 at the Russian national championships:
1. The athlete is disqualified, and
2. Sanctioned with a period of ineligibility
How long is the sanction?
it depends on the type of substance — two or four years.
That two or four years is then eliminated or reduced (or sometimes increased) based on factors set out in the Code.
1. Someone “not at fault” can see the ineligibility period totally eliminated. See Code section 10.5
2. Someone “not at significant fault” can have the period reduced, and in the case of a “protected person” — not yet 16 — can be reduced to a warning or reprimand with no ineligibility. See 10.6 and for “protected person,” 10.6.1.3
3. Someone more at fault will get two to four years (depending on the substance and other factors)
In Valieva’s case, working through the intersection of what’s what, there would ultimately appear to be four possibilities:
1. She is cleared. Totally exonerated. That is, no doping violation of any sort. How? For example, the B sample doesn’t show trimetazidine.
2. A doping violation is confirmed — some level of TMZ in the B — but she is found not at fault. Result: no ineligibility.
3. Doping violation confirmed but she is found “not to have significant fault,” and given the minimum penalty, which for a “protected person” is a reprimand or warning and no ineligibility
4. Doping violation confirmed, she is found to have some fault and given up to two years off.
Because Valieva is a “protected person,” it does not mean the barn door is suddenly open for a new frontier in bad behavior. Instead, see option 3 immediately above. Under any western legal code, a 15-year-old is not expected to be able to form what we would call “intent.” The question then becomes: how could a panel, judging her by the standards of a 15-year-old, reasonably find that she could bear significant fault in taking, say, a contaminated supplement?
What “fault” does or would a 15-year-old reasonably be expected to bear if a (name it here) coach, physio, doctor or other authority figure gives her a pill and says, take it?
In this context, the authorities have said they intend to investigate Valieva’s entourage. It is urged here that such inquiry be as rigorous as possible. The time has come for WADA and others to get dead-serious about holding the entourage responsible for potential misconduct — especially in the case of adults around a 15-year-old.
Going back now to the “narrow” issue that CAS had to decide: should she be allowed to compete while this process plays out?
The three-judge panel had to balance a lot of stuff. This is what judges do, right? Here: “fundamental principles of fairness, proportionality, irreparable harm and the relative balance of interests as between the Applicants,” meaning the ITA and the other institutions appealing the lifting provisional suspension, “and the Athlete,” Valieva.
“Irreparable harm” is one of those bits of jargon that lawyers toss around. In this instance, going back to the four options above, if Valieva were not allowed to skate and the ultimate finding is any of the first three scenarios, she would be permanently harmed by missing her chance to medal when she would have been found not to have done anything wrong that made her ineligible to compete at the Olympics.
That would be a harm that can’t be undone. That is “irreparable harm.”
On the other hand:
If she were allowed to compete and the fourth scenario is finally what’s what — she ultimately is found to have committed a doping violation, one with enough fault to have been ineligible here in Beijing — she will be disqualified and the other skaters will move up in the standings.
Those skaters will be harmed by not having their moment in the spotlight, no question. But, in the end, they will get their medals. Just like the Nigerians got their golds when the U.S. relay team got stripped after the Jerome Young saga.
In the meantime, the potential harm to Valieva if she were not allowed to skate … and is found not to have committed a violation or not be at fault … was significantly greater than the potential harm to the dozens of other skaters if she were allowed to compete and later found to have committed a violation and been sufficiently at fault to have been ineligible for the Games … because then she can be DQ’d.
It’s process. Way less dramatic than shouting. But some calm, rational assessment will serve us all well. Now and in the long run.