‘We Would Do Exactly the Same Thing:’ WADA Answers Questions on Chinese Doping Case
The World Anti-Doping Agency on Monday held a press conference with global media to address details and fallout from the weekend’s revelation of doping positives within the Chinese swimming program from early 2021 that it deemed to be environmental contamination.
For nearly two hours, WADA made executives on its legal, scientific and investigative teams available to provide insights on its processes in the investigation and how they arrived at a decision to allow swimmers who tested positive for Trimetazidine (TMZ) in early 2021 to compete through the Tokyo Olympics that summer. WADA officials spoke for nearly 40 minutes, then opened for more than an hour of questions. They answered a number of queries from the media and several that will have arisen more broadly.
A few of the most notable answers:
Why was this determined to be environmental contamination?
WADA provided a number of supporting facts. First and foremost, they reminded media that the determination of environmental contamination originated with the primary investigative body, China’s anti-doping agency, CHINADA. WADA’s role, upon receiving the case file, was to undertake a scientific and legal review to see if there was recourse to change that decision.
WADA ultimately assented to CHINADA’s decision of environmental contamination citing several factors:
- Low levels of the TMZ present, below the reasonable “influence of the pharmacology” of the drug.
- A sequence of testing over days that included some athletes being tested multiple times and their results varying without following a set pattern. (WADA specifically cited the Kamila Valieva case, also with TMZ as the drug in question, as showing varying test results as fitting a pattern of eliminating the drug from her system which was not present in these.)
- Circumstantial evidence that the positive tests fit a pattern of originating from one hotel whose kitchen was found to be contaminated. WADA vetted the possibility of the drug being connected to coaches, regions or training groups, but found no correlation. Olivier Rabin, WADA’s Senior Director of Science and Medicine, called the clustering of cases “extremely unusual”.
The tests were detected in 60 urine samples in which 23 swimmers tested positive a total of 28 times. CHINADA logged the positives to the global system in mid-March. WADA was advised of an investigation in April. CHINADA determined environmental contamination around June 15, at which point WADA began a review of the case and made the decision in early to mid-July not to appeal to try to overturn CHINADA’s decision. Effectively, WADA did not have any say in the case before the decision on June 15. (The Tokyo Olympics opened on July 23.)
WADA, per director of intelligence and investigation Gunter Younger, followed up on “uncorroborated information from an unvetted source” on two tips regarding Chinese suppression of tests. The organization made pains to point out that it sought confidential and previously unpublished scientific information from TMZ’s manufacturer. It also vetted the potential of micro-dosing TMZ, which is not a known doping practice, but found no evidence of that.
WADA president Witold Banka offered a robust defense of the way his organization handled the case.
“At every stage, WADA followed all due process and diligently investigated every lead and line of inquiry in this matter,” Banka said. “If we had to do it over again now, we would do exactly the same thing. We carefully reviewed the decision of the Chinese anti-doping organization, from every perspective. We interrogated every piece of evidence and gathered further information as appropriate.”
What CHINADA nor WADA did find was an actual source of how the TMZ got into the hotel kitchen, from which it was deemed to contaminate athletes’ food.
Why were there no provisional suspensions?
Provisional suspensions are not the purview of WADA, which in this case served as an upstream adjudicating body. WADA empowers national anti-doping associations to carry out testing and levy judgements. That means any provisional suspension would’ve had to come from CHINADA.
“WADA has no authority itself to impose a provisional suspension,” general counsel Ross Wenzel said. “It’s for the anti-doping organization that has the results-management authority for the case. In this case, that would’ve been for CHINADA.”
Wenzel, who was not in his current position in 2021 but was one of WADA’s independent reviewers of the case as an external counsel, pointed out that pathways exist to remove provisional suspensions in certain cases. He indicated an early 2021 wave of COVID-19 in Chinas a mitigating circumstance that would’ve made evidence gathering, investigations and hearings for 23 athletes impossible. “There are obvious problems, I would suggest, in asking each of these athletes separately and individually to investigate and seek to explain the source of the TMZ in the context of a provisional hearing,” he said.
Why wasn’t this disclosed, and would it ever have been disclosed by WADA?
First, WADA is not the one to make that disclosure. If a disclosure is to be made, it would come from the originating investigative body, CHINADA.
“It is not for WADA to make the mandatory public disclosure,” Wenzel said. “It’s not for WADA to publish anti-doping rule violations. It’s for the anti-doping organization with results management authority.”
So the tests weren’t WADA’s to disclose. And CHINADA, by finding that there was no anti-doping rule violation, is absolved of having to report anything because there is technically nothing to report. Both cited athlete privacy and the lack of a violation to disclose as the reasons why.
Further, the process is generally to disclose public tests not until after a decision is made by the investigative body (in this case, that would’ve been no sooner than June 15) and once WADA has had a chance to review any objections (mid-July) and if an athlete or governing body’s appeals are exhausted. That all can take years.
Could WADA have appealed the case, and if so why didn’t it?
In short: Yes, it could’ve appealed to the Court of Arbitration for Sport (CAS). It didn’t, seeing no chance to win or that a win would be little more than hollowly symbolic.
Wenzel’s answer is included in full. It came to a matter of innocence (i.e. no ban whatsoever, as CHINADA found) and a no-fault violation (which would have a limited sentence). Given delays in the investigation, by the time WADA could’ve appealed to the Court of Arbitration for Sports (CAS), it had a low probability of winning, and the win would’ve been to change a decision of no ban to a no-fault shortened ban that would’ve been close to expiring down from two years to likely months, already served) and would’ve been stayed on appeals to allow Chinese athletes to compete in Tokyo anyway.
From Wenzel:
Theoretically WADA could’ve appealed against the decision to close these cases with no violation to the CAS, seeking a finding of violation with no fault. As I mentioned, based on external advice, WADA did not exercise that right of appeal. And let me be clear what that appeal would’ve been had WADA chosen to have made it in July 2021, shortly before the Tokyo Olympics Games. It would’ve been 23 appeals against athletes that we accepted were innocent, bore no fault in respect of their violation and were contaminated through environmental food contamination. And let me also be clear, even if we had launched that appeal, no publication could’ve been made, even if we were successful and at the end of the CAS proceedings, we had established that this was a violation with no fault, which could’ve been the basis for publication, we would’ve had to have waited for the end of these CAS proceedings for there to have been any publication, and that would’ve taken at least six if not nine or 12 months or longer to achieve. Even if we had launched that appeal, the athletes would’ve still competed at the Tokyo Olympic Games. WADA would not have been seeking any period of ineligibility against them at all. And let me also be quite clear, that if we had launched that appeal, which we chose not to, we wouldn’t have been seeking any disqualification of subsequent results after the in-competition result in which the positive samples arose (the January meet). There would’ve been no basis given that there was a no-fault case based on the case law to have sought disqualification of subsequent results.
Ultimately, we took the view that appealing these cases, when we accepted that the athletes were innocent, had no fault, in order to get a decision perhaps one year later that there was a technical anti-doping rule violation with no fault, simply did not make sense and wasn’t fair, wasn’t fair on the athletes in particular because it would’ve forced many of the athletes to respond on the eve of the Olympic Games in Tokyo to legal proceedings against them despite the fact that it was found that they had no fault.
Banka did point out that while this case was going on, WADA was fighting the highest profile Chinese swimmer, Sun Yang, at CAS.
What is World Aquatics’ role in this?
Limited, according to the press conference. World Aquatics was only mentioned twice. By the time the case appears to have gotten to its jurisdiction, WADA had already assented to CHINADA’s determination.
Here’s Banka on the decision not to pursue the case:
“Considering all aspects of this particular case, the decision was taken not to appeal to CAS. Why not? We had no evidence of wrongdoing to present and no credible way to disprove the contamination theory that was accepted by CHINADA and a position that was also accepted by World Aquatics. In short, if WADA had taken such an appeal and challenged the contamination explanation, we would certainly have lost. That was the advice of our internal experts and external legal counsel. That is the end result, and everything that I’ve heard and seen since there leads me to be convinced that we made the right decision.”
Is this situation an impetus for change in WADA?
Probably not. Banka offered a vigorous defense of its process, one that is predicated on trust in national anti-doping agencies to allow the world code to be uniformly enforced. WADA has mechanisms to bring non-compliant NADAs to heel, but it can’t be on the ground everywhere.
Wenzel went as far as to allow that if there had not been a mitigating global pandemic that made testing a biohazard, some aspects of the investigation might have proceeded differently – freezing of samples, for instance, leading to a two-month lag in the investigation, or WADA inspectors being in China to verify.
WADA is undergoing a revision of its code, due in 2027. Banka didn’t sound like someone weighing this heavily among the changes.
“Currently we are under the revision of our code and we have broader consultations,” he said. “So if it’s necessary, we are always open to review our rules to strengthen and update then. In this particular case, we followed the process and we don’t see any room or improvement when it comes time for this particular process and what we decided.”
Wenzel pointed out that one of the entities against disclosure of not just no-ban results but no-fault results is USADA, which pushed back at WADA not disclosing these. He also left it open as a discussion point.
“Should there be no disclosure in a case where the athletes is at no fault and is, despite exercising the utmost caution, innocently exposed to prohibited substances? It’s an interesting debate,” he said. “And it’s something that the code revision team for the process of the 2027 code is in the process of considering based on USADA’s comments and others.”
Read more:
- American Swimmers Told of Chinese Doping Violations at Tokyo Olympics
- 23 Chinese Swimmers Cleared To Compete At Tokyo Olympics Where Some Won Gold Despite Positive Drug Tests: Reports
- WADA Releases Statement on Chinese Doping Positives; Threatens Legal Action
- Column: Lack of Transparency in Chinese Doping Tests a Glaring Failure of Anti-Doping Authorities
- ‘What happened to strict liability?’ Adam Peaty Hits Back at WADA over Chinese Doping
- USADA CEO Travis Tygart Blasts WADA’s ‘Defense Tactics’ as It Threatens Legal Action
- USA Swimming, Swimming Australia Respond to Chinese Doping Revelation
- Column: As Chinese Doping Controversy Rages, Clean Swimmers Rightfully Angry About ‘Irreparable Damage’
What was the specific evidence that TMZ came from the kitchen?