The Abuse of Kamila Valieva

A 15-year old figure skater may have been doped and the International Olympic Committee is making things worse

By now, you’ve no doubt heard of Kamila Valieva, the immensely-talented 15-year old Russian figure skater. As the Beijing 2022 Winter Olympics got underway, the 1998 figure skating gold medalist, American Tara Lipinski, commented of Valieva, “A talent like this comes along once in a lifetime.” When the Russians won the team competition last week, it looked like the hype was real and Valieva was going to have Olympic performances for the ages. Then everything changed.

The medal ceremony for the team competition, which Valieva and the Russians won, was mysteriously delayed. Then insidethegames revealed that there was a “legal issue” that had arisen, causing the delay. We now know that the “issue” was a positive doping test for Valieva, apparently for the drug trimetazidine, which is purported to aid heart function. This is where things start to go off the rails.

According to the Independent Testing Agency (ITA, one of the myriad alphabet soup of organizations involved in anti-doping and Olympic sport governance), Valieva’s sample was taken on Christmas day 2021 during the 2022 Russian Figure Skating Championships in Saint Petersburg, Russia. That sample was then sent to the WADA-accredited anti-doping laboratory at the Karolinska Institute in Stockholm, Sweden.

For reasons yet-to-be explained, the Stockholm WADA lab did not return the sample to RUSADA for another 45 days. When it did return the sample on 8 February 2022, the WADA lab reported the failed drug test just one day after Valieva and her Russian teammates had won the team competition. Upon receiving notification of the failed test, the Russian Anti-Doping Agency (RUSADA) immediately suspended Valieva from competition, including the Beijing Olympics.

One day later, on 9 February 2022 Valieva’s team immediately challenged RUSADA’s suspension under the RUSADA Disciplinary Anti-Doping Committee, and won a reprieve. The suspension was lifted. Then, WADA, the International Skating Union (ISU, which oversees the Olympic sport of figure skating) and the ITA said - not so fast - and appealed RUSADA’s reprieve from suspension to the Court of Arbitration for Sport (CAS, the Swiss-based private arbitration body that handles disputes in Olympic sport).

Today, CAS ruled in favor of Valieva and RUSADA — she is free to compete again in Beijing. Note that today’s CAS judgment was only on the suspension of Valieva, it was not a judgment on the merits of the actual doping case — that second case will be heard at another time. Now, if your head isn’t spinning by now, buckle up. There’s more.

In response to today’s CAS decision to lift the suspension thus again allowing Valieva to compete, the IOC Executive Board announced that if Valieva were to win a medal in the individual competition, there would be no subsequent podium medal ceremony and a 26th skater would be allowed to compete, in the event that the subsequent CAS case later rules Valieva to be retroactively ineligible.

Now you are caught up.

To be blunt: This whole episode is a debacle from start to finish. Let us not forget that at the center is a 15-year old girl. A child. There is no situation under which a 15-year old can be responsible for doping. The good news is that WADA has foreseen such possibilities in the latest revision to its Code, in 2021, creating a category of “protected persons” who follow different rules for anti-doping than do adult athletes. These new rules have never been adjudicated, but there is an excellent chance that under them Valieva will be found to bear no responsibility for doping and serve no punishment.

It is of course possible that Valieva’s positive doping test was the result of unknown contamination of a supplement or some other innocent explanation. But another possibility, a deeply troubling one, is that a talented elite athlete who happens to still be a child may have been doped by adults around her. If so, they should all be punished severely and the Olympic sport movement should again reconsider its punishment of Russia for continued, systemic violation of anti-doping regulations.

If that is not disturbing enough, WADA and the IOC have compounded the abuse of Valieva — by not following their own rules and inventing punitive new ones out of thin air. Let’s get into some details.

First, WADA rules (at p. 107) for handling athlete samples require a laboratory to test samples within 20 days of receipt. In addition, RUSADA had up to 21 days to report the sample to the testing lab in Sweden. Testing does not take very long, and should not in the run-up to the most important competition on the calendar, the Olympics. For instance, the former general council of the U.S. Antidoping Agency, Bill Bock, observes that an Iranian skier suspended during the Beijing Olympics had his sample collected, tested and returned within two days. Whatever the excuse for the 45 days from sample to reporting in Valieva’s case, we can all agree that 45 is greater than 20 (or 41 if we grant the maximum possible days that RUSADA was allowed to hold the sample), and that WADA unambiguously failed to follow its own rules.

Bock writes of the testing snafus among the various testing authorities;

[T]hey were all at fault. Each had a duty to coordinate testing in advance of the Games and coordination of testing does not mean merely getting samples in bottles, it also means getting the results of that sampling timely reported. The failure to analyze Kamila Valieva’s sample in advance of her participation in the Olympic Games is a classic problem of lack of coordination among anti-doping organizations. Responsibility for that failure should be assigned first to WADA, which was after all, created for the sole purpose of coordinating the worldwide anti-doping movement. WADA says about itself, “[w]e collaborate with stakeholders and the industry to find common ways to fight doping.” By its own standard then, WADA has failed. To be sure, WADA’s failure does not lessen the failures of RUSADA and the ITA which also could have independently ensured Valieva’s sample was timely analyzed had they been sufficiently vigilant.

WADA enforces what it calls a “strict liability” policy for athletes, which means that if a drug test identifies a prohibited substance in an athlete’s sample, too bad, the athlete is then guilty until proven innocent. Just like the athletes under its governance, WADA too should follow a “strict liability “ policy — if it cannot follow its own rules in the processing of a drug test, too bad. In this case, Valieva’s sample should have been destroyed the minute that WADA’s regulations governing processing were violated.

Might this mean that a doper gets off because WADA fails to follow its own rules? Yes. Welcome to what is known as “due process.” Athletes — all athletes — deserve due process. And even if WADA had knowledge of the failed test, despite not being able to use it, it still could have opened up a quiet investigation of Valieva’s entourage, recognizing that doping a child would be a serious offense.

It gets worse.

When the IOC announced today that it would not award medals during the Beijing 2022 games for women’s figure skating, in the event that Valieva medaled, it was announcing that all women’s figure skaters were being punished by denying all of them an opportunity to receive a medal on the podium. Athletes routinely report of the tragedy of being denied the medal ceremony in cases of medal’s being re-awarded when doping is detected years later. In this instance, it is the IOC that would be denying athletes that once-in-a-lifetime opportunity. IOC has chose to (potentially, should Valieva medal) sacrifice the experience of at least two legitimate medal winners who have done nothing wrong in hopes of punishing another athlete and her team, because she may be found at a later date to have been ineligible.

How much the IOC values athletes can be illustrated by the following two possibilities in the event that Valieva medals.

• First, if it turns other that a subsequent CAS case rules Valieva to be retroactively ineligible for Beijing 2022, under the rules then medals will have to re-allocated, as is often the case. In this case only one athlete will have missed the podium opportunity (4th place, later upgraded to bronze).

• A second possibility is that Valieva is subsequently found by CAS to have been competing at Beijing as an eligible athlete, and then the medals and the podium opportunity will have been awarded to all three athletes exactly as they should have.

Let’s do the math: In the two alternative universes in which Valieva wins a medal, in the case where IOC allows the podium presentation of medals to go forward, there are 6 possible podium opportunities, with 5 of the 6 occurring appropriately, with in 1 instance an athlete improperly received a medal on the podium and a later-upgraded athlete missing out. However, under the bespoke IOC no-podium rule issued today, under the two alternative future CAS outcomes we are guaranteed that 5 out of 6 podium opportunities unfairly punish an innocent athlete. The IOC has thus erred on the side of ensuring that innocent athletes are collateral damage of antidoping incompetency. Figure skaters should be absolutely livid at this calculus.

The other troubling aspect of the IOC decision not to award women’s figure skating medals in Beijing is that it adds to the abuse of Valieva. With today’s CAS ruling, she is now competing fairly, under the rules of the Olympic system of jurisprudence, and with no restrictions or qualifications. The IOC has nonetheless invented a new rule today, which in effect makes Valieva appear to be the scapegoat if she happens to medal and then the other two medalists are denied a podium opportunity. This is absolutely shameful behavior by the IOC.

WADA and IOC (among others) have completely botched this case. At this point the proper thing to do is to let Valieva compete without inventing special rules about podium presentation of medals.

For me, despite all the complexities of this case the way forward is clear. Valieva has been abused enough by the system. Follow the rules. Don’t invent new ones for her. Let the girl compete and let the legal process run its course. After Beijing, fix the rules and understand why they were not followed. Antidoping remains a mess. And that is not a child’s fault.