Investigator Appointed By Wada Gives Thumbs Up On The Two China 23-Go-Free Questions Those Who Hired Him Asked Him To Answer
The retired Swiss prosecutor appointed by the World Anti-Doping Agency- Wada – to judge whether the people who appointed him mishandled the cases of 23 swimmers from China allowed to go free without independent inquiry into the 28 positive doping tests they retired in 2021, gave the people who appointed him a thumbs up today.
Wada set the terms of reference for the inquiry: two questions. Just two.
It is an interim report and the annex gives further information, which Usada boss Travis Tygart, responded to immediately.
Where you can read the interim report – and annex
(I draw the readers attention to point 4 (d) and (e) in the interim report, which appears to amount to a cave in when it comes to taking on complex cases – and if so, rogues will surely spot that loophole with startling rapidity)
The most telling comment in the statement from Wada below is this from Wada General Counsel, Ross Wenzel: “Under the rules, for WADA’s challenge to the contamination scenario to be successful at the Court of Arbitration for Sport, it would have had to convince the tribunal that the athletes had not established the contamination scenario on the balance of probabilities (i.e. >50%), something that the available evidence did not permit.”
So, in other words, Wada was unable to conduct an independent investigation on the ground in China and, one could conclude, felt it had no choice but to accept the word of Chinese state agents. The question that follows is: would that scenario have played out in almost any other country in the world whose athletes live life under the WADA Code?
Here is what Usada CEO Travis Tygart had to say yesterday in anticipation of today’s Wada statement:
The questions put and answered would not appear to cover what athletes and Nados have been asking and looking for. A few of those can be found in these files:
Katie Ledecky Says World Anti-Doping System At “All-Time Low” Over China 23-Go-Free Crisis
Doping Board ‘Bypassed’ In FINA Review Of China 23-Go-Free Cases; Lessons Learned, Says Regulator
Phelps Tells House Wada Handling Of China-Go-Free-23 Is Existential Threat To Olympics; Schmitt Says ‘We’re Haunted’ By Doubts
Without further comment, here is the statement from the Wada leadership after Eric Cottier, the retired prosector appointed by Wada, reported back to them on his findings.
There will be more to say in due course in our China Diaries at SOS+, focussed on the backdrop to the latest in a long line of doping troubles made in China. For now, the statement in full below
China TMZ Cases – Wada Statement:
Montreal, 9 July 2024
Today, the World Anti-Doping Agency (WADA) held an extraordinary Executive Committee (ExCo) meeting to discuss the interim report (and annex) delivered by Independent Prosecutor, Mr. Eric Cottier, regarding his review of WADA’s handling of the China Anti-Doping Agency’s (CHINADA’s) no-fault contamination case involving 23 swimmers from China in 2021.
During the virtual ExCo meeting, Mr. Cottier took members through his interim report that included his conclusions outlined below in relation to two questions:
Is there any indication of bias towards China, undue interference or other impropriety in WADA’s assessment of the decision by CHINADA not to bring forward anti-doping rule violations against the 23 Chinese swimmers?
There is nothing in the file – which is complete – to suggest that WADA showed favouritism or deference, or in any way favoured the 23 swimmers who tested positive for trimetazidine (TMZ) between 1 and 3 January 2021, when it proceeded to review CHINADA’s decision to close the proceedings against them without further action.
The Investigator did not find any evidence to suggest any interference or meddling in WADA’s review, as described above, either within the Agency or externally, from any entity or institution, including CHINADA or the Chinese authorities.
The investigation did not reveal any irregularities on the part of WADA in the review of CHINADA’s decision; this review was detailed and covered all relevant issues in determining whether or not to appeal the decision.
Based on a review of the case file related to the decision by CHINADA not to bring forward Anti-Doping Rule Violations against the 23 Chinese swimmers, as well as any other elements that WADA had at its disposal, was the decision by WADA not to challenge on appeal the contamination scenario put forward by CHINADA a reasonable one?
All the elements taken into consideration by WADA, whether they come from the file produced by CHINADA with its decision or from the investigation procedures that it carried out, show the decision not to appeal to be reasonable, both from the point of view of the facts and the applicable rules.
While ExCo members had questions for Mr. Cottier, the Committee thanked him for the thorough and expeditious manner in which the review has been carried out in order to provide high-level outcomes in advance of the Paris 2024 Olympic and Paralympic Games. The ExCo welcomed the conclusions of Mr. Cottier’s interim report and stated that they looked forward to receiving his final reasoned report in the coming weeks.
WADA President Witold Bańka said:
“WADA is pleased that the Executive Committee has welcomed the conclusions of the Independent Prosecutor’s interim report concerning the Chinese swimming case. Based on the interim report and their discussion with Mr. Cottier, the Executive Committee was satisfied that Mr. Cottier had access to all elements that he needed to reach his conclusions that WADA showed no bias towards China and that its decision not to appeal the Chinese swimming case was ‘indisputably reasonable’ based on the evidence. As the report captures, WADA reviewed this case with a healthy skepticism as it does in all such cases. It was very important that we set the record straight in this regard; and, in particular regarding these two fundamental questions in advance of the Paris 2024 Olympic and Paralympic Games.”
“Now that it has been confirmed by the Independent Prosecutor that there was no impropriety connected to WADA’s handling of the case, the Agency will consider with external legal counsel what measures can be taken against those that have made untrue and potentially defamatory allegations. These allegations have been extremely damaging to WADA’s reputation and to the confidence and trust that athletes and other stakeholders have in the Agency and in the global anti-doping system. Instead of WADA being afforded the opportunity for substantive discussions about procedures based on rules of law and legal provisions, the Agency has been subjected to manipulation and attempts to create the impression that normal cooperation with Chinese stakeholders as the global regulator is somehow proof of bias towards China.”
The Independent Prosecutor’s review covered everything that he considered essential to answer the questions that had been put to him. To facilitate his review, Mr. Cottier was granted full and unfettered access to all of WADA’s files and documents related to this matter, which amounted to thousands of pages. He questioned a number of WADA employees on several occasions and carried out three expert assessments, scientific, legal and forensic – the latter that was carried out by the forensic institute of the University of Lausanne, which confirmed that he had been granted access to all documents related to this case.
WADA Senior Director, Science and Medicine, Prof. Olivier Rabin, said:
“From a scientific point of view, it is important to challenge all aspects of the file to make sure that the explanation of origin of the prohibited substance is a credible one. In this case, despite our skepticism, a thorough review of all the verifiable facts of the case revealed no evidence to challenge the contamination scenario. Rather, all the available evidence pointed towards no-fault contamination versus intentional ingestion. Ultimately, in his report today, the Independent Prosecutor has confirmed that our conclusions were reasonable, based on the evidence.”
WADA General Counsel, Ross Wenzel, said:
“Under the rules, for WADA’s challenge to the contamination scenario to be successful at the Court of Arbitration for Sport, it would have had to convince the tribunal that the athletes had not established the contamination scenario on the balance of probabilities (i.e. >50%), something that the available evidence did not permit. According to external counsel engaged at the time, WADA would have lost such an appeal and, accordingly, the clear advice was not to proceed. In fact, in his interim report, the Independent Prosecutor agreed that WADA’s chances of winning such an appeal were ‘if not nil, at the very least almost non-existent’. Had WADA appealed, despite having accepted that the athletes were contaminated through no fault of their own, that appeal wouldn’t have been decided until well after the Tokyo Games, would not have prevented the athletes from participating at the Games (as no period of ineligibility would even have been sought) and would not have resulted in any publication beforehand. It would have been a technical appeal that would have raised issues of fairness towards the athletes and drained WADA’s resources. So far, no credible evidence has emerged that would allow this case to be reopened and for the decision that this was a case of contamination to be challenged. However, as WADA has always said, if such evidence is provided to WADA, we will review it diligently”
WADA Director General, Olivier Niggli, said:
“Importantly, the Independent Prosecutor’s interim report has cleared WADA of any wrongdoing. Mr. Cottier will now work towards completing his final reasoned report in the coming weeks, which we will discuss at greater length with the Executive Committee in September. We understand that it will contain recommendations aimed at strengthening the global anti-doping system, which we welcome and will consider with the anti-doping community. It is very timely considering that the World Anti-Doping Code and International Standards, which are developed and owned by the anti-doping community, are currently undergoing a two-year stakeholder review.”
Chair of the WADA Athlete Council and ExCo member, Ryan Pini, said:
“I wish to thank Mr. Cottier for the urgency with which he produced his interim report. It is reassuring to read about the experts that were consulted and the processes that were followed to ensure that the review on this complex case would be comprehensive, detailed, and transparent. I hope this interim report, along with the detailed annex, provides reassurances to athletes especially in the lead up to Paris 2024. The Athlete Council has been actively listening to athletes’ concerns on this matter and we are eager to learn of any recommended improvements to processes and/or the Code and International Standards. We are equally eager to engage our fellow athletes in contributing to the Code and International Standards review process. This way, we can ensure that this case results in improvements to the global anti-doping system for athletes worldwide.”
About the Independent Prosecutor Review
The decision to appoint Mr. Cottier was endorsed by WADA’s ExCo on 25 April, following requests for such a review by a small number of stakeholders. The 16-member ExCo is made up of independent members as well as athletes, Governments from all regions of the world, and the Sport Movement, who represent their respective constituency groups.
As outlined in Mr. Cottier’s letter of engagement, he was asked to use his best endeavors to issue his full report by the end of June 2024. However, in the event that the full reasoned report could not be issued within that timeframe, he was asked to consider issuing a summary interim report before Paris 2024, including the outcomes of his inquiry, which he has now done.
About the Independent Prosecutor Eric Cottier
Entirely independent of WADA, the Sport Movement and Governments, Mr. Eric Cottier is a prosecutor of 39 years’ experience, who was the Attorney General of the Canton de Vaud, Switzerland, from September 2005 until his retirement in December 2022. Prior to that, he had been a public prosecutor from 1984 to 1991, President of the 2nd District Court in Vevey and Lavaux from 1991 to 1998, and a cantonal court judge from 1999 until 2005. He was Special Prosecutor at the federal level in Switzerland from 2016-2018. He is currently a member of the Board of the Swiss Institute of Comparative Law, and a member of a working group at the International Institute for the Unification of Private Law (UNIDROIT), an independent, inter-governmental organization based in Rome, Italy.
End of Wada statement