Kamila Valieva is a famous and excellent figure skater of the Russian Olympic Committee who participated in the last Winter Olympics with excellent chances of victory in the single and team competition. At the time of the Olympic Games she was 15 years old and, as such, according to the regulations of figure skating, she could participate in senior competitions, because she would turn sixteen in the calendar year. As is well known, she underwent to an in-competition control test during the Russian Figure skating championship, held from 21 to 26 December 2021 in Saint Petersburg. There was no further communication about the outcome of such control test on the collected sample until 7 February 2022. On such day, she competed in the Team event Women’s Single Skating – Free Skating as member of the ROC team (placed first). Only on 8 February 2022 the head of the Results Management Department of the RUSADA notified the athlete that Results Management Process initiated due to a potential anti-doping rule violation, consequently provisionally suspending the skater. She (better her representatives) filed an appeal to the TAS ad hoc division, established for the Olympic Winter Games. In this regard, the TAS recalls that it was not necessary to assess whether Valieva had infringed the anti-doping rules, but whether it was correct to withdraw the provisional suspension pending the substantive proceedings. Thus, without entering into merit of the alleged violation of anti-doping rules, the TAS ordered the withdrawal of the suspension from competitions, considering that the suspension could harm the athlete, also recalling judicial precedents in this regard. In its judgment the TAS recalled many times her status of protected person, according what stated by Appendix 1 of the 2021 WADA Code. Following the TAS judgment, the IOC decided to allow participation of the Russian figure skating to competitions, but, in case of achievement of medal result, there will be no award ceremony, replaced by a private delivery of medals. This complex event highlighted some critical aspects of the new regulation put in place by the revision of the WADA Code. It is important to remember that this revision has occurred also because of obvious voids in the discipline of doping, particularly in cases where there is the involvement of underage athletes, for which there was no protection or consideration of their essential legal incapacity: in fact, they were considered responsible like adults in the event of a positive finding in doping controls, with the sole provision of more stringent protection of their privacy, as well as the provision of the opening ex officio of investigations against adults members of their staff. An obvious criticism, considering precisely their intrinsic legal incapacity. In this sense, the identification of the category of protected persons, described in Appendix 1, for which the WADA Code provides a flexible sanction regime, would seem to have filled this void, providing for a less stringent evidentiary regime, in the event of a positive finding at doping controls. Where protected persons are those individuals who do not have legal capacity according to the applicable national laws (hence not only minors). This regulatory solution is certainly more respectful of the legal status of minors, but, in the light of the facts, still unsatisfactory, opening spaces for further issues. In fact, quid ius when such athletes compete in senior categories? Is there not a clear disparity in the treatment of adult athletes and underage athletes, belonging to the protected category? What about, then, the void of guarantee of athletes' right to a fair competition, which requires a balance of performance capabilities? What could be acceptable regulatory solutions? Certainly, the events of Kamila Valieva highlighted some legal issues of the sport regulations against doping, but also raised an important ethical issue of general order, such as the beginning of the competitive activity of athletes in childhood, in view of achieving brilliant results in competitions. This is an issue on which, with the increase of cases, sports organizations intervened gradually, raising from time to time the minimum age for access to senior competitions (we recall, for example, the raising of the minimum age in gymnastics competitions, which was moved to 15 in 1980 and up to 16 in 1997; such as the move to a minimum of 15 for diving, after the 13-year-old Fu Mingxia won the Barcelona Olympics). Therefore, beyond the regulatory expedients, these latter events reopen and make current a reflection on sport: if the competition is inherent in it (and it cannot be otherwise), how far can we go so that the quest for victory does not become its only distinctive element?
What does the Kamila Valieva case teach us? Some considerations about the new WADA regulation on protected persons
DI GIANDOMENICO, Anna
In corso di stampa
Abstract
Kamila Valieva is a famous and excellent figure skater of the Russian Olympic Committee who participated in the last Winter Olympics with excellent chances of victory in the single and team competition. At the time of the Olympic Games she was 15 years old and, as such, according to the regulations of figure skating, she could participate in senior competitions, because she would turn sixteen in the calendar year. As is well known, she underwent to an in-competition control test during the Russian Figure skating championship, held from 21 to 26 December 2021 in Saint Petersburg. There was no further communication about the outcome of such control test on the collected sample until 7 February 2022. On such day, she competed in the Team event Women’s Single Skating – Free Skating as member of the ROC team (placed first). Only on 8 February 2022 the head of the Results Management Department of the RUSADA notified the athlete that Results Management Process initiated due to a potential anti-doping rule violation, consequently provisionally suspending the skater. She (better her representatives) filed an appeal to the TAS ad hoc division, established for the Olympic Winter Games. In this regard, the TAS recalls that it was not necessary to assess whether Valieva had infringed the anti-doping rules, but whether it was correct to withdraw the provisional suspension pending the substantive proceedings. Thus, without entering into merit of the alleged violation of anti-doping rules, the TAS ordered the withdrawal of the suspension from competitions, considering that the suspension could harm the athlete, also recalling judicial precedents in this regard. In its judgment the TAS recalled many times her status of protected person, according what stated by Appendix 1 of the 2021 WADA Code. Following the TAS judgment, the IOC decided to allow participation of the Russian figure skating to competitions, but, in case of achievement of medal result, there will be no award ceremony, replaced by a private delivery of medals. This complex event highlighted some critical aspects of the new regulation put in place by the revision of the WADA Code. It is important to remember that this revision has occurred also because of obvious voids in the discipline of doping, particularly in cases where there is the involvement of underage athletes, for which there was no protection or consideration of their essential legal incapacity: in fact, they were considered responsible like adults in the event of a positive finding in doping controls, with the sole provision of more stringent protection of their privacy, as well as the provision of the opening ex officio of investigations against adults members of their staff. An obvious criticism, considering precisely their intrinsic legal incapacity. In this sense, the identification of the category of protected persons, described in Appendix 1, for which the WADA Code provides a flexible sanction regime, would seem to have filled this void, providing for a less stringent evidentiary regime, in the event of a positive finding at doping controls. Where protected persons are those individuals who do not have legal capacity according to the applicable national laws (hence not only minors). This regulatory solution is certainly more respectful of the legal status of minors, but, in the light of the facts, still unsatisfactory, opening spaces for further issues. In fact, quid ius when such athletes compete in senior categories? Is there not a clear disparity in the treatment of adult athletes and underage athletes, belonging to the protected category? What about, then, the void of guarantee of athletes' right to a fair competition, which requires a balance of performance capabilities? What could be acceptable regulatory solutions? Certainly, the events of Kamila Valieva highlighted some legal issues of the sport regulations against doping, but also raised an important ethical issue of general order, such as the beginning of the competitive activity of athletes in childhood, in view of achieving brilliant results in competitions. This is an issue on which, with the increase of cases, sports organizations intervened gradually, raising from time to time the minimum age for access to senior competitions (we recall, for example, the raising of the minimum age in gymnastics competitions, which was moved to 15 in 1980 and up to 16 in 1997; such as the move to a minimum of 15 for diving, after the 13-year-old Fu Mingxia won the Barcelona Olympics). Therefore, beyond the regulatory expedients, these latter events reopen and make current a reflection on sport: if the competition is inherent in it (and it cannot be otherwise), how far can we go so that the quest for victory does not become its only distinctive element?I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
