Doriane Lambelet Coleman, a professor at Duke Law School, is co-director of the Center for Sports Law & Policy and a senior fellow at the Kenan Institute for Ethics.
The Court of Arbitration for Sport’s decision to allow Valieva to compete this week has been widely criticized as the arbitrary product of corrupt institutions driven by commercial and political interests. Actually, the decision was a textbook application of well-established law. It was also ethically sound.
No one’s goal should be premature, career-ending penalties for children. It’s also wrong to turn Valieva into a punching bag for legitimate concerns about Russian state-sponsored doping and the Olympic movement’s flawed anti-doping effort.
The only issue before the arbitration panel in Beijing was whether to restore a provisional suspension imposed — and then reversed — by Valieva’s domestic federation after a December drug test returned a preliminary positive for a banned heart medication. The panel was not charged with deciding whether Valieva had committed a doping violation. That decision has not yet been made.
Under the law, children and younger adolescents are considered “protected persons,” and claims against them may be adjudicated more leniently than those against older adolescents and adults. Many have focused on 15-year-old Valieva’s protected status, suggesting it’s the reason she has escaped punishment for alleged doping. But her status, and the proportional treatment she receives, are only part of the heavy weight on her side of the legal scales.
Valieva’s case so far is characterized by the absence of evidence — both for her opponents to prosecute her and for her to defend herself. The burden was on Olympic organizations to show they were likely to succeed on the merits of a doping charge. Combine that with the irreparable harm Valieva would undoubtedly suffer were the suspension reimposed, as a legal matter the decision allowing her to compete was not surprising. Indeed, a different outcome would have been political.
The law applied to Valieva’s case is the same as used in the United States. In 1992, the U.S. Supreme Court ordered USA Track & Field to allow world-record holder Butch Reynolds to run in Olympic trials even though he was serving a suspension for a two-year-old positive steroid test. Justice John Paul Stevens wrote: “A decent respect for the incomparable importance of winning a gold medal in the Olympic Games convinces me that a pecuniary award is not an adequate substitute for the intangible values for which the world’s greatest athletes compete.” The law hasn’t changed since I was one of the lawyers on the losing side of that argument.
This week, U.S. sprinter Sha’Carri Richardson tweeted that the only difference between her not being allowed to compete in the Olympics last summer after a positive drug test and Valieva’s clearance to compete now is that “I’m a black young lady.” Actually, other facts explain why: Richardson, an adult, acknowledged knowingly and voluntarily using a banned substance, marijuana. Afterward, she sought and obtained leniency given the particular drug and her personal circumstances.
Beyond law, the ethical calculus is also in Valieva’s favor. Valieva is a world-class competitor but also a child who should be safeguarded by the adults and organizations charged with her care. Does anyone believe that she personally schemed to find a cocktail of heart drugs? There is a lot of speculation about the metabolic effects of trimetazidine but no peer-reviewed evidence that it enhances performance. Benjamin D. Levine, one of the world’s leading experts in cardiology and exercise science, opined that there was “zero” chance that trimetazidine would improve her performance. Even peers who think she should not skate allow that she would be a star regardless, suggesting that fairness to competitors is not the issue so much as the integrity of the anti-doping movement.
Which brings us to the bear in the room: Russia’s doping history. Punishing Russia for its trespasses arguably requires punishing its athletes — that’s how sanctions work. The International Olympic Committee’s response to Russian doping has been to allow individual athletes to compete, but not allow the Russians to fly their flag, a sometimes laughable approach. The effort, however, also reflects the human values the Olympics represent and the general sense among athletes that sanctions shouldn’t be on the table in sports. A corrupt nation-state should not be able, year in and year out, to deprive its best young athletes of the opportunity to compete against their peers.
I get the instinct that because Valieva tested positive she should not skate. I was in the race in 1983 when Jarmila Kratochvílová of Czechoslovakia set the still-standing 800-meter world record. That record is widely understood to have been the product of doping.
I later helped set up the world’s first random out-of-competition drug-testing program for USA Track & Field, and I drafted the White House’s negotiating document that helped establish the World Anti-Doping Agency. I’ve learned that anti-doping efforts are strong only if they have integrity. Decisions can’t be only politically expedient; they have to be based in law and evidence. Taking down a brilliant kid whose adults may have abused rather than safeguarded her isn’t the way to fix what’s broken about the anti-doping movement.