Independent Prosecutor Concludes WADA Showed No Bias Against China and Decision Not to Appeal Chinese Swimming Cases Was ‘Unquestionably Reasonable’

Independent Prosecutor Concludes WADA Showed No Bias Against China and Decision Not to Appeal Chinese Swimming Cases Was ‘Unquestionably Reasonable’

WADA Executive Committee welcomes findings of interim report

Today, the World Anti-Doping Agency (WADA) held an extraordinary meeting of the Executive Committee (ExCo) to discuss the interim report (and annex) delivered by the Independent Prosecutor, Mr Eric Cottier, regarding his review of WADA’s handling of the China Anti-Doping Agency (CHINADA) no-fault contamination case involving 23 Chinese swimmers in 2021.

During the virtual meeting of the Executive Committee, Mr. Cottier presented to the members his interim report which included his conclusions outlined below regarding two issues:

1. Is there any indication of bias in favor of China, undue interference, or other impropriety in WADA’s assessment of CHINADA’s decision not to report anti-doping rule violations against the 23 Chinese swimmers?

  • There is nothing in the record – which is complete – to suggest that WADA showed any favoritism or deference to, or in any way favored, the 23 swimmers who tested positive for trimetazidine (TMZ) between January 1 and 3, 2021, when it conducted its review of CHINADA’s decision to terminate the proceedings against them without further action.
  • The investigator found no evidence to suggest any interference or interference in the AMA review, as described above, either within the Agency or externally, by any entity or institution, including CHINADA or the Chinese authorities.
  • The investigation found no impropriety on the part of WADA in its review of CHINADA’s decision; the review was detailed and covered all issues relevant to determining whether or not to appeal the decision.

2. Based on a review of the record relating to CHINADA’s decision not to pursue anti-doping rule violation charges against the 23 Chinese swimmers, as well as all other evidence available to WADA, was WADA’s decision not to challenge CHINADA’s contamination scenario on appeal reasonable?

  • All the elements considered by WADA, whether from the file produced by CHINADA with its decision or from the investigation procedures it conducted, demonstrate that the decision not to appeal is reasonable, both from the point of view of the facts and the applicable rules.

Members of the Executive Committee posed questions to Mr Cottier, but the Committee thanked him for the thorough and timely manner in which the review was conducted in order to deliver high-level outcomes ahead of the Paris 2024 Olympic and Paralympic Games. The Executive Committee welcomed the findings of Mr Cottier’s interim report and said it looked forward to receiving his reasoned final report in the coming weeks.

WADA President Witold Bańka said: “WADA is pleased that the Executive Committee welcomed the findings of the Independent Prosecutor’s interim report in the Chinese Swimming case. Based on the interim report and its discussions with Mr Cottier, the Executive Committee considered that Mr Cottier had access to all the evidence he needed to reach his conclusions that WADA had shown no bias towards China and that its decision not to appeal in the Chinese Swimming case was ‘unquestionably reasonable’ based on the evidence. As the report highlights, WADA approached this case with healthy scepticism, as it does in all such cases. It was very important that we set the record straight in this regard, particularly on these two fundamental issues ahead of the Paris 2024 Olympic and Paralympic Games.”

“Now that the Independent Prosecutor has confirmed that there was no impropriety in WADA’s handling of the case, the Agency will review with external legal counsel what action to take against those who made false and potentially defamatory allegations. These allegations have been extremely damaging to WADA’s reputation and the trust that athletes and other stakeholders have in the Agency and the global anti-doping system. Instead of giving WADA the opportunity to hold substantive discussions on procedures based on the 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 a global regulator is somehow evidence of bias in favour of China.”

The Independent Prosecutor’s review covered everything he considered essential to answer the questions put to him. To facilitate his review, Mr Cottier was given unrestricted and unrestricted access to all WADA files and documents relating to this case, amounting to thousands of pages. He interviewed several WADA staff members on several occasions and conducted three expert assessments, scientific, legal and forensic – the latter conducted by the Forensic Institute of the University of Lausanne, which confirmed that it had access to all documents relating to this case.

WADA’s Senior Director of Science and Medicine, Professor Olivier Rabin, said: “From a scientific perspective, it is important to challenge all aspects of the case to ensure that the explanation for the origin of the prohibited substance is credible. In this case, despite our skepticism, a thorough review of all verifiable facts in the case revealed no evidence to challenge the contamination scenario. On the contrary, all available evidence pointed to contamination without fault rather than intentional ingestion. Ultimately, in his report today, the Independent Prosecutor confirmed that our conclusions were reasonable, based on the evidence.”

Ross Wenzel, WADA General Counsel, said: “Under the rules, for WADA’s challenge to the contamination scenario to succeed before the Court of Arbitration for Sport, the Court would have had to be satisfied that the athletes had failed to establish the contamination scenario on a balance of probabilities (i.e. >50%), which the available evidence did not allow. According to the external counsel engaged at the time, WADA would have lost such an appeal and, therefore, the clear advice was not to pursue the matter. Indeed, in his interim report, the Independent Prosecutor agreed that WADA’s chances of winning such an appeal were “if not zero, then almost non-existent.” Had WADA appealed, despite admitting that the athletes were infected through no fault of their own, that appeal would not have been decided until well after the Tokyo Games, would not have barred the athletes from participating in the Games (since no ineligibility period would have even been requested), and would not have resulted in any prior publication. It would have been a technical appeal that would have raised questions of fairness to the athletes and would have exhausted WADA’s resources. To date, no credible evidence has been provided that would allow this case to be reopened and challenge the determination that this was a case of contamination. However, as WADA has consistently said, if such evidence is provided, we will review it expeditiously.

WADA Director General Olivier Niggli said: “It is important to note that the Independent Prosecutor’s interim report has cleared WADA of any wrongdoing. Mr Cottier will now work on drafting his final, reasoned report in the coming weeks, which we will discuss in more detail with the Executive Committee in September. We understand that it will contain recommendations to strengthen the global anti-doping system, which we welcome and will consider with the anti-doping community. This comes at a very opportune time given 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.”

Ryan Pini, Chair of WADA’s Athlete Council and Executive Committee member, said: “I would like to thank Mr. Cottier for his prompt delivery of his interim report. It is reassuring to read the information about the experts who were consulted and the processes that were followed to ensure that the review of this complex matter was thorough, detailed and transparent. I hope that this interim report, together with its detailed annex, will provide reassurance to athletes, particularly in the run-up to the Paris 2024 Games. The Athlete Council has listened carefully to athletes’ concerns on this matter and we look forward to hearing about any recommended improvements to the processes and/or the Code and International Standards. We also look forward to engaging our fellow athletes in the process of reviewing the Code and International Standards. In this way, we can ensure that this matter results in improvements to the global anti-doping system for athletes around the world.”

About the Independent Prosecutor’s Review

The decision to appoint Mr. Cottier was approved by WADA’s Executive Committee on April 25, following requests from a small number of stakeholders. The 16-member Executive Committee is comprised of independent members as well as athletes, governments from all regions of the world and the sport movement, representing their respective constituencies.

As stated in Mr Cottier’s engagement letter, he was asked to use his best efforts to publish his full report by the end of June 2024. However, in the event that the full reasoned report could not be published within this timeframe, he was asked to consider publishing a summary interim report before Paris 2024, including the results of his investigation, which he has now done.

About Independent Prosecutor Eric Cottier

Fully independent from WADA, the sports movement and governments, Mr. Eric Cottier is a prosecutor with 39 years of experience, who served as Attorney General of the Canton of Vaud, Switzerland, from September 2005 until his retirement in December 2022. Prior to that, he was Public Prosecutor from 1984 to 1991, President of the 2nd District Court of Vevey and Lavaux from 1991 to 1998, and Cantonal Judge from 1999 to 2005. He was Special Prosecutor at the federal level in Switzerland from 2016 to 2018. He is currently a member of the Board of Directors of the Swiss Institute of Comparative Law and a member of a working group of the International Institute for the Unification of Private Law (UNIDROIT), an independent intergovernmental organization based in Rome, Italy.