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Claude Ramoni Partner [email protected] Libra Law, Lausanne Analysis of the awards Zubkov and Legkov v. the IOC

On 1 February 2018, five days before the opening ceremony of the Winter in PyeongChang, the Court of Arbitration for Sport (‘CAS’) was facing heavy scrutiny from its critics. On that day, it was announced that the CAS Panel had decided to cancel the sanctions imposed by the International Olympic Committee (‘IOC’) Disciplinary Commission on 28 Russian athletes (out of 39 appeals decided by the CAS) resulting from the Sochi doping scandal. As a result, 28 Russian athletes were cleared to compete and were not facing any disciplinary consequences further to the alleged doping practices revealed by the McLaren Report. IOC President was bitterly against the decision issued by the CAS and called for an urgent need to “reform” the CAS; IOC and ICAS member described the CAS decision not to sanction the 28 Russian athletes as “perverse.” At that time, such comments were made without knowing the grounds for the award, which were finally issued on 23 April 2018. In this article Claude Ramoni, Partner at Libra Law, explores some explanations on why the CAS came to the opposite conclusion to the IOC in the matter of those 28 Russian athletes.

Background - the IOC Disciplinary the McLaren Report and afdavit by Dr gravity of the urinary sample; and (v) Commission decisions Rodchenkov - was indeed in place and witness testimony of Dr Rodchenkov, Further to the Sochi doping scandal implemented on the occasion of the notably based on his notes and diaries revealed by the McLaren Report, the Sochi Olympic Games. More specifically, stating that he remembered that some IOC appointed a disciplinary commission the Oswald Commission relied on (i) the athletes were using doping practices chaired by Prof Denis Oswald (the content of the so-called ‘Duchess List,’ and/or needed to be ‘protected’ ‘Oswald Commission’) in order to i.e. a list of athletes who were allegedly (possibly by swapping their urine). investigate possible doping violations by given a doping cocktail developed by Dr athletes who may have benefitted from Rodchenkov; (ii) the exchanges of emails The Oswald Commission went further the organised doping scheme on the between the Russian laboratory and in analysing the evidence available on occasion of the Sochi Olympic Games third parties showing that some positive each individual athlete. It held that the and conduct disciplinary proceedings cases were covered up; (iii) forensic concerned athletes knew about the against the concerned individuals. analysis of the Berlinger bottles used in sample swapping scheme. Notably Sochi revealing the presence of scratch by being provided with the ‘Duchess The Oswald Commission held that marks possibly showing that the bottles Cocktail’ they could not ignore that 43 Russian athletes had committed had been opened and the urine sample measures were in place to shield doping ofences on the occasion of the tampered with; (iv) scientific analyses them from adverse analytical findings Sochi Olympic Games and imposed revealing that some samples provided or that they were being ‘protected’; in lifetime bans on participation in all by Russian athletes in Sochi revealed order to allow urine substitution, their future editions of the Olympic Games. abnormally high level of salts, this cooperation was needed to provide evidence supported Dr Rodchenkov’s ‘clean’ urine; athletes had to collaborate In short, the Oswald Commission relied revelations that he had to add salt to in order to identify the reference on corroborating evidence in order to the ‘clean’ urine substituted against the number of the sample provided during decide that a scheme of doping practice urine provided on the occasion of the doping controls in Sochi and pass and sample swapping - as described in control in order to adjust the specific this information to the laboratory in

6 WORLD SPORTS ADVOCATE In the case of the Russian athletes, the CAS did not depart from its practice of accepting indirect evidence. Actually, the CAS sanctioned Zubkov and ten other athletes in the absence of any direct evidence.

order to allow the sample swapping. reliable means, including circumstantial Report were playing a decisive role. Accordingly, the Oswald Commission evidence. In the cases at hand, there In other words, adverse inference decided that the concerned athletes was no direct evidence of doping could be drawn from the overall were guilty of (i) allowing sample practices; none of the athletes tested circumstances of the case. On the swapping and tampering (use of a positive for a prohibited substance; contrary, the CAS Panel adopted more prohibited method in the meaning no one actually saw the athletes using of an “individual” approach, i.e. asking of Art. 2.2 WADA Code/tampering the Duchess Cocktail; there was no the IOC to bring evidence of the in the meaning of Art. 2.5 WADA direct evidence of athletes bringing athlete’s personal involvement in Code), (ii) use of a prohibited method clean urine to the laboratory; there the wrongdoing8. in the meaning of Art. 2.2 WADA was also no clear evidence of athletes Code, and (iii) cover up/complicity taking pictures of their doping control In the past, CAS Panels have adopted contrary to Art. 2.8 WADA Code. form and providing them to the Sochi diferent approaches with respect laboratory. Anti-doping authorities have to whether proof of doping within a The CAS awards limited investigative power. Accordingly, group of athletes or a club is sufcient Comparing the award issued by the the CAS Panel clearly mentioned to further establish some malpractice CAS in the matter of athletes cleared of that it could not impose unrealistic for each individual athlete even in wrongdoing1 and the ones in which the expectations concerning the evidence the absence of adverse analytical CAS confirmed the doping ofences2 that the IOC is able to obtain from findings. For example, in WADA v. helps create an understanding of the reluctant witnesses or other sources5. Bellchambers et al., AFL & ASADA, reasoning followed by the Panel. the Panel started from the point that In actual fact, the CAS confirmed the The CAS Panel in the Legkov and a prohibited substance was injected ruling by the Oswald Commission against Zubkov awards then confirmed into the players of a football team athletes whose samples revealed the longstanding CAS case law to rule that all players were subject abnormal and not physiological salt levels accepting the reliance on indirect to the same regime, even in the (except for the length of the sanction); or circumstantial evidence, for absence of any evidence supporting it cancelled the sanctions imposed example in the following cases: that all players were actually injected against athletes where the urine samples with the product. Therefore, the provided in Sochi did not contain • the athlete’s biological passport is Panel sanctioned all players without abnormal salt levels, notwithstanding based on an analysis of blood values; assessing the specific circumstances whether or not there were scratches if such values cannot reasonably of each individual case9. on the bottle or if the athlete’s name be explained by any other cause was mentioned on the Duchess List or than doping practices, the use of a On the contrary, in other awards, the by Dr Rodchenkov in his testimony. prohibited method in the meaning CAS Panel adopted a more “individual of Art. 2.2 WADA Code is deemed approach.” For example, in the case The assessment of evidence proven, even in the absence of WADA & FIFA v. Cyprus Football It is not disputed that the IOC bears the any direct proof of doping6; and Association, Eranosian & al., the Panel burden of proof, i.e. has the burden of • in match-fixing cases, the use of held that one could not infer from the establishing that an anti-doping rule indirect evidence, such as abnormal fact that some players of a football violation has occurred3. The standard betting patterns or analysis of the team were given pills containing a of proof is the ‘comfortable satisfaction’ game may be deemed sufcient prohibited substance by their coach standard provided for under Article 3.1 as evidence of match-fixing7. that the pills given by the same coach WADA Code, i.e. greater than a mere to the other players in the team were balance of probability but less than proof In the case of the Russian athletes, the also prohibited (and that the other beyond reasonable doubt. The CAS CAS did not depart from its practice players also committed an anti-doping Panel here confirmed the CAS case law of accepting indirect evidence. rule violation)10. that the standard is not a variable one, Actually, the CAS sanctioned but that the more serious the allegation, Zubkov and ten other athletes in the It is clear that, in the Legkov award, the more cogent the supporting evidence absence of any direct evidence. the CAS Panel gave less credit than must be in order for the allegation to be the Oswald Commission to the overall proven4. In this respect, the CAS Panel It appears however that the CAS’s circumstances of the case, preferring a in the Legkov and Zubkov cases simply appreciation difered from that of more “individually based” assessment, confirmed previous CAS case law. the IOC’s on three main aspects: requiring the IOC to demonstrate each athlete’s personal involvement in the With respect to the ‘means of proof,’ 1. For the Oswald Commission, the alleged doping scheme. Article 3.2 of the WADA Code provides overall circumstances of the case, i.e. that facts related to anti-doping that the nature of the doping scheme 2. Dr Rodchenkov and Prof McLaren were violations may be established by any and the revelations by the McLaren cross-examined before the CAS and

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continued

not before the Oswald Commission. practices, but also used prohibited The doping ofence There is little doubt that the core of substances (the reason for the urine Apart from the assessment by the the case file against each athlete substitution)12. For the athletes who Panel of the evidence, another sanctioned by the Oswald Commission did not have abnormal salt levels, the explanation for the CAS decision not was information provided by Dr mere circumstantial evidence about to uphold the IOC’s ruling may result Rodchenkov, first to Prof McLaren the doping scheme, without any from the interpretation by the Panel and then to the IOC. The CAS Panel actual evidence about the individual of Article 2.2 of the WADA Code. however mentions that Dr Rodchenkov athlete was not deemed sufcient to was not a direct witness of many of reach the ‘comfortable satisfaction’ Firstly, the Panel clarified when tampering the doping practices he describes, standard of proof. qualifies as a prohibited method (Art. in particular the use of the Duchess 2.2. WADA Code) and when it qualifies Cocktail. In actual fact, low probative This reasoning is simply a as ‘tampering’ in the meaning of Article value was given by the CAS Panel consequence of the standard of proof. 2.5 of the WADA Code. Actually, the to the statement by Dr Rodchenkov It is not enough to demonstrate that Panel relied on the comment to Art. afrming that a given athlete was using a doping practice is more likely than 2.5 WADA Code explaining that Art. prohibited substances. any other explanation; this would 2.5 prohibits conduct that subverts meet the ‘balance of probabilities’ the doping control process, but which In all likelihood, when a witness is criteria but is still not enough for the would not otherwise be included in the subject to cross-examination, the ‘comfortable satisfaction standard.’ definition of ‘Prohibited Methods.’ Given Panel is in a position to better assess that urine substitution and/or alteration the evidentiary value of a testimony. The outcome of the CAS Panel in the are defined as prohibited methods under In particular, in case of whistleblower Legkov and Zubkov cases does not Class M2.1 of the Prohibited list, the information, it is obvious that more greatly difer from other non-analytical Panel consequently confirmed that the weight is given to a direct witness of doping cases. In the case of Valverde reproach made to the Russian athlete doping practices, or a witness that e.g., the Panel was comfortably to have allowed urine substitution (by possibly heard admissions by an athlete satisfied only because a DNA analysis providing clean urine and/or transmitting about his or her doping practices11, proved that a blood bag seized in the details of the doping control form rather than indirect information by Dr the context of the ‘Operación Puerto’ to the laboratory in order to allow Rodchenkov, who was not in direct belonged to Valverde13. Similarly, in the urine swapping), if proven, would contact with any athletes. the blood doping cases that took fall under Art. 2.2 WADA Code. place within the Austrian cross- 3. Obviously, the CAS Panel was not country ski team on the occasion of However, the Panel had to further interpret comfortable in issuing sanctions on the Torino , Art. 2.2 WADA Code. Actually, Art. 2.2.1 the circumstances of the case only, in the report by the Italian police WADA Code mentions that it is not the absence of any actual evidence was clear evidence of the doping necessary that intent, fault, negligence relating to a specific athlete. The high practices14. On the contrary, the mere or knowing use on the athlete’s part be level of salt in the urine is scientific possession by a national canoe team demonstrated in order to establish an anti- evidence that led the CAS to infer that of several items useful to perform doping rule violation for use of a prohibited the urine of the concerned athletes blood doping was not considered method; on the other hand however, the had actually been substituted, as sufcient evidence to reach the text of Art. 2.2 WADA Code specifies that meaning that the concerned athletes comfortable satisfaction threshold and the ofence is the use or attempted use not only took part in urine swapping to sanction the concerned athletes15. by an athlete of a prohibited method.

8 WORLD SPORTS ADVOCATE In the absence of such additional evidence, cases, such as the case of Legkov, have little chance of success in reaching the ‘comfortable satisfaction’ standard as applied by CAS Panels in the case at hand.

Applying Art. 2.2 in the case of some act to facilitate substitution, Anti-doping organisations have struggled urine substitution in Sochi was quite knowing the likelihood of substitution. when trying to turn the information challenging for the Panel as it was clear obtained from the work by Prof McLaren that the athletes did not personally This reasoning confirms the concern by and the testimonies by Dr Rodchenkov substitute or attempt to substitute the Panel to take into consideration the into actual evidence of doping practices their own urine, nor did they try to individual situation of each athlete and not by individual athletes that reaches the reopen the bottles in order to swap to infer from the general organised scheme comfortable satisfaction standard16. In the contents with clean urine on the the existence of individual ofences. general, cases have been put forward occasion of the Sochi Olympic Games. only when actual or factual evidence This means in practice that it was not (such as e.g. the level of salt in the The Panel did not accept to endorse sufcient for the IOC to show, to a case at hand or an abnormal scientific the “strict liability” principle provided comfortable satisfaction standard, that analysis17) could be used in support of for under Art. 2.2.1 WADA Code, i.e. urine substitution or sample manipulation the statements by Dr Rodchenkov. that evidence of urine substitution, occurred (based notably on scratches without the need to show the athlete’s on the bottles or Dr Rodchenkov’s In the absence of such additional knowledge or involvement, would be testimonies); the IOC had to further evidence, cases, such as the case of enough to prove the ofence. On the demonstrate involvement by an individual Legkov, have little chance of success in other hand however, the Panel did not athlete. This of course was not an easy reaching the ‘comfortable satisfaction’ limit the scope of Art. 2.2 WADA Code task and was admitted only for athletes standard as applied by CAS Panels of urine substitution by the athlete with abnormal levels of salt in their urine. in the case at hand. However, it only, as the first sentence of this Article will be interesting to see whether could be interpreted as meaning. Conclusion possible additional information from The awards issued by the CAS cancelling the Moscow Laboratory database on The Panel adopted a balanced the IOC decisions in the case of 28 individual athletes, combined with the interpretation of Art. 2.2 WADA Code. athletes resulted from the approach by other pieces of evidence available to It ruled that Art. 2.2 WADA Code could the CAS Panels focussing on the situation WADA or the IOC, may be sufcient apply in cases of urine substitution by of each individual athlete supported by to reach the ‘comfortable satisfaction’ another person other than the athlete, the ‘comfortable satisfaction’ standard standard and result in sanctions but only if the athlete had committed and the wording of Art. 2.2 WADA Code. against the athletes concerned.

1. CAS 2017/A/5379 Legkov v. IOC. Bellchambers et al., AFL & ASADA. 16. See e.g. the decisions by the International 2. CAS 2017/A/5422 Zubkov v. IOC. 10. See CAS 2009/A/1817&1844 WADA & FIFA v. Canoe Federation issued on 31 March 2017 3. Art. 3.1 WADA Code. Cyprus Football Association, Eranosian & al. closing disciplinary procedures against nine Russian canoeists, who were named 4. CAS 2017/A/5379 Legkov v. IOC §§699-706. 11. See as an example of a case where evidence by whistleblower Ms Stepanova was used by the in the McLaren Report, even though three 5. CAS 2017/A/5379 Legkov v. IOC §716. CAS: CAS 2016/O/4481 IAAF v. ARAF & Savinova. of them had been barred from competing 6. See notably TAS 2010/A/2308&2335 Pellizotti, 12. CAS 2017/A/5422 Zubkov v. IOC. at the Rio Olympic Games based on CONI, FCI & UCI; CAS 2010/A/2235 UCI v. T & OCS. 13. See CAS 2007/A/1396&1402 WADA evidence from the McLaren Report. 7. See, amongst others CAS 2015/A/4351 & UCI v. Valverde & RFEC. 17. See e.g. CAS 2017/O/5039 IAAF v. Vsl Pakruojo FK & al. v. LFF; CAS 14. See notably CAS 2007/A/1286, 1288 & 1289 Eder RUSAF & Pyatykh where the athlete was 2016/A/4650 Skenderbreu v. UEFA. & al v. IOC; CAS 2007/A/1290 Diethart v. IOC. sanctioned on the basis of information 8. CAS 2017/A/5379 Legkov v. IOC §718. 15. See CAS 2016/A/4708 Belarus from the McLaren Report supported by 9. See CAS 2015/A/4059 WADA v. Canoe Association & al. v. ICF. abnormal T/E ratio in urine samples.

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