CAS Award Legkov v. IOC a clear defeat for IOC as well as Prof. McLaren and WADA

Court of Arbitration for Sport issued today as first of the Sochi 2014 cases the reasoned award in case Alexander Legkov v. International Olympic Committee (IOC) CAS 2017/A/5379

 

http://www.tas-cas.org/fileadmin/user_upload/Award__5379__internet.pdf

 

It is a clear defeat for IOC as well as Prof. McLaren and WADA. Prof. McLaren, WADA and IOC influenced if not even manipulated the assessment of disciplinary commissions, arbitrators and public opinion

 

The award is very clear in its approach which is in line with earlier statements of WIESCHEMANN | Rechtsanwälte

The issue of the panel was not what the “plan” was, but rather what actually happened” and whether the athletes had anything to do what happened. (para. 616)

In other words, the panel must be comfortable satisfied that the Athlete personally committed a specific violation of a specific provision of the WADC (para 718)

 

This approach gives not rise to concerns about the quality of CAS jurisdiction as the IOC president had after the operative part of the decision was issued.

 

In contrast “the IOC DC did not, however, clearly explain how particular acts and omissions gave rise to particular ADRV findings. (para. 726)

 

It is important to highlight that the panel analyzed very carefully the burden, standard and mean of proof (para. 695 et seq.) but – different to the false assumption of IOC – the award depends not on a misinterpretation and a too high standard of proof. Instead of this – the factual basis was never convincing. The panel took into consideration that the more successful the alleged conspiracy was at achieving its objectives, the less direct evidence of wrongdoing is likely available to be available to the IOC (para. 715). Although the panel applied a well-balanced standard of proof – sometimes even in favor to the IOC – it found no reliable facts.

 

One of the most remarkable sentences in 154 pages of the award can be found on page 145 para. 821 which is literally

 

Dr. Rodchenkov´s statement is a bare assertion which is uncorroborated by any contemporaneous documentary evidence.

 

We are aware of the fact that this statement refers primarily to the testimony of Dr. Rodchenkov specific to the Athlete, but it is representative for this case and all the cases following the assertions of Dr Rodchenkov including the potential scandal within the International Biathlon Union with Anders Besseberg and Nicole Resch in it´s focus. As Anders Besseberg told to media, the investigations against him depend on “WADA report and the testimony of Dr Rodchenkov” – as well as all the procedure in which most of the athletes from Sochi 2014 were finally acquitted.

 

If some is ready to assess the facts which are actually provable it is imperative to come to the conclusion that the story of sample swapping in Sochi 2014 cannot have been like the story which is told by Dr. Grigory Rodchenkov and which is awarded with an Academy Award for Brian Fogels “Icarus”.

 

Behind that knowledge is a second one which has not been noticed in public until now.

 

If Prof. McLaren, WADA and IOC would have disclosed the facts which are in their possession from the beginning in a regular procedure to the athletes, the defense and the public, it would have been evident since the publication of the second McLaren report on 9 December 2016 that most of the athletes mentioned on the so-called duchess list are innocent. Instead of this Prof. McLaren, WADA and IOC influenced if not even manipulated the assessment of disciplinary commissions, arbitrators and public opinion

 

Primarily Norwegian Minister of Children and Equality and member of WADA Vice President Ms Linda Hofstad Helleland is seeking for independent inspection of how WADA dealt with the case. What she will have to consider is, that WADA and Prof. McLaren themselves were never independent, otherwise the lack of diligence could not be explained.

 

IOC claimed in its media release of 9 December 2016 that

 

all the samples of all Russian athletes who participated in Sochi will be re-analyzed. https://www.olympic.org/news/statement-of-the-ioc-regarding-the-independent-person-report

 

WIESCHEMANN | Rechtsanwälte – as defense of athletes concerned – addressed the same questions by letter of 23 January, 23 February, 16 May, 18 May and 19 October 2018 to the IOC Oswald Commission and requested the retest of blood samples of the athletes. WIESCHEMANN | Rechtsanwälte received no answer on this issue during 2017.

 

IOC informed WIESCHEMANN | Rechtsanwälte for the first time on 24 October 2017, five Days before the hearing that

 

The blood samples collected on the occasion of the Olympic Games Sochi 2014 were not subject to examination or reanalysis neither within the context of the McLaren Report nor within the additional investigations conducted by the Disciplinary Commission. We confirm that the IOC limited its investigations to the urine samples.

The question whether the blood samples were not tested was discussed on three different occasions within the CAS hearing in which IOC representatives upheld their version.

 

After CAS issued the operative part of the decisions on 1 February 2018 WIESCHEMANN Rechtsanwälte received on 19 March 2018 the confirmation that different to former statements all blood samples from Russian Athletes collected on the occasion of Sochi 2014 were re-tested especially on the three substances of which the “Duchess Cocktail” allegedly consists – with negative result.

 

We are willing to admit that the detection window for steroids in blood is potentially shorter than in urine and the value of both test procedures may be different. But considering the number of samples collected and their distribution on different dates during the Olympic Games, make it imperative that one the samples should have been positive if the approach that the athletes had taken the cocktail were true. In addition, the question which worth this evidence has belongs exclusively to the members of each disciplinary commission and the panels of Court of Arbitration for Sport.

 

The samples are shown here

blood samples collected Sochi 2014

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Nearly each day a sample was collected and on some days up to three or four. The existence of the negative results were not subject of the second Mclaren report and were neither disclosed to the athletes, the defense and CAS panel and – as far as we know – not even to the International Federations and their disciplinary Commission which provisionally suspended some of the athletes.

Secondly, the chain of custody of Sochi laboratory was first time discussed within the CAS hearing after the defense brought the existence to light. The chain of custody is in possession of IOC since 2014 but neither IOC Oswald Commission nor Prof. McLaren was interested in it´s assessment. However, it demonstrates that nearly half of the samples from athletes mentioned in so-called duchess list arrived at the laboratory and were processed not – as Dr. Rodchenkov claimed- in the night time, but during the day under the observation of international observers which made it impossible to swap them.

reception and analyse samples Sochi

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

To say it very clear: Among samples which were processed during the daytime were some samples on which Prof. Champod observed “multiple T-Marks” from which he believes that they indicate use of a tool to open the bottles.

 

Both, the negative blood samples and the chain of custody, corroborate very clear that the Story of Sochi 2014 must have been different to the story told by Dr Rodchenkov.

 

In fact, by concealing the two facts, Prof. McLaren, WADA and IOC manipulated the assessment of disciplinary commissions, arbitrators and public opinion.

 

It is not our duty to speculate or to decide whether they did it willingly or unknowingly, but it is evident, that the factual basis of the allegations would be refutable very early. The athletes finally acquitted by the Court of Arbitration for Sport have been cheated for two years of their career and their attendance to the Olympic Games 2018.

 

And a third fact: Meanwhile WIESCHEMANN | Rechtsanwälte had access to a few, not many data of the Laboratory Information Management System LIMS of Moscow laboratory from which WADA and IOC explained that they were reliable basis to not “invite” Russian athletes to Olympic Winter Games 2018. In fact, the data were absolutely correct and give no reason for any concerns of any irregularity in the past.

 

Christof Wieschemann was criticized by parts of media when he pointed out that most of the allegations of Dr Rodchenkov are inconsistent and rather wrong conclusion than knowledge.

The basic problem of Dr Rodchenkov´s witness statements is still that he obviously never distinguishes between his experience-based knowledge, the version of “the plan” he allegedly knows about and his conclusions from what he believes “the plan” must have been. In his narration everything is similar and indistinctive, and everything sounds like facts.

 

However, the CAS panels apparently comes to the same result:

 

Some examples:

Rodchenkov claimed that he received messages to identify samples to be swapped “from maybe 10.00 a.m. (para. 308 of the award) “ whereas the competitions in Sochi 2014 ended not before 13.30 and no sample could have been collected before at 10.00 a.m.

 

Rodchenkov  made false entries in his diary from which a some are mentioned in para 313

 

Rodchenkov  (para 317) never

– distributed the cocktail,

– seen an athlete taken the cocktail,

– witnessed instructions being given to coaches or athletes

– seen an athlete give a clean urine sample

– seen and athlete tamper with a doping sample

– did not indicate whether a benefit/risk analysis of the cocktail was ever undertaken.

 

Rodchenkov had no information about who transported the cocktail and how or and in which form the cocktail was transported and administered. (para. 320)

 

In fact, his allegation came from double hearsay and as such its probative value is very limited (…) and even if it is accepted at face value, the alleged statements reflects merely an intention (on Ms Rodionova´s part) (para 753)

 

Insofar  Dr Rodchenkov made specific statements (para 571.)  regarding the athlete the panel did not rely on his testimony. It was evident, that Dr Rodchenkov lied.

 

By his testimony Rodionova allegedly brought him samples of clean urine and samples for wash out tests (para 575.) In fact the athlete could demonstrate by his passport and ADAMS whereabouts that at that time – in contrast to the allegation of Dr Rodchenkov – the athlete was abroad for nearly two month, Abu Dhabi and Australia. (para 584).

 

 

In fact, his allegation came from double hearsay and as such its probative value is very limited (…) and even if it is accepted at face value, the alleged statements reflects merely an intention (on Ms Rodionova´s part) (para 753)

 

What the plan was and what role Dr Rodchenkov actually had in it is still not cleared up. But it is very doubtful that he has been the “mastermind of the Sochi plan”.

 

The description of the cross examination of Prof McLaren demonstrated his lack of diligence. (para 320 et seq.) The findings of the panel in para 323 is remarkable and demonstrates that Prof McLaren was not open minded to research

 

After assessing all evidences and statements available it is proven that great and important parts of Dr Rodchenkov´s story regarding Olympic Games Sochi 2014 and sample swapping are not true and that he is evidently lying until today. IOC, WADA and Prof McLaren did not conduct their investigations diligently and open minded and not anticipating the result from the beginning. If they had done, this result would show from the beginning and before some athlete’s careers were destroyed.

 

Some general remarks:

It is not my attitude, approach or duty to challenge the Independent Commission report and the Independent Person report in general or to claim that no Anti Doping Rule Violation occurred in Russia in 2013 and 2014. However, the athletes were accused exclusively of the events at the Olympic Games Sochi 2014 and these alleged events are the reason for Oswald Commission, Schmid Commission, the decision of the IOC Executive Board on 5 December 2017 and the exclusion of the Russian Olympic Committee. And now it is evident that the allegations were not true.

 

Because of the significance of the consequences for an athlete facing a lifetime ban as the result of an alleged anti-doping rule violation, it is important that procedures are followed correctly and met the standard of rule of law. For this reason, IOC frequently claimed that it would conduct careful and complete investigations and intend to decide exclusively based on hard evidence.

 

None of that was considered. It was just a part of the illusory world.

 

I don’t want to describe in detail how the service of the defense was impeded by WADA, Prof McLaren and mainly by IOC. Just a few remarks:

 

As mentioned above, during 2017 WIESCHEMANN | Rechtsanwälte requested literally five times to give access to certain evidence and to clarify certain questions to corroborate or to refute the allegations. WIESCHEMANN | Rechtsanwälte received no answer. Evidences were none taken.

 

WIESCHEMANN | Rechtsanwälte addressed certain questions regarding the existence and meaning of evidence by E-Mail to Prof McLaren who refused to answer and wrote “he does not feel it is appropriate to answer the questions”.

 

WIESCHEMANN | Rechtsanwälte addressed three certain questions via Jim Walden to Dr Rodchenkov with regard to his statements in his affidavits (which turned out to be demonstrably untrue) and explained that the answer was required to provide – if needed – counterevidence for the upcoming hearing. Instead of answering Jim Walden forwarded the E-Mail to IOC counsel (sic!). IOC ordered Mr Walden not to answer!

 

Dr Rodchenkov provided affidavits to the IOC disciplinary committee three days before the hearing. IOC held them back from the defense until the night before the hearing so that the defense had no possibility to discuss them and provide counterevidence. Although it is a clear violation of the procedural rules and a fair procedure the (wrong) affidavit was used.

 

Since the middle of October WADA is in possession of Laboratory Information System LIMS from Moscow Laboratory with entries and data for the period between 2013 and 2015. LIMS is later forwarded to IOC and international Federations.

 

The existence of data with regard to a single athlete may corroborate the suspicion against him and IOC used the LIMS exactly for this purpose. However, IOC and WADA covered up the existence – and more the absence of certain data in LIMS would serve to exonerate individual athletes. Hence WIESCHEMANN | Rechtsanwälte requested literally frequently WADA and IOC to provide personal data of the athletes. Although under Para. 11.1 of International Standard for the Protection of Privacy and Personal Information by which any Anti Doping Organisation and International Federation are obliged to provide the data on request of a person to whom a personal information relates IOC and WADA refused.

 

Note: IOC and WADA based their assessment about the suspicion or “guilt” of an athlete on data which they are obliged to share but refuse to share with the athlete concerned.

 

In light of the above, it is not required to discuss the general question, by name if the standard of equality of arms and fair trial is met as well as fundamental standards of rule of law. It is not. In contradiction to their frequent statement Oswald Commission did not investigate the factual bases and did not completely retest all samples, the Commission did not more than to order a new forensic report from Lausanne University which is not reliable.

 

The basic problem in international sports organizations is that nearly all persons involved pursue multiple interests at once and hold multiple functions.

 

Dr Rodchchenkov was caught for dealing with performance enhancing drugs and doping concealment in Russia and was initially subject of criminal investigations in Russia as well as in New York until he was advised that US authorities would love conspiracies and cooperating witnesses. To keep the story alive and to continue to decorate it, is what safeguards him the protection of US authorities.

 

Prof. Richard McLaren is called an “independent person” but apparently, he was not “independent” in his mind. He was part of the independent commission and it is evident that he very early pursued the goal to exclude the whole Russian Olympic Committee from Olympic Movement.

The athlete lost two years and was banned for lifetime from Olympic Games. He was acquitted by CAS and the world of sports cried out that it is wrong. Remarkably, not the fact that he was found guilty without any evidence should be wrong, the acquittal is wrong.

 

What IOC did is indeed the unprecedented attack on the integrity of the Olympic Games.

 

Just after the Olympic Games WADA has not failed to point out that Russian Anti Doping Agency is still non-compliant and – among others – at first responsible authorities for Anti Doping in Russia must publically accept the reported outcome of the Mclaren investigation. https://www.wada-ama.org/sites/default/files/2017-08-02_rusada_roadmaptocompliance_en.pdf

 

Institute of National Anti-Doping Organizations goes far beyond http://www.sportsintegrityinitiative.com/open-letter-ioc-members-olympic-athletes-russia-implementation-group/ and demands that ROC has to acknowledge the findings of the Oswald Commission as well by which 42 Russian athletes were accused of an Anti Doping Rule Violation. 28 of them are aquitted, 3 procedures are still pending. However, WADA and INADO demand to accept the result of a IP-report and Oswald Commission composed of dependent members sitting in an unlawful procedure and which both are rebutted by a last instance court in Sports Arbitration in 28 of 42 cases. Are they really serious?

 

One of the greatest achievements in the history of human societies is the rule of law and presumption of innocence. The presumption of innocence and the right to procedure in accordance with the rule of law protects people worldwide from the consequences of arbitrary treatment, whether by a state or by another body.

The athletes, no matter of which nation they are, are not voluntary subject to a doping control and disciplinary system but they have a right that such system hast to be free of interests outside the fight against doping. They should organize themselves independent and negotiate the conditions under which they are furthermore ready to attend to sport events and to subdue themselves to doping control and disciplinary procedure. Does anyone seriously believe that an IOC member serves athletes rights against IOC in an athletes commission if he is head of an organizing committee for Olympic games at the same time even he is a former athlete?

What is required is

 

– a new approach

– with really independent organization to represent athlete’s rights in the world of sports,

– really independent testing authorities,

– really independent disciplinary procedure without any stakeholders of any federation and

– a procedure which met the standard of modern rule of law.

 

The Russian athletes are not primarily Russian. They are athletes

 

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