After the hearing of May 15, Court of Arbitration for Sport in Lausanne issued today the Operative Part of Arbitral Award without reasoning and set a deadline for provisional suspension of Alexander Legkov and Evgeniy Belov until 31.10.2017, after which such suspension shall lapse in absence of any-doping rule violation sanction having been assessed against the athletes and the athletes shall be restored to status quo ante prevailing at the time of the suspension’s imposition. That means that the athletes will be free to participate in the competition season 2017/2018 and the World Cup 2017/2018 starting 24.11.2017 in Ruka if the ongoing investigations of Oswald Commission of IOC will not bring out new facts and new evidence beyond the facts published by Prof McLaren and if the athletes will not be definitely sanctioned based on such new facts. The defense has no reason to believe that the investigations will bring out such new facts. Insofar the defense appreciates the decision of CAS.
Unless a definitive sanction is imposed on a violation of anti-doping rules by that date, the suspension will be cancelled and the athletes will be transferred to the status quo ante at the time before the suspension is suspended.
This means that the athletes are free to participate in the competition season 17/18 and the World Cup 2017/2018 starting at the 24.11.2017 in Ruka, if not until then the Oswald commission of the IOC has produced new facts and new evidence that goes beyond what is already known from the McLaren report And the athletes do not reach the 31.10.2017 Due to such new facts are definitely locked. The defence has no reason to suspect that such new facts can be identified. In this respect, we welcome the decision of the CAs.
The hearing on 15 May took 5 hours and was a very intense discussion of all factual and legal problems. FIS was unable to resolve a number of weaknesses and contradictions in the McLaren report and the accusations.
Depending on our impression we assume that the CAS panel may share some of our reasonable doubts about any conjunction between the swapped samples and the knowledge or involvement of individual athletes. Both athletes were closed meshed tested clean many times before and after the Olympic Games in Laboratories in Western Europe out of control of Dr. Rodchenkov and RUSADA. Alexander Legkov for example was tested clean not less than twenty times in December 2013 and January 2014 in Europe. Considering that substances of the so called “Duchess Cocktail” are known and were part of the test routine in 2013/2014, from a medical point of view it is impossible that he could have used the cocktail or another prohibited substance for preparation or competition. In addition, both never provided clean urine prior the Games.
Dr. Rodchenkov provided no supporting documents which could – standing alone or together – consistently demonstrate or corroborate his assertions with regard to individual athletes.
However, the panel and the defence focused in the discussion constitutional principles of law, the question whether the decision of FIS Doping Panel stands to full review of CAS panel and the problem that the provisional suspension switches into a sanction in face of its duration and the ongoing investigations from which nobody knows how long they will last. We assume that the panel respects a margin of discretion in favour of the sport federation to impose an optional provisional suspension on an athlete who is under suspicion to protect the integrity of the competition. However, the provisional suspension is no longer appropriate if the federation is not in the position to provide full proof that the athlete is guilty of an anti-doping rule violation within a reasonable time. If the procedure – or the result management – will be not completed until the beginning of new World Cup Season, athletes must be considered as innocent.
It appears important to us to explain our position with regard to the McLaren report and its meaning. Our clients and we never challenged the Mclaren report in general or regarding the purpose for which it was meant. Bearing in mind that it was not intended to use the report to prove an athlete’s individual guilt in a legal process, we have not objections that some reasons arose from the report to open further investigation because the world of sport as well as the athletes themselves, who are concerned by the report, are interested in enlightenment which individuals are involved and responsible and which individuals not. But we hope for understanding that we – so far and still – believe that we consider it as not sufficient to refer purely to the report and the supporting documents to prove individual guilt of an athlete, what we don´t consider as a weakness of the report but it´s usage by FIS.
But this is not a weakness of the McLaren report, but its improper use by the sports federations.
WIESCHEMANN | RECHTSANWÄLTE already addressed some questions on further investigations to the IOC Oswald commission and will keep in touch with IOC as well as FIS. We believe that the decision appears to be a step in the right direction and that the athletes will be assessed as innocent at the end.