The previous understanding of the so-called Duchess-list is a legend
Evgeniy below and Alexander Legkow relieved.
The system that Richard McLaren described in his report as an independent person IP is unprecedented.
It therefore requires all parties to have an unprecedented approach to assessing the evidence and conclusions of the IP report and the complementary evidence.
The main difference to normal Anti-Doping Rule Violations is obvious. In case of an Adverse Analytical Finding it is sufficient to proof that a prohibited substance occurred in the Athlete´s body because it is each Athlete´s personal duty to ensure that no Prohibited Substance enters his body. In other words, the Athlete is responsible for his body.
In contrast, the responsibility for the storage and handling of the samples under Art. 5.1. IOC Anti-Doping Rules 2014, after the athletes handed them out to the DCO, lies to the IOC, what means primarily the IOC Medical Commission (Art. 4.1; 4.2.1. ADR 2014).
This means, to provide evidence that the sample of an Athlete was tampered demonstrates not an ADRV of the Athlete concerned, but an ADRV of the IOC Medical Commission.
More evidence is needed to attribute the manipulation to a single athlete.
Some of the evidences could be taken from IP report and its supporting documents – but not direct. The reason is that the IP has was never obtained to establish an Anti-Doping Rule Violation case against individual athletes. For the avoidance of any doubt and to be very clear, the focus of the IP investigation, based upon its mandate, was to review evidence to establish whether “there had been a manipulation of the doping control process during the Sochi Games…” and to “identify the modus operendi and those involved in such manipulation.”
IP McLaren writes himself:
The reason these athlete samples needed to be swapped is because they had likely been authorised to use the cocktail up to and even during the Games. were probably entitledTo use the cocktail until and even during the games.
Dr. Rodtschenkows statement is that Most protected athletes were were on doping (and could have potentially a benefit from swapping their urine) and/or that all athletes made use from the authorization which they may have likely – but not certain – obtained.
That means no less, that neither the IP nor Dr. Rodchenkov themselves claim to have knowledge that all “protected athletes” were on doping (and could have potentially a benefit from swapping their urine) and/or that all athletes made use from the authorization which they may have likely – but not certain – obtained.
Accordingly, the IP has not checked whether the proof of a ADRV against a single athlete is sufficient.
In contrast, McLaren is out: it is not known whether athletes knowingly or unwittingly participated in the processes involved.
The assumption that it would suffice to prove the manipulation of a sample of an athlete and, incidentally, to refer to the McLaren report would go far beyond what Richard McLaren and Dr. Rodchenkov himself claim and would conflict with any logical and Constitutional principle.
In order to clear up any doubts and to be quite obvious, it is not our approach to deny the credibility, the diligence or the independence of Prof. McLaren. Within the limits resulting from his mandate, he has created an investigation that deserves any form of respect.
Insofar the defence challenged the evidences taken from the report in the past repeatedly and in the further course again, it demonstrates not a weakness of the work of Prof. McLaren, but the misuse of his work for a purpose for which it was never meant.
He could be reasonable convinced that the evidences he brought to light provide sufficient evidence that a doping system and a doping system had been established – a fact which is not even contested by the Russian Sports World – and from his point of view and his mandate further investigation were not required.
Richard McLaren therefore deserves no criticism of his work, which is only provoked by the fact that no one seems to respect his limited mandate.
Therefore, in the context of the result management, the report is for the complete review of each disciplinary commission and, if necessary, a CAS panel and the Swiss Federal court, whether proof is successful that a certain athlete has committed a ARDV-and can be sanctioned – or whether only his sample was tampered with without his personal involvement. In this case, the procedure must fail against him.
None of the available evidence, either alone or together, satisfies the standard of “comfortable satisfaction” to provide sufficient evidence to speak to the athletes of a ADRV guilty.
- The CAs already decided in CAS2017/A/4968 and CAS 2017/A/4969 on a factual basis, which was stronger than today, that for both athletes there was a “reasonable possibility” of a violation of the rules, which was sufficient for a provisional suspension and further investigation. However, it also decided that sanctions would require new facts that were unknown to the panel at that time and would have to go beyond the IP report. In fact, the evidence is weaker today..
- The assumption that it would suffice to prove the manipulation of a sample of an athlete and, incidentally, to refer to the McLaren report would go far beyond what Richard McLaren and Dr. Rodchenkov himself claim and would conflict with any logical and Constitutional principle.
- The code system used by the IP is still inconsistent and full of errors that have even increased significantly compared to the release in December. There is no evidence that a single athlete is actually mentioned on one of the documents of Dr. Rodchenkov and the IP. We have found up to four different codes for individual athletes, which are different, burdensome, or completely relieving.
- 1. The cocktail was evidently (by the existing EDP) offered different athletes who were “understood as likely been authorized to use the cocktail” even if they refused or the offer reached them never. The detection window for the new cocktail since 2012 is at least between 12 and 14 days. This is evident because of the wash out tests which are known.
- 1. The responsible persons may have established a widespread system within summer sports with a sophisticated chain of contact to coaches and persons in charge, but not in winter sports in which merely 16% of all cases mostly from Sochi occurred.
- 1. The author of the duchess list and the medal by day list never had a personal contact or knowledge which athletes indeed used the cocktail because. Neither Velikodny nor Rodionova were in direct contact to the athletes. Their assumption – which comes out in the lists – is proved by nothing.
- 1. The athletes can prove that the usage of the cocktail was impossible as well as senseless for them so that the apparent evidence from the duchess list is at least shattered, whereas the CAS was even of the opinion that in this case the procedure against them must fail. Both had no benefit from the system but were concerned because of an erroneous assumption of the responsible persons.
- The previous understanding of the Dutchess list, the sample manipulation is the logical continuation of the system in Moscow to protect the athletes completely, in order to enable them to prepare using the cocktail, is refuted by the existing evidence. The sample manipulation has affected many athletes who have demonstrably not used doping, either under the protection of the Moscow laboratory, nor in Sochi.
- 2/3 of all samples of athletes listed on the Dutchess list, or the medal by day list, do not show any traces after the result of the new forensic investigations, which suggest the use of a tool to open the bottles.
On the other hand, there were many athletes whose rehearsals were apparently manipulated without being mentioned in any of the documents.
The understanding that one or both lists were the binding schedule for the manipulation and the mention of a name can provide proof that a particular athlete participated in the manipulation is no longer tenable. The mention on one of the documents has no probative value.
- Even if a sample has traces of tool use and can potentially be considered manipulated, there is no conclusive evidence that the urine currently in the bottle comes from the athlete. At 30% of the samples tested by the IP, a negative sodium and/or DNA test proves that the current urine comes from different individuals. This is a strong shock of semblance-even if it was justified at all.
- Some athletes have no sample with traces of tampering. They are therefore free from suspicion, even if they appear on the lists.
- Some athletes were obviously only understood with some of their samples as “protected”, with others not what would be impossible. This is in the obvious contrast to the alleged logic of the system.
- The minimum standard of evidence requires evidence of DNA testing that the current urine in a manipulated sample bottle actually comes from the athlete. If not, there is no indication that it may have provided clean urine before manipulation, which could be exchanged during the manipulation.
For this reason, the IOC’s duty is to carry out a DNA test, as Prof. McLaren has specifically recommended to the disciplinary commission.
The DNA test is required to prove the athlete’s fault and not he is obligated to shake a semblance of evidence. Without the DNA test, there is no evidence of the involvement of a Athlten.
- 1. Even if it were proved that current urine in tampered bottles comes from the athlete, it is just as likely that the responsible persons collected the urine without a contribution from the athlete either from his medical examination in Moscow hospital or from one of his samples he provided in the years before Sochi within a regular doping test procedure. This assumption is justified direct by the examples from other athletes provide by the IP.
- The investigations carried out by the Disciplinary commission showed no evidence that the athletes ‘ samples were manipulated at all, the athletes were involved in a doping violation, or they could have benefited from a manipulation. The investigation has led to a relief of the two athletes.
- 1. The defense expects a legal procedure governed by law on Monday and that the athletes will be fully rehabilitated. Otherwise, the defense is prepared to make use of all legal remedies as far as necessary, even if it will have influence on the implementation of the Olympic Games 2018 in Pyeongchang or on the bindingness of the results..
- 1. There are a lot of voices worldwide demanding for sanctions as soon as possible. All of them are advised to deal not superficial, but in detail with the documents published by the Independent Person. The doping system as such is not doubted by anyone. This is the task of the Schmid Commission. To demand for sanctions against individual Russian athletes from Sochi 2014 without proper evidence, therefore the Mclaren report provides no basis