We were just informed that the FIS Doping Penal under its chairman Patrick Smith uphold today the provisional suspension imposed on December 22, 2016 although one of the three members of the panel does not share the opinion of the panel and wished to have his dissenting opinion included in the decision:

Alexander LEGKOV and Evgeniy BELOV have been accused of being involved in the circumstances the McLaren report describes for the period of the Olympic Games in Sochi 2014. IOC and FIS have asserted, based on the forensic investigations of Prof. McLaren, that the lids of some of their samples taken in Sochi show marks and scratches which indicate that the bottles have been opened and resealed. Further individual accusations were not made by IOC and FIS, except for the assumption that both athletes were allegedly mentioned in documents to which Richard McLaren referred in his report.

In several written submissions as well as in the hearing on January 13, 2017 the defense could make evident that the documents are neither qualified to proof nor to indicate that an individual athlete has been involved or could have benefitted from allegedly swapping samples in Sochi.

Richard McLaren was not ordered by WADA to investigate towards single athletes but to deliver evidence that a systematic working system has been established in Russia to enable doping and to conceal systematic doping. No matter if his results were true or not, the outcome was neither intended nor eligible to be used on single athletes. Moreover, Richard McLaren has published several documents, inter alia the so called “Duchess list” which has been provided for McLaren by third parties and should allegedly identify those athletes who have allegedly used performance enhancing drugs.

This assumption is in all probability wrong.

The documents do not show any names but codes which allegedly refer to individual athletes.

However, the defense could make evident that the same code is used in various documents for different individuals in different sports disciplines which are typically not part of the Olympic Winter Games

In addition, the used system leads to confusing results by which Evgeniy BELOV allegedly would have been a member of the silver winning relay team but would not have attended the competitions for which he is notified in the official start and result lists of FIS. Alexander LEGKOV would have attended in the 15km classic style competition in which he did not take part.

The defense has compared all documents – which allegedly should refer to the athletes – and the official start and result lists of FIS with the testing history from both athletes and has not found any accordances. The documents contain – contrary to the awakened appearance – no privileged knowledge of the respective author.

Furthermore, two samples have been taken from Alexander LEGKOV in Sochi which have been tested negative and for which no forensic proof on marks and scratches is available. In conclusion, that means – according to present knowledge – LEGKOV has been tested negative twice in Sochi without any indication of tampering.

The McLaren report assumes the following.
The ratio for urine swapping was to allow athletes to engage in their doping pratices right up to the eve of the Games, or even during the Games (…). As part of the MofS´s centralized control over all aspects of the plan, the MofS developed a list of the athletes of athletes who would be taking the “cocktail” as part of their preparation (McLaren Report part II, page 96)
It was Dr. Rodchenkovs evidence, that, indeed, all of the individuals on the Sochie Duches list were understood by the CSP, the FSB, and the MofS to be on the doping program prior to and possibility during the Sochi Games ( McLaren report part II, page 38)

Also this presumption must be considered refuted.
Alexander Legkov has been tested outside 95 times 137 times and Evgeniy Belov by competitions since 2010. Further tests in competitions are available.
With merely single exceptions the samples have not been analyzed in Moscow but in Western Europe. All of the samples have been tested negative, the last one shortly before the Games. That excludes the possibility that one or both athletes have prepared – so the assumption of the report – for the Games using the “Duchess cocktail”. Nevertheless, since LEGKOV has been tested negative in Western Europe probably more than 150 times during this period since 2010, Alexander LEGKOV is one of the Top 3 Cross-Country-Ski Athletes in the world.

Furthermore, no positive tested samples of any athletes who have allegedly been reported on the so called “Duchess list” or any other comparable documents in the evidence disclosure package have been identified in the report referring to Moscow laboratory prior to the Olympic Games in Sochi. Even though a huge number of positive tested samples from other athletes are mentioned, but not from athletes from the “Duchess list”

As a result, the assumption that the so called Duchess list indicates that an athlete mentioned on it has been understood as allowed to use performance enhancing substances prior to and throughout the Olympic Games is not proven by the documents to which Prof. McLaren refers.
But it is proven by the documents that the codes which have been used within the documents refer to different individuals and are not eligible to identify a single athlete.

The decision is incomprehensible, because

The decision accepts that there are errors in the McLaren Report and especially the lists known as the Duchess List and the Medal by Day List. Although there is no conclusive evidence of his immediate and active participation, it is difficult for the FDP to accept that the Athlete had no knowledge of the manipulations that occurred particularly because he received the benefit of the scheme by winning a gold medal.The lack of imagination of the panel can hardly justify but a suspicion.
Therefore one of the mebers of the panel is of the oppinion that The evidence mentioned in the McLaren Report is not sufficiently convincing and does not support the conclusion that the IOC investigation or a later appeal before the CAS will confirm that the Athlete has committed an ADRV. The requirements for a provisional suspension are not met in this case since there is no reasonable prospect that the allegation of an ADRV will be upheld.

For the sake of completeness, we would like to point out that the defense and their assistance have spent nearly 100 hours on the analysis and the submission to FIS and IOC whereas the FIS has imposed the provisional suspension merely two hours after FIS had received information about the athletes from IOC on January 22, 2016.

We have also asked the IOC to provide evidence of any violation of anti-doping rules by the two athletes during the Olympic Games within 10 days, or to terminate the investigation. There are no indications or evidence to date. Most of the McLaren report points to circumstances outside the Olympic Games. The IOC would not be responsible for possible anti doping rule violations based on such allegations. This is demonstrated not least by the biathletes within the IBU.

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