Statement regarding WADA CRC recommendation with respect to RUSADAand Russian doping crisis
The WADA Executive Committee will decide on December 9, 2019, exactly three years to the day after Prof. Richard McLaren presented the second part of his report on widespread doping in Russia, whether it will follow the recommendation of the WADA Compliance Review Committee (CRC). This had proposed – in short – to exclude Russia, its athletes, its government representatives and its federation representatives from organized world sports for a period of four years and to allow athletes to participate in individual competitions only if they prove, among other things, that no one had manipulated the data stored about them in the doping laboratory in Moscow.
This is the same approach with which the IOC rightly failed in the two proceedings against former Sports Minister Mutku and the Russian athletes before the Court of Arbitration for Sport (CAS) in Lausanne, in the proceedings against Alexander Legkov even before the Swiss Federal Court. It is manifestly illegal, if not arbitrary, and exposes the double standards that prevail in the fight against doping rather than the fact that it could strengthen credibility. The sufferers are in the end again the athletes who are claimed to be protected in sport.
To anticipate: The thousands of manipulations of data from the Laboratory Information Management System (LIMS) of the Moscow Doping Laboratory is not only unexcusable, but the dilettantism with which the responsible persons proceeded makes speechless.
Equally speechless, however, is WADA’s attempt to revive an already failed strategy. In criminology, the fact that an increase in the threat of punishment does not lead to a reduction in the number of cases is well established. Nevertheless, this is often the means of choice by which authorities react to undesirable developments in the development of crime. Penalty high. It doesn’t cost anything, but it doesn’t help either, it’s just a nice signal to the public. When you talk to criminals, the balance is different: How high is the risk of discovery and what benefit do I have from the act?
This also applies to doping. Since 1982, Robert M. Goldmann has repeatedly asked top athletes whether they would be willing to use doping if they had been undiscovered at the top of the sport for five years but would die afterwards. More than 50 % answer yes. Although the punishment, death, is the most conceivable, it has no negative motivational incentive, because the risk of discovery is eliminated, but the personal benefit is high. The Goldmann dilemma.
Whoever has had the foolish idea the completely absurd falsification of data in 2019 shows one thing above all: The strategy of the temporary exclusion of RUSADA , the exclusion of a large number of Russian athletes, whose innocence was partly proven in proceedings before the CAS and the Swiss Federal Court, and the exclusion of the Russian flag and anthem from the games in Rio and South Korea has failed. RUSADA gives WADA good marks, but sanctions are imposed.
Nevertheless, the public reacts in a Pavlovian reflex and demands the same penalties again with longer duration, resulting in a penalty increase. The fact that it is Travis Tygart, the USADA boss, who stands out here, of all people, causes a certain feeling of disturbance. US athletes had used Therapeutic Use Exemptions on a large scale before RIO 2016, using banned substances with expired TUE or without TUE. Internal email traffic of the USADA documents demonstrates that the practice was known but not stopped. Even the big leagues in the USA have not yet submitted to the WADA Code and the USADA, which accepts this. Non compliant? Nothing.
The WADA CRC follows the pressure and recommends exactly that. Same punishment as before, but harsher. Four years. Costs nothing, helps nothing, but is a nice signal – and is above all illegal.
Prof. McLaren has always stressed that his report is not intended to, and is not appropriate to impose sanctions on individuals. In the decision CAS 2017/A/4968 Legkov v. International Ski Federation (FIS), which has not yet been published by CAS itself, CAS also stated that the report contained some suspicious facts, but that these were by no means sufficient for a conviction. The athletes were later acquitted by the CAS. The Swiss Federal Supreme Court has confirmed the ruling in a so far unique appeal procedure at the request of the IOC.
Prof. McLarens report, as the judges of the CAS established, has a lack of checks and balances which are necessary and customary in scientific operations. Among other things, he referred in his judgment to diary entries by Grigory Rodchenkov without verifying their authenticity. Rodchenkov admitted in his testimony that he falsified entries and later gave others a different meaning.
The McLaren report, which has been legally judged to be unfit for a conviction, once again becomes the benchmark for the admission of Russian athletes to competitions due to the recommendation of the WADA CRC. Whoever is named in it is out, even if he has already lost two years of his career, until he was acquitted in the last instance of any suspicion despite his mention in the McLaren report.
Apart from the fact that the recommendation of the WADA CRC reverses the burden of proof contained in the WADA code itself and that all Russian athletes under general suspicion have to prove their innocence, another criterion is that the athletes have to prove that none of their data has been manipulated.
One, if not the essential essence of the ruling Alexander Legkov v. International Olympic Committee (IOC) CAS 2017/A/5379, which the defense has struggled with since the temporary suspension of almost two years with different panels, is this:
According to the Panel, an athlete can only be held liable for the replacement of his urine by another person if: (a) the Athlete has committed an act or omission that facilitates such substitution; and (b) they have done so with actual knowledge of the likelihood that such substitution will occur. Only an athlete who himself performs an action that contributes to his urine sample later being replaced by another person and who knew or should have known that such substitution was likely is guilty.
The Athlete shall not be liable for his/her Sample after it has been submitted to the Anti-Doping Organization, nor for any data stored by the Anti-Doping Organization.
Nevertheless, the WADA CRC wants to exclude all athletes whose data has been falsified. The WADA CRC does not even claim that the reason for the falsification is the concealment of doping by athletes. Rather, the manipulation in 11,227 (!) cases only served the purpose of “identifying and deleting 25 (!) highly inculpatory e-mails”, i.e. concealing the data manipulation itself, in which neither the athletes nor RUSADA were indisputably involved. Possibly thousands of clean athletes out because someone accidentally or intentionally manipulated their data without athlete’s knowing or wanting to?
Is that fair? It’s arbitrariness.
And this, too, is remarkable:
The CRC proposes that representatives of the Russian government should be excluded from participating in or attending international sporting events for a period of 4 years. There should be no legal basis for this, as WADA should have known at the latest since the decision CAS 2017/A/5498 Vitaly Mutko v. IOC of 3 July 2019. Just as Rule 44 and 59 of the Olympic Charter do not apply to government representatives, so the Russian state is not a signatory to the WADA Code and has therefore not subjected itself to WADA’s penal power. Their power to impose sanctions is limited to depriving Russian representatives of their positions in WADA and banning international events in the country.
Anything that goes beyond this as a “sanction” is at best directed at the signatories of the WADA Code. Consequently, these, i.e. the IOC and international associations, would be “non-compliant” if they did not actively prevent or even tolerate the attendance of an international event by a Russian government representative. But how that is to work remains a mystery, but we can eagerly await Russian President Vladmir Putin when he rightly attends a European Championship match in St. Petersburg or the Olympic Games in Japan with a purchased ticket, and IOC and UEFA would then have to be suspended from WADA. They wouldn’t be compliant with the executive committee’s decision. Not the government officials.
But WADA’s attempt to free its two chief witnesses Grigory Rodchenkov and Tim Sobolevsky from the suspicion that they have manipulated data in the system in order to extort Russian athletes into paying money also leaves speechless. The assertion that this suspicion arises only from the reproaches of the Russian side is nothing less than a falsification of history.
At the latest since Rodchenkov was iconised by the film “Ikarus”, it is often forgotten what was still certain in the first report of the Independent Commission of WADA under Dick Pound as a result of the investigations and Darya Pishchalnikovahad already reported to WADA in vain in December 2012:
Grigory Rodchenkov was not only in the center of the doping system, he demanded money from the athletes for disguising the positive doping findings and got it. That wasn’t just a doping violation. That’s pretty much punishable in any country, including Russia. Even Icarus does not hide the fact that Rodchenkov did not leave Russia to reveal the truth to the world public, but for fear of prosecution in Russia. Later the media made him a whistleblower.
The fact that Julia Stepanova and her husband Vitaly complained at the “play the game” conference in Colorado on 15.10.2019 that Rodchenkov and Portugalov bet against each other in an inhuman way, whose better doped athlete scores better, is a statement that unfortunately did not find its way into the media, as little as Vitaly‘s sentence about Rodchenkov’s story: “If you want to ruin the truth, stretch it out”. And also the fact that Don Catlin, long time colleague and friend of Grigory Rodchenkov, turned away from him and clearly criticized him and his alleged louder motives, remains gladly unnoticed.
This all sounds very much like double standards.
The judgment of the CAS is still literally: Dr. Rodchenkov’s statement is a pure assertion that is not supported by any evidence.
It is not corroborated by any other evidence, including forensic evidence, and does not provide evidence of the Athletes’ use of a Prohibited Substance or an Anti-Doping Violation. In its reasons, the judgment deals intensively with those points in which Rodchenkov obviously made false statements, in his interrogation he sometimes fantasized and sometimes obviously lied and admitted to having falsified diary entries. What a mockery that in the USA an anti-doping law should bear his name, and Brian Fogel calls him, not the simultaneously present married couple Stepanov, the “greatest whistleblower in history” and fabulates how Rodchenkov allegedly wrote him, Fogel, from Sochi in the morning at 4 emails – at a time in February 2014, when the two should not have known each other yet. No one rebukes him because history has long since become a useful narrative.
It is also common usage to speak of a “state” doping system, but there is still no evidence that a member of the government or an employee of a ministry was involved in the system not for criminal gain but as part of the government’s actions. Neither Prof. McLaren nor the Schmid Commission have found independent and impartial evidence of this.
The WADA CRC’s allegation that evidence has been erased from the data that another employee was involved in the concealment system is also an allegation that applies to WADA in the same way. In all documents and e-mails published by Prof. McLaren in the Evidentiary Disclosure Package provided by WADA to the Schmid Commission of the IOC and the CAS, one name was always blacked out in order to conceal its involvement while burdening others. We were able to conclude early on that it was probably Tim Sobolevsky, who, like Grigory Rodchenkov, lives in the USA and can again work in an anti-doping laboratory there. Probably the only case in the history of WADA in which “substantial assistance” in the clarification of a doping case has actually led to a reduction in punishment for the suspect.
The reproach also sounds like double standards.
The integrity of evidence is a valuable asset. Protecting this is important, so important that protection must be demanded of all parties involved, not just RUSADA. The defence in the proceedings Alexander Legkov v. International Olympic Committee (IOC) CAS 2017/A/5379 was denied exculpatory evidence from the IOC which could have proved innocence at an early stage. The IOC had also falsely claimed the existence of incriminating evidence. Whether intentionally or negligently, as the IOC states, does not matter.
To date, WADA has no suspicion that the chain of custody from the laboratory in Sochi 2014 has been falsified, but this proves that the samples allegedly exchanged during the night by Russian laboratory personnel actually arrived during the day and were partly processed by international personnel in 90 minutes. The fact that IOC and WADA did not evaluate these findings and did not make these data available to the defense is also a violation of the integrity of evidence. IOC and WADA non-compliant? Nobody asked.
Already in the application of the International Standards, which are the basis of intervention, WADA is inconsistent.
The International Standard for Signatories’ Compliance with the Code is a mandatory International Standard that forms an integral part of the World Anti-Doping Strategy.
Art. 1 states: “Signatories to the World Anti-Doping Code (the Code) agree to comply with the following provisions, which contain a set of legal, technical and operational requirements set forth in the Code and accompanying International Standards.
The athletes who are required to “strictest liablity” are well advised to adhere to every detail of the International Standards in doping control, otherwise severe sanctions may be imposed. The World Anti-Doping Code International Standard for Testing and Investigations (ISTI) also begins with the words that it is a mandatory part of the WADA code. It was therefore no less astonishing when Stuart Kemp, representing WADA in the hearing against Sun Yang on 15.11.2019, stated that compliance was not mandatory for WADA and the anti-doping organizations, but merely “guidelines and models of best practice”. So it’s more of a basis for discussion.
Contrary to 5.3.3 ISTI, it is undisputed that two of the three doping controllers could not identify themselves properly and obviously did not have the necessary qualifications for taking the samples. The sample was aborted after consultation with the head of the local anti-doping agency Dr. Han Zhaoqi. FINA had rightly acquitted the athlete. WADA, on the other hand, demanded his suspension on the grounds that he would have had to accept the violation of the rules by the inspectors. Is that fair to treat two addressees, WADA and athlete, of the same set of rules differently? It is binding for some, but not for others? It’s not fair, but it’s everyday life for sports lawyers.
What is sport?
The essence of sport is to determine the winner of a competition under standardised starting conditions which are expressed in the totality of the rules. Attention to the rules is inherent in sport. Fairness is the tacit agreement to abide by the rules and not to gain any illicit advantage. When someone uses doping, he shifts the initial conditions in his favor. But starting conditions are defined by the totality of the rules, which are not of different value, but of the same value. This includes the rules that guarantee the athletes a fair trial under the rule of law and in which all athletes are treated equally regardless of their sex, race or nationality.
In Russia, Grigory Rodchenkov has for a long time given many Russian athletes a forbidden advantage, regardless of his motivation to do so. Some of them have been discovered, some of them possibly not yet. Athletes outside Russia rightly felt disadvantaged after the discovery of this and other scandals because they were closely monitored, but at the same time assumed that their competitors had tested less and therefore had unlawful advantages. However, this unequal treatment cannot be compensated by the fact that Russian athletes are now placed under general suspicion and suffer an illegal competitive disadvantage. There is no bad or good unequal treatment. It´s just unequal treatment.
The separation of morality and legality that Immanuel Kant made is a great achievement in the development of modern society. But this separation is completely overcome in doping. The morality founded on the consensus won in the respective peer group, the conviction to stand up for the right cause, legitimizes action. Not the legal conformity and not the procedure. But everyone notices that this makes the system untrustworthy.
The supposed fight of sport against doping in Russia has become a narrative or has been since the beginning. The way in which it is handled damages the fight against doping in general. The narrative is kept alive in a cacophony of daily outrage by media representatives and stakeholders of different interests whose main theme, sometimes their only theme, is precisely this or another doping scandal and who outbid each other to demand ever harsher punishments. In the face of the expectations generated in this way, any prudent, possibly acquittal judgement must appear deficient and “unjust” as an expression of a lack of willingness to punish doping offenders.
What is wrong, however, is not the judgment, but the unfounded exaggerated expectations. The provoked disappointment creates a lack of credibility towards the whole system, also among the athletes themselves, who see their competitors “wrongly” acquitted. An inconsistent and untrustworthy system is not accepted as a binding order.
What is needed is a system that does not focus on the interests of the federations competing for authority, but on the interests of the athletes. A system that applies equally to all and that guarantees the rights of athletes to a fair and constitutional trial. Not only strict liability for the athletes, but strict conformity for the anti-doping organizations. And no more unequal treatment.
Certified specialist for sportslaw
 “The IP is not a Results Management Authority under the World Anti-Doping Code (WADC 2015 version). The mandate of the IP did not involve any authority to bring Anti-Doping Rule Violation (“ADRV”) cases against individual athletes. What was required is that the IP identify athletes who might have benefited from manipulations of the doping control process to conceal positive doping tests.
Accordingly, the IP has not assessed the sufficiency of the evidence to prove an
ADRV by any individual athlete”. McLaren report part II page 18.
 CAS 2017/A/4968 Legkov v. International Ski Federation (FIS), para 232 https://wieschemann.eu/cas-award-in-case-alexander-lekgov-v-fis-published/
 Alexander Legkov v. International Olympic Committee (IOC) CAS 2017/A/5379 , http://www.tas-cas.org/fileadmin/user_upload/Award__5379__internet.pdf
 International Olympic Committee vs. Alexander Legkov 4A_382/20181 Judgment of January 15, 2019
 Art. 3.1 Burdens and Standards of Proof: The Anti-Doping Organization shall have the burden of establishing that an anti-doping rule violation has occurred.
 “and no data relating to their samples has been manipulated”
 “Russian Government officials/representatives may not be appointed to sit and may not sit as members of the boards or committees or any other bodies of any Code Signatory (or its members) or association of Signatories.
Russian Government officials/representatives may not participate in or attend any of the following events held in the Four Year Period: (a) the Youth Olympic Games (summer and winter); (b) the Olympic Games and Paralympic Games (summer and winter); (c) any other event organized by a Major Event Organisation; and (d) any World Championships organized or sanctioned by any Signatory (together, the Major Events).”
 CAS 2017/A/5498 Vitaly Mutko v. IOC of 3 July 2019, para 60 et seq
 Art. 22.8. WADA code: “forfeiture of offices and positions within WADA; ineligibility or non-admission of any candidature to hold any International Event in a country, cancellation of International Events; symbolic consequences and other consequences pursuant to the Olympic Charter”
 „to support the argument now being advanced by the Russian authorities that it was Dr. Grigory Rodchenkov and two co-conspirators who falsified entries in the Moscow LIMS database as part of a scheme to extort money from athletes” – https://www.wada-ama.org/en/media/news/2019-11/wada-compliance-review-committee-recommends-series-of-strong-consequences-for
 WADA Independent Comission report #1, Chapter 13 and 16
 WADA Independent Person report, EDP1157
 “Grigory goes on to describe himself as the witch in the witch-hunt, and we agree with that notion in part as he was most likely not the mastermind behind this affair. Yet we are not ready to accept his absolution of guilt.” https://thecatlinperspective.wordpress.com
 Alexander Legkov v. International Olympic Committee (IOC) CAS 2017/A/5379, para 821.
 15.10.2019 play the game session
 IOC’s Disciplinary Commission’s Report of 2 December 2017, page 14/30
 “deleted from the LIMS database important evidence proving that another laboratory staff member was involved in the cover-up of doping by Russian athletes in 2014 and 2015”.
 Tracey Holmes @TraceyLeeHolmes on twitter