Opinion 23rd April 2021

Alex Schwazer case: is a difference of opinion acceptable?

• On 11 March Alex Schwazer’s coach, Sandro Donati, informed me that he was considering retaining Mike Morgan as Alex Schwazer’s legal advisor, after I had finished writing an article on the case for Play The Game. It has since become apparent that Schwazer and Donati have retained Mike Morgan as their legal advisor. Mike Morgan owns The Sports Integrity Initiative.

Anybody involved with sport knows that doping disputes are settled by the Court of Arbitration for Sport (CAS). Its original name, in French and Spanish, is the Arbitral Tribunal of Sport. This is perhaps more fitting, as the CAS is an arbitration body. 

Arbitration is a means of legal recourse that relies on an agreement between parties which specifies that it should be used to settle disputes. Through acceptance of the 2009 World Anti-Doping Code, all signatories recognise the jurisdiction of CAS as means of settling anti-doping disputes. Elite athletes are co-opted into this acceptance when they sign the Athlete Agreement with a national federation.

In a reversal of usual legal procedures, athletes charged with an anti-doping rule violation (ADRV) are guilty until they can prove they are innocent. This is what has happened to Alex Schwazer. He has spent almost five years attempting to prove his innocence. The only person who knows the truth is Schwazer and perhaps his Coach, Sandro Donati.

When legal authorities do become involved in anti-doping, this reversal of the burden of proof can become problematic. Doping is a criminal offence in Italy, and Schwazer has already been convinced once. Schwazer is therefore understandably keen to prove his innocence. 

As such, prosecutors in Bolzano have been examining the evidence from a different perspective. Is the case against Schwazer watertight, or are there gaps in procedures which mean that his sample could have been manipulated, as he claims.

They found serious gaps in both the procedures and evidence. You can read more about them in my article for Play The Game.

WADA’s objection to the Bolzano ruling

The World Anti-Doping Agency (WADA) doesn’t like the latest conclusion by Bolzano prosecutor Walter Pelino. WADA is correct to point out that Pelino’s ruling, issued on 18 February, is a ‘pre-trial decree’ issued by a single judge in criminal proceedings.

However, Bolzano prosecutors have been investigating Schwazer’s case for years, have held a number of evidential hearings, and have issued two rulings. As such, Pelino’s decree is a summing up of previous investigations and evidence – it is not one person’s opinion, as one might conclude from WADA’s statement.

WADA is correct to point out that it wasn’t involved in the collection of the sample from Schwazer on New Year’s Day 2016. However it did become involved in procedures in 2017, when Bolzano prosecutors requested that Schwazer’s sample be transferred from Germany to Italy for analysis. It opposed the transfer, yet sent another of Schwazer’s samples to the Lausanne Laboratory with instructions for it to perform DNA analysis. 

It held onto this evidence from October 2017 until 12 September 2019, when it was produced in an attempt to refute the contention of Bolzano prosecutors that the DNA content in Schwazer’s sample was physiologically impossible. This is how WADA ‘offered its support’ to the Bolzano court, to borrow words from its statement.

It is accurate that Bolzano prosecutors were ‘provided with urine left over from Schwazer’s 1 January 2016 sample’. However both the IAAF (as World Athletics was then called) and WADA opposed the transfer of Schwazer’s samples to Italy until they were ordered to surrender them by Bolzano prosecutors. As my article highlights, a ‘diplomatic incident’ occurred in the Cologne Laboratory when attempting to prepare the samples for transfer.

WADA argues that Pelino has ‘decided that an unidentified person secretly obtained a third party’s sample that contained synthetic testosterone, exposed it to ultra violet rays to remove all traces of that third party’s DNA, mixed it with Mr. Schwazer’s January 2016 urine sample, then heated the combined sample to increase the concentration of synthetic testosterone in the (combined) sample’. That isn’t how I read the ruling.

It states that in a previous hearing held on 14 September 2020, an expert ‘has repeatedly clarified that the absence of foreign DNA to Alex Schwazer doesn’t prove that all the urine is Alex Schwazer’s’. In this September hearing, it was clarified that it is theoretically possible that Schwazer’s urine could have been mixed with that of a doped athlete, urine which had previously been cleared of DNA traces using an ultraviolet sanitising device available at most Laboratories. The expert opined that because the sample would now be diluted, the obvious solution would be to heat it, which would have the effect of concentrating the DNA.

WADA argues that it provided ‘clear and unequivocal opinions in the Bolzano proceedings that the DNA concentration in Mr. Schwazer’s sample was not abnormal’. Unfortunately, Pelino disagreed. He did ‘disregard’ WADA’s evidence on DNA, as its statement claims. But this evidence was filed after the evidential deadline, and it appears that Pelino had good reason to reject it.

WADA used a short Study by Professor Vincenzo Pascali and Professor Adriano Tagliabracci, which it produced at the closing evidentiary hearing on 11 September 2020. Pelino argued that the study used ‘non-existent’ scientific literature in an attempt to ‘denigrate’ the work of Giampietro Lago on DNA concentrations.

‘The suspicion is therefore very strong that the data referred to in the table in question (attached to part 2 of the “consultancy” performed by Pascali, Tagliabracci) are false or otherwise indicated without a reference scale and without allegations whatsoever, precisely in order to deceive the Public Prosecutor’, reads Pelino’s ruling. In addition, as pointed out in my article, Pelino found that Pascali had already been sentenced to 18 months imprisonment for false appraisal during a murder trial.

The expert that replaced him at the trial? Giampietro Lago. 

As also outlined in my article, Pelino was heavily critical of WADA’s 2017 DNA analysis for the following reasons:

• It was performed using 4ml of urine, despite WADA resisting the transfer of Schwazer’s urine to Italy in 2018 by arguing that more than 6ml of urine was needed for DNA analysis;
• The 4ml may have been a concentrated precipitate;
• Details on the analysis performed were allegedly omitted by WADA;
• Subsequent analysis was performed on athletes, including Schwazer, which didn’t reveal such high concentrations of DNA.

The Bolzano prosecutors also disagreed with WADA and the CAS that there were no breaches in the chain of custody. WADA didn’t see it as a problem that Schwazer’s sample was left locked in the offices of a sample collection company overnight, despite the fact that approximately six people held keys. Neither did the CAS. Why?

WADA mentions that the CAS heard testimony from the ‘courier’ who delivered Schwazer’s sample to the Cologne Laboratory. Its statement doesn’t mention that the ‘courier’ was the father of the Managing Director of the sample collection company. Why did he deliver the sample?

WADA’s contention that nobody at the Cologne Laboratory knew the identity of Schwazer’s sample is also questionable. The Chain of Custody Form relating to Schwazer’s sample was marked ‘Racines – ITA’, which is Schwazer’s home town. It has a population of less than 5,000 people. 

As pointed out in my article, anyone who saw the form could have realised that the sample was Schwazer’s, as he is the only successful athlete from the area. There is even a monument to his Beijing 2008 success there (pictured). Yet the CAS concluded that nobody in the Laboratory had any clue that the sample was from Schwazer, as WADA points out. How and why did it come to this conclusion?

During investigations by Bolzano prosecutors, it was pointed out that agents from Russia’s federal security service (FSB) had worked out how to open and seal sample bottles without leaving a trace. As such, Pelino concluded that the fact that a sample bottle is sealed is not definitive proof that it hasn’t been tampered with.

WADA reads this as Pelino accusing the Cologne Laboratory of unsealing and re-sealing the sample bottles. Why draw this inference? The sample sample bottles that the FSB figured out how to open are still being widely used in doping control.

WADA hypothesises that it would be easier to spike Schwazer’s sample with stanozolol, which is easily detectable. This is a very good point and one that has not been fully explored. But because of how anti-doping jurisprudence works (guilty until you prove innocence), Schwazer had to come up with some sort of explanation for his positive test.

Schwazer’s first contention is that he didn’t dope. In an attempt to explain how his sample returned a positive test, he argued that his sample may have been manipulated. Once you go down that road, it is very difficult to perform a u-turn.

Should it be this complicated?

Schwazer’s case is undoubtably complicated, which is what makes it so interesting. However, stripping away the complications over DNA concentrations, urine sample volumes, ID compromises and more, questions still remain. Why would an athlete accused of a second doping offence spend five years and a great deal of money attempting to clear his name? 

One could argue that a guilty athlete would accept the sanction and move on. But that argument ignores the fact that Schwazer is held up as a hero in Italy, as is his Coach, Sandro Donati. Reputations are at stake, as my article highlighted.

Similarly, why have the anti-doping authorities gone to so much trouble to defend their conviction? If the shoe were on the other foot and an athlete had been guilty of so many apparent departures from anti-doping procedure, it is likely that they would face a lengthly ban.

Yet despite the identity of Schwazer’s sample being arguably compromised, despite questions over sample transfer for analysis, DNA concentrations and more, Schwazer’s case rumbles on. WADA has also spent a great deal of money attempting to defend a sanction that has – in all likelihood – ended Schwazer’s career.

The reason is that WADA has no choice. Pelino has accused WADA of procedural fraud – a very serious charge indeed. Italy’s Public Prosecutor must now decide how to proceed. WADA cannot roll over, otherwise further questions will arise about anti-doping procedures involving other athletes, which is why it has to support the CAS Decision and dismiss Pelino’s findings.

After five years, we are still no closer to knowing whether Schwazer actually doped in 2015/16. WADA maintains that his is guilty of an ADRV, which Schwazer still disputes.

Perhaps the only issue that has been illustrated by the saga is the discord between anti-doping procedures and courts of law. Sport doesn’t like it when legal authorities disagree with its jurisprudence, as Schwazer’s case has once again highlighted. If Italy’s Public Prosecutor decides to proceed based on Pelino’s ruling, then prepare for further fireworks.

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