Features 21 February 2018

Brooklyn Nets owner backs biathlete lawsuit against Dr. Rodchenkov

Mikhail Prokhorov, the Russian owner of the Brooklyn Nets, is understood to be bankrolling a defamation lawsuit filed by three biathletes against Dr. Grigory Rodchenkov, former Director of the Moscow and Sochi 2014 Laboratories. The lawsuit, filed by three retired biathletes – Olga Zaytseva, Yana Romanova and Olga Vilukhina – opened in New York State court on Tuesday, reports the New York Times. It is understood that each of the three athletes is seeking US$10 million in damages, after being stripped of Sochi 2014 Winter Olympic relay gold medals.

The Court of Arbitration for Sport (CAS) postponed hearings into the cases of all three biathletes on 1 February, when it upheld appeals from 28 Russian athletes against the International Olympic Committee’s (IOC) attempt to sanction them with anti-doping rule violations (ADRV) committed at Sochi 2014. A date for the hearings and the reason for their postponement was not revealed.

The IOC Disciplinary Commission had attempted to sanction 43 Russian athletes with doping offences committed at Sochi 2014 based on the evidence in the Independent Person (IP) Reports produced for the World Anti-Doping Agency (WADA) by Richard McLaren. In 28 cases, the CAS found that the evidence was not sufficient to charge them with an ADRV.

As previously reported by The Sports Integrity Initiative, WADA’s Reports into Russia were designed to examine the credibility of claims that a systemic doping system was in operation, and not to uncover evidence of ADRVs. Whilst it is true that point three of Richard McLaren’s mandate was to ‘Identify any athlete that might have benefited from those alleged manipulations to conceal positive doping tests’ (p3 of McLaren Report Part 1), he was not asked to provide concrete evidence to bring forward ADRVs against athletes.

WADA later extended his mandate to allow McLaren to fulfil the third part of his mandate, but McLaren clarified that his ongoing investigation ‘includes developing additional evidence concerning individual athletes. This evidence may be used in the future when the extended mandate is completed, to support an Anti-Doping Rule Violation case initiated by an IF against a particular athlete in accordance with its Results Management Authority.’

In other words, the evidence in the McLaren Reports was only ever intended to be supporting evidence for ADRV cases. As the CAS ruling proved and McLaren highlights (see above), his evidence alone is not sufficient to bring forward ADRVs against individual athletes.

However earlier this month, the CAS dismissed appeals filed by 47 Russians against an IOC decision not to invite them to the PyeongChang 2018 Winter Olympics. ‘This Panel is faced with evaluating an unprecedented response to an extraordinary situation, that is, a state-sponsored doping scheme’, reads its reasoning in CAS OG 18/03 (PDF below), which concerned 15 of the appeals. ‘The Panel finds that the process was designed to protect the rights of individual Russian athletes and support staff, who were not been implicated in the state-sponsored doping scheme, by an expert panel rather than the “sanction” of any particular athlete and support staff “without proof” as asserted by the Applicants. The Panel concludes that the process was a considered and measured response to the confirmed state-sponsored doping scheme.’

The CAS’s conclusion appears to be at conflict with the conclusions of the IOC’s Schmid Commission. It found that over 1,000 Russian athletes had benefitted from the ‘Disappearing Positive Methodology’ (DPM) outlined in the McLaren Reports, whereby samples were manipulated to appear clean. However it stopped short of stating that the system was orchestrated by the Russian State.

‘The Russian officials admitted wrongdoing by individuals within Russian institutions but never “State doping support system”’, it reads (PDF below). ‘The IOC DC has not found any documented, independent and impartial evidence confirming the support or the knowledge of this system by the highest State authority […] On many occasions, reference was made on the involvement at the Minister of Sport’s level, but no indication, independent or impartial evidence appeared to corroborate any involvement or knowledge at a higher level of the State.’

Why defamation?

Olga Zaytseva was sanctioned by the IOC on 1 December last year, as a result of reanalysis of her A sample from Sochi 2014. At the Sochi 2014 Olympics, Dr. Rodchenkov alleged that a ‘Duchess List’ contained athletes who received a ‘cocktail’ of three steroids – metenolone, oxandrolone and trenbolone – dissolved in alcohol to speed up absorption and shorten the detection period. Such athletes were ‘protected’ from reporting positive doping tests at Sochi 2014 through the DPM, whereby their samples would be exchanged for clean urine collected in advance of the Games.

The IOC ‘Reasoned Decision’ (PDF below) in Zaytseva’s case appears confused about whether she appeared on the ‘Duchess List’. ‘Given that the Athlete was not in the Duchess List, she was not subject to particular scrutiny during the investigation of Prof. Maclaren [sic.], this explains that the EDP and Dossier of Evidence of the Athlete do not include specific elements’, reads paragraph 149. ‘The Athlete is one of the athletes listed on the Duchess List’ reads paragraph 341. ‘For the reasons explained above, the Disciplinary Commission already draws a decisive inference from this element alone’.

However, irrespective of this apparent error, it appears that Dr. Rodchenkov did implicate Zaytseva in the State doping scheme outlined in the McLaren Reports. ‘Dr Rodchenkov provides a list issued in October 2012 reflecting the clean urine bank existing at that time’, reads the Zaytseva decision. ‘The Athlete Zaytseva is mentioned on this list, with an indication that her urine was delivered to the Moscow Laboratory on 24 October 2012.  Dr Rodchenkov further states that the entire Russian biathlete team, including the Athlete Zaytseva, has been using the Duchess Cocktail before the Olympic Winter Games Sochi 2014. He also provided an email sent in April 2013, whereby he raised concerns about the high levels of haemoglobin for the biathlete team that was detected by his laboratory.

‘Dr Rodchenkov also recalled that in 2013 and early 2014 he had numerous conversations about the Athlete Zaytseva, as she was on a protected list. In autumn 2013, he took part to a discussion with the Athlete Zaytseva at the Ministry of Sports in Moscow. During this meeting the abnormal ABP data, due to her constant PEDs use, was discussed.

‘Dr Rodchenkov specifically recalls swapping sessions of the Athlete’s numerous sample. Due to the intensity of the testing, Dr Rodchenkov underlines that they almost ran out of the Athlete’s clean urine. He remembers that the Athlete Zaytseva provided three plastic bottles of clean urine to freeze and store at the FSB and that additional urine had to be delivered.’

The full reasoning in the case of Yana Romanova and Olga Vilukhina has yet to be published by the IOC. However as the Zatyeva decision shows, Dr. Rodchenkov has directly implicated the entire Russian biathlon team in systemic doping. This would be likely to form the basis of any defamation suit.

The Zatyeva decision outlines that not only athletes who were on the ‘Duchess List’ were protected. Other athletes were protected on an ‘ad hoc’ basis. The three biathletes are understood to be adamant that they did not intentionally ingest prohibited substances.

The IOC appears to have discounted the idea that Zatyeva was unaware that her samples were being swapped. ‘Such a scenario would imply that athletes would have been protected without being informed and this would have occurred also with regard to clean athletes’, reads the Decision. ‘Clean athletes do not need any protection and the swapping of samples of clean athletes would have been completely unreasonable’.

The IOC concludes that ‘there is no evidence’ to support the idea that the doping scheme was implemented without the athletes knowing, or participating in it. However, it does not appear to have considered a scenario where it was deemed safer to swap the samples of the entire biathlon team, as the majority (but not all) of them were doping.

Whether Zatyeva featured on the ‘Duchess List’ is also therefore likely to be key. If she did not feature, then this raises difficult questions as to whether an athlete can be sanctioned for doping without any direct evidence that they actually took a prohibited substance. The IOC has not proven that Zatyeva did ingest prohibited substances, only that her samples had been tampered with.

‘One of her samples bottle was found not only with marks indicative of tampering, but also containing urine with an abnormally high level of salt’, reads the IOC’s Decision. The levels of salt in her B sample, which was opened on 14 November 2017, were ‘consistent with the results found in the A-Sample’.

‘As a part of Prof. Mclaren investigations, the Athlete’s A-Sample 2944514 collected on 31 October 2014 at Tyumen, seized from the Moscow Laboratory in December 2014 and sent to the Cologne Laboratory, was used to perform DNA comparison against the Athlete’s Sochi samples’, continues the Zaytseva decision. ‘The results revealed that this later sample had mixed DNA profile from at least two females. This result does not concern the Olympic Games in Sochi and, as such does not fall within the scope of the application of the Rules. It however constitutes additional evidence that the Athlete was a protected elite athlete actively engaged in doping practices.’

This evidence does not constitute definitive proof that Zatyeva was involved in doping, only that her samples were tampered with. The Sports Integrity Initiative has asked the IOC for clarification as to whether Zatyeva featured on the ‘Duchess List’.

Why would Prokhorov bankroll the appeal?

Mikhail Prokhorov was appointed as President of the Russian Biathlon Union (RBU) in 2008, but was replaced by Alexander Kravtsov in May 2014, after the Sochi 2014 Winter Olympics. In the affidavit that Dr. Rodchenkov provided to the IOC’s Schmid Commission (PDF below), Prokhorov was alleged to have bribed biathlete Irina Starykh to keep her quiet about being instructed to inject erythropoietin (EPO) by Stanislav (Statik) Dmitriev.

Dr. Rodchenkov’s affidavit appears to contradict the IOC’s assertion in the Zatyeva case that the entire biathlon team was doping at the Sochi 2014 Winter Olympics. He alleges that half of the Sochi 2014 Winter Olympic biathlon team was under the control of Dmitriev, a ‘well known’ supplier of performance-enhancing drugs (PEDs), whom he named as the primary source of EPO for the Russian Winter Olympic team.

On the face of it, this appears to be an inconsistency in Dr. Rodchenkov’s evidence. However, it could be possible that the entire biathlon team was doping at Sochi 2014, but only half of them were under the control of Dmitriev.

As previously reported by The Sports Integrity Initiative, the collusion alleged by Dr. Rodchenkov in his affidavit goes much further than Prokhorov. His replacement as head of the RBU, Alexander Kravtsov, is head of the Centre of Sports Preparation for the National Teams of Russia (CSP). In his affidavit, Dr. Rodchenkov mentions the CSP as being involved in the management of Russia’s State doping programme. He also mentions Kravtsov as initiating discussions about half the biathlon team being under the control of Dmitriev.

Screenshot of Russia’s Ministry of Sport’s internet site, showing Kravtsov as Head of the CSP…

Dr. Rodchenkov also mentions that Kravtsov was chief of Russia’s Olympic delegation at Sochi 2014, and informed him about the positive tests of biathletes Irina Starykh and Ekaterina Iourieva ahead of Sochi 2014. Russia’s Ministry of Sport’s internet site reveals that despite the apparent involvement of both Prokhorov and Kravtsov in covering up Russian doping, Kravtsov remains as head of the CSP today. This page of subordinate organisations to the Ministry of Sport lists Kratsov as head of the CSP, and states it was last updated on 3 November 2017 (English translation on right).

In conclusion, a person alleged by Dr. Rodchenkov to be actively involved in covering up the positive tests of Russian athletes (Kravtsov) was in charge of preparing Russian athletes for PyeongChang 2018. He also took over from the President of a Russian national association (Prokhorov) alleged to have offered a bribe to a Russian athlete to keep quiet about State doping.

Prokhorov became owner of the Brooklyn Nets in 2010, whilst he was still President of the RBU, and four years before he allegedly bribed Starykh. The Energy and Commerce Committee of the US House of Representatives has been attempting to gather evidence that anchors payments relating to Russian doping to US shores for the past two years.

It held its first hearing in March this year and tomorrow, the US Commission on Security and Cooperation in Europe will hold a briefing entitled ‘The Russian doping scandal: protecting whistleblowers and combating fraud in sports’ at 3:30pm. The briefing will be broadcast live on the Commission’s Facebook page. The timing of the defamation lawsuit could not be more significant.

Low hanging fruit

“This claim has zero chance of surviving a motion to dismiss”, Jim Walden, Dr. Rodchenkov’s lawyer told the New York Times. “It is as credible as the rest of Russia’s lies. So I will gladly defend it.” However, as outlined above, the IOC appears to have been heavily reliant on circumstantial evidence to sanction athletes for doping, without any actual evidence that they took prohibited substances.

It may be true that the biathletes were implicated in the State doping system outlined by McLaren and Dr. Rodchenkov. It may be true that their samples were manipulated. Whether this constitutes definitive proof that athletes doped is subject to debate.

As The Sports Integrity Initiative has previously reported, an extraordinary amount of planning would have been required for the system outlined by Dr. Rodchenkov and McLaren to work. Meticulous attention to which samples were to be swapped was required, requiring athletes to take photographs of numbers on doping control forms (DCFs) which had to be matched to samples, with zero room for human error. Following the successful swapping of samples, entries into the Laboratory Information Management System (LIMS) had to be correctly entered and not attract scrutiny.

This suggests an element of central planning, and as outlined above, the CAS appears to have accepted that the Russian doping system was controlled by the State, as alleged by Dr. Rodchenkov. It would also appear that those implicated in his affidavit as covering up positive doping tests were directly involved in team selection for the PyeongChang 2018 Winter Olympics. However, as the Zaytseva Decision outlines, it appears that the IOC would rather sanction an athlete for a doping violation when no direct evidence exists that they have ingested a prohibited substance, rather than take action against those responsible for operating such a system.

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