25 April 2018

Legkov & Zubkov: sport is ill-equipped to deal with institutionalised corruption

The Court of Arbitration (CAS) yesterday published two Reasoned Decisions outlining that while it was ‘comfortably satisfied’ that Russian bobsledder Alexandr Zubkov committed an anti-doping rule violation (ADRV) at the Sochi 2014 Olympics, it was not satisfied that cross country skier Alexander Legkov had committed an ADRV. Whilst the rulings underline that sporting bodies must have concrete evidence in order to charge an athlete with an ADRV, they also underline that the anti-doping system is set up to sanction athletes, and is ill-equipped to deal with institutionalised corruption.

The CAS decisions

The reason that the CAS Panel decided to partially uphold the International Olympic Committee’s (IOC) decision to charge Zubkov with an ADRV, but uphold Legkov’s appeal against being sanctioned with an ADRV is due to the salt content of their stored urine samples. Before we get into the reasoning behind the decisions, it is worth outlining the sanctions that are now applicable to both athletes.

On 24 November last year, the IOC sanctioned Zubkov with a life ban from the Olympics, finding that he had ‘committed anti-doping rule violations pursuant to Article 2 of the International Olympic Committee (IOC) Anti-Doping Rules’ applicable to the Sochi 2014 Winter Olympics. The full IOC decision (PDF below) reveals that this was due to his implication in the systemic Russian doping system outlined by Richard McLaren in his Independent Person (IP) Reports for the World Anti-Doping Agency (WADA).

‘The Panel does not consider it possible to conclude that the existence of a general doping and cover-up scheme automatically and inexorably leads to a conclusion that the Athlete committed the ADRVs alleged by the IOC’, reads the CAS Panel’s reasoned decisions in both cases. ‘Instead, the Panel must carefully consider the ingredients of liability under each of the relevant provisions of the WADC that the athlete is alleged to have contravened’.

In other words, evidence of an institutional doping conspiracy that names the athlete is not enough. The IOC must prove to the CAS’s comfortable satisfaction that the athlete actually committed an ADRV. The logic behind this is that any standard of proof lower than this risks innocent athletes being implicated in the doping conspiracy outlined by the IOC and WADA.

In its Reasoned Decision in the Zubkov case (PDF below), the CAS Panel ruled that it was ‘comfortably satisfied’ that Zubkov had committed two violations of Article 2.2 of the 2009 World Anti-Doping Code, covering use of a Prohibited Substance and Use of a Prohibited Method. Whilst this means that the Russian team will lose the gold medals it won in the two man and four man bobsled, the Panel found that the imposition of a life ban from the Olympics ‘is not appropriate in relation to the seriousness of the individual ADRVs’, and declared Zubkov ineligible to participate in the next edition of the Olympic Games – i.e. PyeongChang 2018.

In other words, it partially upheld his appeal. Zubkov would be eligible to compete in the Beijing 2022 Winter Olympics, if he came out of retirement.

In its Reasoned Decision in the Legkov case (PDF below), the CAS Panel ruled that it was not ‘comfortably satisfied’ that he had committed an ADRV, as alleged by the IOC. As such, it struck out his life ban from the Olympics, and ruled that the gold medal he won in the 50km freestyle cross country and the silver won in the 4x10km cross country relay at Sochi 2014 should be restored.

Salty urine

The reason why the CAS Panel partially upheld the IOC’s ruling against Zubkov and dismissed all charges against Legkov comes down to sodium concentrations in the urine samples they provided. The addition of salt to samples was presented by the IOC and WADA as key evidence supporting their assertion that samples had been tampered with.

The stored samples from both athletes underwent DNA analysis, proving that the urine in the sample bottles came from them. In short, the difference was that Zubkov’s sample contained levels of salt determined by two sets of experts to be physiologically impossible, whereas Legkov’s samples did not. However, the CAS Panel’s decision is not as simple as that sentence makes out.

Some background is necessary here. In the sample swapping system alleged to have taken place by the IOC and WADA, the samples of protected Russian athletes were reported as negative into the Anti-Doping Administration and Management System (ADAMS) operated by WADA. The samples from the protected athletes that were due to go into storage were opened, the ‘tainted’ urine thrown away and replaced with ‘clean’ urine from a urine bank contained in the Federal Security Service (FSB) building, 100m from the Sochi 2014 Laboratory.

However, this created a problem in that if the specific gravity of the ‘clean’ urine did not match that which was listed on the Doping Control Forms (DCFs) of the athletes from which samples were taken, anti-doping authorities might smell a rat. The IOC and WADA allege that athletes and corrupt anti-doping officials photographed the DCFs, which allowed the specific gravity of the urine to be later adjusted to match what was on the form by either adding salt or distilled water.

‘The Athlete’s urine samples from the Sochi Games were not found to contain abnormally high salt levels; nor did they contain any mixed DNA’, reads the Legkov decision. As a result, the CAS Panel could not conclude to its ‘comfortable satisfaction’ that Legkov’s sample had been tampered with.

In contrast, in the Zubkov decision, the CAS Panel found that a urine sample collected on 23 February 2014 contained a sodium concentration of 847 nmol/L. This was above what was considered physiologically possible by two experts.

The IOC commissioned Professor Michael Burnier, the Head of the Nephrology Service at University Hospital in Lausanne, Switzerland, to analyse the salt content of the contested samples against those submitted by athletes during the Vancouver 2010 Winter Olympics. He considered samples with sodium concentrations of more than 600 nmol/L to be physiologically impossible.

The Sochi appellants – which included Legkov and Zubkov – commissioned Professor David Charytan, an Assistant Professor of Medicine at Harvard Medical School, to assess Burnier’s evidence. He disputed much of Burnier’s analysis, but concluded that samples with sodium levels in the region of 700 nmol/L to 800 nmol/L as “physiologically not plausible” in both Reasoned Decisions.

Because of this, the CAS Panel was able to conclude to its ‘comfortable satisfaction’ that Zubkov’s urine had been tampered with, as the salt levels it contained were physiologically impossible. It also concluded that Zubkov must have supplied the clean urine, as DNA analysis confirmed that it came from him.

As such, the CAS Panel was able to conclude that he had used a prohibited method, as it was not conceivable that clean urine could have been collected from him without his knowledge. Reasoning that there would be no point in substituting clean urine with clean urine, it concluded that Zubkov must also have used a prohibited substance, as alleged by the IOC.

However despite this finding, the CAS Panel conceded that analysis of salt levels would not pick up subtle adjustments to the specific gravity of samples. In particular, it would not pick up downwards adjustments to the specific gravity of the samples by adding distilled water, or upward manipulation of the sample by adding a small amount of salt that did not create a reading ‘beyond the range of renal physiological possibility’.

Dr. Grigory Rodchenkov

Both CAS decisions outlined that the IOC and WADA believed in the credibility of Dr. Grigory Rodchenkov, former Director of the Moscow and Sochi 2014 Laboratories. However, the Reasoned Decisions cast doubt on whether his evidence can be used to support ADRVs against athletes.

Dr. Rodchenkov was asked why his diary indicated that he had gone to bed between 23:00 and midnight during the Sochi 2014 Olympics, when the sample swapping system he outlined would have required him to work late into the night, as alleged in the affidavit (PDF below) he provided to the IOC’s Schmid Commission. He replied that he had created false bedtime entires, “because Blokhin was extremely nervous about my diary”.

Evgeny Blokhin was an FSB Agent who was allegedly the person behind the opening of the sample bottles. If he was suspicious of Dr. Rodchenkov’s diary, then why didn’t he confiscate it for the duration of the Sochi 2014 Games, or destroy it? Neither CAS Reasoned Decision explores that scenario.

Dr. Rodchenkov was also asked about a comment that the diary represented “millions of dollars in my bag”. He replied that he was joking. The CAS Panel also found that his diary did not contain the date on which he swapped Legkov’s sample, despite his recollection that he swapped the sample on that date. His diary did contain evidence of having swapped the sample of Zubkov.

In both Reasoned Decisions, the CAS Panel refused to accept any of Dr. Rodchenkov’s evidence as supporting the IOC’s assertion that athletes had committed ADRVs. Both decisions point out that Rodchenkov had never observed sample bottles being opened; never observed any athletes taking the ‘Duchess’ cocktail of prohibited substances he devised; had never revealed its exact composition; and had never seen athletes providing clean urine (although he alleges to have inspected the FSB clean urine bank).

Richard McLaren

McLaren was not able to explain why he had not verified the authenticity of Dr. Rodchenkov’s diaries…

Dr. Rodchenkov’s diary also create a problem for Richard McLaren, who compiled the two Independent Person (IP) Reports into allegations of Russian doping for WADA. McLaren told the CAS Panel that he had never sought to have the authenticity of the diaries verified, as he did not plan on relying on them as evidence. However, the CAS Panel found that he had used excerpts from his diaries as evidence.

McLaren alleged that Dr. Rodchenkov had discussed the disappearing positive methodology with Vitaly Mutko prior to the Sochi 2014 Games. Mutko was Russia’s Minister of Sport at the time, and is now Deputy Prime Minister of Russia. He was promoted in October 2016, after McLaren published his first IP Report.

That allegation came directly from Rodchenkov’s diaries. ‘Selected excerpts from Dr. Rodchenkov’s diary reflect several meetings with Minister Mutko in the month prior to and during Sochi Games’, reads page 55 of the first IP Report. ‘Dr. Rodchenkov’s evidence is that the doping cover up plan for Sochi was discussed at those meetings’.

The CAS Reasoned Decisions also outlined a number of alleged failures by McLaren. These are listed as follows:

• He had not checked whether the athletes listed on the ‘Duchess’ List created by Dr. Rodchenkov had gone on to compete at the Sochi 2014 Olympics;
• He did not know whether the athletes who had consumed the ‘Duchess’ cocktail had gone on to compete;
• He did not engage experts to ascertain the composition and dosage of the ‘Duchess’ cocktail;
• He was unable to verify which athletes were part of the alleged doping programme;
• He had not attempted to contact Evgeny Kudryavtsev or Yuri Chizhov, who were alleged to have been part of the alleged doping system.

Evgeny Kudryavtsev

From 2012 until November 2017, Kudryavtsev was responsible for logging and recording athlete biological samples at the Moscow Laboratory. In both CAS Reasoned Decisions, he dismissed Dr. Rodchenkov’s allegations as ‘entirely false’ and alleged that ‘no such scheme ever existed’.

However, in June 2016, the Investigative Commission of the Russian Federation (SKR or Sledcom), said that Kudryavtsev had destroyed 1,437 samples on Dr. Rodchenkov’s orders. The SKR claim that this was done to cover up Dr. Rodchenkov’s incompetence, but he claims that this was done to avoid detection of the system they had worked so hard to perfect.

If Dr. Rodchenkov’s allegations are entirely false and no such scheme existed, as Kudryavtsev suggests, then why didn’t he report the sample destruction to WADA? Also, if Dr. Rodchenkov was involved in a criminal scheme, as the SKR later alleged, then Kudryavtsev has questions to answer about his involvement.

Given the involvement of Kudryavtsev, it is also odd that he has not been charged with a criminal offence by the SKR. Dr. Rodchenkov and his assistant Tim Soboloevsky, both of whom are in exile in the US, have both been charged with a criminal offence after providing information to WADA.

Both Kudryavtsev and Yuri Chizhov’s descriptions of Dr. Rodchenkov as a ‘drunk’ are very similar. The allegation that Dr. Rodchenkov’s motives for making his allegations were an attempt at personal fame and financial gain, made in paragraph 612 of the Legkov decision and para. 580 of the Zubkov decision, are similar to allegations made by the SKR in its criminal case against Dr. Rodchenkov.

TV cameras in the Laboratory

Both Kudryavtsev and Chizhov allege that there were TV cameras operating 24 hours a day at the Sochi 2014 Laboratory. No evidence for this exists in the Independent Observer Report (PDF below) produced for WADA after the Games. However, the Report does mention that ‘a representative of the Ministry of Sport of the Russian Federation who was not part of the Laboratory Games staff or the IOC Medical Commission and whose role was unclear to the IO’ was present in the Laboratory.

WADA’s chief Independent Observer, Thierry Boghossian, confirmed that his team had noted that there were cameras in the lab, but ‘he could not recall ever checking any footage from video cameras at the Laboratory during the Sochi Games’. He also said that he was not aware of any other WADA observer reviewing footage from the cameras.

Had his team reviewed this footage, this may have revealed evidence either confirming or refuting the alleged manipulation occurring at the Laboratory. It also appears odd that Russian authorities have not produced such footage in support of their assertion that no systemic doping system existed.

Protection vs. Prosecution

The Reasoned Decisions published by the CAS focus on protection of the individual athlete, whereas the IOC decisions appear to seek to punish the athlete for being part of the systemic corruption outlined by WADA. This is not entirely the IOC’s fault, as sport can only punish those that fall under its jurisdiction. Moves have been made to change the World Anti-Doping Code to prevent international federations from appointing countries that are not in compliance with the Code as hosts of major sporting events, but it is perhaps too little, too late.

What both Decisions highlight is not only the initial failure of anti-doping authorities to respond to what was going on in Russia, but also a failure to fully investigate what actually went on. Anti-doping authorities, including the IOC and WADA, were directly told about the systemic doping of Russian athletes in 2010, 2012 and 2013.

The Stepanovs presented evidence to WADA in 2010, and later collaborated with journalist Hajo Seppelt after WADA failed to act; Darya Pishchalnikova, wrote to the IOC and WADA outlining the same system in 2012; and the Mail on Sunday provided evidence to the IOC and WADA about what was going on following its 2013 exposé.

While many countries failed to publish Annual Reports as required by WADA, it appears that RUSADA falsified its testing figures, as previously reported by The Sports Integrity Initiative…

It is understood that Russian State doping dates back to Soviet times. In 2001, a study published by the IAAF illustrated that there may be problems with doping in certain countries (i.e. ‘Country A’ listed in the table above). Had WADA been monitoring the Annual Reports of national anti-doping agencies as required under Article 14.4 of the World Anti-Doping Code, it might have discovered that the Russian Anti-Doping Agency (RUSADA) appeared to be manipulating its testing figures from 2009 to 2011.

On top of this, WADA might have discovered the systemic system had it not sent Dr. Rodchenkov a 9 December 2014 email detailing a ‘surprise’ inspection of the Moscow Laboratory two weeks later. This led to the destruction of around 8,000 samples, and since then, samples remaining in the Moscow Laboratory have been sealed off from foreign investigators.

Yet it appears that the IOC doesn’t want to admit that the evidence was there. It argues that the ‘iceberg’ of widespread doping emerged only in 2016, when Dr. Rodchenkov  gave his interview to the New York Times. The fact that Russia reported not a single adverse analytical finding (AAF) at the Sochi 2014 Olympics ought to have caused that iceberg to hit much earlier than it did.

The Reasoned Decisions also highlight a failure to investigate what actually went on. McLaren has a fair argument that his time was limited ahead of the Rio 2016 Olympics, but it is difficult not to see his failure to contact key Russian officials after his mandate was extended as a failure, if such claims are true.

The two Reasoned Decisions place much emphasis on attempts to demonstrate that the caps of the Berlinger sample bottles used at the Sochi 2014 Olympics could be opened. Dr. Rodchenkov has repeatedly said that he has never witnessed the bottles being opened, but did see a table with instruments he assumed were used to open the caps. “I do know, based in part of my discussions with Blokhin, that the FSB replaced toothed rings and springs within the caps”, he said in evidence given in the Reasoned Decisions. “However they accomplished the removal of the caps, I did not observe any changes when the bottles and caps were returned”.

Earlier this year, journalists demonstrated how the 2016 Berlinger bottles could crack under heat and replacements be bought on the internet, to which the cap could be reattached. Yet it would appear that nobody has considered that this method could also be used on the Sochi 2014 bottles.

The reality is that we may never know exactly what went on in Russia. In such circumstances, it is important that any decision to sanction an athlete for an ADRV is based on evidence that meets the standard of proof required in the World Anti-Doping Code. The CAS has upheld this standard of proof in the Zubkov and Legkov cases, and for that it should be applauded.

The Sports Integrity Initiative analysed the Legkov decision in detail via its Twitter account. The decision contains reasoning common to all Russian athletes that are appealing against lifetime bans from the Olympics, which the IOC has imposed based on the conclusions of Richard McLaren’s Reports for WADA, and the Schmid Commission’s analysis of the evidence presented in those Reports for the IOC. To view the analysis, click here.

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