David Owen

I think we can now be clear. After months and months of courageous, assiduous labour by investigators, scientists, lawyers and - lest it be forgotten - journalists, analysis of the evidence enables, as the Schmid Report puts it, "the confirmation of the existence of the Disappearing Positive Methodology as well as a tampering methodology, in particular during the Olympic Winter Games Sochi 2014, as described in the Final Report by Prof. Richard McLaren".

While Russia continues to deny any "state-sponsored or institutional system of doping", flagrant abuse, of a nature shocking even to those of us who have long preached the inadequacies of the weak, underfunded anti-doping system and its consequences for fair play, is now acknowledged.

Russian Minister of Sport Pavel Kolobkov and Russia Olympic Committee President Alexander Zhukov express their "sincere regret for the serious violations that took place", in a letter quoted by Schmid.

"We are," Kolobkov and Zhukov continue, "well aware that doping is indeed a serious challenge to our country…

"Violations were committed by individuals who grossly violated legal and moral norms and will get the punishment they deserve."

But this still does not mean that everyone in a Russian uniform is guilty.

So I hope that the raft of appeals by Russian athletes that will be heard at the Court of Arbitration for Sport (CAS) in coming months against their retrospective disqualification from Sochi 2014 by the International Olympic Committee will not be treated as some glorified box-ticking exercise.

Along with most other elements of elite sport's clanking governance machinery, CAS' reputation is under question in some quarters as well.

It is very much in its interest, as well as everyone else's, to make sure that the quality of justice meted out to all those appealing is of a high calibre - even while accepting that, given the nightmarish nature of the systems exposed, it is hard to accept they can all be innocent.

Russian athletes will head for the Court of Arbitration for Sport after a dark day for the country in Lausanne ©Getty Images
Russian athletes will head for the Court of Arbitration for Sport after a dark day for the country in Lausanne ©Getty Images

In this context, I have devoted some time to studying the decision that had been published by the Oswald Commission in the case against the cross-country skier Alexander Legkov. And I must say, to my resolutely non-legal mind, it leaves elements that a scrupulously fair process needs to get to the bottom of.

Two, or perhaps three, of the issues are likely to crop up in one form or another in several cases. But there is at least one element specific to Legkov that I would want CAS to make efforts to explain. 

The common issues are these:

a) In the absence of positive tests, how do you convert even highly convincing evidence of a widespread conspiracy into a watertight case against any given individual?

b) If testimony by whistleblower Grigory Rodchenkov is part of the case against an athlete or athletes, how much weight is it proper to accord it if defence counsels cannot cross-examine him?

c) This relates to the sample bottles and how, apparently, it was possible to close them to varying degrees.

Paragraph 422 of the Oswald Commission's decision states that the athlete - Legkov - "explained that he would always close his sample bottle to the maximum degree possible".

This is in the context of a case against him which, in addition to Rodchenkov's testimony and his presence on the so-called "Duchess List", hinges on two sample bottles bearing “conclusive multiple T marks", suggesting they had been opened with the object, presumably, of swapping the contents.

Nevertheless, the potential significance of Legkov's assertion did not dawn on me until I read Professor Christophe Champod's forensic analysis report which was included as an appendix to the Schmid Report.

Having examined 127 "questioned bottles" from Sochi, this concludes:

"Among the 127 questioned bottles, 20 per cent of these questioned bottles presented multiple T marks (25 bottles), 14 per cent showed isolated T marks (18 bottles), the remaining 66 per cent showed no T marks (84 bottles).

There are questions to answer in the case of Sochi 2014 cross-country skiing Olympic gold medallist Alexander Legkov ©Getty Images
There are questions to answer in the case of Sochi 2014 cross-country skiing Olympic gold medallist Alexander Legkov ©Getty Images

"All bottles examined…were closed between 12 clicks and 15+ (the maximum possible closure).

"Under the assumption that bottles concluded with 'multiple T marks' have been tampered with using metallic tools as alleged, for 15 bottles that were amenable to a measure, their estimated initial degree of closure is always of 12 clicks or below, meaning that they were not fully closed."

So the athlete's inference seems to me to be that since he closed the bottle to "the maximum degree possible" he could not have known of any plans to re-open it.

And the question this leaves hanging seems to me to be, can anyone disprove Legkov - or, by extension, any other athlete's - assertion that they closed their containers to the max?

If yes, all well and good; if not, while it seems to me improbable that all Russian athletes did, could this not potentially weaken the case against a number of individuals who might make the same assertion?

The issue specific to Legkov which has been pointed out to me is the following:

Legkov gave three urine samples at Sochi, not two (as well as 13 or more between the start of the year and his arrival in the Olympic city on February 5, 2014).

I referred earlier to the absence of positive tests. Yet paragraph 65 of the Oswald Report explains that one Legkov sample "had been reported as an AAF [adverse analytical finding] in 2014, as the analysis performed at the time revealed the presence of Budesonide".

This would not come as a great surprise to anyone familiar with a reasoned Arbitral Award issued by CAS in September. This dealt with Legkov's challenge to a provisional suspension imposed on him by the International Ski Federation.

This alludes to a further sample provided by Legkov on March 28, 2014 which also tested positive for Budesonide - a glucocorticosteroid inhalant used to treat ashthma - for which he holds a therapeutic use exemption (TUE).

The document also notes that Legkov "has used exclusively medical services in Davos, Switzerland (stemming from an apparent disappointment with Russian doctors following a bout of exercise-induced asthma in 2008)."

Returning to the Oswald Report, let us now scroll down to paragraph 226, where it states: "If an athlete is to be protected effectively, all of his or her samples would have to be swapped, otherwise the protection is pointless."

Alexander Legkov has a TUE for an asthma medication, an issue which may be debated by the CAS ©Getty Images
Alexander Legkov has a TUE for an asthma medication, an issue which may be debated by the CAS ©Getty Images

So, given this analysis of one of Legkov's three Sochi urine samples, what are we to surmise happened? 

Was one Legkov sample swapped with Budesonide-tainted urine and the other two with unadulteratedly clean urine?

Possible, I suppose, but it seems somewhat unlikely if the system was working efficiently, not least because the CAS Arbitral Award also alludes to emails in which Rodchenkov appears not to be aware that Legkov had a TUE for the medicine.

Was the Budesonide-tinged sample not swapped, whereas the other two were?

That appears illogical in the light of paragraph 226, though clearly not impossible; yet if the Budesonide sample is genuine – and clean (because he had a TUE) – could that not be said to bolster the supposition that Legkov was competing clean at Sochi, even if, apparently, protected?

Or maybe (shock, horror), notwithstanding the two marked bottles, none of Legkov's three urine samples were swapped, and Budesonide - which I am told stays in the system for at least 12 hours when inhaled - was only present in one of them?

I don’t, plainly, have the answer to this conundrum - but I do think the conundrum is there.

And if the quality of individual justice meted out is, ultimately, to be satisfactory, I think it is just the type of issue that needs a convincing explanation.