David Owen ©ITG

It is therapeutic every once in a while to study a reasoned award delivered by the Court of Arbitration for Sport (CAS); in today’s "who-shouts-loudest" reality, it helps one to retain a sense of perspective and to recognise that there are - at least - two ways of interpreting almost any chain of events or circumstances.

Where there are a number of expert witnesses, these densely argued texts can also be a treasure trove of esoteric knowledge.

Thanks to the 154-page Arbitral Award concerning Russian cross-country skier Alexander Legkov versus the International Olympic Committee (IOC), and the 165-page award covering Russian bobsledder Aleksandr Zubkov’s case against the same adversary - among the most significant CAS rulings of recent times – I now know:

  1. That Russians consume "on average one or two grams more salt per day than Europeans";
  2. That there is a landmark proceeding in the field of how evidence from crime scenes might become contaminated known as, "the infamous Phantom of Heilbronn case"; and
  3. Far more than I would ever have wished to know about "the possibility of male DNA contaminating a female athlete’s urine sample as a result of sexual activity between the man and woman".

These accounts also contain occasional spots of novelistic detail worthy of a Len Deighton or a Dan Brown.

Star witness Grigory Rodchenkov, director of the Moscow Laboratory for more than a decade before he fled Russia in November 2015 because of "threats to my physical security and well being" gave evidence via Skype from behind a screen which "concealed the entirety of his upper body save for his forearms and hands".

Grigory Rodchenkov, star witness in the Russian doping cases, has conducted interviews on US television in disguise but when he appeared on Skype during the CAS hearing only his forearms and hands were visible ©CBS
Grigory Rodchenkov, star witness in the Russian doping cases, has conducted interviews on US television in disguise but when he appeared on Skype during the CAS hearing only his forearms and hands were visible ©CBS

Most importantly, of course, these documents permit a first assessment to be made of the quality of the judgements which sent shockwaves around the sporting world in February by overturning sanctions against 28 Russian athletes – including Legkov, but not Zubkov – just ahead of the 2018 Winter Olympic and Paralympic Games in Pyeongchang.

IOC President Thomas Bach described this decision as "disappointing and surprising" while talking of an "urgent need" to reform CAS.

It is worth pointing out here that IOC accounts indicate that the movement provides financial assistance to the International Council of Arbitration for Sport (ICAS) to the tune of more than $7.5 million (£5.4 million/€6.2 million) a year.

Frankly, to my resolutely non-legal mind, based on these two judgements, the CAS arbitrators – Christoph Vedder, the President, Hamid Gharavi and Dirk-Reiner Martens – are to be congratulated.

They seem to have made every effort, most properly in my view, to follow the evidence that was presented to them, while endeavouring to shut out the overheated geopolitical atmosphere still enveloping any issue pertaining to Vladimir Putin’s Russia.

Most particularly - and Legkov has reason to be thankful for this - they adhered to the principal of individual justice.

On the existence of "a general doping and sample-swapping scheme" in Russia, the Panel stated that it "refrains from making a ruling on whether the scheme existed, even though it recognises that there is significant evidence that it did".

It went on:

"Even admitting, arguendo, that the scheme existed, based on its conclusion that the participation of [Legkov] in any of the various features of the scheme has not been proven, the Panel is not comfortably satisfied that an inference in favour of the Athlete’s use of a prohibited substance can be made.

"The Panel is not prepared to find the Athlete guilty of an [anti-doping rule violation] of the use of a prohibited substance without being able to identify to its comfortable satisfaction the Athlete’s proven part in the alleged scheme."

Olympic cross-country gold medallist Alexander Legkov was afforded the principle of individual justice by CAS ©Getty Images
Olympic cross-country gold medallist Alexander Legkov was afforded the principle of individual justice by CAS ©Getty Images

Having also studied the original decision of the Oswald Commission regarding Legkov , I had concluded that that exercise left "elements that a scrupulously fair process needs to get to the bottom of".

One of these was how much weight to accord Rodchenkov’s testimony "if defence counsels cannot cross-examine him"?

The CAS proceedings did allow for such cross-examination, yet, with regard to Legkov and whether he provided clean samples in advance of the Games for the purpose of later swapping, the Panel concluded that only "limited weight" could be attached to what Rodchenkov said.

The Panel added: "It is not corroborated by any further evidence."

It has always seemed to me self-evident that one should not expect consistency between what Rodchenkov said before and after leaving Russia.

But counsel for the Russian athletes appears to have used the cross-examination to cast some doubt over the reliability of Rodchenkov’s diary entries.

According to the CAS document, "Counsel for the Sochi Appellants observed that from analysing the entries from the period of the Sochi Games, Dr Rodchenkov was recorded as going to bed between 23h00 and midnight every night, with two or three exceptions.

"Dr Rodchenkov responded that he was 'very rarely' in his room at this time, and that he had written false bedtime entries 'because Blokhin [an alleged FSB officer] was extremely nervous about my diary'."

The original reasoned decision of the Oswald Commission had stated that it did not consider it "at all likely that these pages were newly re-written or that, at the time, Dr Rodchenkov misrepresented the reality in his own diary".

Double Olympic bobsleigh gold medallist Alexander Zubkov was doping, CAS decided beyond reasonable doubt ©Getty Images
Double Olympic bobsleigh gold medallist Alexander Zubkov was doping, CAS decided beyond reasonable doubt ©Getty Images

Turning to Zubkov, unlike Legkov, he was one of the athletes whose sample was found to have a high salt content, "several standard deviations above the mean sodium concentration of the samples tested at the Sochi Games".

Faced with what it viewed as "compelling scientific and statistical evidence", the Panel had "no hesitation in concluding that there is no natural explanation for the level of sodium contained in the Athlete’s urine sample for the doping control test carried out on 23 February 2014.

"Accordingly, it necessarily follows that the content of the urine in the sample bottles relating to that test is different to the content of the urine that the Athlete provided during the doping control process on 23 February 2014."

The IOC had alleged that salt was sometimes added to clean urine to adjust its specific gravity to match that of a dirty sample.

Moreover, while the Panel did not accept that the "mere presence" of an athlete’s name on the notorious Duchess List was "itself capable of establishing" that an athlete used the Duchess cocktail, the list was "not entirely irrelevant" when viewed in conjunction with other evidence.

"In particular, once it has been established that the Athlete deliberately facilitated the substitution of his urine by providing clean urine in advance of the Sochi Games, and that this course of conduct had a particular objective, i.e. to conceal his use of a prohibited substance, then it follows that the presence of the Athlete’s name on the Duchess List provides some additional support for the conclusion that the Athlete did in fact use a prohibited substance, namely the prohibited substances which the Duchess Cocktail was composed of."

The Panel duly found that Zubkov had committed both "an [anti-doping rule violation] in the form of the use of a prohibited method, ie urine substitution of his sample provided on 23 February 2014” and “an ADRV…in the form of the use of a prohibited substance".

Also noteworthy is the Panel’s observation that the IOC "suspended the Russian National Olympic Committee for its involvement in the scheme only for one edition of the Olympic Winter Games.

"The IOC opted to sanction those who are the true instigators of the alleged scheme with a minimal ban of one edition of the Olympic Games while the IOC DC sanctioned the athletes who only benefitted from the scheme with a lifetime ban."

Perhaps CAS could benefit from reform, but these two arbitral awards seem to me, on the contrary, to do much to buttress its credibility.