From the FasterSkier archive — posts syndicated from athletes’ and coaches’ own blogs between 2004 and 2012, kept online as published. Current coverage is at fasterskier.com.
Savelii Korostelev is one of three Individual Neutral Athletes (AINs) currently competing in FIS World Cup events with the intention of qualifying for the Olympic Winter Games in Milano-Cortina. (Photo: Modica/NordicFocus)
Russian and Belarusian cross-country skiers are back in the mix to qualify for the Olympic Winter Games in 2026. Does anyone else sense an elephant in the room? And are we all talking about the same elephant?
The recently overturned FIS ban on Russian and Belarusian athletes was about Russia’s war on Ukraine. Not every sport in the athletic world banned the involvement of those athletes, but the International Ski Federation (FIS) was quick and decisive in its initial rulings: no Russians, no Belarusians, not as long as this invasion lasts. Now—in accordance with the wishes of the IOC—FIS has been compelled to open the entries for FIS sanctioned events to allow the participation of Individual Neutral Athletes (AINs) from both Russia and Belarus. Thus far, the total number of athletes taking advantage of this opportunity (and/or qualifying for this opportunity) in World Cup cross-country events has been three. And while those three possess impressive athletic pedigrees, they have yet to be factors in events they’ve entered. The Russians returned, the sky hasn’t fallen, the war in Ukraine goes on. People remain in a huff over their participation, but I don’t think it’s the war in Ukraine that we’re all mad about . . .
Sure, there’s a military/imperial elephant in the room—Russian athletes returning to international competition even as the war in Ukraine goes on. But it’s the age-old doping elephant that occupies a larger space in our metaphorical room. By that we mean that no one could seriously trust the Russian ski team, the Russian coaches, the Russian officials, the Russian government. These are organizations and individuals who have spent decades cheating on a large and systematically organized scale. FasterSkier has repeatedly reported the facts pertaining to the FIS banning of Russian and Belarusian athletes. We have also reported on our interpretation of language in both FIS and IOC charter documents that seem to imply (quite plainly and with very little wiggle room) that athletes should never be banned from competition for political reasons. The Court of Arbitration for Sport agreed with that assessment (and with the appeal filed by Russian governing bodies and athletes). So, the Russians (some Russians) are back in.
Skiers from Russia have not been allowed to compete internationally since the spring of 2022 (when Russia invaded Ukraine). Since that time, those athletes have continued to train, to prepare, and to compete . . . though they have not done so under the scrutiny of unbiased international watchdog groups like the World Anti-Doping Agency (WADA). True, the Russian athletes have been subjected to occasional drug testing, but only by the same organization that had supervised and undertaken the drug testing during the infamous Olympic Winter Games in Sochi where so many Russian athletes, coaches, and officials had been found to have been involved in an outrageous top-down doping scandal. In investigations that followed those Sochi Olympics, it was revealed that Russian administrators, Russian coaches, the Russian Anti-Doping Agency (RUSADA), and the FSB (Russian Secret/State Police) were involved in a sophisticated (though brutally simple) scheme to evade IOC scrutiny and avoid detection of performance enhancing drugs that had been systematically provided to—and utilized by—Russian athletes. We remember the scandal where Russian Olympic organizers had constructed a secret room adjacent to the space in which urine samples were stored after being collected from athletes (and prior to testing). A hole in the wall allowed a Russian collaborator to pass vials of Russian athletes’ urine through to the secret room where they were opened, emptied, rinsed, replaced with “clean” urine, and re-sealed (a neat trick, considering the considerable trouble IOC had gone through to create tamper-proof lids). It was an audacious and brazen plan—one that started at the top of Russian sport governing bodies and the Russian government. The end result was that 43 Russian athletes were banned from Olympic competition for life, while 13 of those also saw their Olympic medals stripped. Additional suspensions and sanctions followed, including Russia being banned (temporarily, with conditions) from further Olympic competition.
Well, today our sport enters a situation in which Russian cross-country skiers have been absent from World Cup, World Championships, and all other FIS sanctioned international competitions since 2022. And the Russian program is one that has been known to institute, organize, supervise, and undertake illicit team-wide doping efforts in the past. The organization that took advantage of the outrageous doping scheme during the 2014 Olympics in Sochi is the very same organization that runs Russian cross-country skiing today. Isn’t there a reason for the rest of the constantly-tested field to be justifiably concerned?
This is a national sport program that’s been so dirty for so very long . . . why should they be trusted now? Wait, you say; those athletes will be tested whenever they compete in FIS and/or Olympic competitions, right? If they’re doping, they’ll be caught, won’t they? That depends . . .
Dariya Nepryaeva (AIN) is one of the athletes from Russia who—justly or unjustly—will have her name mentioned whenever discussion of Russian participation in the Olympics arises. (Photo: Modica/NordicFocus)
Doping in the Long Run
It’s been suggested that there are long-term benefits to the use of certain performance enhancing drugs, benefits that continue to enhance athletic performances long after the use of those supplements has been discontinued. So here’s my thing: If there were an evil-empire sport-colossus intent on dominating endurance events in some future Olympics, their best strategy would seem to be withdrawing their athletes from sufficiently-monitored international competitions for a few seasons, pumping them up with all manner of otherwise-restricted PED’s (in a closed environment free of drug testing and organizational scrutiny), weaning those athletes off the drugs early enough to have all remnants flushed from athletes’ systems (thereby avoiding detection in subsequent testing), and turning those athletes loose on the competition at the highest-profile moment. That way, those athletes could benefit from artificially-enhanced athletic qualities while still passing as “clean.” That’s how a set of well-organized cheaters could get it done, anyway.
Here’s what I think I believe:
Performance-enhancing drugs work—they make athletes faster, stronger, and better able to endure.
Certain performance-enhancing drugs have long-term effects that continue providing performance benefits even after athletes stop using them.
Evidence of certain performance-enhancing drugs can be thoroughly flushed from an athlete’s system, rendering undetectable any earlier use of those drugs.
What we’ve seen in the past has been state-sponsored cheating from the sport organizations of nations that so value the propaganda benefits of Olympic success. It happened in the Olympics of Sochi, and it had happened during many seasons prior. The governing bodies who were caught red-handed are still the governing bodies administering Russian Olympic sport, and the government of Russia is still the same one (still under the same leader) that green-lighted the whole scheme in the first place. What, really, has changed? And why should the rest of the world believe that it won’t happen again?
If Russia was so systematic and unapologetic in their cheating before—and if their athletes are still allowed to return to Olympic competition—why should we believe they aren’t cheating again? There’s plenty of pressure from the Russian government to produce results following Russia’s return from exile, and no one has been watching what they do behind the curtain. I mean, if I were running a state-sponsored athletic system that had been banned from competing internationally for a few years—and if the drug-testing to be conducted during that ban was the responsibility of my national governing body and my government—wouldn’t I think about cheating again? After all, many of the performance-enhancing drugs that I might administer to our top athletes would have made them bigger, stronger, faster . . . while any evidence of their use would have been flushed cleanly from their systems long before any independent testing agency arrived to test the athletes. If FIS threw us out of competitions for a while (and no one was watching what we did during that enforced hiatus), why not use the un-monitored time to make ourselves better? What better way to exact our revenge on FIS, on the IOC, on the entire Kingdom of Norway when we return?
Savelii Korostelev (AIN) competing in the recent FIS World Cup 10km in Davos. (Photo: Vanzetta/NordicFocus)
Preferential Treatment?
What makes the current Russian issue even harder to swallow is that Russian athletes seem to be receiving preferential treatment, though some bending of WADA’s rules might not be entirely unexpected given the looming deadline of FIS/Olympic qualifying events. The “Anti-Doping Agency Management System” (ADAMS) employed by WADA creates a set of automated records pertaining to athlete drug testing (especially with regard to the whereabouts of athletes that must be regularly recorded and updated for the purpose of unannounced drug testing). One of the stipulations of the ADAMS system is that no athlete may be re-admitted to competition until at least six months of ADAMS data (and subsequent drug testing) is made available. This standard stymied the recent comeback efforts of notable Norwegian athletes, Marit Bjoergen and Petter Northug, who both hoped to exit retirement to enter mass start marathon events. Those particular events being sanctioned by FIS would have required that Bjoergen’s and Northug’s un-retirements be preceded by the six-month ADAMS standard. Neither skier had announced their intentions to WADA early enough, so they couldn’t be allowed to enter those competitions. Bummer for them, but rules are rules . . .
Except when they’re not . . . unlike the standards that were applied to Northug and Bjoergen, Russian athletes (those returning to FIS and IOC competitions as AINs) received an almost immediate pass-through from WADA. Their return to competition was preceded by only a few weeks of notice, with their prior drug testing protocols having been conducted by organizations in Russia (the same organizations that organized the comprehensive drug cheating scheme in Sochi). FIS, you’ll forgive us if we harbor certain suspicions . . .
Much of the attention in the sport of Nordic Skiing will be paid to the prospects and the results of former Junior World Champion, Saveliy Korostelev, who spent the last two season skiing through the entire Russian field in all domestic races while also using nearly every event to beat up on former Olympic champion, Alexander Bolshunov. But even Korostelev might meet with additional scrutiny as he approaches Milano-Cortina. Recent articles describe Korostelev’s connections to the Russian military (through his mother, an officer in the Russian military and, herself, a medalist in Vancouver, 2010), a distinction that could render him ineligible for AIN status.
Keep your eyes open for elephants in the room . . .
Biathlete Olga Vilukhina with Russian President Vladimir Putin on February 24, 2014, after the closing of the 2014 Olympics in Sochi. Vilukhina was one of many Russian athletes whose Socki results were nullified, whose medals were stripped, and who received a lifetime ban from Olympic competition (though parts of those penalties were later overturned after CAS review). (Photo: www.kremlin.ru/Creative Commons)
Germany’s Evi Sachenbacher-Stehle (bib-27) in the quaterfinals of the 2007 Tour de Ski in Prague. (Photo: Wikimedia Commons)
A career ended prematurely, for no reason.
During the 2014 Winter Olympics in Sochi, Russia, German biathlete Evi Sachenbacher failed a doping test. Although the ensuing ban was subsequently reduced from two years to six months, it effectively ended her career.
New information seems to confirm that Sachenbacher’s positive drugs test at the 2014 Winter Olympics in Sochi had nothing to do with deliberate doping. Rather, she was used as a sacrificial pawn by Russian doping authorities, according to an article on rtl.de.
In his recently published autobiography, doping meister turned whistleblower Grigory Rodchenkov wrote that with no positive doping tests in the first week of the Sochi Olympics, the Russian doping machine needed to expose someone in order to prove that they were doing good work.
From 2006 to 2015, Rodchenkov headed Russia’s Anti-Doping Center, the only laboratory in Russia accredited by the World Anti Doping Agency (WADA). At the 2014 Winter Olympics, Rodchenkov managed the anti-doping testing. While he concocted a recipe of three banned substances to administer to Russian athletes, he and others developed a sophisticated system to replace Russian athletes’ drug-contaminated urine samples with clean samples.
The July 25 issue of The Daily Mail published extensive excerpts from The Rodchenkov Affair, Rodchenkov’s new tell-all detailing his decades-long involvement with the Russian doping system both as an athlete and an administrator. Rodchenkov was initially exposed to doping as a college distance runner, taking steroids. While a successful collegiate runner – with chemical help – Rodchenkov didn’t turn into an elite athlete. His “enhanced” college running success did spur his study of chemistry.
In November 2015, WADA identified Rodchenkov as the ringmaster in the Sochi doping scandal. He was compelled to resign. Within days, fearing for his life, Rodchenkov left Russia for the United States. His paranoia may not have been irrational, as two other officials died suddenly in February 2016. In May 2016, Rodchenkov gave an extensive interview to the New York Times about the rigged testing process in Sochi.
This brings us back to Sachenbacher, the German biathlete who tested positive in Sochi. In one of her two urine samples Sachenbacher submitted during the Olympics, the testing lab claimed it discovered traces of the banned substance methylhexanamine.
Developed by Eli Lilly & Co in 1948, methylhexanamine was marketed as a nasal decongestant. Although it was withdrawn from sales in the 1970s, methylhexanamine began appearing as an ingredient in various dietary supplements in the early 2000s. Supplements incorporating this drug are generally promoted as fat loss products or for extra energy during workouts.
In his book, Rodchenkov asserted that methylhexanamine “usually occurred in huge concentrations.”
Rodchenkov also characterized Sachenbacher’s result as a “borderline case,” adding “If I had already logged five real violations, I might not have reported her. But we needed blood. She became withdrawn from circulation and the punishment did not really match the violation.”
When she learned of the positive finding, Sachenbacher protested, saying that she must have unknowingly ingested it in a tea powder. In the summer of 2014, she received a two-year competition ban.
Sachenbacher appealed to the Court of Arbitration for Sport (CAS), which determined that she didn’t deliberately ingest methylhexanamine. Her ban was commuted to six months from the date of the test
The Munich, Germany, public prosecutor’s office investigated Sachenbacher following the Olympics. According to Der Spiegel, the prosecutor later deemed that Sachenbacher hadn’t actually taken the drug “because the active ingredient content is too low.”
After the CAS ruling, Sachenbacher was allowed to immediately resume training and competition. However, the positive finding and subsequent battle to clear her name exhausted her, and she opted to retire.
Prior to the agreement in early May, the most basic process for adjudicating a FIS initiated doping violation progressed within the organization. Once evidence for doping was presented and the athlete in question did not waive the right to a hearing or admit guilt, the FIS Doping Panel took over the case. According to the most recent FIS anti-doping rules published in 2016, this three person panel would hear the case and make a ruling. The decision could then be appealed to CAS.
(In some cases, when all the stakeholders agreed, a case could bypass FIS altogether, and head straight to CAS.)
There has been a movement to build a more independent anti-doping process free from any potential conflict of interest. In the case of FIS, it has a ski racing product it produces, promotes, and sells to an international audience. It is a big business. Without getting vacuumed into the wormhole, it’s safe to safe that self-policing can be a tricky duality for any international federation (IF). The world of Olympic sport is rife with examples where a lack of independence and transparency — when it comes to anti-doping — have compromised clean sport.
In reporting this story, FasterSkier asked FIS if they could speak to the inherent conflict of interest posed when the same body brings forth a doping case and adjudicates it.
“FIS did not see a conflict of interest since the FIS Doping Panel was a well established panel chaired by a former Justice from Canada (Supreme Court Judge),” FIS responded. “The panel’s professional handling and proceedings has never been challenged in this regard and indeed the cases that were referred to CAS have mostly been upheld and CAS has not raised any concerns about a conflict of interest. However, once the CAS established a specialist Anti-Doping Division to handle first instance decisions (with the CAS Arbitration Division dealing with appeals of the CAS-ADD decisions and/or other Anti-Doping Organisation decisions), FIS has delegated the CAS-ADD, as an independent body, to serve as its first instance doping panel to adjudicate doping cases.”
This brings us to the new FIS-CAS ADD agreement, which in principle allows for more independence.
The CAS ADD is relatively new to the anti-doping scene. At the 2016 and 2018 Olympics, the CAS ADD was used to streamline the process for the International Olympic Committee (IOC), IFs, and athletes when it came to fast-tracking decisions related to doping during the Games.
As it is currently constituted, the now permanent ADD will decide the outcome of first instance cases and any potential sanction against the violating athlete. Two options are available for an ADD hearing: a single person (Sole Arbitrator) hears the case with the possibility to appeal the decision to the CAS Appeals Division; or if the parties agree, a three person panel from the ADD hears the case with no possibility of appeal. This is known as a first and final case. The decision is final.
CAS hearing room, Lausanne, Switzerland. (Photo: CAS media)
In responding to FasterSkier, FIS wrote of the new process, “Generally, there is no change – the CAS-ADD replaces the role of the FIS Doping Panel to adjudicate all international cases. This is not limited to testing at World Cup or World Championships, but also includes all out-of-competition testing, as well as non-analytical cases.”
Tiger Shaw, President and CEO of U.S. Ski & Snowboard agreed with the FIS move to cede some oversight.
“It is a great move for FIS because for any IF to try to be the initial investigator and adjudicator of a potential violation or an alleged violation can be really tricky because of resources and expertise, conflict of interest, etc,” Shaw said. “Kind of the obvious things and so for CAS to develop this division to take this role for IFs, I think it is wonderful for FIS that it has chosen to go down this road and use the ADD as the first instance for cases. So it makes a ton of sense in everybody’s mind.”
One key idea bouncing around in the anti-doping movement is the use of a fully transparent and independent testing agency to administer doping test and analyze samples.
The ITA, or International Testing Agency, bills itself as a veritable one stop shop for testing, managing athlete biological passports, TUE’s, compliance and anti-doping education. The Swiss based agency is gathering traction amongst anti-doping advocates. Yet, according to this Inside the Games article, the ITA still faces some resistance.
The ITA Board allows for an IF representative and an IOC/National Olympic Committee representative to serve on its five member Board. The membership of the Board must also be approved by WADA’s Executive Committee. As it stands, the ITA is not fully independent from IOC or WADA ExCo governance. Both the IOC and the WADA ExCo have been accused of mishandling doping scandals in the past.
Currently, FIS has not signed an agreement with the ITA.
USSA President and CEO Tiger Shaw is ready to race, posing on Main Street before the American Birkebeiner. (Photo: USSA/Tom Kelly)
U.S. Ski & Snowboard’s Shaw mentioned a move to ITA administered testing might be a clear choice.
“It makes a ton of sense, an [international federation] running a testing division is kind of crazy, probably more expensive and it is not independent right?” said Shaw. “We have seen cases in international governance of Olympic Sport across the globe with the corruption possibilities there or extortion … Independence in the governance and policing, SafeSport is the same thing, all NGBs were relieved to have an independent agency spun up that we could simply respond to rather than having cases coming directly to the NGBs. An IF has the same challenge and so whether you have true independence and if you don’t have true independence then there are always questions about decisions.”
FasterSkier asked FIS why it will not be using the ITA for the upcoming season when it comes to testing athletes?
“FIS is working with the ITA in a number of areas and in fact both FIS and ITA use several of the same anti-doping service providers and National Anti-Doping Agencies (NADOs) to conduct testing. Several years ago FIS has signed up with the forerunner of the ITA; the Doping Free Sport Unit (DFSU). Once the ITA was established, the authority for Results Management of Whereabouts Failures (Missed Test and Filing Failures) has been transferred to ITA, and the contract is ongoing and is not limited to the seasonal World Cup periods, but is all year round. FIS and ITA are in regular dialogue to look also future areas of cooperation and indeed we had a lengthy management meeting at their office in Lausanne only 10 days ago,” FIS responded. One of the newest casino is fairspin blockchain casino
We also asked FIS if they saw a conflict of interest when it comes to anti-doping testing at FIS sanctioned events like a World Cup and not having a fully independent testing authority.
“For all testing that FIS organizes, no matter through which agency or provider: ITA, a NADO or a professional service provider, FIS is always the Testing Authority as defined in the World Anti-Doping Code. FIS only uses a fully independent testing agency (International sample-collection providers and/or National Anti-Doping Agencies) to carry out the detailed planning and sample collections at the World Cups in line with the FIS Anti-Doping programme which is regularly reviewed and adapted by external anti-doping experts (and has been assessed officially by WADA in 2015),” FIS replied.
The silver-medal winning Russian men’s relay team at the 2014 Olympics. Alexander Bessmertnykh, Maxim Vyegzhanin, and Alexander Legkov were disqualified for doping, but had their bans overturned by the Court of Arbitration for Sport.
The gold medalist was initially banned and ordered to turn over his medal. That happened after investigations by journalists and anti-doping administrators found that he had likely benefitted from a sample-swapping scheme instituted by the Russian government. The crowning achievement of the scheme came at the Olympics in Sochi, Russia, where athletes’ “dirty” urine was swapped for “clean” samples so that their illicit doping would not be detected by tests.
On Monday, CAS released the details behind its decision in Legkov’s case.
In short, they did not find enough evidence that Legkov had personally been involved in the scheme, which they acknowledged existed. But testimony by whistleblowers and forensic evidence was not deemed to be enough to justify disqualifying him.
Grigory Rodchenkov, the former director of the Moscow Anti-Doping laboratory, wrote in testimony to the Panel in January that Legkov had been involved in the doping scheme and had been instructed to provide clean urine samples so that they could be swapped out to hide dirty ones. Legkov had also participated in “washout testing,” he said, to determine how long drugs would stay in his body. He related conversations with higher-ups who told him that Legkov was a “special project”, and had notes in his diary from the 2014 Olympics which described swapping out Legkov’s urine sample after he won the 50 k.
The CAS panel didn’t agree with any of those assertions. The fact that Rodchenkov stated that Legkov was providing clean urine had little value, they wrote, because nobody testified to having seen him do it.
“The Panel notes that the IOC does not specify the particular date when, or location where, the Athlete is alleged to have provided clean urine for this purpose,” it writes. “Further, no physical evidence has been presented showing the specific vessel in which the clean urine from the Athlete is alleged to have been collected and stored. Nor has the Panel seen any communications sent by or to the Athlete that refer to the collection, transmission, storage or use of clean urine for the purpose of urine substitution.”
Regarding Legkov’s presence on the “Duchess list” of athletes receiving a special drug cocktail, and and Rodchenkov’s conversation with a boss who told him to make sure Legkov was protected, the panel wrote, “this evidence is hearsay and as such its probative value is very limited, particularly insofar as it relates to the Athlete’s subsequent actions during the Sochi Games in February 2014. In any event, even if it is accepted at face value, the alleged statement merely reflects an intention on Ms. Rodionova’s part. It does not provide any evidence regarding the actions or state of mind of the Athlete.”
Rodchenkov’s testimony was not the only aspect of the International Olympic Committee’s (IOC) case against Legkov. In addition, multiple marks were found on Legkov’s sample bottles, consistent with having been opened.
CAS did not buy this as evidence of an anti-doping rule violation either, however.
“The Panel considers that the fact that sample bottles were opened would, if established, provide considerable, albeit not conclusive, inferential evidence that urine was substituted and, as a further step of conclusion, the substituted urine contained prohibited substances,” they wrote.
After that, they tore apart the testimony of the expert who identified the marks on the bottle, writing that while he had established that such marks did not occur as part of “normal use”, they could have occurred when the bottles were being transported from one place to another.
Another criticism? That while the IOC’s chosen expert established “normal use” using empty bottles, the presence of urine in a bottle could change things. Maybe these marks might not actually be indicative of the bottles being opened. They wrote, “the Panel considers that there is some merit in the Athlete’s criticism that the failure to conduct tests on sample bottles that were filled with liquid reduces the probative value of the results of those tests.”
In total, they found that the existence of state-sponsored doping could not be used to punish Legkov without other strong evidence that he had benefitted – and didn’t deem any of the evidence presented to be strong enough.
“In reaching these conclusions, the Panel wishes to underscore what it has not decided in this appeal,” the panel wrote. “The Panel has not made a ruling on whether and to what extent the alleged doping scheme during the Sochi Games existed and how it operated even though it recognizes that there is significant evidence that it was in place and worked.”
FasterSkier’s Alex Kochon, Nat Herz, and the author (Chelsea Little) at the 2014 Olympics in Sochi, Russia. Little did we know what was going on behind the scenes of those Games. Looking back at our coverage of the 2014 Olympics, I’m very proud of the work we did. But I’m not too proud to say that while we thought we had a realistic understanding of international sports governance, we were still naive to its incredible inertia.
The following is an editorial written by FasterSkier’s Editor-at-Large Chelsea Little, who has been covering doping in sport, specifically cross-country and biathlon, for the better part of the last decade. The opinions expressed are her own and do not necessarily reflect those of other FasterSkier staff.
The athletes had been disqualified from the 2014 Games by an International Olympic Committee (IOC) Commission. This was after more than 18 months of buildup in which the world learnt of systematic manipulation of the anti-doping process by the Russian state security apparatus at those Olympics.
I was both shocked, and not shocked. When all these athletes had been disqualified by the IOC and handed lifetime bans from Olympic competition, I knew in my heart of hearts that it would be undone (I’ll explain why below). But I hadn’t, somehow, put any thought into how exactly that would come to pass. So on one level, I was surprised, even if on another level I wasn’t.
When the news broke, I had written a profanity-laced all-caps message on our company Slack channel. On Twitter, I wrote, “I am so tired. That means that they have won.” That’s about all I could muster.
“I’m sure you are extremely disappointed by the CAS ruling,” one member of my extended family wrote in an email, knowing how many nights and weekends I had spent covering this story, how many hours and days of my personal life I had erased to chase it, because doing so does not pay the bills if you work for a cross-country ski website in America.
And I was disappointed.
I had thought that those nights and weekends would help make a better sporting world, help bring cheating to light, help hold the powers that be in sport accountable and call on them to do a little better.
But it felt like all that work had accomplished nothing, not changed a single thing to make nordic sports more fair.
I can only imagine how the athletes felt. The ones who found out that they would not be receiving medals after all, medals that they felt had been stolen from them by cheaters, medals that they had been slated to finally receive but now would never see.
I can only imagine.
More than anything, I was disappointed because I didn’t understand. I’m an analyst. No analysis I could do would explain to me just what had happened because CAS did not release a reasoned argument for their decision, which, as USADA General Cousel Bill Bock pointed out, is ludicrous. So at the moment we don’t know why these athletes were cleared; we only have speculation and hearsay.
In that decision, an arbitration panel wrote that they trusted the statements of whistleblower Grigory Rodchenkov and investigator Richard McLaren.
That testimony that is widely speculated to have been found untrustworthy by the arbitration panel which more recently cleared the athletes.
There is a difference between provisional suspensions and rule violations, and maybe that’s the root cause (or maybe it’s not; one day we will find out).
But if two different arbitration panels can come to two completely different conclusions about whether evidence is trustworthy, then what is the point of a “high court” of arbitration? That’s disappointing.
On the other hand, maybe the new panel did believe that the whistleblower testimony was true, but that witness statements alone are not enough to prove a doping violation. We’ll set aside for a moment all the forensic evidence [see footnote 1].
If that’s the case, it’s even more disappointing. It means that all of the rhetoric over the last few years about putting more resources into investigations will not actually result in cleaner sport, unless there is a positive test or the presence of drugs or medical equipment (see: Austrian skier Wurm, Russian skier Pankratov).
It would mean that the World Anti-Doping Agency’s new “secure digital platform” for whistleblowing — and statements by athletes and doctors and team staff — are all useless to anti-doping unless they are followed by physical evidence of prohibited substances or methods.
But we don’t know the panel’s reasoning. This is all just speculation.
I was tired and disappointed because my job as a journalist is to take complicated things, and make them make sense to our readers.
Here, there was nothing to work with. There was nothing to explain.
A second suggested storyline is that the IOC set up the cases to fail, so that it would look like they tried to do something heroic, but in the end nothing would change.
To some extent, that is absolutely the case. Lifetime bans for doping have been attempted by the IOC before. Every time, they have been overturned. There was a zero percent chance it would work this time, either.
Did the IOC go further than that in “set up to fail”? Both storylines may be true. Neither may be true. But each of these storylines is far too myopic in their attempts to explain what happened with this CAS decision.
The reason that, in my heart of hearts, I knew that things would turn out just fine for most of these seemingly disqualified athletes, is that far more than CAS is broken [2].
Broken would imply that at some point the system worked. When was that, again?
This scandal has been going on for years. And in both it and other, non-Russia-related doping scandals, organizations have dragged their feet at every turn. There is no political will to keep sport clean. Ensuring clean sport would be hard. Nobody wants to do hard work. Universally, these organizations just want to run sporting events and for fans to be happy.
“We need to stop pretending sport is clean,” International Ski Federation (FIS) President Gian Franco Kasper [3] famously told New York Times reporter Rebecca Ruiz. “It’s a noble principle, but in practice? It’s entertainment. It’s drama.”
People were mad when Kasper said this, but it was an especially revealing comment. Maybe it is a testament to our optimism that we quickly moved on, focusing on how we would try to “solve” the problem of doping.
There have been individuals and groups who have worked passionately to uncover the truth, and done an admirable job. Beckie Scott at WADA [4] is one who comes to mind. But their work is always prevented from reaching its logical conclusion.
Let’s first look at the IOC, which has deservedly gotten a bad rap for dragging its investigations out for as long as seems humanly possible.
The IOC has certainly not put the resources or good-faith effort into looking under every stone, or doing so quickly. That’s how we got the first Sochi disqualifications – like Legkov’s – being announced in November of 2017. Most of the criticism leveled at the organization on this front is absolutely justified.
In all the time between May 2016, when the Sochi scandal was first broken by the New York Times, and November 2017, the IOC did very little. The decision banning Legkov relied mostly on the same evidence that had been in the McLaren Report.
The IOC Commission asked new experts to revisit the issues of scratches on sample bottles and salt content of urine samples. Basically, they repeated a lot of work which had already been done, expanding it to a larger number of samples but taking longer to do so by insisting on using different experts, who nonetheless came to the same conclusions.
For Legkov, all of this resulted in the same evidence that had been in the McLaren Report: that Legkov’s sample bottle from after the 50 k, which he had won, showed signs of being tampered with.
Sure, the IOC Commission got testimony from Rodchenkov. But that only at the last minute, perhaps because they were publicly shamed when it was revealed that they hadn’t contacted him.
It’s fair to criticize the IOC for its anemic investigation, but this is not just an IOC problem, just like the disqualifications being overturned is not really a CAS problem.
Look further. Since the McLaren Report, few other governing bodies have been doing better.
“We like to play coy, like the cat wagging its tail when the mouse runs in front,” IBU Vice President for Medical Issues Jim Carrabre told me back at the 2014 Olympics, in an interview that led to the IBU’s media chief calling me into his office at the press center and dressing me down for talking about things that he would rather journalists didn’t ask his organization’s board members.
“It goes by once or twice, and then the third time it gets bitten,” Carrabre said at the time.
He was referring to blood profiles, a topic that has recently gained prominence.
For years I have been told by various people that the IBU has cases in the works, that soon I will hear about them, that they know some people are doping and are about to catch them.
I don’t doubt that Carrabre is a true believer in the anti-doping fight. He gets pretty fired up about things, as does fellow Executive Board member Max Cobb.
But the cases that I heard rumors of, even promises of, have never materialized.
The Athlete Biological Passport (ABP) was supposed to revolutionize anti-doping and indicate if athletes had been blood doping even when no illicit substance was detected. That sure would have been handy due to the drugs’ short detection windows and athletes’ and doctors’ strategies of “microdosing.”
But there have been no doping bans on the basis of ABP in skiing or biathlon [5]. I don’t think that even the most optimistic of fans really believes that this is because there is no blood doping going on.
What does that mean? That ABP doesn’t work, that it wouldn’t hold up in arbitration? Or that something else is going on?
It would be hard to look at IBU President Anders Besseberg’s behavior in the last two years – for instance, the IBU’s continued insistence that it’s totally fine to hold events in Russia, or his demeanor and statements during meetings with athletes – and conclude anything other than that he is sympathetic to Russia and would even more generally like to simply pretend that there was no scandal in his sport.
Having a few true anti-doping crusaders on a governing board does not clean sport make. I don’t want to put words into their mouths, but probably, it just makes these crusaders even more frustrated.
“When the McLaren Report first came out, I thought that doping was the greatest threat to our sport,” U.S. biathlete Susan Dunklee told FasterSkier in January 2017. “However after watching the last few weeks play out, I believe that the IBU’s reluctance to meaningfully act to prevent doping is the greatest threat to our sport.”
Then there is FIS. As I’ve repeatedly pointed out, there were 46 skiers implicated in the McLaren report. Not all of them, obviously, were at the 2014 Olympics or Paralympics, yet as far as anyone can tell, FIS has done nothing to investigate the other cases, some of which include alleged anti-doping rule violations.
(Which, by the way, how can I get in on that? Hi? I’m over here! I know a lot about doping in skiing and I also how to do statistics!)
The data is interesting, but nothing can really be done with it, as it is old and from the days before ABP was a policy. Without the journalists or their experts explaining how they decided what an “abnormal or highly abnormal” blood profile is, it’s impossible to judge what percentage of the athletes they identify as potentially having doped actually were likely dopers.
But perhaps this indicates that someone within FIS is frustrated with how things are going. If you cared about skiing being clean, cared about doing your job well, and listened to Kasper say things like “sanctioning entire countries is purely political and I do not agree with this,” you might be frustrated too.
And here’s the last thing. In this whole scandal we are talking about one country. That’s Russia, and it has led to a lot of ideological discussion.
But it’s not really about Russia.
Yes, the IOC and the IBU and FIS want to keep Russia happy, because their sports are popular in Russia, the Russian athletes are talented and popular even outside the country, because Russia is great at hosting events, and because Russian fans travel all over to watch competitions. That’s part of it.
And yes, some commentators have complained that athletes are being punished just because they are Russian. They have complained that this is a U.S.-led effort reviving Cold War hostilities. That we are Russophobes. That we are hypocrites because American sports stars dope too, and/or that lots of countries dope but we just haven’t found out about it.
But again, that’s being far too myopic about things, and believing that this scandal is only a thing unto itself, not part of the bigger problem.
If this scandal had taken place with Norway, Sweden, Germany, the United States, or any other country at the center – the outcome or the (lack of) speed of its resolution probably wouldn’t have been much different [6].
I – yes, I’m among those journalists accused of being hypocritical and anti-Russian, I’ve even been compared to Nazis, gee that was fun – I would chase this scandal just as hard if it had arisen in any of these other countries.
In fact, I would have investigated it with even more fervor if these were American or Canadian skiers and biathletes we were talking about. And presumably most of the evidence would have been in English, so I could investigate more effectively, without translating things I was looking for into Russian, searching the internet or evidence documents, and then translating the Russian back into English, in a crappy game of “telephone”.
I think that the North American athletes I routinely interview are aware that if I found out they were cheating, I would have no remorse and they would have nowhere to hide.
Just as I’m not a hypocrite, these sports organizations aren’t, either – well, they are, but not in this way, not when it comes to nationality. The claims that various decisions just come from Russian money and bribes are missing the point.
Whether coming from Russia or elsewere, these organizations don’t want a big scandal. They don’t want to rewrite their results sheets. The athletes who missed out on medals they probably should have taken home? These organizations don’t really care about athletes.
They are just an unfortunate bit of collateral damage, but oh well.
Time will march on. A new race will be held. It will be an exciting race! We will all be caught up in it.
Maybe Pellegrino will upset Klæbo.
Maybe an American will finally win a medal.
Maybe Fourcade will mess up his first stage, but then climb back to gold anyway.
Maybe Makarainen will mess up all her shooting stages, and we will all watch rapt to see whether she can pass 15 people on the final loop. Maybe she can.
Maybe Harvey will finally truly become the Prince of Quebec, crowned with an Olympic medal.
Maybe the breakaway will succeed.
Or maybe the favorite will win, but we will be enthralled until the final moment, watching to see whether they will pull it off.
Soon, we will forget about those athletes whom we were wondering about, the ones who maybe probably should have a medal stashed in their safe deposit box somewhere and a whole lot more sponsor money than they have now.
Those athletes will slip farther and farther to the back of our minds. In the forefront will be the day’s competition – so amazing! – and the big happy family that is sport.
Actual clean sport is not, and never was, these organizations’ goal.
*****
Footnotes:
[1] On the topic of skiers who were cleared by CAS: Maxim Vylegzhanin’s sample from Sochi also had scratches on it and had an incorrectly reported specific gravity; the two other members of the men’s relay team also had marks on their sample bottles, and one had a sample whose specific gravity was too high to be believable; two sprinters had marks on their sample bottles and for one, there as also a foreign fiber inside the bottle. Julia Ivanova, whose ban was not overturned by CAS, had an impossibly high salt value in her urine sample.
[2] I actually think CAS does work. CAS handles far more than doping cases – they handle contract disputes, team selection, trades, anything you can think of that would need arbitration. And as far as I know, they do a good job. This is the first CAS decision that has left me truly baffled.
[3] Term limits, man. We really, really need term limits.
[4] I’m not going to talk in much detail in this piece about WADA, which alternatingly does the right thing and the wrong thing, and often does the wrong thing for a very long time first. But at least in the last year or so, WADA is no worse than any other group, and indeed maybe a bit better.
[5] Blood profiles have certainly led to targeted testing, which caught athletes before the 2014 Olympics. But nobody bothered to try an ABP case, that we know of. Nor, seemingly, did the biathletes that the McLaren Report alleges were doping – Olga Vilukhina and Yana Romanova – fail their ABP’s. Either ABP is not being used, or it is not being successful and the details of the cases are never made public.
[6] If the perpetrator of this scandal hadn’t been Russia, I think the main difference might have been the reaction within that different country. I don’t think the Norwegian public would react the same way the Russian public has. Each place has its own culture around sport and what it means, and government also plays various different roles in supporting and controlling sport. But the reaction from the international organizations? Things would probably be much the same.
The silver-medal winning Russian men’s relay team at the 2014 Olympics. Alexander Bessmertnykh, Maxim Vyegzhanin, and Alexander Legkov were disqualified for doping, but just had their bans overturned by the Court of Arbitration for Sport.
The Court of Arbitration for Sport (CAS) has overturned doping bans assigned to eight cross-country skiers based on investigations into manipulation of the anti-doping process at the 2014 Winter Olympics.
“In 28 cases, the evidence collected was found to be insufficient to establish that an anti-doping rule violation (ADRV) was committed by the athletes concerned,” CAS wrote in a press release. “With respect to these 28 athletes, the appeals are upheld, the sanctions annulled and their individual results achieved in Sochi 2014 are reinstated.”
The athletes whose results will be reinstated are:
50 k gold medalist and relay silver medalist Alexander Legkov
50 k silver medalist, team sprint and relay silver medalist Maxim Vylegzhanin, also fourth in the 30 k skiathlon
relay silver medalist Alexander Bessmertnykh, also seventh in the 15 k classic
Evgeny Belov, 19th in the 30 k skiathlon and 25th in the 15 k classic
team sprint silver medalist Nikita Kriukov, also 13th in the men’s sprint
Alexei Petukhov, eighth in the men’s sprint
Evgenia Shapovalova, 28th in the women’s sprint
Natalia Matveeva, 20th in the women’s sprint
The disqualifications of skiers Julia Ivanova, Yulia Tchekaleva, and Anastasia Dotsenko were upheld, although CAS held that instead of being banned from the Olympics for life, the three women were merely banned from the 2018 Games.
The cases of biathletes Olga Zaitseva, Olga Vilukhina, and Yana Romanova have not yet been handled.
The eight athletes whose disqualifications were overturned had not been invited to the 2018 Olympics, and many other Russian athletes who had not been convicted of doping offenses also did not meet the IOC’s requirements of proof of being clean either. Thus, it is doubtful whether the CAS appeals will affect the Olympic rosters.
CAS did not release any information about how the arbitration panel came to its decision.
“Although the operative part of the decision is issued, the principle of confidentiality of the procedure still applies,” Legkov’s lawyer, Christof Wieschemann, wrote in a statement emailed to the media. “I assume that all parties involved will respect this. The panel has to decide in its judgment what details of the proceedings becomes subject of the reasoning of the decision and therefore will also become public. We will wait for the reasoned decisions.”
The evidence in the McLaren report showed, for instance, that anti-doping sample bottles belonging to Legkov, Vylegzhanin, Shapovalova, and Petukhov, among others, showed marks consistent with having been tampered with. A sample belonging to Vylegzhanin also showed discrepancies in the reported specific gravity.
There was no explanation offered as to why this evidence is not valid in proving an anti-doping rule violation.
Likewise, CAS offered no explanation as to why this testimony was not sufficient to prove an anti-doping rule violation.
“Dr. Rodchenkov testified fully and credibly at CAS,” Rodchenkov’s lawyer, Jim Walden, wrote in a statement. “His truth has been verified by forensic evidence, other whistleblowers, and, more recently, recovery of the Moscow lab’s secret database, showing thousands of dirty tests that were covered up. The panel’s unfortunate decision provides a very small measure of punishment for some athletes but a complete ‘get out of jail free’ card for most. Thus, the CAS decision only emboldens cheaters, makes it harder for clean athletes to win, and provides yet another ill-gotten gain for the corrupt Russian doping system generally, and Putin specifically.”
Russia’s Natalia Matveeva (l) winning a World Cup sprint in January, 2017. Matveeva was sanctioned for using EPO in 2009, but has returned to competition; a provision in an IOC decision would bar her from competing in the 2018 Olympics, but is almost guaranteed to be struck down by the Court of Arbitration for Sport. (Photo: Fischer/Nordic Focus)
Yesterday, the International Olympic Committee (IOC) decided that while Russian athletes who are “considered clean” may compete at the 2018 Games in PyeongChang, South Korea, they will do so in neutral uniforms and under the moniker “Olympic Athlete from Russia” rather than as the Russian Olympic Team. The Russian national anthem wouldn’t be played if they win, although the team may be reinstated for the closing ceremonies.
That is a big step for the international sporting community in their task of dealing with Russia’s manipulation of the anti-doping system at the 2014 Olympics.
But significant as it may be, the drama is far from over as several more decisions must be taken. Individual athletes disqualified from the Olympics by an IOC Disciplinary Panel are appealing their bans to the Court of Arbitration for Sport (CAS), sport’s supreme court. Several of the provisions in the IOC’s Tuesday decision are also certain to be appealed to CAS, among them the assertion that no Russian athlete with a previous doping ban can compete in the 2018 Games.
Decisions must also be taken by individual international sports federations, like the International Ski Federation (FIS) and the International Biathlon Union (IBU). Russia has broken enough statutes of these federations that they may be suspended, which could have its own effects on the competitive field at the World Cup, the Olympics, and lower levels of competition.
And finally, there allegedly hundreds to thousands of doping cases indicated in digital forensic evidence from the Russia investigation which have not been dealt with yet because they do not involve athletes from the 2014 Olympics.
Sport Federation Statutes and Suspensions
The Russians celebrate a silver medal in the men’s 4 x 10 k cross-country skiing relay at the 2014 Sochi Olympics. After the disqualification of Alexander Legkov and Maxim Vylegzhanin, the team has been ordered to return the medals.
The 2014 FIS Anti-Doping Rules, which went into effect on January 1, 2014 (before the Olympics started that February), state that the federation can take action against national ski teams, such as barring athletes from competition or assessing fines, if there is evidence of extensive doping within the team.
Article 12.3.1 of the rules state that such action may be taken when “Four or more violations of these Anti-Doping Rules… are committed by Athletes or other Persons affiliated with a National Ski Association within a 12-month period in testing conducted by FIS or Anti-Doping Organisations…”
At the moment, eight Russian cross-country skiers have been disqualified by the International Olympic Committee for doping violations at the 2014 Olympics: Alexander Legkov, Evgeny Belov, Alexei Petukhov, Maxim Vylegzhanin, Julia Ivanova, Evgenia Shapovalova, Anastasia Dotsenko, and Julia Tchekaleva.
“In such event FIS may in its discretion elect to: (a) withdraw some or all FIS membership rights, including participation in all FIS calendar competitions, voting rights at the FIS Congress, ban all officials from that National Ski Association for participation in any FIS activities for a period of up to two years and/or (b) cancellation of the organisation of future FIS events in the disciplines concerned and/or (c) withdraw some or all FIS funding to the National Ski Association…” the rules state.
A second provision states that if four more cases are found within a 12-month period after the first four or more cases, “FIS may suspend that National Ski Association’s membership for a period of up to 4 years.”
The rules also stipulate that if “More than one Athlete or other Person from a National Ski Association commits an Anti-Doping Rule violation during an International Event… FIS may fine that National Ski Association in an amount up to CHF 50’000.–.”
FIS has yet to officially consider any of these actions, but they will likely be brought up for discussion soon.
Russian anchor Anton Shipulin celebrates his team’s gold medal in the men’s relay over Germany’s Simon Schempp. So far, no male biathletes from Russia have been implicated in the doping scandal.
In a statement released by U.S. Ski and Snowboad, CEO Tiger Shaw said, “On behalf of our athletes, we have a fundamental obligation to fight for fairness in sport, to advocate for the health and welfare of athletes and to protect the image of our sport. Now we look to the International Ski Federation (FIS) to hold a FIS Council meeting to review the IOC’s decision and related evidence to consider its impact on the Russian Ski Association, its FIS committee members, officials and athletes.”
Meanwhile, the IBU will hold an Executive Board meeting this weekend, in which it may address violations of its own statutes.
The IBU did not implement rules similar to the FIS rules regarding suspending member federations or canceling events on the basis of repeated doping offenses until its 2014 Congress, which was held after the Sochi Olympics. But Russia may have violated other IBU statutes.
In the 2012 IBU Rules, it is stated that “The IBU may impose a fine either by requesting payment or by withholding financial support from a member federation if more than one athlete or more than one person from such member federation commits a violation of the IBU Anti-Doping Rules during a 12-month period.”
In the same edition of the rules, a provision states that “IBU member federations that are full members may be suspended by the Executive Board, for up to two years, until the next IBU Congress if they do not fulfill their obligations stated in Art. 2.3.2.”
Among the “Obligations of Full Members” described in that article is, “to comply with the IBU Constitution and Rules.” Two of the “Objectives” listed in the IBU Consitution are “to prevent doping in biathlon” and “to prevent all methods and practices that might jeopardize the integrity of biathlon competitions.”
All of the athletes banned by the IOC, additionally, may see sanctions from their relevant international federations. The skiers and biathletes are currently under provisional suspensions from FIS and the IBU, and doping hearing panels will (eventually) consider the evidence against them and decide whether to bring anti-doping rule violations. The time frame for that is unclear.
Likely CAS Rulings
There are already 22 appeals registered at CAS by athletes who were disqualified from the 2014 Olympics by the IOC’s Disciplinary Commission.
Alexander Legkov is one of 22 Russian athletes appealing their disqualifications to the Court of Arbitration for Sport. (Photo: Marcel Hilger)
Thus it is likely, but not guaranteed, that the retroactive disqualification from the 2014 Games will remain standing.
(Then there’s the question of getting the medals back: biathlete Yana Romanova said that “I’d rather throw my medal in the dumpster, than return it to the IOC,” referring to the silver medal she was given in the women’s relay and was ordered to return after her disqualification.)
Besides disqualifying the atheltes from the 2014 Games, the IOC Disciplinary Commission decisions also banned them from all future Olympics. There is no provision for lifetime suspensions on a first doping offense in the World Anti-Doping Code, so this could be a real fight at the CAS level.
Similarly, the IOC’s Tuesday decision included a ruling that no Russian athlete who had ever been suspended for an Anti-Doping Rule Violation could compete in the 2018 Olympics. That is very unlikely to stand, as the Court of Arbitration for Sport has ruled several times, in different specific circumstances, against past doping violations being used anew to bar athletes from competing in a new set of events.
Aside from the issue of double jeopardy, there would be an inherent unfairness to preventing Russian athletes who had completed doping suspensions from competing, while others who had served and completed similar suspensions were allowed to participate.
Athletes who may challenge this provision include cross-country skier Natalia Matveeva and biathlete Alexander Loginov, both of whom finished their suspensions for using EPO, and have since returned to competition.
In comparison, Martin Johnsrud Sundby of Norway and Justyna Kowalczyk of Poland have both served doping suspensions and will almost certainly be on the start line.
Outstanding Cases
Finally, there are many more cases that have not yet been handled.
The IOC has so far only suspended athletes involved in a doping cover-up scheme at the 2014 Olympics. But in the course of the investigation of that scheme, evidence came to light of many, many more cases outside of the Games.
The silver-medal winning Russian men’s relay team at the 2014 Olympics. Alexander Legkov (right) was sanctioned by the International Olympic Committee for doping, and as a result the Russian team’s relay result will be invalidated.
The International Olympic Committee (IOC) has ruled that Russian cross-country skiers Alexander Legkov and Evgeniy Belov doped at the 2014 Olympics in Sochi, Russia.
As a result, Legkov’s gold medal in the 50-kilometer freestyle mass start, the Russian men’s silver medal in the 4 x 10 k relay, and Legkov’s 10th-place finish in the 30 k skiathlon are all invalidated, as are Belov’s 18th-place finish in the skiathlon and his 25th-place result in the 15 k classic.
The ruling states that Legkov must return his medals.
Significantly, the two athletes are also “declared ineligible to be accredited in any capacity for all editions of the Games of the Olympiad and the Olympic Winter Games subsequent to the Sochi Olympic Winter Games.” That means they won’t be able to compete in PyeongChang, South Korea, in February.
The Oswald Commission also left it up to the International Ski Federation (FIS) to “consider any further action within its own competence.”
The decision is partially a result of hearings held on Monday, where the athletes were present. Several other Russian skiers also had hearings on the same day, and the results of their cases have not yet been announced.
The decision released was a summary, and the detailed reasoning behind it is not yet available.
The athletes will have the option of appealing the ruling to the Court of Arbitration for Sport (CAS), and a statement from the athletes’ lawyer says that they will do so “at the latest tomorrow.”
(Update #1) It is unknown what evidence the Oswald Commission primarily relied on to make its decision, but CAS has signaled that it largely trusts evidence from the McLaren report, the investigation commissioned by the World Anti-Doping Agency, which back in 2016 revealed manipulation of the anti-doping process at the 2014 Olympics.
The Oswald Commission was intended to gather additional evidence. It also re-examined anti-doping sample bottles from Sochi. Professor Richard McLaren had sent the bottles to a forensic analysis lab in London, which determined that the bottles had been tampered with. The Oswald Commission asked a laboratory at the University of Lausanne to develop its own procedure to confirm this finding.
Grigory Rodchenkov, the former head of the Moscow anti-doping laboratory who turned whistleblower to The New York Times and whose testimony formed a large basis of the McLaren report, reportedly testified to the Oswald Commission on Saturday.
One aspect of the decision seems potentially vulnerable to appeal. In the past, CAS has ruled that lifetime Olympic bans are not allowed. In those cases, however, its reasoning was more concerned with putting athletes into double jeopardy than to an inherent problem with the concept of a lifetime ban.
In 2008, the IOC put into force what was deemed the “Osaka Rule”, stating that any athlete who had served a doping ban longer than six months could not compete in the next Olympics, even if their suspension was completed. An American athlete, LaShawn Merritt, appealed this to CAS, which found in his favor that the IOC could not, in effect, lengthen a suspension which had already been determined by a different organization.
The decision turned on considerations of double jeopardy, the principle that a person should not be punished a second time for an action which had already been adjudicated. CAS was concerned that an athlete in these circumstances would be punished twice for “the same behavior.” The Merritt decision does not seem to establish that a lifetime Olympic ban is per se impermissible, if reached for the correct procedural and substantive reasons.
Then, ahead of the 2012 Olympics, the British Olympic Association tried to insert a provision into their team qualification procedures that any athlete who had previously served a doping ban was ineligible for the Games, even if their suspension had been completed. CAS knocked this down, deeming the additional ban an illegal “extra sanction” that was not in compliance with the World Anti-Doping Code.
(Update #2) Elena Välbe, head of the Russian Ski Federation for cross-country skiing, did discuss the hearings in the Russian press to some extent. She indicated that the Lausanne lab had found problems with some of the sample bottles. “They found that … some of our athletes also had them, probably the biggest problem in this respect is with Alexander Legkov,” she told R-Sport on Monday, according to a translation, before adding, “but, in fact, there is no other evidence.”
Sources also indicated to R-Sport that the other four Russian skiers whose cases are being considered — Julia Ivanova, Evgenia Shapovalova, Alexey Petukhov and Maxim Vylezhanin — will likely get the same treatment that has been given to Legkov and Belov.
Indeed, Vylegzhanin – another member of the Russian relay team, and the silver medalist in the 50 k – told sports.ru that “If such a verdict is passed on them, then this can be expected for us.”
(Update #3) If both Legkov and Vylegzhanin are disqualified, there could be a substantial medal re-allocation in the men’s 50 k. Third-place Ilia Chernousov, also from Russia but not implicated the McLaren report, would stand to gain gold. Fourth-place Martin Johnsrud Sundby of Norway would take silver, and fifth-place Sergei Dolidovich of Belarus would earn bronze.
In the men’s relay, third-place France (Jean Marc Gaillard, Maurice Manificat, Robin Duvillard, and Ivan Perillat Boiteux) would earn silver, and fourth-place Norway (Eldar Rønning, Chris Andre Jespersen, Sundby, and Petter Northug) would earn bronze.
Vylegzhanin also won silver in the men’s team sprint with Nikita Kriukov. Were that result invalidated, Sweden’s Emil Jönsson and Teodor Peterson would move from bronze to silver, and fourth-place Northug and Ola Vigen Hattestad would earn bronze.
It would be a huge reversal for the Norwegian men’s cross-country team, which originally won only two medals in Sochi (gold by Hattestad in the sprint and bronze by Sundby in the 30 k skiathlon). This seeming underperformance was a source of disappointment to the team and the nation at the time.
“We do not know the details and only have information through the media, but this is a sad and disappointing day for international skiing,” Norwegian Ski Federation President Erik Røste said in a press release, according to a translation. “We are now awaiting a reason for the IOC’s decision, and many suggest that we will get more detailed information in the days to come… those involved have already stated that they will appeal the judgments, and we hope there will be a final decision as quickly as possible.”
“This is just sad for cross-country sports, no matter what the conclusions of the case are… If this ends with me receiving Olympic medals, I won’t enjoy them with this backdrop,” Sundby said in the same press release.
Were the medals to be reallocated in this way, several athletes would become first-time medalists. That includes Dolidovich, who never podiumed at the international level but was fourth in the 30 k skiathlon at the 2011 World Championships and fifth in the 50 k mass start at 2009 World Championships, as well as having eleven World Cup top-10’s.
It would also be the first time Norway’s Rønning or Jespersen received Olympic medals; Rønning had won four World Championships relay gold medals for Norway, as well as a sprint bronze of his own in 2009, but Jespersen was a first-time Olympian who had never before competed at a World Championships.
After anchoring Norway to fourth in the men’s 4 x 10-kilometer relay at the 2014 Olympics in Sochi, Russia, Petter Northug congratulates the Russian silver medalists, including anchor Maxim Vylegzhanin. As a result of the IOC’s decision to sanction two Russians that competed in Sochi, Russia is to return its relay medal; Norway will thus be awarded bronze and France silver.
This article has been updated to include comments from Canadian World Cup Team member Alex Harvey as told to Le Journal de Montrealon Wednesday.
“Hell yes, IOC. Finally starting to take some action,” U.S. Ski Team (USST) member Simi Hamilton wrote on Twitter. “I have a feeling pressure from us clean athletes has paid off!”
“Today marks a win for clean athletes,” USST Women’s Coach Matt Whitcomb tweeted. “Two cheats are out. It’s a start.”
The Russian men’s relay team meets Maxim Vylegzhanin at the finish after he anchored them to silver in the 4 x 10 k at the Sochi Olympics. The IOC recently ruled that the Russian team’s relay result should be invalidated and they are to return their medals.
Norway’s Petter Northug posted a photo on Instagram of what looked like brunch in a tropical setting with the words: “Feire OL bronse!” (translates to “Celebrating Olympic bronze!”). Northug already has four Olympic medals to his name, two of which are gold (all from the 2010 Olympics), but the men’s 4 x 10-kilometer Olympic relay medal from 2014, which will be awarded retroactively to the Norwegian team (after they placed fourth behind Sweden in first, Russia in second and France in third) will be the first medal for Northug’s teammates Eldar Rønning and Chris Andre Jespersen.
Later on Wednesday, Northug posted a jocular meme on Instagram, picturing himself racing in the Sochi relay with the words: “You know you are the best anchor when you bring the medal home 4 years after the race.”
Legkov was part of Russia’s silver-medal relay in Sochi, and as a result of the IOC’s ruling, he must return the two medals he won there (relay silver and 50 k gold). Additionally, the 2014 Olympic results of Legkov and Belov are to be voided and both athletes are barred from competing at (or being granted credentials to) future Olympics. However, both are expected to appeal the ruling to the Court of Arbitration for Sport (CAS) by this Thursday at the latest.
“It is weird to get the medal in the mail. But if he gets convicted, of course I will take it,” Jespersen told Norway’s Nettavisen, according to a translation. “It’s my only Olympic medal. It is clear I will take it.”
In an interview with Le Journal de Montreal, Alex Harvey, the leading member of the Canadian World Cup Team who finished third in the overall World Cup and second in the distance standings last season, said he had his suspicions about Legkov — particularly after the 50 k freestyle mass start (in which Harvey placed 19th).
Canada’s Alex Harvey (front, bib 19) racing in the freestyle sprint at the 2014 Winter Olympics in Sochi, Russia. He finished 19th on the day. Also pictured: Russia’s Sergey Ustiugov (2) made it to the final and placed fifth. (Photo: Fischer/NordicFocus)
“On the climbs, we could see he was artificially stronger than the rest,” Harvey said, according to a translation. “In Sochi, the last two kilometers were filled with big climbs. It was a course made for Russians knowing that they were doping.”
He added that the end of each course in Sochi ended with a long, brutal uphill that was exceptionally “physically demanding”.
As for the recent doping bans involving professional cross-country skiers, Harvey said, “It’s a shame because our sport is now compared with cycling. It is in cross-country skiing and in biathlon that the largest number of dope cases occur.”
And while he was in favor of the IOC’s decision, he hoped the buck wouldn’t stop there.
“I’m happy that the IOC finally acted, but Russian skiers are still racing … and one in particular who wasn’t bad in Lahti,” he said, alluding to Sergey Ustiugov, who took gold or silver in all five races he competed in at Lahti World Championships.
“Ustiugov was young at the Sochi [Olympic Games], but he still reached the final in the sprint,” Harvey said. “Three of the top six men fell, but he was on his way to a podium that day. What the McLaren Report revealed was that the full team was involved in doping. But Ustiugov’s name never came out. And as long as his name doens’t come up, we can only have doubts.”
Meanwhile, the law firm representing Legkov and Belov is enraged, according to Nettavisen.
“The decision deserves the term scandal,” the Wieschemann firm stated in its press release on Wednesday. “[It] mocks the declaration of the President of the IOC, Dr. Thomas Bach, to decide only on the basis of secure evidence.”
While the IOC’s Disciplinary Commission (also referred to as the Oswald Commission) has yet to release its full decision and explain how it arrived at the final rulings, cases for 26 other Russian athletes (four of which are nordic skiers) who allegedly doped in Sochi are still pending, the CBC reported.
“The Oswald Commission has announced that all hearings for active athletes who could qualify for the Olympic Winter Games PyeongChang 2018 will be completed by the end of November,” the IOC stated.
As of Wednesday, exactly 100 days out from the 2018 Winter Olympics in PyeongChang, South Korea, it remained unclear whether the commission obtained further evidence concerning Legkov and Belov beyond what was already presented to the CAS.
Wieschemann claims the commission ruled “without further investigation and without further evidence…”
“Denis Oswald still stated at the last summit of the IOC that his investigations would go far beyond those of Prof. Richard McLaren,” the firm’s press release stated. “Well that’s actually not the case. The investigation has only been limited to obtaining a new forensic opinion…”
And while some of the most outspoken individuals in the XC world continue to speak out, others are weighing in on social media as well.
“… It’s disturbing to find out that some athletes in cross-country skiing have likely doped, and have gone so long unpunished,” Caitlin Patterson of the Craftsbury Green Racing Project wrote on Facebook. “But it reminds me that we must be vigilant, keep looking for ways to support anti-doping testing programs, put pressure on governing bodies to take a stand for clean sport, educate ourselves on progress and pitfalls of the cause, and speak up when we can.
“I haven’t spoken much on this politicized topic, but recent news such as this disqualification makes me distinctly aware of how much I value clean sport and all it stands for,” Patterson, who has started 27 World Cup races, continued. “Thank you IOC for taking this step towards preserving clean sport! Let’s keep it going, keep the pressure on, and fight to #CompeteClean and #PlayTrue!”
Former U.S. skier Sylvan Ellefson, who retired in 2014 after racing 23 World Cups, took to Instagram: “Thankful that our @usnordicskiteam contingency all get to move up a couple spots, but I mostly feel for those who have always been moral in their decision making. Those who train and race relentlessly, with their head down, just to find out their competition is taking the easy road. I could go on, but nothing lights me up more than cheaters.”
The Court of Arbitration for Sport decided that there was a “reasonable possibility” that Alexander Legkov had doped at the 2014 Olympics. Here, he pumped his fist after Russia claimed silver in the 4 x 10 k relay, their nation’s first medal in cross-country at the Sochi Olympics.
Nearly two weeks ago now, the lawyer for Russian cross-country skier Alexander Legkov published the decision a panel at the Court of Arbitration for Sport (CAS) had come to after a hearing in May.
Legkov has been suspended by the International Ski Federation (FIS) since December, 2016, because of his presence in the McLaren Report, an investigation commissioned by the International Olympic Committee (IOC) to assess potential state-sponsored doping by Russia at the 2014 Olympics in Sochi. Legkov won a gold medal in the 50-kilometer freestyle in Sochi, and is mentioned in multiple places in the McLaren Report’s evidence packet.
As we summarized last week, CAS agreed that it was justified for FIS to provisionally suspend Legkov pending further investigations into whether he committed a Anti-Doping Rule Violation (ADRV).
However, CAS decided that this provisional suspension could not be infinite and gave it an Oct. 31, 2017, deadline. After that point, FIS must either bring a full ADRV case against Legkov, or drop the provisional suspension until they have new information.
Besides the new deadline, there were a number of interesting details in the 51-page decision from CAS.
Before diving into them, the background: the IOC and FIS are considering a specific ADRV for Legkov: “tampering or attempted tampering with any part of the Doping Control”, outlined in the IOC Anti-Doping Rules for Sochi.
That’s because one of Legkov’s urine sample bottles showed suspicious marks when examined by a forensic expert in the McLaren Report. The conclusion was that the bottle must have been opened after the sample had already been collected, presumably in order to swap out a “dirty” urine sample for a “clean” one. This was the scheme outlined by the McLaren Report as well as news outlets such as The New York Times, whereby the Russians systematically cheated the anti-doping system.
Thus, the case hinges not on one doping sample: a urine sample collected on Feb. 23, 2014, the day Legkov won the 50 k.
Provisional Suspensions Don’t Have the Same Standard as Final Decisions
Alexander Legkov (3) beat out fellow Russians Maxim Vylegzhanin (not shown) and Ilya Chernousov (r) for gold in the Sochi Olympics 50 k freestyle mass start — the last race of the 2014 Games. The sample bottle for Legkov’s anti-doping urine sample collected the same day showed signs of tampering.
The suspension that Legkov was appealing was a provisional suspension, not a final one. FIS is still considering whether and how to bring a doping violation case against him, at which point there will be a different set of hearings and, if he’s found guilty, the implementation of a ban. (The long delay is because FIS is waiting on evidence from another IOC panel in order to bring their case.) In that case, the standard suspension for a first-time doping offense is four years; as of today, Legkov has been provisionally suspended for nearly 10 months.
FIS outlined in their pleadings why it is important to keep suspected dopers out of competition while their cases are investigated:
“Maintaining the suspension mitigates the ‘serious further risk’ of requiring retroactive disqualification of the Athlete (should he be found guilty of an ADRV),” the CAS Panel wrote in summarizing FIS’s position. “The potential need to revisit rankings, re-distribute medals, or otherwise modify competition results would ‘diminish the value’ of competition for participants, sponsors, and the viewing public.”
CAS did not have a problem with this system, writing that “the provisional suspension occupies a space in which an ADRV is asserted, but not yet proven.” This is important, as it is likely to be used more and more frequently as the types of doping cases being tried gets more diverse.
When there is a positive drug test, things often move forward fairly quickly. A mandatory provisional suspension is automatically triggered with a positive “A” sample (once it is established that the athlete does not have a Therapeutic Use Exemption for the substance), and there’s not much debate as to whether this is justified or not. From there it is on to analyzing the “B” sample and having hearings.
But in non-traditional cases, which are becoming more and more common, provisional suspensions might play a bigger role – and putting them into place will have more gray areas. This includes cases like autologous blood doping, where athletes extract some of their blood, save it for later, and then re-infuse is to get a boost of red blood cells and oxygen-carrying capacity. There are (at the moment) few good chemical markers of this type of blood doping and all evidence must be observed directly.
Other cases, too, sometimes rely on direct observation of doping, police finding doping materials, or paper or electronic files indicating wrongdoing, even in the absence of a positive doping test. The four-year ban of Austrian cross-country skier Harald Wurm is one example.
Because provisional suspensions are intended to keep athletes out of competition while their cases are being fully investigated, the standard of proof required to implement and maintain a provisional suspension is less stringent than it is for an actual doping violation. By definition, evidence is still being gathered.
In American civil law, the approximate analogy is to the situation in which someone seeks a temporary restraining order to protect themselves from a partner whom they fear will cause them domestic violence. The standard of proof that must be met to receive such an order is one of the lowest standards used in American law, because it is important to act quickly in this situation and because a longer follow-up hearing will be held soon after at which more evidence can be developed.
Thus, merely having doubts about the evidence is not enough to overturn such a suspension: “In this appeal, a provisional decision is overturned if it has ‘no reasonable prospect of being upheld,’” the Panel wrote.
So: a provisional suspension can be put in place if there is a “reasonable possibility” of a doping violation existing, and can only be overturned if there is “no reasonable prospect” of a doping violation being proven.
In CAS’s view, FIS was justified in putting the provisional suspension into place last December. And secondly, CAS did not think that Legkov had proved that there was ‘no reasonable prospect’ of further developing their case, so the provisional suspension was upheld, albeit with a deadline.
CAS Generally Trusts McLaren and Rodchenkov, With Caveats
Legkov and his legal team argued that the McLaren Report was riddled with errors and that it was never meant to establish the guilt of specific athletes anyway, only to investigate the mechanism of systematic doping. As such, he argued, the report shouldn’t be weighed too heavily in proceedings.
Richard McLaren speaking at a news conference in Toronto regarding his WADA-commissioned report on state-sponsored doping in Russia.
Likewise, the team painted Dr. Grigory Rodchenkov, the biggest whistleblower in the Russian doping scandal and a major source for McLaren’s report, as an unreliable source.
Quite separately from Legkov, the Russian government has also been seeking to discredit Rodchenkov. Prime Minister Dmitri Medvedev called him “scum”, his assets were seized, and there’s currently a warrant out for his arrest.
While agreeing that the evidence in the McLaren Report was not enough to prove a doping violation, CAS signaled that in general it trusted the evidence and that it certainly shouldn’t be ignored completely.
“It would however follow from the report’s findings as to the corruption of an entire system, devised to favor selected athletes, that some individual athletes must have benefited,” CAS wrote of the argument that the McLaren Report was not intended to identify individual athletes for disciplinary measures. “It could not sensibly be concluded that whereas the system was corrupt in the manner identified nonetheless no athlete drew advantage.”
The one exception: emails that Rodchenkov shared with McLaren. The emails are fascinating, but CAS wrote that they were “without context” and therefore very difficult to rely on as indicators of anything in particular.
On Rodchenkov, too, CAS indicated that they value the testimony of whistleblowers, even and especially if those individuals have broken the rules in the past.
“Although the Appellant has strongly challenged the credibility of Dr. Rodchenkov, the Panel observes first of all that the testimony of persons guilty of wrongdoing themselves can be decisive in establishing the guilt of others, and that the extent of their own culpability may even add to their value, since it is likely to be the result of their extensive involvement, at high levels, in the unlawfulness being examined,” the decision said.
Relatedly, CAS recently used evidence from the McLaren Report to uphold the ban of a Russian triple jumper. According to documents in the evidence packet, she had participated in a “washout” scheme where she took performance-enhancing drugs at home in Russia, where positive tests were suppressed, and then traveled to international competitions once the drugs were undetectable.
McLaren Didn’t Show
All parties probably would have loved to ask Professor Richard McLaren, who assembled the McLaren Report, some questions. But they couldn’t. The Canadian was invited to the hearing but declined – CAS wrote that he “chose not to make himself available.”
“From its perspective, the Panel regrets Professor McLaren’s absence and unavailability for questioning,” they wrote. “In any event, neither the Appellant nor the Panel has been able to pose questions to the person under whose supervision and control the evidence that fundamentally informs the suspension under appeal was gathered and organized.”
McLaren did give FIS a sworn statement, but it was after the deadline had passed for the two legal teams to exchange evidence. So it was not permitted to be used in the proceedings.
McLaren’s absence would have had stronger implications than simply the panel’s disappointment were this an American criminal case. The United States Supreme Court has interpreted the Confrontation Clause of the U.S. Constitution as requiring that a criminal defendant be able to cross-examine (that is, to “confront”) a witness against him, and specifically that prior out-of-court statements by a now-unavailable witness may not be used against hi at tria. McLaren’s physical absence from this hearing, in a case based almost exclusively on evidence he had previously gathered (but that the parties had not previously had a chance to ask him about), would have sufficed to overturn a conviction obtained on this basis under American criminal law.
‘I Live in Europe’ Is Not Enough
One of Legkov’s main refrains through this whole ordeal has been that he was training outside of Russia for the time leading up to the 2014 Olympics, and so could not have participated in a state-sponsored doping program.
Legkov and Swiss physiotherapist Isabelle Knaute at the finish of the 35 k stage of the Tour de Ski in 2012.
“To the extent that any opportunity might have existed to tamper, moreover, the Appellant considers it precluded by virtue of his geographical isolation from Russia,” the CAS Panel wrote in its summary of Legkov’s arguments. “The Appellant’s trainings have taken place outside of Russia since 2011, under the supervision of non-Russian coaches and personnel. Similarly, the Appellant 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).”
But at some other point in the hearings, Legkov seems to have made the argument that Russian officials could have taken urine provided during medical tests he occasionally had to undergo in Moscow, and swapped it out from his Sochi sample without his knowledge or consent. Legkov’s Instagram does show him spending at least some time in Russia at a few points in the last few years – as would be expected. It’s his home country.
Furthermore, with the Olympics being in Russia, Legkov was by nature back in Russia before the Games. This was the time period the CAS panel seized on in agreeing that yes, there was a “reasonable possibility” that he could have committed a doping violation.
“While Mr. Legkov’s geographical distance might complicate day-to-day participation in the ‘chain of distribution’ of performance-enhancing drugs prior to Sochi, it does little to quell the reasonable suspicion arising from his appearance on lists relating specifically to the Olympics.”
This is interesting because the International Association of Athletics Federations (IAAF), the international governing body for track and field, suspended the Russian track federation after the first part of the McLaren Report came out. As a result, Russian athletes could not compete in international events. But the IAAF made exceptions for athletes who lived and trained outside of Russia and were assumed to be tested routinely by non-Russian doping agencies.
The difference may be that in that case, the IAAF was assessing athletes’ current status and trying to protect current competitions. They knew which athletes to track; further testing can be ordered, to the extent that the federation trusts an athlete is clean at, say, World Championships.
In this case, FIS is trying to adjudicate a case from years past, rather than prevent doping in the future.
‘I Passed Many Tests’ Is Not Enough, Especially Since the McLaren Report Says Tests Were Suppressed
Like many other doped and non-doped athletes before him, Legkov argued that he had passed so many doping tests that his reputation should help absolve him from suspicion.
Photos of a sample bottle from the McLaren Report’s evidence packet.
CAS didn’t buy this argument, and indicated that Russian athletes may in fact have a much harder time using it in the future. The McLaren Report indicated that one of Russia’s strategies to get their doped athletes to competition was to simply alter test results in ADAMS, the international anti-doping results management database, from “positive” to “clean”.
As such, the database can’t be relied upon.
“The Panel considers it difficult to draw a conclusion from an athlete’s appearance or absence in ADAMS, given Professor McLaren’s indication that the Moscow Laboratory routinely manipulated and concealed test results,” the Panel wrote.
Legkov was tested at least once by Russian authorities between Jan. 1, 2014, and when he arrived in Sochi for the Olympics.
“The Appellant provided at least thirteen samples between 1 January 2014 and 5 February 2014, the date of his arrival in Sochi; at least twelve of these tested clean by laboratories outside of Russia and ‘without any chance’ to be manipulated,” CAS wrote in their summary of Legkov’s legal team’s arguments.
In an email to FasterSkier, Legkov’s lawyer Christof Wieschemann wrote that the one remaining test was collected by the Russian Anti-Doping Agency (RUSADA) in Switzerland, and analyzed in Moscow. However, the very next day FIS collected “a sample for blood, blood passport and urine, [and] analyzed in Cologne [Germany].”
(Note: a previous version of this story assumed that the RUSADA test had taken place in Russia. According to Wieschemann, that is incorrect.)
‘I Passed a Test Two Days Before’ Is Not Enough
Legkov provided three urine samples and one blood sample at the 2014 Olympics; only the last urine sample showed signs of tampering. He argued that since the other samples were clean, he could not have doped at the Olympics.
“During the Olympic Games themselves, the Appellant adds, three urine samples were submitted, including one sample on 21 February 2014, i.e., a mere two days before the urine sample which according to the IOC exhibited signs of tampering and which triggered the provisional suspension,” CAS wrote of Legkov’s argument. “The Appellant accordingly considers it ‘evident that he did not use the cocktail prior to or within the Olympic Games.’”
CAS found this, well, ridiculous, especially given that the “Duchess Cocktail” – the mixture of illicit drugs alleged to be given to top Russian athletes whose “dirty” urine samples were later swapped out for “clean” ones – quickly disappears from the body, becoming undetectable.
The silver-medal Russian men’s relay team at the 2014 Olympics.
“Intermittent consumption aimed at exploiting the cocktail’s short wash-out periods is entirely possible and, potentially in the Appellant’s case, desirable (given strict controls he faced in Europe prior to his arrival in Sochi),” CAS wrote.
“It is hardly unusual for doped athletes to start and stop the consumption of performance-boosting substances abruptly, evading detection,” the panel continued. “Sufficient time (nine days) lapsed between the first and latter two samples for traces of the Duchess cocktail to dissipate; similarly, to the extent that the Appellant may have waited until shortly before his Gold medal-winning event to begin taking the cocktail, the two-day period separating his second (clean) and third (suspected) urine samples does not lift the cloud of suspicion established by this inclusion in the Duchess List and related documents.”
What Was FIS Doing About the Other 40 Cases?
In its arguments, FIS repeatedly held up the McLaren Report as a reliable source of evidence.
Furthermore, the arguments indicated that FIS had been paying attention since the day the report dropped, Dec. 9, 2016.
“The IOC’s notification letter dated 22 December 2016 laid out compelling evidence [about Legkov] that had been known to the Federation since at least 9 December 2016,” the CAS panel wrote in summarizing FIS’s position. “The unprecedented scale of Professor McLaren’s allegations in combination with athlete-specific data in the EDP, FIS insists, required an immediate and resolute response.”
While FIS may have made a relatively fast response with regard to Legkov and five others, it appears to have not taken public action in other cases. From FasterSkier’s assessment of the Evidentiary Disclosure Package (EDP), there were 46 skiers who were mentioned in the McLaren Report. This represented 99 anti-doping samples. FasterSkier summarized all of them in a database and wrote about the cases.
To public knowledge, however, FIS only issued provisional suspensions to six athletes: Legkov, Maxim Vylegzhanin, Evgeny Belov, Alexei Petukhov, Julia Ivanova, and Evgenia Shapovalova.
These were the six who seemed to be under investigation by the IOC for doping in Sochi. To public knowledge, FIS has not issued any formal sanctions or charges based on any of the other, non-Olympic, evidence in the McLaren Report.
FIS did, however, allow Legkov to keep training with the Russian National Team as of Jan. 18, 2017, “an accomodation intended to allow him to maintain his competitiveness pending the resolution of his case.”
Competing in Sport Is Not a Fundamental Right or Liberty
Legkov made the argument that his right to a fair trial was being infringed upon, because he was being suspended without any charge. His legal team called on Swiss law to overturn the FIS suspension; in the CAS summary, they wrote that Legkov alleged “the provisional suspension’s incompatibility with Swiss fundamental rights.”
CAS was not sympathetic, noting that the components of due process under Swiss law – “the Appellant’s right to understand, confront, and refute the evidence against him” – were being followed by the very fact that the hearing was taking place.
“The question under Swiss law, moreover, is not whether the Appellant enjoys certain protections but rather to which degree they find expression vis-à-vis competing notions of associational autonomy,” the Panel wrote. “An athlete subject to sanctions proceedings internal to an association does not ‘require protection in the same measure as, for example, the accused in a criminal proceeding’… CAS sanctions result in a period of ineligibility to compete and forfeiture of prizes, not deprivation of liberty.”
Anti-Doping Rules Are Hard to Write
In determining the “reasonable possibility” standard for proof of a doping violation with regard to provisional suspensions, the CAS Panel waded through several provisions in the FIS Anti-Doping Rules.
They found unclear the order in which provisions were supposed to be considered, and found that some provisions might even be inconsistent with others. While the Panel eventually decided that there was a clear way around this problem, they were not complimentary of the FIS rules.
“Though both options [for interpreting the FIS Rules] have merit, ambiguous drafting frustrates attempts at a definitive interpretation of the FIS Rules’ intended order of precedence,” the Panel wrote at one point.
“A literal focus on the word ‘assertion’ may therefore prove elusive,” they wrote at another. “The drafters’ intent finds no expression in a uniform, literal construction of Articles 7.7 and 7.9.”
It is the second time in just over a year that FIS has been rebuked over clarity of rules, although the first was not fully the fault of the federation.
The case of Norwegian skier Martin Johnsrud Sundby hinged on how to interpret rules about how much salbutamol, an asthma medication, can be inhaled in a certain period of time – and whether a nebulizer counts as an inhaler.
The rule in question was the WADA Code – written by the World Anti-Doping Agency (WADA), not FIS – but in this case, FIS was applying the rule and thus was party to the proceedings.
“The Panel considers that the Athlete genuinely misunderstood the meaning of the β2A Provision, and also itself considers that the β2A Provision could have been drafted more clearly in certain respects (an issue the Panel will return to when discussing the appropriate sanction),” CAS wrote in that decision.
The notion of an adjudicative body critiquing a legislative body for unclear statutory construction is not unusual. The solution is, ideally, for the relevant legislative body to clarify the relevant text in a future session. In the case of asthma medication, the 2018 WADA Prohibited List updated its text on β2-agonists.
It remains to be seen whether FIS (or WADA, the IOC, or other sporting federations which use the same or similar language in their rules) will respond to this portion of CAS’s Legkov decision in the same manner.
Alexander Legkov (c) beat out fellow Russians Maxim Vylegzhanin (not shown) and Ilya Chernousov (r) for gold in the Sochi Olympics 50 k freestyle mass start — the last race of the 2014 Games. Vylegzhanin took silver by 0.7 seconds, just a tenth of a second ahead of Chernousov in third, and Norway’s Martin Johnsrud Sundby (l) missed a medal by 0.2 seconds in fourth. Legkov will soon know whether he is clear to compete this 2017/2018 World Cup season.
That date is drawing near, and although there has been no external sign of progress, action might come soon.
At an International Olympic Committee (IOC) meeting in Lima, Peru, last month, Denis Oswald, the Swiss lawyer heading that organizations Disciplinary Commission, told Reuters that the IOC may begin adjudicating the first cases under investigation from the 2014 Olympics in October.
Christof Wieschemann, the German lawyer hired by Sochi gold medalist Alexander Legkov, believes he will hear about his client’s case soon.
“We expect that our case will be the first one which will be brought to Oswald commission hearing,” he wrote in an email to FasterSkier on Friday. “[We] hope it will be clarified until 31 October. But even if not, the athletes are free.”
On the opposite side, FIS Secretary General Sarah Lewis wrote in an email that FIS is awaiting any information from the IOC commission and will act as soon as possible once it receives a directive.
“FIS will not undertake any actions before the findings of the IOC Disciplinary Commission are communicated, which are scheduled to follow in October,” Lewis wrote. “Thereafter FIS will act with any aspects that come within its competence. There is regular communication and coordination between the respective legal experts… We would not be able to enlighten you any further on more precise timings of the IOC Disciplinary Commission and you will have to address this question with the IOC.”
This underscores some awkward dynamics about the case. Because the alleged doping took place at the Olympics, the IOC has jurisdiction to address the cases.
Thus, FIS is waiting for the IOC. But the IOC is operating slowly and very much on a different timeline. Many observers have noted that the IOC is only motivated to adjudicate the cases before the start of the 2018 Olympics in PyeongChang, South Korea, in February.
Athletes, obviously, would like the case resolved much more quickly – ideally, long ago. Legkov and the other five skiers have already been suspended for nine months.
Meanwhile, FIS is now facing a deadline mandated by CAS, but is not directly in charge of the investigation themselves.
“The CAS panel left no doubt that the time limit to complete the investigations and to provide the result is not expandable,” Wieschemann wrote. “A longer term would not be reasonable and appropriate regarding the interests of the athletes. The problem is that the investigations are conducted by IOC. They have no problem with the deadline because their ‘deadline’ is the beginning of the Olympic Games, not the season of FIS competitions. However, I suppose that all will do their very best to bring the cases to their end before the deadline expires.”
The CAS Award
Although the CAS decision was announced at the end of May, CAS has still not posted its arbitration award on its website, and so Wieschemann did instead.
Many are taking the decision to mean that Legkov will be free to compete on Nov. 1, and at the upcoming Olympics in South Korea as well.
But with 30 days left in October, that’s not a sure bet.
First of all, CAS did not disagree that it was appropriate for FIS to issue Legkov a provisional suspension in the first case.
It rejected many of Legkov’s arguments about the shortcomings of the McLaren report, which implicated him in a sample-swapping scheme at the 2014 Olympics. One of Legkov’s urine sample bottles was shown to be tampered with, and his name appeared in documents related to the planning of systematic doping.
While this wasn’t enough to prove an anti-doping rule violation, CAS wrote in the decision (available here), it was certainly enough to indicate a “reasonable possibility” of a rule violation, which is all that is required for a provisional suspension while further investigations proceed.
“The Panel concludes that the evidence establishes a ‘reasonable possibility’ of an [anti-doping rule violation] in the Appellant’s case,” the decision reads. “It further considers that the Appellant has not demonstrated with satisfaction the fulfillment of criteria necessary to lift the suspension, though the Panel has decided that it should be modified.”
As that modification, CAS decided that the length of a provisional suspension should not be indefinite. It gave FIS until Oct. 31 to bring an anti-doping rule violation against Legkov – and if they don’t, his provisional suspension will be lifted.
If Legkov’s case is not addressed by the Oswald commission before Oct. 31, but is brought up later with new evidence, FIS can then start over and apply a new provisional suspension. The federation just can’t extend the current suspension based on the current evidence.
“The Panel appreciates the unusual magnitude and complexity of cases awaiting Mr. Oswald’s attention,” the decision noted. “It cannot however endorse an indefinite and indeterminable suspension as proportionate… the Panel deems it appropriate and just that the current provisional suspension expire after 31 October 2017, at which time it will be for FIS to consider whether or not to seek a further suspension justified by new developments.”
So – it’s all down to the IOC, and if they find some speed (and new evidence) in their investigation.
International Politics
Others, too, are impatient.
“If you chose to cheat at the Olympic level, and put banned substances into your blood so you can gain an advantage, I really don’t see any place for that person in the Olympic movement,” U.S. biathlete Lowell Bailey told the Associated Press.
And the athletes are not the only ones frustrated by the IOC’s slow progress.
“A lot of progress has been made, but we’re not there yet,” a Dutch IOC member, told the Associated Press. “I understand it takes a lot of time, but we cannot have this discussion just before the PyeongChang Games. It must be clear months before.”
“The failure to expeditiously investigate individual Russian athlete doping poses a clear and present danger for clean athletes worldwide and at the 2018 Winter Games,” leaders of the organizations, collectively called the National Anti-Doping Organization and including such countries as France, Germany, Norway, Sweden, Japan, Australia, and the United Kingdom, wrote. “We have serious doubts that the 2018 Games will be clean due to the incomplete investigation of massive evidence of individual doping by Russians athletes at the 2014 Sochi Olympic Games and given the inadequate testing evidence of Russian athletes over the past four years.”
“When you have our International Olympic Committee commissioning additional studies, questioning its own regulatory body, WADA, you wonder, really, who’s controlling all of this? What’s the motivation there?” U.S. Ski and Snowboard CEO Tiger Shaw told the Associated Press. “The investigation has been done. It’s conclusive.”
Meanwhile, Russian President Vladimir Putin denied that any state-sponsored doping had occurred at the Olympics in Russia.
“In Russia we never had, don’t have, and I hope won’t have a state-sponsored doping program,” he reportedly said on Russian television. “On the contrary, there will only be a fight against doping.”
Several days later, the Russian government issued a warrant for the arrest of Grigory Rodchenkov, the former director of the Moscow anti-doping laboratory who actually helped athletes cheat before turning whistleblower and fleeing the country.
“Russia has refused to accept responsibility,” Rodchenkov recently wrote in an op-ed in The New York Times. “My former boss, Vitaly Mutko, a deputy prime minister and former minister of sport, has repeatedly denied knowledge of my activities as director of the Moscow Anti-Doping Center, where I oversaw Russia’s doping program with help from several agents of the Federal Security Bureau (formerly the K.G.B.), and many government officials.”
Norway’s Therese Johaug in the 2016 Ski Tour Canada leader’s bib after two stages of racing. She went on to win the overall Tour. (Photo: John Lazenby/Lazenbyphoto.com)
As previously reported on FasterSkier, Norwegian superstar Therese Johaug recently saw her suspension increased to 18 months following a ruling from the Court of Arbitration for Sport (CAS) that overturned the 13-month suspension previously imposed by Norwegian anti-doping authorities.
The math is obvious to any fan of the sport, if absent from the CAS decision: A suspension start date of October 2016 plus 18 months equals April 2018. Johaug will miss the next Winter Olympics in February 2018.
FasterSkier separately addressed the factual question of what happened that led to Johaug testing positive for the steroid clostebol. That article did not consider the question of why 18 months was the suspension chosen. This piece tries to fill in that gap, by exploring the legal analysis of the CAS decision and the principles that the court applied in reaching this decision.
This analysis begins by looking at how criminal sentencing usually works, then applies these general principles to Johaug’s case specifically.
(Wonkish aside: This approach necessarily elides somewhat the distinction between criminal sentencing and a period of ineligibility from sanctioned athletic performance, which is closer to a civil remedy. It is worth emphasizing that Johaug has not been charged with breaking the criminal laws of any country, and is extremely unlikely to face criminal charges. However, the use of the basic principles of criminal sentencing is helpful here by analogy, as a way to think about set ranges of punishment, degrees of fault, and mitigating and aggravating factors.)
Sentencing Law 101
Criminal sentencing in American courts follows a basic three-step process. First, what is the crime of which someone has been found culpable, following either a jury trial or (more frequently) the entry of a plea as part of a plea-bargain?
The chemical structure of clostebol, a synthetic anabolic androgenic steroid. (Photo: Wikimedia Commons)
Second, what is the sentencing range set for this crime? In state courts, this is a matter of state statute. In federal courts, the federal sentencing grid controls. In either sovereign, there is a gradation of offenses, and different sentencing ranges for more or less serious versions of each crime. For example, there may be a presumptive range of 3-6 years for first-degree assault, 1-3 years for second-degree assault, or 0-1 years for third-degree assault, with the ability to go much higher or lower depending on the specifics of each crime and a defendant’s criminal history.
And third, once the relevant sentencing range is known, what is the appropriate sentence within that range? And/or is there something so remarkably serious, or not-serious, about this offense that the sentence imposed should be above or below this range?
Presumptive sentencing ranges represent a compromise between uniformity and discretion. The elimination of unjustified disparity is a central goal of sentencing; within reason, the same people who commit the same type of crime should receive the same type of sentence. But it is also important that the system be able to adapt itself to any particular defendant, and the especially sympathetic or damning facts of a specific case. The law, as they say, is a human enterprise.
Turning to Johaug: What is the offense?
Applying these principles to Johaug’s case, Step 1 is easy. The relevant facts about what happened are effectively undisputed.
Here’s the CAS, in its recent written opinion, summarizing FIS’s view of the lower-court decision from the Adjudication Committee of Anti-Doping Norway:
Excerpt from CAS decision in Therese Johaug case.
And here’s Johaug’s view of the facts:
Excerpt from CAS decision in Therese Johaug case.
And here’s the court’s take:
Excerpt from CAS decision in Therese Johaug case.
Not much to argue about here – however much Johaug was at fault for what happened, everyone agrees that this is what happened. The often-tortured threshold question of how a prohibited substance entered an athlete’s body (think tainted meat, spiked supplements, the chimeric twin theory, etc.) was not an issue here. (See here for more on the facts.)
What is the appropriate suspension range for this offense?
Figuring out the baseline range for this offense immediately requires a resolution of the athlete’s mental state (or mens rea, to use the official Latin phrase that literally translates as “guilty mind”). This is because the presumptive suspension range depends on Johaug’s mental state.
Therese Johaug during an Oct. 2016 press conference on Thursday announcing her positive doping test. (photo: screenshot)
The central legal question in this case was whether Johaug acted with “No Fault or Negligence” or whether she acted with “No Significant Fault or Negligence.” Johaug argued for the former; FIS argued for the latter. (Spoiler alert: the court agreed with FIS.)
Fault is defined by the World Anti-Doping Code (WADA Code or Code) as “any breach or duty or any lack of care appropriate to a particular situation.” This is very similar to the definition of this concept in American criminal and civil law.
No Fault or Negligence, meanwhile, requires the athlete to “establish[] that he or she did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he or she had used or been administered the Prohibited Substance or Prohibited Method or otherwise violated an anti-doping rule.” (Capitalized phrases are defined elsewhere in the Code. The Prohibited Substance, in this case, was clostebol.)
Notably, the middle clause of that definition, about not being able to know this even after exercising utmost caution, means that “no fault” is another legal term of art. That is, the term has a specialized legal meaning beyond the plain meaning of the normal English words “no fault.”
In this case, the WADA Code definition of “No Fault or Negligence” is a more difficult standard for an athlete to meet than simply the general, non-legal concept of “no fault” — an athlete has to establish not only that she did not know or suspect something, but also that she could not reasonably have known or suspected this even if she exercised the utmost caution. This is a harder standard to meet than the normal meaning of “no fault.”
The commentary to Article 10.4 of the WADA Code shows how hard this really is: this article “will only apply in exceptional circumstances, for example, where an Athlete could prove that, despite all due care, he or she was sabotaged by a competitor.” By contrast, the Code notes by way of example, the No Fault standard would not apply in a situation involving “the Administration of a Prohibited Substance by the Athlete’s personal physician or trainer without disclosure to the Athlete.” As the commentary cautions, “Athletes are responsible for their choice of medical personnel and for advising medical personnel that they cannot be given any Prohibited Substance.”
And finally, No Significant Fault or Negligence adds some degree of culpability to the No Fault standard, but not a significant amount: “The athlete or other Person’s establishing that his or her fault or negligence, when viewed in the totality of the circumstances and taking into account the criteria for no fault or negligence, was not significant in relationship to the anti-doping rule violation.”
Norway’s Therese Johaug winning a 15 k skiathlon in Lahti, Finland, for her 15th World Cup victory during the 2015/2016 season. (Photo: Fischer/NordicFocus)
(“Totality of the circumstances” is a common legal phrase that means, well, exactly what those English words sound like. The emphasis is on everything going on in a case rather than on one thing in particular – a court is directed not to apply a single test to one part of a set of facts, but rather to consider everything that is going on when it makes its decision.)
Johaug’s arguments about her degree of fault
Johaug, through her lawyers, argued first that she had acted with no fault. (CAS opinion paragraphs 122-32.)
She argued, among other things, that she was contractually bound to follow her doctor’s advice, that she had suffered lip sores before and had no reason to suspect that treatment of the same issue would present any risk this time, and that it was very reasonable for her to believe that her doctor had done any necessary checks on the medicine’s legality in the ca. 24 hours that he had it in his possession before he passed it on to Johaug.
Johaug argued in the alternative that, even if she had acted with some degree of fault, it was so minimal that it should be classified as no significant fault rather than as anything more serious.
The difference between No Fault and No Significant Fault is hardly academic. The differing levels of culpability translate to vastly different potential suspension ranges.
If Johaug were able to establish that she bore no fault, then no suspension would be imposed. See WADA Code art. 10.4.
If, by contrast, she had even the relatively small amount of fault that rose to the level of no significant fault, then she faced a maximum suspension of two years, which could be reduced by no more than half, or down to one year. See WADA Code art. 10.2.1, 10.2.2, 10.5.2.
And this range (1-2 years) is down from a baseline suspension of four years, the presumptive range for an intentional anti-doping violation (everyone involved in this case agreed that this was not intentional). See WADA Code art. 10.2.1. As we all learned on the elementary school playground, intentions matter.
(And this will be visited later, but it’s also worth pointing out that the four-year baseline suspension was implemented in 2015; before then, intentional doping offenses earned a two-year suspension. Times change.)
FIS’s arguments about Johaug’s degree of fault
FIS had a different view of the significance of Johaug’s doctor’s involvement in this case, and of Johaug’s ability, or lack thereof, to delegate any portion of her anti-doping responsibilities to a third party. FIS highlighted several portions of Johaug’s contract with the Norwegian National Team that seemed to suggest that Johaug retained a personal duty to refrain from using substances that may violate WADA rules.
Norway’s Therese Johaug celebrates at the finish of the 15 k classic mass start in Lenzerheide, Switzerland. She won the race by nearly 38 seconds to take the lead in the 2016 Tour de Ski after the second stage. (Photo: Fischer/NordicFocus)
As FIS argued, “The duty of care to avoid doping is personal and remained with Ms Johaug at all times.” (para. 155) FIS continued, “The athlete’s personal duty of care may include asking a medically trained person about doping risks of a certain product, but that is only one of several precautions that must be observed. An athlete may not blindly rely on a doctor’s answer, especially when the doping risk is so obvious, as in the present case.” (para. 156)
FIS outlined several additional steps that it argued Johaug could have taken on her own, such as reviewing the patient information from the Trofodermin package, searching for information about this medicine online, or checking the active ingredients of Trofodermin against the WADA prohibited list. (para. 165) FIS also critiqued Johaug for not completing a required anti-doping education program until after this violation came to light. (para. 173)
FIS argued that Johaug’s culpability was in the middle range of No Significant Fault, meaning that a suspension of 16-20 months was appropriate. (para. 167-74)
The court’s decision about Johaug’s degree of fault
CAS ultimately found that Johaug had not acted with No Fault. In reference to the “utmost caution” standard in the WADA Code, discussed above, the court noted:
Excerpt from CAS decision in Therese Johaug case.
The court based this conclusion on several of its prior decisions, as applied to the facts of Johaug’s case.
For example, in one case, the athlete applied Trofodermin without checking its content; the CAS panel found that an athlete fails to fulfill his duty of diligence when he or she could have learned that a medicine contained a prohibited substance by reading its packaging or notice of use. In another case, the CAS underscored that an athlete has the personal responsibility to check assurances given by his or her doctor. And in many, many other cases, the court previously held that an athlete has a personal duty of care to comply with anti-doping regulations, and cannot delegate away those responsibilities to a third party such as a team doctor.
From a policy standpoint, the court observed: “The Panel remarks that if athletes were allowed to escape their personal duty by passing it on completely to an expert in anti-doping (such as a specifically qualified doctor), this could create a more advantageous position for wealthier athletes who have more resources to engage experts, leading to potentially unequal treatment in assessing compliance.” (para. 212)
What is the appropriate length of suspension within the established range?
The conclusion that Johaug had acted with no significant fault (or “NSF”) meant that the relevant suspension range was from 12 to 24 months. Within this range, the court made further distinctions as follows: “within the NSF category, a greater degree of fault may lead to a sanction of 20-24 months, a normal degree of fault may lead to a sanction of 16-20 months, and a light degree of fault may lead to 12-16 months.” (para. 208)
The court found that a normal degree of fault was present in this case, which made for a range of 16-20 months. The court ultimately imposed a suspension at the middle of this range, or 18 months. Johaug would not be going to the Olympics.
Tangent: About those Olympics, anyway
We’ll get to what the CAS considered in its decision in a second. But here’s something it officially did not consider: The fact that an 18-month suspension would keep Johaug out through the 2018 Winter Olympics, while a 13-month suspension would not. It begs credulity to suggest that the CAS panel was unaware of Johaug’s Olympic aspirations or the implications of this timing. But the 2018 Olympics appear nowhere in the court’s explanation of its reasoning, and were officially given no weight in its decision.
Norway’s Therese Johaug pushes for bronze in the women’s 10 k classic individual start at the 2014 Olympics in Sochi, Russia.
This is consonant with the WADA Code. The document makes clear that the determination of an appropriate suspension length should be an abstract one, free from considerations of the implications of a given suspension length: “the fact that the Athlete only has a short time left in his or her career, or the timing of the sporting calendar, would not be relevant factors to be considered in reducing the period of Ineligibility under Article 10.5.1 or 10.5.2.” (WADA Code App. 1)
Johaug’s attorneys were undeniably aware of issues surrounding the timing of the sporting calendar, and so understandably mentioned this in their appellate arguments. As the CAS summarized, Johaug argued in part that an extension of her suspension period past November 2017 “would negatively impact her chances [of] being selected for the Norwegian Olympic team due to the timing of the race season which starts in November. She explained the importance of the 2018 Olympics for her as she has never won a personal Olympic gold medal.” (para. 223)
But the CAS found that this was not a “relevant consideration[]” with respect to the appropriate sanction. (para. 224)
The court cited the WADA Code excerpt given three paragraphs above. It also noted a case from 2010 in which the CAS declined to consider the fact that a cyclist would have difficulty obtaining a contract with a professional cycling team during the 2011 season.
Back to the appropriate length of suspension
So what did the court consider? It adopted a suspension scheme from an earlier decision (a 2013 case involving Croatian tennis player Marin Čilić) suggesting that a “normal degree of fault” merited a sanction of 16-20 months. The panel, or at least a majority of it (that is, two out of three members), found that this range applied, “Given Ms Johaug’s overall circumstances.” (para. 208)
This conclusion was based in part on Johaug’s long experience as an international athlete subject to anti-doping protocols, including taking roughly 140 doping control tests. While the panel was sympathetic to Johaug’s lip injuries and training stress, the court found that she should have been aware of her personal requirements, and should not be allowed to completely delegate her duties to a team doctor.
Finally, the court considered, but ultimately rejected, Johaug’s argument that a longer suspension would be disproportionate. (The principle of proportionality, the notion that the punishment should fit the crime, is present in both “normal” criminal cases and in CAS cases involving suspensions from athletic competition.)
Specifically, the court noted Johaug’s claim that punishing her with a suspension of any length would be disproportionate to her fault in this instance, where she simply “did as all athletes are always told to do and as she was contractually obligated” by consulting with her doctor and following his advice.
But the court reiterated its conclusion that “athletes are required to perform their anti-doping obligations with utmost care, which in practice includes reading labels and packaging as a basic minimum. Further, delegation to a third-party, even to a highly qualified sports doctor, is not an acceptable justification.” (para. 220)
The court’s conclusion
The final CAS decision reflects a direct application of the WADA Code and a concern for proportionality. As the court concluded:
Excerpt from CAS decision in Therese Johaug case.
(“ADRV” means “Anti-Doping Rule Violation.”)
The court’s conclusion analyzed
The most important determination in this case, legally speaking, was the conclusion that Johaug had acted with some fault, rather than with no fault. This took the no-suspension provisions of WADA Code Article 10.4 off the table, and meant that the best that Johaug and her lawyers could hope for was the one-half-reduction provisions of WADA Code Article 10.5.2.
Croatian tennis player Marin Čilić, shown here in 2012. (Photo: Wikimedia Commons)
Even within the 12- to 24-month range that was then applicable, the precedential value of the Čilić decision left Johaug’s lawyers with a tough row to hoe. As the Čilić opinion noted, with regard to objective elements of fault, an athlete should take particular care when it comes to the potential ingestion of substances that are prohibited at all times, as was the case here. The Čilić court also called for a higher duty of care when an athlete takes “a medicine designed for a therapeutic purpose,” on the ground that “medicines are known to have prohibited substances in them.” These facts obviously weigh against Johaug on the facts of her case.
The Čilić decision is potentially more helpful to Johaug when it comes to the subjective element of fault. It lists, for example, language or environmental problems and high levels of stress as mitigating factors, both of which seem favorably applicable to Johaug and her facts.
But the Čilić panel also noted that the objective element “should be foremost” in distinguishing between significant, normal, and light degrees of fault, with the subjective element then “used to move a particular athlete up or down within that category.” That is precisely what Johaug’s panel did; that took her to 16-20 months, and then to precisely the middle of that range, or 18 months, for a “standard” normal degree of fault.
Two final thoughts:
One, even with the exact same initial facts and subsequent legal conclusions, the outcome would have been different three years ago – the Čilić case actually discusses a “normal” fault range of 8-16 months, with a “standard” normal degree of fault meriting a suspension of 12 month. This is because, at the time, a possible sanction for someone in Johaug’s position was 0-24 months, not 12-24 months.
The increased lower end of the range reflects a revision to this part of the WADA Code effective January 1, 2015. Had all this occurred in the leadup to Sochi, a finding of no significant fault would have led to a suspension of not 18 months but rather 12 months, or obviously less than the 13 months that Anti-Doping Norway originally imposed in Johaug’s case. Revisions to laws (or, literally, to the World Anti-Doping Code) often mean that proportionality in sentencing exists synchronically, but not diachronically.
And two, everyone involved in this case – not only Johaug, but also the International Ski Federation that sought to see her suspension increased and the CAS panel that decided the case – agreed that the drugs in Johaug’s body were there inadvertently, that Johaug did not intend to cheat, and that she did not gain any competitive advantage from taking this substance. (para. 206)
And yet, once a finding of no fault was off the table, Johaug was subject to a suspension of at least 12 months, and as much as 24 months. Whether or not this seems like a fair and appropriate outcome, these facts and conclusion illustrate the implications of a strict liability scheme for doping violations.
* * *
Disclaimer: The analysis set forth in this article is intended as general news analysis rather than as specific legal advice. While the author is a licensed attorney and a member of the Bar of the State of Alaska, he gives legal advice only following an initial consultation and the formation of an attorney–client relationship. Anyone seeking legal advice specific to their situation is advised to consult with an attorney practicing in that field.
Norway’s Therese Johaug pushes for bronze in the women’s 10 k classic individual start at the 2014 Olympics in Sochi, Russia. Johaug will miss the 2018 Olympics because she used a prohibited substance in a lip cream.
The Court of Arbitration for Sport (CAS) has made its decision in the case of Norwegian cross-country skier Therese Johaug: “Ms Johaug is suspended for a period of 18 months commencing on 18 October 2016.”
That means that Johaug, a seven-time World Champion and a member of the Norwegian gold-medal relay team at the 2010 Olympics, will not be competing at the 2018 Olympics in PyeongChang, South Korea.
The decision comes after a long process. Johaug initially tested positive for the steroid clostebol in 2016. She said that she had used a lip cream, trofodermin, to treat a cold sore which was made worse by a sunburn sustained at a high-altitude training camp. A team doctor, Fredrik Bendiksen, had picked up the cream at an Italian pharmacy. Neither he nor Johaug apparently checked the list of ingredients against the World Anti-Doping Agency (WADA) Prohibited List, but Johaug trusted Bendiksen’s assertion that the cream did not contain any banned drugs.
That was a mistake: regardless of intent, the WADA Code mandates a zero-tolerance policy in which the athlete is responsible for any substance in their body, whether taken intentionally or not.
(In theory, this is designed with two applications: to prevent intentional dopers from getting away with cheating by claiming accidental ingestion of a substance, and also to cause athletes to carefully monitor every substance used to prevent unintentional but effective performance enhancement.)
The initial round of sanctions were delivered by the Norwegian Olympic Committee, which handed Johaug a 13-month suspension. The International Ski Federation (FIS) appealed the decision, seeking a longer suspension.
CAS agreed, noting in its decision that “Johaug used a cream (Trofodermin) purchased for her by a team doctor in Italy to treat acute sunburn on her lips. The active ingredients listed on the packaging included Clostebol acetate (0.5%), an anabolic agent listed on the World Anti-Doping Agency (WADA) Prohibited List and banned at all times, in and out of competition.”
CAS represents the final level, the Supreme Court if you will, of sports arbitration bodies, giving this decision a finality that the Norwegian Olympic Committee decision lacked.
The standard suspension for a first-time doping offense, according to WADA, is four years. CAS set Johaug’s suspension at 18 months due to “non-significant fault” by the athlete. The CAS panel of three arbiters agreed unanimously that Johaug must be suspended between 12 and 24 months, consistent with the type of fault, and also agreed that 18 months – the middle of that range – was the most appropriate length for a ban in this case.
“FIS is satisfied that an independent body had the opportunity to review all of the facts of this case and render an impartial verdict, which was the reason for FIS filing the appeal to CAS,” the ski federation said in a press release. “This ensured that a fair and just decision for all parties could be determined in this case.”
The CAS decision is already provoking strong reactions. The scandal was trending on Twitter in multiple nordic countries in the hours after the verdict was published.
A few observers saw the decision as harsh but fair. The World Anti-Doping Code contains very relevant provisions about the responsibilities of an athlete: “to take responsibility, in the context of anti-doping, for what they ingest and use,” and “to take responsibility to make sure that any medical treatment received does not violate anti-doping policies and rules adopted pursuant to the Code.”
Others saw it as patently unfair: a decision which lengthened and made worse an already unfair punishment for an honest mistake. That’s certainly the reaction Johaug had.
“I cannot understand the punishment I get,” Johaug said in a press conference Tuesday, according to a translation. “I think it is unfair.I am treated unfairly.”
“When the decision states that [the use of clostebol] is not a matter of cheating but an error, 18 months seems to be incomprehensible and disproportionate,” Johaug’s lawyer Christian Hjort said.
“I’m disheartened that Therese has to pay such a high price in a case where she [and her story] are believed in every respect,” Johaug’s teammate Marit Bjørgen told Norwegian media, according to a translation. “The length of the suspension is deeply unfair.”
And to yet other observers, it was seen as a correction to a 13-month ban that would have very conveniently let Johaug return to competition just before the Olympics. While one- or two-month suspensions are common for shorter bans, longer suspensions are most usually carved into divisions of six months or even a year. A 12-, 18-, or 24-month ban is common, but a 13-month ban would have been an odd-numbered anomaly.
Johaug has been training hard during her suspension, albeit away from the national team. Part of that effort was a major training camp in Aspen, Colorado.
https://www.instagram.com/p/BWxXkzdhWuv/
Johaug’s training was directed toward the 2018 Olympics, but now it looks like her comeback will be for the 2019 season and its World Championships in Seefeld, Austria.
“I have a dream of being on the starting line again,” she said.
Maxim Vylegzhanin competing in the 10 k classic in Falun, Sweden, in 2016. Vylegzhanin is provisionally suspended while the International Olympic Committee investigates possible doping infractions at the 2014 Olympics. (Photo: Fischer/NordicFocus)
In part of the media storm following the Court of Arbitration for Sport’s response to an appeal by six Russian cross-country skiers, Russian Ski Federation President Elena Valbe made a surprising assertion: that the athletes, who remain provisionally suspended by the International Ski Federation (FIS), are allowed to train with the national team.
This is not generally the case for athletes serving suspensions, but FIS Anti-Doping Coordinator Sarah Fussek confirmed the organization’s stance.
“You cannot really say it is a deviation [from the norm] because we have not had these [types of] facts on the table before,” she said in a phone interview on Friday. “This is a special case and it requires special handling.”
Are All Provisional Suspensions Created Equal?
FIS more often deals with cases which start with a positive drug test, or “adverse analytical finding”. A positive test results in a nearly-automatic suspension while the case proceeds – called a “mandatory provisional suspension”.
The cases of Alexander Legkov, Maxim Vylegzhanin, Alexey Petukhov, Julia Ivanova, and Evgenia Shapovalova arose via investigation started by journalists, continued by Richard McLaren on behalf of the World Anti-Doping Agency, and now being conducted by the International Olympic Committee (IOC).
“The investigation of the alleged anti-doping rule violations will be carried out by the IOC Disciplinary Commission, which has the results and case management authority for anti-doping at the Olympic Winter Games, whereby the provisional suspensions are imposed by FIS,” stated a FIS press release announcing the suspensions on Dec. 22, 2016.
In cases without a positive drug test, sports federations are allowed to implement an “optional provisional suspension”. This is what FIS put in place on the six Russian skiers, whose samples were allegedly tampered with at the 2014 Olympics.
Fussek said she awaited a written explanation from the FIS Anti-Doping Panel, which gave the recommendation to the athletes that they could train with their national team again. For privacy reasons and due to rules governing ongoing cases, FIS cannot not share documents which were provided to the athletes explaining such decisions.
However, Fussek understood that it was because of the optional nature of the provisional suspension that the athletes were being allowed to officially train again (all had been training on their own while serving their suspensions).
“As you know, we do not have an adverse analytical finding where a mandatory suspension would have been put in place,” Fussek said. “Presumably they have decided for that, because it was special circumstances… they would give them a special allowance to train. They have decided not to prohibit them to train in order to keep a balance between the provision of the suspension and the actual consequences. It is an ongoing case with special circumstances.”
Indeed, considerable time that has passed with no news or hearings from the IOC investigation. In the ruling from the Court of Arbitration for Sport (CAS), the organization gave FIS until Oct. 31 to bring a formal case against the athletes, or else their suspensions will be lifted. At that point, they would have waited 10 months.
“The provisional suspension switches into a sanction in face of its duration and the ongoing investigations from which nobody knows how long they will last,” the lawyer for Legkov and Belov wrote in a press release. “The provisional suspension is no longer appropriate if the federation is not in the position to provide full proof that the athlete is guilty of an anti-doping rule violation within a reasonable time.”
FIS is in a strange position because it is waiting on the IOC commission and doesn’t necessarily have control over the time frame. But if allowing the athletes to train with the national team was FIS’s attempt to mitigate these special circumstances and the long wait, it does not appear to have a formal basis in anti-doping rules. There are no specific guidelines in the FIS Anti-Doping Rules or the World Anti-Doping Code specifying what is allowed of athletes under mandatory versus optional provisional suspensions, if indeed there is a difference.
Those rules only note the meaning of a provisional suspension more generally: “Provisional Suspension means the Athlete or other Person is barred temporarily from participating in any Competition or activity prior to the final decision at a hearing conducted under Article 8,” the 2016 FIS Anti-Doping Rules state at the top of page 61.
In prior rulings against the skiers, it was made clear that anything involving the national team was off-limits.
On Dec. 30, 2016, FIS denied an appeal by the skiers, who wanted to be reinstated in time for the Tour de Ski.
“As a result of the decision, all of the above mentioned athletes may not take part in any competitions or national team activities,” FIS wrote in their press release at the time.
And in a Jan. 25, 2017, press release confirming the decision to uphold the provisional suspensions of Alexander Legkov and Evgeny Belov, FIS again wrote, “as a result of the decisions, the above-mentioned athletes may not take part in any competitions or national team activities.”
So what constitutes “activities”? The 2017 International Standard for Testing and Investigations, published by the World Anti-Doping Agency (WADA), defined “team activity” as “Sporting activities carried out by Athletes on a collective basis as part of a team (e.g., training, travelling, tactical sessions) or under the supervision of the team (e.g., treatment by a team doctor).”
However, that was in reference to whereabouts reporting, not to allowable activities under a suspension.
Unwittingly, A Trap?
The skiers may want to be wary of FIS’s allowance. One reason that an athlete’s treatment during a provisional suspension is important is because the time served in a provisional suspension is usually included in the period of their final suspension as well – credit for time served.
“If an Athlete or other Person voluntarily accepts a Provisional Suspension in writing from FIS and thereafter respects the Provisional Suspension, the Athlete or other Person shall receive a credit for such period of voluntary Provisional Suspension against any period of Ineligibility which may ultimately be imposed,” read the FIS Anti-Doping Rules (page 43).
And once an athlete is ineligible, they cannot participate in training or any other national team events.
“No Athlete or other Person who has been declared Ineligible may, during the period of Ineligibility, participate in any capacity in a Competition or activity (other than authorised anti-doping education or rehabilitation programs) authorised or organised by FIS or any National Ski Association or a club or other member organisation of FIS or any National Ski Association, or in Competitions authorised or organised by any professional league or any international or national level Event organisation or any elite or national-level sporting activity funded by a governmental agency,” the FIS Anti-Doping Rules state (page 44).
Below this rule, FIS goes out of its way to clarify even further what types of activities are not allowed during a period of ineligibility.
“For example… an Ineligible Athlete cannot participate in a training camp, exhibition or practice organised by his or her National Ski Association or a club which is a member of that National Ski Association or which is funded by a governmental agency… The term ‘activity’ also includes, for example, administrative activities, such as serving as an official, director, officer, employee, or volunteer of the organisation described in this Article. Ineligibility imposed in one sport shall also be recognised by other sports.”
Logically, time served under a provisional suspension should be counted in any final duration of ineligibility only if an athlete behaved the same way during their provisional suspension as they are required to during ineligibility.
The Russian skiers hope to be proven innocent, and act confident that they will be.
“The athletes will be free to participate in the competition season 2017/2018 and the World Cup 2017/2018 starting 24.11.2017 in Ruka if the ongoing investigations of Oswald Commission of IOC will not bring out new facts and new evidence beyond the facts published by Prof McLaren and if the athletes will not be definitely sanctioned based on such new facts,” Legkov and Belov’s lawyer wrote in their press release. “The defense has no reason to believe that the investigations will bring out such new facts.”
But if the skiers do face sanctions after their final hearings — it would no doubt devastate them if those suspensions started from the hearing date, not from Dec. 22, 2016, when they were very first provisionally suspended.
Alexander Legkov (3) beat out fellow Russians Maxim Vylegzhanin (not shown) and Ilya Chernousov (r) for gold in the Sochi Olympics 50 k freestyle mass start — the last race of the 2014 Games. Vylegzhanin took silver by 0.7 seconds, just a tenth of a second ahead of Chernousov in third, and Norway’s Martin Johnsrud Sundby (1) missed a medal by 0.2 seconds in fourth. Legkov and Vylegzhanin may still have months to go before they learn if they can compete next season.
The Court of Arbitration for Sport (CAS) did one thing that the Russian skiers wanted: they issued a decision of some sort quickly, far more quickly than is typical in doping appeals.
Alexander Legkov, Maxim Vylegzhanin, Alexey Petukhov, Evgenia Shapovalova, Julia Ivanova, and Evgeniy Belov have been provisionally suspended by the International Ski Federation (FIS) since December. The six cross-country skiers are among a group of Russian athletes whose anti-doping samples from the 2014 Olympics were tampered with, according to an independent investigation commissioned by the World Anti-Doping Agency.
In the six months since the provisional suspensions were enacted, FIS has not formally brought Anti-Doping Rule Violations (ARDV’s) against the six athletes. They were asking CAS to cancel their provisional suspensions.
CAS disagreed, but essentially gave FIS a deadline to bring a case forward.
“The CAS Panels in charge of the matters have decided to maintain the provisional suspensions imposed on the athletes until 31 October 2017, at the latest,” the tribunal wrote in a press release. “In the absence of any anti-doping rule violation (ADRV) having been assessed against any of the athletes so far, the temporary suspension shall lapse and the athletes shall be allowed to compete again. A further provisional suspension may be imposed on the athletes by the International Ski Federation (FIS) after that date, if the facts and circumstances so merit, and would be subject to appeal.”
While detailed minutes of the May 25 hearings for the Russian skiers were not released, CAS did give a glimpse into some of the evidence that may have been presented. Namely, FIS apparently provided a timeframe for their own investigation, and that was based on a separate timeline from the International Olympic Committee.
“The Panels in charge of these matters have noted that the reports following the investigations conducted by a special IOC commission would be delivered during the summer period and found that it was necessary to allow the FIS time to complete its own investigation before issuing its final decisions concerning the six athletes,” the tribunal wrote.
The skiers were not pleased.
“Of course, the whole situation is very angering,” Vylegzhanin told Sport-Express, according to a translation. “I would like to calmly train and prepare for the season, just knowing that it will happen. But apparently, we will have to get used to the idea that until October 31, we are in a special situation. At the same time, there is a hope that we will get the all-clear before the season…. Sometimes, during hard training, I have bad thoughts anyway, because of this whole situation. But I hope this will not interfere with my preparations for the season. The thoughts about the upcoming Olympic Games in Pyeongchang motivate me to work in full.”
The others are also training and planning to compete. Legkov reportedly ran a 32:10 10 k at a charity running race recently; both he and Petukhov recently posted cycling pictures from training camps on the Mediterranean.
Meanwhile, Russian Ski Federation President Elena Valbe said in a separate interview with Sport-Express that FIS was allowing the suspended athletes to train with the Russian National Team, a major departure from normal rules for suspended athletes.
Russia’s Alexander Legkov leading into the ski exchange during the 50 k freestyle mass start at the 2014 Sochi Olympics. He went on to win gold. Legkov appeared this week in front of the Court of Arbitration for Sport to protest his provisional doping suspension by the International Ski Federation.
On Monday, Russian cross-country skiers appeared before the Court of Arbitration for Sport (CAS) to protest their provisional suspension by the International Ski Federation (FIS).
“The hearings were held for five hours, during which we actively discussed all the legal and factual subtleties,” Christoph Wieschemann – the lawyer for Alexander Legkov and Evgeny Belov – told Russia’s TASS news agency, according to a translation. “I believe in the independence and impartiality of the judges. I’m not speaking of CAS as an institution, rather of the judges, who I consider to be highly qualified and fair. They asked many questions of me, and of the representative of FIS, and I believe that our position was more convincing. Therefore I believe in our success.”
Timeline and What’s Happened So Far
In late December, 2016, FIS suspended Legkov, Belov, Maxim Vylegzhanin, Alexei Petukhov, Julia Ivanova, and Evgenia Shapovalova. The suspensions were the result of details in the McLaren report, which indicated that the athletes’ anti-doping samples had been tampered with during the 2014 Olympics; based on this evidence, the International Olympic Committee (IOC) directed FIS to take action.
These manipulated sample vials were among 99 samples belonging to Russian skiers which were either identified by forensic experts as being tampered with, or which were discussed as being positive for prohibited substances in emails or other documents obtained by the investigators. FIS has yet to suspend any athletes for violations revealed in the McLaren report at non-Olympic events.
The provisional suspensions were just that – a temporary suspension while the cases were further investigated and until FIS convened a Doping Panel. The skiers immediately appealed to FIS, asking that they be allowed to continue competing while the case was investigated. A few days later, that appeal failed.
Next, the skiers appealed being suspended at all. On January 25, the FIS Doping Panel rejected the appeal and the skiers remained suspended.
The only avenue left for the skiers was to finally appeal their suspensions to CAS, a process which usually takes months. Ivanova has not appealed; the other five have (Vylegzhanin, Petukhov, and Shapovalova are represented by different lawyers than Belov and Vylegzhanin). As the arbitration drew on, they made an emergency appeal to CAS to try to gain entry to 2017 World Championships. Like when they initially appealed to FIS, they tried to argue that the evidence against them was weak and that they should be allowed to continue competing while the case was adjudicated. That appeal also failed.
On Monday, the Russians finally had their real hearing at CAS, an important step in the progress of the case. A decision can’t be expected for at least another month.
https://www.instagram.com/p/BUInQWSF_Qm/
In an Instagram post, Petukhov reported that Belov stayed at CAS for a remarkable 11 hours – through his own hearing with Legkov, and then also to listen in on the hearings for Petukhov, Vylegzhanin, and Shapovalova. “Our lawyers have worked perfectly,” he wrote, according to a translation.
The Arguments
The athletes maintain their innocence, and also question the process of the FIS/IOC investigation: in the months since December, their provisional suspensions have neither been lifted nor turned into a more final decision. It’s hard to tell whether there is progress on the cases.
They also question whether evidence of tampering is enough to result in a suspension. The samples did not test positive for any prohibited substances.
Investigations by the New York Times and other news outlets, besides the McLaren report, suggest that this is because the tampering was done to switch out “dirty” samples for clean ones – which would of course result in no positive tests. Although so-called “non-analytical positives”, where doping has been proven without a positive drug test, are becoming more and more common, the skiers assert that even if someone else had tampered with their samples it was not their fault and does not mean that they were in fact doping.
“We asked CAS representatives to issue the solution as soon as possible, even without a detailed explanation,” Christoph Wieschemann – the lawyer for Legkov and Belov – said in an interview with Russia’s Sport Express. “I hope this will speed up the process.During the hearings, we also emphasize that it is extremely important for athletes to get a decision as soon as possible.”
Wieschemann also pointed out that the evidence in Richard McLaren’s investigation on behalf of WADA – called the McLaren report – was never intended to single out individual athletes for suspension, rather “to collect evidence of the existence of a doping system within the country.” As such, Wieschemann insists that the evidence shouldn’t be used to suspend his clients.
McLaren has stated publicly that he was not tasked with assessing the guilt or innocence of individual athletes.
“Look at what is there and what the data is and make a decision on that basis and don’t turn it into what it isn’t – a doping results-management investigation of specific athletes,” McLaren said in an interview with The Guardian after the first part of his report dropped. “It never was that.”
But unlike Wieschemann, he doesn’t believe his evidence is lacking in any regard, just that this wasn’t necessarily its intended purpose. McLaren he insists that everything he documented was reliable.
“I wouldn’t put anything in the report that I didn’t have evidence of and wouldn’t meet the criminal standard in any court around the world,” he said in the same interview. “Nothing in there is an allegation. I wouldn’t have put it in if it didn’t meet that standard. To say that is all allegations and not proven and there is no evidence … there is evidence and I have it secured.”
Wieschemann disagrees. In a press release posted on his website regarding the skiers’ provisional suspensions, he asserts that the information in the McLaren report cannot be verified and is in fact wrong.
Then there’s this: “Furthermore, two samples have been taken from Alexander LEGKOV in Sochi which have been tested negative and for which no forensic proof on marks and scratches is available. In conclusion, that means – according to present knowledge – LEGKOV has been tested negative twice in Sochi without any indication of tampering.”
However, one of Legkov’s samples from Sochi did show such indications of tampering.
Furthermore, the report included emails between sports officials discussing how they “rescued” Legkov from a positive test for budesonide, a banned glucocorticosteroid, at national championships later that season.
Wieschemann counters that such evidence is irrelevant, because it did not occur at the Olympics and the current arbitration proceedings are based on suspensions initiated from the IOC recommendations.
“I think we are all positive,” Wieschemann said of the team’s attitude going into the CAS hearing. “The main thing is that we believe each other, and I’m absolutely sure that the guys were sincere in their conversations with me.They never used dope, including at the Olympic Games in Sochi… we can say with confidence that on that day, Alexander [Legkov] was clean.All the facts mentioned in McLaren’s report are beyond the control of the athlete.”
Usain Bolt after winning a gold medal at the 2008 Olympics in Beijing, China. Several Jamaicans tested positive for the steroid clenbuterol at those Games, but the International Olympic Committee hid the cases and they have never been investigated. (Photo: Wikimedia Commons)
In the beginning of April, news hit that a group of athletes had tested positive for a banned steroid at the 2008 Summer Olympics in Beijing, China. The group had never been investigated or suspended for doping.
The drug in question? Clenbuterol, a steroid. Its name might be familiar to cross-country skiers because it is often used in inhalers to treat asthma outside of the United States. But even for asthma, its use is prohibited for competitive athletes.
The positive findings for clenbuterol, which were present in samples from athletes of several nationalities and multiple different sports, included some from the Jamaican track and field team, according to Germany’s ARD television channel.
The findings were made in a 2016 re-testing scheme of the 2008 Olympic samples. They were never reported by the International Olympic Committee (IOC), and only brought to light by ARD many months later.
The IOC apparently decided that the traces of the drug in the urine samples were so small that they did not merit follow-up. The World Anti-Doping Agency (WADA) signed off on this decision.
One problem: like almost all of the drugs on WADA’s Prohibited List, there is no allowable minimum concentration of clenbuterol in a urine sample.
“Clenbuterol is a prohibited substance and there is no threshold under which this substance is not prohibited,” WADA writes on its own website in a Q&A about the Prohibited List. “At present, and based on expert opinions, there is no plan to introduce a threshold level for clenbuterol. It is possible that under certain circumstance the presence of a low level of clenbuterol in an athlete sample can be the result of food contamination… Under the World Anti-Doping Code, result management of cases foresees the opportunity for an athlete to explain how a prohibited substance entered his/her body.”
Explanations were apparently never solicited from the athletes in question, and the IOC simply buried the cases.
Scores of athletes have claimed in the past to have unintentionally ingested banned substances, arguing that the concentrations were so low that they couldn’t be performance-enhancing. It is an argument that has rarely been successful.
Among the athletes who were punished for unintentional ingestion are Norwegian skier Therese Johaug, who tested positive for clostebol, a steroid contained in a lip cream she used; and German biathlete Evi Sachenbacher-Stehle, whose tea was contaminated with the stimulant methylhexanamine – the same drug Carter was disqualified for – at the 2014 Olympics.
Therese Johaug has portrayed herself as a victim unfairly punished for using a medication she did not realize was banned. Strict liability mandates that it doesn’t matter if she used clostebol intentionally or not, but that same standard is not being applied to certain Summer Olympic athletes.
The Jamaican athletes in Beijing never went through the scrutiny that Johaug or Sachenbacher-Stehle did, and are unlikely, at this point, to ever serve penalties. Which begs the question: do the rules apply to everyone?
Or is it better to take a banned substance at the Olympics than at a training camp?
The Specter of Tainted Meat
There is no minimum concentration of clenbuterol allowable in the WADA Prohibited List. So the decision not to confirm the doping cases was not made in accordance within the workflow of anti-doping rules, but instead subjectively.
This is how it worked: ARD reported that IOC Medical Director Richard Budgett had instituted a policy that any positive analytical tests be cleared with him before being ‘confirmed’, the first step towards proceeding through the anti-doping investigation. These cases were reported to Budgett, and he said not to confirm them.
The normal procedure is that such positive analytical tests are considered violations and the athlete is given the opportunity to explain how the substance came to be in their body. They can argue that they ingested it accidentally, for example.
In this case, such an investigation and dialogue never took place. Because the cases were never ‘confirmed’, the IOC did not even confront the athletes.
According to the IOC, this was because of the risk of the drug entering an athlete’s body after they ate contaminated meat. The steroid is used to promote livestock growth in some countries, and China – the site of the 2008 Olympics – is one of them.
“It has been scientifically established that an athlete can test positive for clenbuterol at low levels following ingestion of contaminated meat,” WADA wrote in a press release after the documentary aired. “There have been hundreds of cases – limited to a number of countries where contamination is known to be an issue and where the athletes would have resided, trained and/or competed.”
Another athlete in Beijing – a Polish canoeist – tried to use contaminated meat as an explanation for why he tested positive for clenbuterol. In Adam Seroczyński’s case, the IOC didn’t buy it and punished him anyway.
“The behavior of the IOC is shameful,” a surprised Seroczyński told ARD after the news of the Jamaican tests came out. “They didn’t handle my case this way, I wasn’t as important.”
If the IOC had tried to conduct follow-up to establish whether contaminated meat was the most likely explanation for the positive tests, they may have been disappointed. Fearing exactly this situation, the Jamaican sprint team had flown its own meat to China from home, and their food was prepared by the team’s own cook, according to ARD.
After the fact, WADA explained their decisionmaking process.
“Effectively, when the circumstances of a positive case indicate that the athlete has been in one of the identified countries where clenbuterol meat contamination is significant, the anti-doping community views it as unreasonable to put the burden of proof on the athlete, i.e. to prove that the meat, which he or she had consumed, was contaminated; in particular, eight years after the fact,” the organization wrote in their press release. “However, before a case is closed on the basis of low clenbuterol levels consistent with contamination, WADA recommends investigating such things as meat intake and whether there was exposure to a geographical area where contaminated meat is known to be prevalent.”
As noted above, there does not seem to have been much investigation and this policy is directly at odds with WADA’s own policy as posted on its website.
Are Low Levels Really Accidents?
To justify the process, the IOC reported that in all of the 2008 clenbuterol cases which were not ‘confirmed’, the concentrations of the drug were below 1 nanogram per milliliter.
Other athletes have been banned for less; Spanish cyclist Alberto Contador lost his 2010 Tour de France title over a finding of just 0.05 nanograms per milliliter, despite also arguing that he had ingested contaminated meat.
In fact, in Contador’s case the Court of Arbitration for Sport wrote that “considering that clenbuterol is a non threshold prohibited substance, the fact that the concentration is extremely low does not have any effect on the result.”
And in the same ruling, the arbitrators ruled out that contaminated meat could possibly be a source for the drug. Noting that that Spain is not a country known to have a problem with clenbuterol contamination, they concluded that “no established facts that would elevate the possibility of meat contamination to an event that could have occurred on a balance of probabilities has been established.”
Thus, jurisprudence has established that concentrations of the drug can be found in very low concentrations in urine samples even where meat contamination is not a possible explanation.
Of course this makes sense: as a substance is metabolized, its concentration will decrease. The concentration in a sample is simply a product of the amount ingested, and time. A longer time since ingestion means a low concentration.
In banning her for 13 months, the disciplinary panel did not dispute her explanation that the substance entered her body from a lip cream, rather than an injection or some other more shocking route.
The public will likely never know whether, in fact, she was using it on purpose; the accidental explanation has been used by many an athlete who later admits that yes, they were doping. But the point of strict liability actually gets exactly to that: it deals with the fact that when you rely on someone’s word, you can never be certain of what actually happened.
Strict liability is strict liability. WADA’s explanation of its Anti-Doping Code specifically notes that an athlete should be suspended “whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.”
Part of the issue of the Russian doping scandal is that for athletes in some parts of the world, strict liability was being applied. But for some in Russia, it wasn’t just that unintentional positives were being forgiven – rather, intentional doping was protected.
In this new scandal, the IOC – which is charged with ensuring fair competition at the most prestigious sports events in the world, the Summer and Winter Olympics – strict liability only applies sometimes.
If you were an athlete working hard to stay clean, or even Therese Johaug or Evi Sachenbacher-Stehle, that must not feel great.
Norway’s Martin Johnsrud Sundby during the men’s 15 k skate leg of the Ski Tour Canada in Canmore, Alberta. Sundby may not be the only Norwegian athlete who used a nebulizer to take asthma medication — even healthy athletes were allegedly recommended to do so. (Photo: Fischer/Nordic Focus)
As Norwegian skier Martin Johnsrud Sundby has decided to appeal his doping ban to the Swiss Supreme Court, stories have emerged suggesting that the Norwegian Ski Federation recommended that healthy skiers use salbutamol nebulizers – the same drug and method Sundby was issued a two-month ban for – as preventative therapy to maximize performance.
But what of the past? Norway’s TV2 talked with several cross-country skiers who say they were told by the national team to use nebulizers, even though they did not have asthma. A nebulizer delivers beta-2 agonists, drugs which help relax muscles in the airways. Such medications are banned for use by athletes up until a threshold dose.
In the same piece, national team director Vidar Løfshus said that this constituted “preventative care” to make sure that no athletes had airway obstructions.
The Norwegian Ski Federation announced on its website that it would be conducting a full review of medication use policies in the wake of the scandal.
Erik Røste, the president of the federation, said that he expected that healthy athletes would not have been prescribed medication, but sought to clarify whether his assumption was true. The investigation will be carried out by people not affiliated with the federation in order to maintain independence. Anti-Doping Norway has been consulted about assisting.
Røste also said that he was concerned that the stories could damage the reputation of the federation.
That seems to be already happening. Swedish national team doctor Per Andersson told Swedish media that prescribing medication to healthy athletes was a “dangerous path”.
Meanwhile, Sundby had been sanctioned for using high concentrations of salbutamol via a nebulizer. FIS had initially not suspended him, but the World Anti-Doping Agency (WADA) appealed the case to the Court of Arbitration for Sport (CAS), which banned him from competition for two months. Because some results were invalidated, Sundby lost his 2015 overall World Cup title as well as the overall Tour de Ski win.
CAS is the highest governing body in sports, and decisions cannot be appealed or overturned. However, Sundby decided to appeal the case to a non-sports body, the Swiss Supreme Court, because he felt that the judgement was unfair. He told Norwegian media that he was “not guilty.”
Based on WADA rules, the maximum amount of salbutamol that is allowed to be inhaled is 1600 micrograms over 24 hours. Sundby’s samples taken Dec. 13, 2014 after the 15-kilometer classic in Davos, Switzerland, and Jan. 8, 2015 after the 25 k freestyle pursuit at the Tour de Ski in Toblach, Italy, and analyzed by a WADA accredited laboratory exceeded those limits.
His case hinges on a few words, as Sundby and the Norwegian medical team believe that the WADA limit applies only to medication taken in an inhaler, while Sundby used a different device, a nebulizer.
As an athlete with a documented history of asthma, Sundby likely could have received a therapeutic use exemption (TUE), which may have allowed the nebulizer use. But he did not apply for one, and such exemptions cannot be obtained retroactively.
Martin Johnsrud Sundby (Norway) after winning the men’s 15 k classic pursuit for the overall Lillehammer mini-tour title in December 2014 in Norway, following the Davos World Cup. (Photo: Fischer/NordicFocus)
Norway’s Martin Johnsrud Sundby has been stripped of his 2015 Tour de Ski and 2014/2015 overall World Cup titles after the Court of Arbitration for Sport (CAS) upheld an appeal by the World Anti-Doping Agency (WADA) against him and the International Ski Federation (FIS).
The reigning three-time overall World Cup champion, Sundby, 31, was penalized for twice exceeding the amount of salbutamol, also known as albuterol and a “standard therapy against asthma symptoms,” according to a FIS press release, allowed in an athlete’s system and not possessing the necessary medical exemption when he was tested.
Based on WADA rules, the maximum amount that is allowed to be inhaled is 1600 micrograms over 24 hours. Sundby’s samples taken Dec. 13, 2014 after the 15-kilometer classic in Davos, Switzerland, and Jan. 8, 2015 after the 25 k freestyle pursuit at the Tour de Ski in Toblach, Italy, and analyzed by a WADA accredited laboratory exceeded those limits.
“While the medication is normally applied by a handheld metric dose inhaler (MDI), the athlete used a nebulizer to administer the prescribed salbutamol for the treatment of his asthma, which requires a higher labelled dosage than the MDI and thereby exceeded the allowed maximum dose,” FIS stated in its press release on Wednesday. “The FIS Doping Panel had therefore found that the athlete had not committed an anti-doping rule violation when he used a nebulizer as a legitimate means to administer salbutamol instead of a metric dose inhaler (MDI).
“The CAS found however that the epithet ‘inhaled’ was meant to distinguish inhalation from other mechanics of inhalation like ingestion or injection and did not refer to the stage of administration (e.g. the amount that comes out of the device or which was eventually delivered to the athlete’s mouth or lungs),” the release continued. “The allowed dose must be understood as the dose prescribed by the doctor, i.e. the ‘labelled’ or ‘nominal’ dose. Any higher dose, e.g. because of the need to use a nebulizer, requires a Therapeutic Use Exemption (TUE). When the tests were conducted in December 2014 and January 2015, the athlete was not in possession of a TUE and therefore found guilty of an anti-doping rule violation.”
WADA appealed the FIS Doping Panel’s decision, made Sept. 4, 2015, which defended Sundby. The CAS upheld WADA’s appeal and, effective July 11, 2016, sanctioned Sundby for two months. FIS announced this decision in its press release.
“I was at the store when the team doctor called. I was told that I had been over the limit twice,” Sundby said at a press conference as reported by NRK, according to a direct translation. “There and then it felt like the sky came crashing down. I could not believe it. I have never ever used an asthmatic dose that hasn’t been prescribed.”
“It felt like the sky came crashing down. I could not believe it. I have never ever used an asthmatic dose that hasn’t been prescribed.” — Martin Johnsrud Sundby
According to FIS, while CAS “acknowledged in the athlete’s favour that he had not intentionally broken the rules, that has a medical condition requiring the administration of salbutamol and that he had used salbutamol by nebulizer as prescribed by his team doctor, as he had done so before without any problems,” they also noted that anti-doping rules must be strictly adhered to and “that the prescription of the team doctor as to the use of the nebulizer to administer salbutamol outside of a hospital was arguably questionable from a medical point of view as well as the fact that the athlete and his team doctor had not made any enquiry of WADA, FIS or the manufacturer whether inhalation by a nebulizer would still require a TUE under the revised anti-doping rules.”
Sundby’s win on Dec. 13, 2014 in Davos (where he edged his teammate Didrik Tønseth by 6.6 seconds) and third-place finish in the Toblach 25 k (behind teammate Petter Northug and Sweden’s Calle Halfvarsson, respectively) have been nulled. In addition to being disqualified from those races, Sundby is no longer listed as the overall champion of the 2015 Tour de Ski, after he initially won the final hill climb by 34.5 seconds over Northug in Val di Fiemme, Italy. Northug is now listed as the winner and Sundby is not on the final results. Sundby is also no longer the 2014/2015 overall World Cup champion, Switzerland’s Dario Cologna is.
In a separate press release, FIS announced the recalculated results and standings from 2014/2015:
“The impact on the 2014/15 FIS Cross Country Cup World Cup standings and FIS Tour de Ski standings are as follows:
– Sundby forfeits the 143 points he earned for the two races where he has been disqualified – 100 World Cup points for the victory in Davos and 43 points for his third place finish in Toblach.
– With the Sundby disqualification on the 13th December 2014, the podium for the 15 km classic in Davos (SUI) is now as follows: 1. Didrik Toenseth (NOR); 2. Dario Cologna (SUI); 3. Sjur Roethe (NOR).
– With the Sundby disqualification at the 8th January 2015 in the 25 km pursuit in Toblach (ITA), the podium for that race is now as follows: 1. Petter Northug JR. (NOR); 2. Calle Halfvarsson (SWE); 3. Evgeniy Belov (RUS).
– In accordance with the Tour de Ski regulations, Sundby also forfeits his overall 2015 Tour de Ski victory and 400 World Cup points he earned for it as well as prize money of CHF 108’000. The new standings for the 2015 Tour de Ski are as follows: 1) Petter Northug JR. (NOR); 2. Evgeniy Belov (RUS); 3. Calle Halfvarsson (SWE).
– The breakdown of prize money from the Tour de Ski 2015 that Sundby has to return for redistribution to the newly ranked athletes is as follows: CHF 90,000 or first place in the Tour de Ski, CHF 2,000 from the third place of the Tour de Ski sprint standings and the World Cup earnings for the two races, CHF 15,000 for the victory in Davos and CHF 1,000 for the third place finish in Toblach.
– Additionally, Sundby forfeits the World Cup points and prize money from the remaining Tour de Ski races after Toblach, namely the last two stages in Val di Fiemme in which he finished 8th and 3rd. This amounts to a further 73 World Cup points and CHF 1,000 in prize money.
– The final 2014/15 FIS Cross Country World Cup standings have also been recalculated and are as follows: 1. Dario Cologna (SUI) – 1103 points; Petter Northug JR. (NOR) – 1047 points; Finn Haagen Krogh (NOR) – 897 points. Sundby moves down to sixth place in the overall World Cup standings with 748 points and forfeits CHF 22,275 in the overall World Cup prize money standings.
– In total, Sundby forfeits 616 World Cup points for the 2014/15 season and CHF 131,275 in prize money. This includes all races directly and indirectly affected by the CAS decision.”
“I was sure that the case would be dropped quite fast, but then it turned out that WADA didn’t understand the rules in the same way as the whole Norwegian medical team,” he continued. “When WADA appealed, I thought it was a formality. I went into the 2015/2016-season knowing I was innocent, and also that I was acquitted. I think the verdict is totally unreasonable. I have to live with it, and I will stay strong knowing I have done nothing wrong.”
“FIS fully shares the view of the CAS that Martin Johnsrud Sundby is not to be considered as an intentional doping offender but that his sanctions result from the strict application of the anti-doping rules and the WADA Prohibited List as a consequence of his reliance on questionable medical advice to administer salbutamol outside a hospital,” FIS concluded.
“I am pleased that the Norwegian Ski Association so firmly takes responsibility for what happened, and that they so firmly emphasize that I personally have not tried to do anything illegal in this case,” Sundby said in the team press release, according to a direct translation. “Of course, I understand that this case is of public interest, and that’s why I come to this press conference and reply to media inquiries. However, I ask for understanding that I will return to the two most important things in my life after this: my closest family and my career as a ski racer.
“The situation I am in currently is any athlete’s nightmare. I’ve always competed clean. I hope and believe this case will not have further consequences for my future career or my preparation for the upcoming season.”
The Court of Arbitration for Sport (CAS) has overturned a guideline used by the International Association of Athletics Federations (IAAF) to define female competitors based on naturally-occurring testosterone levels. The decision has implications for other sports as well, with skiing relying on related IOC rules to define gender.
The case was brought by Indian sprinter Dutee Chand, who has hyperandrogenism, a syndrome where the body produces excess testosterone. This led her to test over the 10 nanomole per liter limit set by the IAAF for female athletes. That value falls on the low end of the range typical for men.
Chand successfully argued that because her high testosterone levels were naturally-occurring, not the result of doping, they were just the same as any other athletic gift someone might be born with: long legs, genetics that make it easier to add muscle, or a tendency towards aerobic fitness, for instance.
CAS agreed, saying that the IAAF must provide additional evidence that high testosterone levels provide a substantial advantage to women. If this is not the case, then testosterone should not be used as a guide to defining biological sex, because it would lead to the needless and harmful exclusion of some women who are, in fact, female.
In the meantime, Chand is cleared to compete.
“I have a right to run and compete,” Chand said in a statement released by her legal team. “But that right was taken away from me. I was humiliated for something that I can’t be blamed for. I am glad that no other female athlete will have to face what I have faced, thanks to this verdict.”
Implications for Nordic Sports
The decision has other implications as well, as the International Olympic Committee (IOC) uses similar guidelines to determine sex. For both the London 2012 and Sochi 2014 Olympics, the IOC mandated that panels be created to investigate “suspected cases of hyperandrogenism” with a potential end result of women being excluded if they had high testosterone levels.
Thus, athletes in other sports were also subject to so-called “gender verification” since 2011. And many other federations, even those without explicit policies about defining sex for competition, use the IOC guidelines.
The CAS verdict does not explicitly address other federations’ guidelines which use the same logic. However, it is doubtful that the IOC or other groups would continue using their rules stipulating testosterone as a definition of gender given that any athlete could appeal an exclusion with Chand’s precedent and win at that CAS level.
The International Biathlon Union (IBU) does not appear to have any published guidelines for how to define the sex of an athlete.
“We do not have a gender identity policy,” IBU Vice President for Medical Issues Dr. Jim Carrabre wrote in an email to FasterSkier. “We do not check or verify gender as a general pre-competition requirement. This idea is antiquated in terms of sport and doping.”
The International Ski Federation (FIS) reserves the right to do gender verification. The current International Competition rules read, “If any question or protest arises as to the gender of the competitor, FIS shall assume responsibility for taking the necessary steps to determine the gender of the competitor.”
FIS used to have explicit procedures for gender verification, but Secretary General Sarah Lewis told FasterSkier in an email that the practice had been discontinued.
“The rules of the Olympic Movement were adopted by FIS and it was necessary to undertake a gender verification test at FIS World Championships and the Olympic Winter Games (I did so myself as an athlete),” she wrote. “I am not certain whether these were withdrawn first for the Games or for the FIS World Championships, but in any case since many years, I believe 2000, it has no longer been necessary to undergo gender verification.”
(Lewis was traveling en route to Kuala Lumpur, Malaysia, and did not have access to documents which would have confirmed exact dates.)
Still, FIS has the possibility to do gender verification tests and this responsibility is also listed in documents explaining hosting for events like World Junior Championships.
“Should it be necessary to arrange a gender verification – which has never been required since the change of rules – then the Olympic Movement rules would be applicable,” Lewis wrote. “If these have been suspended by CAS, then of course FIS respects this decision.”
The necessity is defined in FIS rules as as “If any question or protest arises as to the gender of the competitor”.
FIS has one high-profile gender verification case in its history, that of Austrian skier Erik Schinegger. As Erika, Schinegger was a World Champion alpine skier in 1966; gender testing before the 1968 Olympics revealed that Schinegger was intersex. He later fully transitioned to being a man and, in 1988, returned the medal he had won.
Is Hypoandrogenism an Advantage?
Finding the necessary evidence may be a difficult task for the IAAF. Although it is widely assumed that testosterone increases female athletic performance, it has actually rarely been researched and never definitively proven.
This may be in part because research on female athletes lags far behind the amount of research completed on male athletes, across all disciplines of sports science.
A 2012 paper authored by a team of international researchers from Stanford, Barnard, and Kings College London argued that the androgen/testosterone-based rules were scientifically unsound and also did not lead to improved fairness for female athletes. (You can read that critique here.)
Another paper, published in the Journal of Clinical Endocrinology and Metabolism just this year (and available here), agrees, stating that “Even if it can be shown that high levels of natural T predictably determine better athletic performance (which the research to date does not support), we do not accept that it would necessarily violate the ideals of sport… We must point out that for many years now, natural advantage among male athletes has not been policed and reduced in sports, but on the contrary has been admired and celebrated.”
More importantly, however, those authors raised ethical concerns about alerting unsuspecting athletes that they may have either an endrocrinological disorder , such as hypoandrogenism, or a genetic condition which made them intersex. Chromosome testing is another method used in gender verification, with syndromes such as XXY chromosomal composition falling in no-mans-land.
“The discovery and diagnosis of a [developmental sex disorder] will likely come as a severe shock, and the potential for harm is not a trivial matter,” the JCEM authors wrote. “It was this well-recognized harm that led the IAAF in 1991 and the IOC in 1999 to abandon their mandatory testing practices.”
While in Schinegger’s case, the discovery that he could be male led to a long and happy life as a man, this is definitely not always the case.
“If it wasn’t for my family, I don’t think I could have survived,” Caster Semenya, a South African runner whose gender was questioned before she was eventually reinstated to compete as a woman, recently told the BBC. “It was upsetting, you feel humiliated. You cannot control what people think.”
Female athletes who have been stripped of results because of hyperandrogenism have indeed taken drastic measures. One Indian runner tried to commit suicide, twice, after losing her athletic career.
In one of the most heartbreaking stories, some athletes were told to try to lower their testosterone levels either by surgery or by taking drugs. Four very young female athletes found to have hypoandrogenism through the pre-London 2012 testing appear to have consented to surgeries that they were told would lower their testosterone levels to an extent that they would be able to compete, but the surgeries ended up being plastic surgery on genitals or breasts, and did not have the desired affect because this was not the source of testosterone.
While the IAAF denies that this ever happened, it was reported in the International Business Times and in the medical journal article linked to above. All four women were rumored to be from rural areas of developing countries where the concepts of gender as not only a sociological but also a biological spectrum, which have only just begun to permeate the West, have not yet reached.
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