Even Russians deserve due process, and especially cross-examination

The lengthy decision posted Monday in the matter of the Russian cross-country skier Alexander Legkov is to be applauded for its extended review of the Russian doping matter.

A three-member International Olympic Committee “disciplinary commission” panel, explaining the rationale for stripping Legkov of the 50-kilometer gold medal he won at the Sochi 2014 Games, found Dr. Grigory Rodchenkov, the former Moscow lab director, a “truthful witness.”

It’s also the case that this decision is likely fatally flawed. Legkov ought to proceed directly to the Court of Arbitration for Sport with an urgent appeal -- do not pass go, do not collect $200, all of that. 

IOC president Thomas Bach has promised — most recently in a speech last week to European Olympic officials — that the Russians, Legkov and others, would be assured due process. In a news release accompanying the publication of the Legkov decision, the IOC said, "Due process has to be followed, and re-analysis is still underway."

No way did Legkov get due process.

Why? Because Rodchenkov was unavailable for cross-examination.

To be straight-up:

The quarrel here is not with the notion of, as Professor Richard McLaren put it in the second of his two reports, “institutionalized manipulation” in Russia.

It’s with proving individual culpability and, problematically, under a ferocious time deadline, the IOC executive board due to meet Dec. 5 to decide what to do about the Russians and the PyeongChang 2018 Winter Games. Obviously, that’s why the Legkov matter came down on Monday.

It is a fundamental principle of due process — of the law, anywhere — that you can’t appropriately deal out anything approaching justice when the accused can’t cross-examine the chief witness for, in essence, the case against him.

That’s not right. That's not fair.

 Alexander Legkov atop the podium at the Sochi Games // Getty Images

Alexander Legkov atop the podium at the Sochi Games // Getty Images

It’s especially not fair given that Rodchenkov is being protected — for reasons still not apparent — by the United States Department of Justice. 

Step back for a moment. What’s wrong with this scenario?

In the United States, the Sixth Amendment to the Constitution says an accused gets to confront the witnesses against him. 

The United States government, at American taxpayer expense, is shielding Rodchenkov — not an American citizen — from exposure to one of the bedrock principles of American constitutional law, yet he is offering evidence to help make the case against (in this instance) a Russian athlete, and the tribunal at issue is willing to accept what he says because it’s what he says?

No.

Doesn’t that demand explanation? Like — cross-examination under oath? 

To be clear:

These matters involving the Russians and doping are not transpiring in the United States, and these are not criminal prosecutions. 

This is an administrative tribunal in which the IOC is seeking to ban individual Russians — for life — from the Olympic Games. For life. All the more reason to be extra-careful about ensuring that someone like Legkov gets every measure of all the process due him.

Don’t be misled. This has nothing to do with Russia or Russians. Floyd Landis, the American cyclist, sat through day after day of just this sort of administrative hearing in Malibu, California. Witness upon witness — replete with cross-examination.

The IOC, meanwhile, has lost this particular fight before — the ban-for-life fight, that is — more on this below — and thus it’s all the more perplexing and illogical that this panel, chaired by a longtime IOC member, Denis Oswald, a veteran and accomplished Swiss lawyer, would seek to run roughshod over one of the most fundamental principles of the law, no matter anyone’s system.

You have to be able to cross-examine people. 

It’s how you get to the truth.

The other two panelists: Patrick Baumann, also of Switzerland, the general secretary of FIBA, the international basketball federation, also an IOC member, also a lawyer; and Juan Antonio Samaranch Jr., of Spain, also an IOC member and a sophisticated international businessman. 

Bluntly, Oswald and the panel know this principle is, indeed, the truth. It’s evident from the way the decision reads as it — like McLaren — finds Rodchenkov credible. 

Paragraph 250, the panel declares its “conviction that Dr. Rodchenkov is a truthful witness and that his statements reflect the reality and can be used as valid evidence.”

The problem with that starts three paragraphs before, when the panel says it “has come to the conclusion that, whatever his motivation may be and whichever wrongdoing he may have committed in the past, Dr. Rodchenkov was telling the truth when he provided explanations of the cover-up scheme that he managed.”

Oh, come on. 

This is textbook cross-examination. Whatever his motive may be? Whatever wrongdoing he may have committed in the past?

Those things cut directly to someone’s credibility. 

To, therefore, assert in the second part of the sentence that the issues in the first are of no matter is — absurd.

On to paragraph 249, in which the panel notes that it, “like the parties, would have preferred to hear Dr. Rodchenkov in person.”

Preferred?!

Paragraph 274: “In view of the circumstances, Dr. Rodchenkov is presently living under a protection program in the United States of America (USA). Access to him is controlled and subject to severe restrictions.”

Further essential topics for cross-examination: why is access to Dr. Rodchenkov so controlled and subject to such severe restriction?

The decision goes on, paragraph 275: until “very shortly before the hearing,” the IOC had been told it would not be possible to have direct access to Rodchenkov, “in any manner or form.” 

Why?

Then, paragraph 276, following indications published in the media, presumably Rodchenkov’s Sept. 22 op-ed in the New York Times (in which he said no one from WADA or the federations had ever sought to interview him, though he was “available and willing to cooperate”), contact was made with Rodchenkov’s American lawyer.

Paragraph 70, that affidavit arrived on Oct. 29.

Paragraph 279, referring to the affidavit, the panel “observes that this is the first time that direct testimony of Dr. Rodchenkov could be obtained at all in proceedings concerning the situation in Russia. This is a positive element,” it concludes, “even if it occurred late in the proceedings.”

This is also nonsense.

Which the very next paragraph, 280, makes plain, because whoever wrote this section — knowing the style of the two lawyers on the panel, the guess here is that it’s Baumann — seeks in 280 to diminish the import of the Rodchenkov affidavit, because that’s what a good lawyer would try to do with a troublesome piece of evidence.

Paragraph 280 says the panel “also notes” that everything that’s set forth in the Rodchenkov affidavit “does not come as a surprise,” explaining that apart from “specific elements” relating to Legkov himself, everything else had been set forth in the McLaren reports or in other evidence batches. 

Then, paragraph 281, because lawyers know that cross-examination is critical: 

“As regards the fact that the affidavit is only in writing and Dr. Rodchenkov could not be heard in person, the Disciplinary Commission was plainly conscious and has already mentioned that it would have been preferable to have Dr. Rodchenkov present in the hearing, as well as in all other hearings concerning cases linked with Sochi.”

You bet.

Back to Rodchenkov’s op-ed: “available and willing to cooperate.” 

Either he is, or he isn’t. 

If he is, then he’s subject to cross-examination. If that’s the case, then as Bach has made plain, athletes such as Legkov get due process.

If not, this is a sham. 

Sorry. That’s the way it is. This is fundamental, first-year law school stuff, and there’s no way getting around it. 

Moving on:

The other problem the three-member panel knows it has is with its attempt to impose life bans. 

Paragraph 484, it argues that such bans are justified by the “severity of the prejudice and the long-term lasting harm that has been caused to the Olympic Movement.”

That’s emotion talking. There’s no evidence whatsoever in this 46-page opinion, or for that matter anywhere, to justify those assertions. 

The IOC’s bank accounts are swollen with billions in television and sponsor dollars; 2017 has seen the IOC strike a deal through 2028 reportedly worth $800 million with the Chinese concern Alibaba. In his 2017 New Year’s message, Bach said “half the world’s population” watched Rio 2016, making it the “most-consumed Olympic Games in history.”

Indeed, in that New Year’s message, Bach also said that the Rio Olympics, “like no other event in 2016,” brought “the entire international community together in celebration,” a reminder that “in a world where mistrust and uncertainty are on the rise, sport is a joy and inspiration for so many people, giving us hope that our shared humanity is stronger than the forces that want to divide us.” 

How does any of that jibe with severe prejudice and long-lasting harm?

Not.

One last thing: the IOC tried to impose life bans before through what was called the “Osaka Rule” — drafted to allow the IOC to prevent athletes who had received a doping sanction of more than six months from representing their country again at the Games.

To make a long story short, it got shot down in a case brought by the U.S. Olympic Committee on behalf of Beijing 2008 400 meters champion LaShawn Merritt, the USOC claiming the rule was unfair because it was effectively punishing an athlete twice for the same offense. CAS agreed. 

The IOC keeps trying to find an answer to a problem that doesn’t exist. Life bans sound sexy. They’re not legal. 

Neither is going after people without affording genuine, substantive cross-examination. Just — not OK.