Frosty in PyeongChang

PYEONGCHANG, South Korea — Ryan Bailey is an American sprinter. 

He won a silver medal in the 4x100 relay at the London 2012 Summer Games. But he had to give it back because of teammate Tyson Gay’s doping conviction. Like many sprinters, Bailey then gave bobsled a go. Last January, Bailey tested positive himself for a stimulant in a case involving a dietary supplement called Weapon X. Based on a "light degree of fault,” a three-member American Arbitration Assn. panel gave him a mere six months off.

The United States Anti-Doping Agency appealed to the Swiss-based Court of Arbitration for Sport. In December, in a decision little noticed except in track and field and bobsled circles, in the arcane world of sports lawyering and of course in Ryan Bailey’s entourage, CAS slapped Bailey with two years — a signal to one and all not in the United States that anti-doping jurisprudence in the United States might well be considered, well, weak.

What in the world does this have to do with the CAS decision last Thursday to clear 28 Russians of doping at the Sochi 2014 Olympics? The prospect of an appeal in the Russian matter to the Swiss Federal Tribunal? Frosty tensions between the World Anti-Doping Agency, CAS and the International Olympic Committee? 

Pretty much nothing, and at the same time — it's a riff on everything.

The IOC president, Thomas Bach, at a news conference Sunday, called the decision exonerating the 28 Russians — a second part of the Thursday ruling freed 11 other Russians from the absurd IOC-promoted notion of life bans — “extremely disappointing and surprising,” adding, “We would never have expected this.” 

Put aside the notion the ruling was unexpected; at the best, that’s disingenuous, since all litigation necessarily involves a measure of risk. Of course the IOC knew it was going to lose on the life ban issue. It had gotten slapped around on that one before. 

It's also remarkable to hear Bach set out after CAS in 2018 in pretty much the same way he went after WADA in 2016 when the issue in both instances is — let's be honest — timing. Then it was WADA supposedly not giving the IOC enough time to decide what to do about the Russians. Now it's CAS, even though the process that got the case to CAS in the first instance is 100 percent on the IOC and took months but nonetheless was rushed at the end to meet the deadline of these Games.

When it comes to the Russians, what had to be expected after more than three years of relentless attack — from WADA, from USADA, from almost every media outlet in the west, the United States in particular — was pushback.

Contrary to widespread belief, the IOC, WADA and USADA are full of smart people, many of them finely trained lawyers.

In this instance, however, those entities simply ran into smarter lawyers. 

And those smarter lawyers were on a mission.

Pushback.

To explain some of this takes some length. Apologies for that. And for some legalisms. 

 It's assuredly cold in PyeongChang, and some relationships are maybe feeling a little frosty, too // Getty Images 

It's assuredly cold in PyeongChang, and some relationships are maybe feeling a little frosty, too // Getty Images 

Of course no invites

Shortly after the 28 were newly freed, the IOC had said 15 were nominally eligible to be considered for an invitation to the 2018 Games. On Monday, the IOC announced Monday to no surprise that zero of those 15 would be invited.

At that Sunday news conference, meanwhile, Bach also said that the decision showed an “urgent need for reforms in the internal structure of CAS,” a message he had forwarded to the president of the organization, who was “let’s say very appreciative of this initiative.”

This is entertaining. For 20 years, until 2013, when he was elected IOC president, Bach, a lawyer, served as chair of the CAS appeals division. The president of the CAS structure is Australian John Coates, also a veteran lawyer, an IOC member who from 2013 until just a few months ago was an IOC vice president; he is chair of the IOC panel overseeing Tokyo’s 2020 Games; he is by any measure one of Bach’s key advisers. 

To say that, after all these years, Bach suddenly, after a decision that didn’t go the way the IOC expected, got the need for “urgent need for reforms” and that Coates was “let’s say very appreciative” is to belie what’s really going on.

Which is — what?

A whole bunch of people who aren’t happy with the 28-and-11 decision trying to figure out how it could have gone down.

Waiting on a "reasoned decision"

Their frustration starts here: CAS has issued only a two-page news release announcing the result but not what in the jargon is called a “reasoned decision,” meaning a full explanation of the facts and law as assessed by each three-member panel (one for the 28, the other for the 11).

What, the IOC expected CAS to publish a “reasoned decision” involving complex litigation after five days of high-stakes testimony when common sense dictates such a thing is nigh impossible? Better to get it right than sloppy.

Coates, in a statement published Monday on the CAS website, said the “reasoned decisions in high-profile cases are critically important” and CAS “will continue to evolve to ensure consistency and quality of jurisprudence.”

Note: no timeline for when to expect those full opinions.

Until they're there, no one can say anything with any certainty about an appeal. Except, as Bach noted, no matter what, such appeals by design come with “a very limited scope.”

Which hardly limits speculation from all quarters.

And of all sorts.

The burden of proof matter

Was there a shifting burden of the “comfortable satisfaction” requirement of proof? “Absolute” certainty, say, instead of “beyond a reasonable doubt”?

Dick Pound, the Canadian IOC member and former WADA president, said, “If it is the case that CAS insisted on absolute proof, then the entire anti-doping movement is critically wounded.”

It’s entirely unclear where any such suggestion along these lines came from. The news release says only that both CAS panels found “that the evidence put forward by the IOC in relation to this matter did not have the same weight in each individual case.”

Pause here for a moment of zen while we dial the wayback machine to 2005, and the case of Tim Montgomery, another American sprinter. There CAS decreed, “The more serious the allegation the higher degree of probability, or ‘comfort,’ required.”

In the case of these Russians, was there ever a matter where the stakes were higher? 

Dr. Rodchenkov's testimony

Meanwhile, what about the testimony of the key witness, the former Moscow lab director, Grigory Rodchenkov? 

For the first time, he was cross-examined.

This, from the lawyers for one of the 28, cross-country ski gold medalist Alexander Legkov, in German, via Google Translate:

“Those responsible for the IOC have long since been able to refute [Legkov’s position], which have tangibly disproved important parts of the information provided by Dr. Rodchenkov, and are further evidence that the athletes could have exempted from suspicion, despite our request, not followed. This also applies to Prof. McLaren, who has only been looking for insights that support Dr. Rodchenkov's information, but not those that could refute it. Important information from Dr. Rodchenkov, however, is actually refuted.”

Howard Jacobs, a Southern California lawyer who without question is one of the world’s foremost experts on anti-doping law, said, “The reasoned decision is going to very detailed. It’s going to go through the evidence. Unless you were in the room, everyone is guessing about what happened. I have been through enough of these to know that you can be as prepared as humanly possible and the testimony can come in an unexpected way. It happens all the time. Ask any trial lawyer. It’s probably what happened.”

The currents of geopolitics

Moving on, and here is where geopolitics intersect with the law in the most fascinating way:

WADA has been around since 1999. It is a project of the Olympic movement and governments. 

Its first three presidents have been from, in order, Canada, Australia and, now, Great Britain. Its current vice president is the minister of culture from Norway. WADA is based in Montreal. 

The 38-member WADA Foundation Board — its congress, if you will — contains no one from Russia and, for that matter, just one representative from the sphere of the former Soviet Union, from Kazakhstan. There’s just one representative from China.

There’s no one from Russia on its 12-member policy-making executive committee.

Think back to the WADA decision to include meldonium on its 2016 prohibited list — a move that came from the executive committee, which blew up in a big way, causing WADA to backtrack.

Meldonium, according to testimony in a CAS case published last year involving the Belarus canoe and kayak federation, was the “most sold medicine in the former Soviet Union.” 

Compare that cultural affect — in Russia and the former Soviet states it was akin to buying Bayer aspirin — to the USADA presentation, which in the second sentence notes meldonium is not approved for sale in the United States, the implication being — as the lawyer and arbitrator Michael Geistlinger notes in an intriguing law review-style journal — “it could have been only exceptionally a danger for U.S. athletes.”

This brings us to Geistlinger’s role in the matter of the 28 and 11. Based in Austria, the former secretary general of the International Biathlon Union, a federation that has long enjoyed a close relationship with Russia, Geistlinger is, simply put, a brilliant intellect with a depth and breadth of accomplishments across public international law and sports.

Christoph Vedder, a German law professor who served as chair of the CAS tribunals, heads the IBU anti-doping hearing panel. 

Vedder chaired both CAS panels; Geistlinger served on one of the two.

Legal journals can be interesting  really

Geistlinger, in that same legal journal, notes the makeup of the WADA leadership and its North American headquarters; makes the case that the WADA Code has changed over the years to shift (appropriately, he suggests) away from an American concept more toward a continental European approach; discusses the tension in the meldonium matter; and then, in print, weighs in on not just one both McLaren reports, which of course were WADA initiatives. 

Wait. Say what?

That last part again? Did he weigh in on the McLaren reports? In public? Before serving as an arbitrator?

“To break down the full report itself and the evidence attached to the report to individual cases of athletes and entourage will cause considerable difficulties,” Geistlinger writes. “The report itself is hearsay evidence and, thus, of limited value in court cases. The evidence attached to the report suffers from various quite substantial deficiencies, which were discussed in a [February 2017 WADA] meeting in Lausanne. It will cause some headache to the respective Anti-Doping Organizations, to CAS and to national courts in order to determine whether the evidence carries the cancellation of events, the suspension of athletes and/or staff and sanctions against Russian sports federations or major event organizers.

“It is, thus, with little surprise, that on 16 March 2017, the IOC Executive Board expressed substantial concerns with regard to the present structure of WADA and adopted ’12 principles for a more robust and independent global Anti-Doping System to protect clean athletes..."

Pause for a moment here to consider that just months ago WADA and the IOC were indeed quarreling just as Geistlinger outlines — and that WADA, almost immediately after the decision of the 28 and the 11, urged the IOC to appeal.

Consider, too, that last August 9, the WADA athletes’ committee, chaired by Canada’s Beckie Scott, issued a statement that said, among other things, “requested that the Court of Arbitration for Sport (CAS) improve and strengthen its independence and continually strive to increase the quality of its arbitrators.”

Not even three days later, that drew this highly unusual response from the IOC athletes commission, led by Angela Ruggiero of the United States and Tony Estanguet of France: “… we believe the comments questioning the independence of CAS and the quality of the arbitrators is misguided … we support CAS in its ability to fight for clean sport and want to reassure the athletes of the world in this respect.”

Why this stuff drives non-lawyers crazy, and the bottom line

The obvious question: was this case pre-judged?

The problem: while that might be the obvious question, it’s actually not the right question. This is the sort of thing that drives non-lawyers crazy — the gentleman wrote about both McLaren reports before serving as an arbitrator and you’re telling me that’s not the right question?

Right.

Because there’s literally no way to prove that. Ever. Not even with truth serum.

Instead:

In this matter, was there a conflict of interest?

By the way, it’s not as if Geistlinger has been shy about expressing his opinion. On November 23 in Prague, he delivered a lecture at Charles University in Prague entitled, “The Aftermath of the McLaren Reports from [a] Legal Perspective.”

This is all, of course, public record.

Even the conflict of interest question is not precisely the right question. 

On point: in connection with his service on the CAS panel hearing the matter of the Russian athletes, did Geistlinger have to disclose the publication of that legal journal article, or his speech in Prague — or anything else of the sort?

The International Bar Association’s guidelines on conflicts of interest in international arbitration refer specifically to what’s called a “Green List” — that is, stuff that arbitrators don’t have to disclose. 

Point 4.1.1 on that green list: “The arbitrator has previously expressed a legal opinion (such as in a law review article or public lecture) concerning an issue that also arises in the arbitration (but this opinion is not focused on the case).”

What about that second parenthetical clause? Does that change anything?

Let’s say it does. Does that mean Geistlinger would have had to disclose? 

In that instance, did the IOC object to his service? Did it? If it didn’t — then that’s on the IOC, and for the IOC to complain now would seem a case of too little, too late. 

Which may be the real issue at hand, and explain all the barking from the IOC in particular. 

It’s not used to losing.

After all, what's the point of being the king if you don't get to make the rules?

Except — that's not the way this system works. 

That's called, you know, pushback.