Waiting for CAS, and the crucible of cross-examination

In his under-appreciated gem of a 1982 song, “Highway Patrolman,” Bruce Springsteen offers this memorable line: “Man turns his back on his family, he just ain’t no good.”

It’s worth considering these words anew as we wait for the Swiss-based Court of Arbitration for Sport to release its “reasoned decision” in the case of 28 Russians cleared of doping at the Sochi 2014 Winter Olympics, because that tribunal is the first to get to weigh fully the cross-examination of star witness Grigory Rodchenkov.

Rodchenkov is also one of the stars of Icarus, recently awarded an Academy Award. And the star of much of what has been reported for more than two years now in the New York Times about the Russians.

 Grigory Rodchenkov in 2015 // Icarus/Netflix

Grigory Rodchenkov in 2015 // Icarus/Netflix

To be clear, there is doping in Russia. 

That said, there is doping — everywhere.

To be equally clear, this space has apparently been — unless there is someone somewhere that I don’t know about, in which case I am glad to have journalistic company — the only outlet in the western world to have been advocating for these years on behalf of fairness when it comes to the Russians.

It’s not because I am a Russian lover, or have a thing for Vladimir Putin or, you know, collect Matryoshka stacking dolls. None of those things is so.

Indeed, my advocacy rests on a fundamental principle of justice, American and otherwise, drilled into me by professors at the University of California’s Hastings College of the Law in San Francisco, where in 1987 I earned my law degree and went on to take (and pass, first time) the California Bar Exam: everyone deserves due process.

Each and every person. That means Russians, too. 

It also means that every person deserves not to be tried in the press; that demonization of people and, by extension, countries, is not helpful; that we should not rush to judgment; and that informants typically bear a complex agenda. 

Over the past two-plus years, dozens of Russian Olympic — and assuredly Paralympic — athletes, subjected to trial in the press, amplified by social media, have grossly been denied fundamental due process, along the way sanctioned without proof, much less evidence, of individual culpability. 

The Olympic movement stands for fair play. 

This episode in Olympic history awaits the measured, if not severe, judgment of the calm passage of time. 

Here then, while we wait for CAS, a review of some of the issues, and an acknowledgement — a grateful shout-out to Ronald Katz, an accomplished lawyer in northern California who has published a series of articles in the Nation, from which some of this material can be found and whose thinking sometimes jibes with mine, sometimes does not but in any case has helped me, and I hope you, think.

Apologies in advance if you find this lengthy. Sometimes things take some space.

— Once more, there can be no dispute that there is doping in Russia. 

But doping is hardly just a Russia problem.

Take a look, for example, at the World Anti-Doping Agency’s most recently published Anti-Doping Rule Violation report. It’s for 2015 (made public April 3, 2017). 

Russia is No. 1 on the list, with 176. The applicable denominator (see page 61) is 1901. That’s 9.25 percent.

That means everybody else accounted for 91.75 percent of the world’s doping cases in 2015.

No. 2? Italy, with 129.

No. 3, India. 117.

Is anyone demonizing either of those countries?

Or France, at No. 4, 84? 

What’s this, the United States makes the top 10, at No. 9, with 50, including 11 in cycling and six in track and field? 

— More numbers:

Last September, WADA agreed to clear 95 of the first 96 Russian athletes whose cases it had reviewed.

In February, immediately before the PyeongChang Olympics, CAS cleared 28 of 39.

Some addition: 95 of 96 plus 28 of 39 means that of 135 cases examined, 123 Russians have been cleared.

That equation ought to give anyone who is serious about this matter considerable pause. 

— One more number, and now with a turn toward Rodchenkov:

The first WADA independent commission report, dated November 2015, led by Richard Pound, with the assistance of Richard McLaren and Gunter Younger, said this about Rodchenkov, director of the Moscow lab:

He “admitted to intentionally destroying” 1,417 samples “to limit the extent of WADA’s audit,” the report a few paragraphs earlier calling that action “intentional and malicious.” The report explicitly found that Rodchenkov’s statements “regarding the destruction of the samples are not credible.”

Described him as an “aider and abetter of the doping activities.”

Found that “at the heart of the positive drug test cover-up is [Director] Rodchenkov. He not only accepted, but also requested money in order to execute the concealment [of] positive test results, which makes him equally responsible for incidents where coaches or officials extorted athletes even if he was not personally made aware of the extortion.” 

That “behavior,” it said later, “is worthy of serious sanctions …” 

Reported that Rodchenkov “was paid indirectly by one of the whistleblowers to conceal a doping test taken while the athlete was knowingly competing dirty. The go-between who received the money is a known performance-enhancing substances trafficker.”

Said Rodchenkov “was also an integral part of the conspiracy to extort money from athletes in order to cover up positive doping test results.”

A confidential witness (identified as “CW2’) “believed the reported corrupt person at the laboratory was Grigory Rodchenkov,” the report said, launching into CW2’s statement:

“Russian police caught his [Dr. Rodchenkov’s] sister, she had a prison sentence/community service/suspended sentence but it’s widely believed she took the blame for him. It seems ludicrous that the head of the anti-doping lab’s sister was found guilty of dispensing drugs [PEDs]. It’s incredible that he is still there.”

As the report noted later, page 207, in December 2013, Rodchenkov’s sister, Marina was convicted of buying and possessing banned drugs with the intent of supplying drugs to Russian athletes: testosterone, oxandrolone (athletes call it ‘ox’) and methandienone (‘Dianobol’), all banned by the WADA code. 

Rodchenkov himself was arrested in connection with this investigation and, according to the report, “purportedly admitted involvement after rigorous questioning, but the charges against him were subsequently dismissed, although his sister was convicted.” 

The report called these events “highly suspicious,” adding that “not a single witness has alleged that … Rodchenkov’s sister was trafficking PEDs to Russian athletes.”

— Ask this logical, common-sense question: is extortion consistent with state-sponsored doping?

As Katz writes in one of the articles in the Nation: “… there is no reason — and none has been given by anyone — for Russia to allow an individual like Rodchenkov to enrich himself through extortion.”

As Katz would also write in a note published Thursday: “Logically, even if only coaches took bribes, that fact is still inconsistent with the state-sponsored scheme at the center of Dr. Rodchenkov’s allegations: the state of Russia would have no interest in personally enriching coaches through extortion and no one … has made a case to the contrary.”

— When Rodchenkov got on a commercial flight to fly to the United States, leaving behind his family, was he, as the filmmakers of Icarus have sought to portray him, a fearless informant? 

Or did he become an informant as a way to save his backside?

In his Academy Award acceptance speech, filmmaker Bryan Fogel said, “We dedicate this award to Dr. Grigory Rodchenkov, our fearless whistleblower who lives in grave danger.” 

Katz, in the Nation: “Clearly Rodchenkov was not fearless; indeed, if he had not been fearful, there would have been no Icarus.”

— if Rodchenkov is so “fearless,” why did he agree to appear on 60 Minutes? Too, to a one-on-one in-person interview with the BBC? 

But —he agreed to cross-examination only via Skype (or something similar) with CAS?

— The key to the entire Sochi 2014 drama is that purportedly “tamper proof” bottles were tampered with, opened and filled with clean urine.

Rodchenkov on ’60 Minutes’: “I never saw how it was done.”

 Rodchenkov, disguised, on 60 Minutes // photo via CBS/60 Minutes

Rodchenkov, disguised, on 60 Minutes // photo via CBS/60 Minutes

— Questions about Rodchenkov and Icarus. Do he and Fogel have any financial connections? Rodchenkov and anyone else connected to the production? If so, how might they be relevant and material?

— Who is paying Rodchenkov’s lawyer? Why? How much?

— What is the U.S. government’s articulable interest in having Rodchenkov in the witness protection program?

— More about Rodchenkov and issues around credibility.  

On Thursday, the Nation posted a letter to the editor from Dan Cogan, producer of Icarus, taking issue with a Katz March 14 article centered on the film. 

Cogan asserted, among other matters, “You would never know from [Katz’s] article that [WADA] launched an [IC] that found Dr. Rodchenkov to be completely credible. The International Olympic Committee (IOC) itself, despite a predilection for forgiving Russia whenever possible, then created not one but two of its own commissions, which similarly found Dr. Rodchenkov to be telling the truth and Russia to be guilty of running a state-sponsored doping program.”

The two WADA reports arguably did not find Rodchenkov to be “completely” credible. 

Indeed, McLaren suggested in the first of his two reports that Rodchenkov’s credibility was to be viewed narrowly: 

“I am aware that there are allegations against [Rodchenkov] made by various persons and institutional representatives. While that might impinge on his credibility in a broader context, I do not find that it does so in respect of this report. I reach that conclusion because the forensic and laboratory scientific evidence that I have gathered corroborates that he has been completely truthful in his interviews with me. Therefore, I did not hesitate in coming to the conclusion that within the context of the subject matter that was my mandate he is a credible and truthful person. I do not need to go further afield in assessing his credibility as it is beyond the scope of my inquiry.”

As for “state-sponsored” — by the second report, McLaren had moved off that language to “institutionalized doping.”

As for the IOC:

In paragraph 247 of its reasoned decision of the Alexander Legkov matter, the Oswald commission similarly seems to have judged Rodchenkov’s credibility narrowly and not “completely,” explaining 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.”

Motive and past wrongdoing make for textbook cross-examination. These matters cut directly to someone’s credibility, and thus the second part of the sentence in paragraph 247 would seem to undercut the first.

— Cogan also wrote, “I have every reason to believe Dr. Rodchenkov’s categorical denials, as in fact everything Dr. Rodchenkov ever told our team, even things he was not able to prove himself at the time he told them to us, have since turned out to be true beyond a shadow of a doubt.” [italics in the original]

That’s just not true, however, as Katz pointed out when given a chance to respond. 

In a Dec. 8, 2017, article in the Times, Rodchenkov retracted a claim involving the head of the Lausanne lab, Martial Saugy:

“I owe Professor Saugy an apology. Much speculation has been reported that he somehow helped me cover up doping in Russia. I certainly thought and hoped that he would be helpful to us — because I lied to him and convinced him that we were clean.”

Katz: “This is the problem with informants — they lie.”

When CAS announced Feb. 1 that it had granted the appeals of 28 of the Russians, a lawyer for the athletes, Philippe Baertsch, told Associated Press there had been “numerous inconsistencies” in Rodchenkov’s evidence presented to CAS.

In an interview with a German outlet, meanwhile, Rodchenkov said, “I worry about my family which I left in Russia. I am worried about my children, my wife, about my dog — by the way.”

— One final question: if Rodchenkov is genuinely in fear for his life, wouldn’t it stand to reason that his family would also be, to use Fogel’s phraseology, in “grave danger”? Including the dog?

We wait for CAS. As the saying goes: there is no substitute for the crucible of cross-examination.