In Russian doping saga news: the 50-kilometer cross-country skier Alexander Legkov gets to keep his Sochi 2014 gold medal and the Russian Anti-Doping Agency almost certainly will not be declared non-compliant after World Anti-Doping Agency investigators finally retrieved computer data from the Moscow lab.
When the history of this Russian saga is wrapped, it really ought to be weighed against the sage counsel of Ruth Bader Ginsburg, the U.S. Supreme Court justice, who in her 2016 autobiography wrote, “Reacting in anger or annoyance will not advance anyone’s ability to persuade.”
There has been so much — entirely too much — rhetoric in, around, enveloping this Russian saga, a great deal of it from people who know, or ought to know, the value of process but who have turned time and again to inflammatory bombast, pomposity and hyperbole in seeking to advance politically charged positions.
Not to mention just yelling at each other. Or someone.
As the Legkov case and the retrieval of the lab data prove, process — way more than rhetoric — matters.
Process often isn’t fun, or sexy, or thrilling, particularly in our world now, when it can seem so much more entertaining, or cavalier, or satisfying to the echo chamber to zip off a blasting tweet.
But process matters, and a lot. It matters to work through it. Heads-up: that’s what this column is about.
And by extension — Grigory Rodchenkov, the key witness against him, the former head of that very same Moscow lab.
The Swiss Federal Supreme Court, according to Legkov’s Germany-based attorney, Christof Wieschemann (who deserves enormous credit for world-class lawyering), rejected the International Olympic Committee’s appeal of the Court of Arbitration for Sport’s April 2018, ruling detailing Legkov’s win. It had first been announced weeks before, in February. Legkov was also a Sochi silver medalist in the 4x10k cross-country relay.
Big picture: the IOC appealed because Swiss-based CAS had acquitted Legkov, along with 27 other Russians.
On Friday, the IOC announced, reasonably enough, it would not proceed with appeals in the other 27 cases absent “new evidence.” It’s unlikely there will be such new evidence.
Process: the Legkov matter involved a FIS international ski federation anti-doping panel, a first case before CAS, the Oswald commission of the IOC and then a second CAS case. It is this second CAS case that went to the Swiss high court, even though the IOC acknowledged in its appeal the second CAS case was probably right and it was, you know, following appropriate process.
The second CAS matter involved 60 hours of trial and more than 20 witnesses and experts.
For all that, the case pivoted significantly on the testimony of Rodchenkov, because this — after all the sound-bites, all the allegations, all the unbalanced coverage in the New York Times (which has a lot to answer for) — marked the first time Rodchenkov was cross-examined.
Let us be perfectly clear, because — again, when history is written — while Rodchenkov has been lionized elsewhere in the western press, it is and consistently has been the position here that he is neither believable nor trustworthy. In all the western press: there would seem to be precisely two of us, two — me (I am an inactive member of the California state bar) and the Bay Area lawyer Ronald Katz, who has written extensively about this for The Nation — advancing consistently the same viewpoint: Rodchenkov is not credible.
Indeed, as Katz writes: Rodchenkov is a “witness who has admitted lying and cheating.” As Wieschemann put it in a press release issued Saturday, referring to Rodchenkov: “The story was by no means as he tells it today.”
It’s the position here as well that justice demands a thorough exploration of Rodchenkov’s alleged criminal conduct.
Going back to November 2015, the first “independent commission” report declared Rodchenkov was “at the heart of the positive drug test cover-up” at the Moscow lab. It also asserted his “statements regarding the destruction of the [1417 urine] samples are not credible” and Rodchenkov “was also an integral part of the conspiracy to extort money from athletes in order to cover up positive doping test results,” an allegation Rodchenkov has denied, despite evidence to the contrary that at least two Russian athletes gave to the commission, as Katz would point out in one of the pieces he wrote for The Nation.
Rodchenkov fled to the United States in 2015. For reasons unclear, he was placed in the U.S. Witness Protection Program.
The movie Icarus came out in 2017. It won the documentary Oscar last March 4.
Six weeks later, on April 23, CAS published its ruling.
Katz has done a superb job in The Nation of summarizing the evidence from the case. Rodchenkov:
1. Admitted that he never personally witnessed any accused Russian athlete committed doping violations. This means:
— Meaning taking the drug cocktail
— Giving a clean urine sample out of competition
— Tampering with a urine sample
— Transmitting information to purported co-conspirators about the coding on the drug sample after it had been given
2. Was simply not believable. This means:
— He had said the swapping of the urine samples occurred after 1 a.m.
— But his own diary entries confirmed his bedtime by midnight, with two or three exceptions
— When confronted with this contradiction, he said he had lied to his diary (see paragraph 315 of the decision). Who lies to their diary? As Katz notes, this claim is “incredible.”
3. Gave similarly non-credible explanations when confronted with other evidence. This means:
— When asked about a 2017 video in which he said, “I do not give a fuck about fighting the doping,” he said it was “in [an] emotional context’
— When confronted with contradictory accounts of what was in the drug cocktail, said it was a typo
— When confronted with a 2014 comment that his diary was worth “millions of dollars in my bag,” Rodchenkov claimed he was joking (see paragraph 307 of the decision)
4. Offered no explanation for the essential scheme. This means
— Regarding alleged Russian tampering with the tamper-proof bottles containing the urine specimens, he offered no explanatory evidence, referring to those who purportedly opened the bottles as “Magicians.”
— He testified that he “did not know the ‘precise method’ used by the Magicians to open the bottles.” (see paragraph 294 of the decision)
There’s more, much more, particularly involving the testimony of the Canadian professor Richard McLaren, which is one of the reasons why the Russians may well have been so adamant about not copping to the McLaren Report. Katz calls that report “completely one-sided.”
For all that:
After all these years later there can be no doubt — even the president of the Russian federation has said so — there were “instances of doping use in Russia.”
But doping is hardly limited to Russia. It’s a global problem. No country is immune. Beyond, it’s a long way from allegations of systemic doping to proof of individual culpability.
This is why the Legkov case matters so much. The process — for all the yelling — proved robust. CAS did its thing: a neutral three-person tribunal expert in the law heard and assessed the evidence, in particular Rodchenkov’s credibility.
This is also why it matters so much that the process in connection with the Moscow lab has been allowed to play out even though the Russians missed the Dec. 31 deadline.
The shouters would have had the Russians immediately declared non-compliant.
That’s not the point of the process.
The process is designed to serve resolution, not punishment. Of course there are deadlines; any process has to feature deadlines. But there has to be flexibility to afford the possibility of resolution.
For the record: the national anti-doping agencies were particularly keen to ensure that declaring any anti-doping agency non-compliant (here, RUSADA) should be a last resort. For this very reason, WADA included a provision enabling its independent Compliance Review Committee — due to meet Tuesday — to consider key information even after deadlines have passed.
Eyes on the prize: getting and keeping RUSADA compliant. That is it, plain and simple. In this context, that is WADA’s mission.
The rest of it is noise.
Let’s look at what this WADA team has accomplished through a slightly different prism.
The Russians suspect — perhaps for good reason, indeed — that Rodchenkov has a crime or crimes to answer for.
Whether you like or approve of the Russian criminal justice system, it’s their system. (For what it’s worth: the American system is far from perfect. And an aside: it’s absurd to consider criminalizing sports doping in the United States and even more absurd that a law that would do so should honor Rodchenkov.)
Hypothetically: let’s say Rodchenkov was an American citizen and director of, say, the Salt Lake City lab. Now comes the FBI. The FBI seals that Salt Lake lab and announces it is investigating him on suspicion of, say, conspiracy and other federal crimes. Under what right would a supranational agency such as WADA go to the FBI and say, we now demand all the computer evidence you’ve got in that lab because we want to pursue doping cases before a sports federation (handball! archery! badminton!) or, ultimately, an international tribunal? Of course the FBI would push back. The FBI would say, we could care less what you want; we are keeping the evidence under lock and key for super-serious criminal stuff in a U.S. District Court, not sports doping. And you know what? The FBI’s position would be eminently defensible.
This is essentially the dilemma the parties have been working through in Moscow. So it took past Dec. 31. Real life happens.
It’s also why hyperbolic rhetoric of the sort advanced by U.S. Anti-Doping Agency chief executive Travis Tygart is not constructive.
Tygart called last week for WADA to deal with what he said — without providing substantiation for this number to Associated Press — “9,000 presumptive positive drug tests” from the Moscow lab data.
One, all reasonable parties can agree the lab data needs to be verified. That process is likely to take months.
Two — say what?
McLaren, in an interview published Saturday with France24, said he thought the number of potential doping cases would be “in the 300-600 possible range.”
The 9,000 samples to which Tygart was referring are initial screenings. In and of themselves, they are not evidence, and hardly conclusive, of a positive test.
The samples involve perhaps 4,500 athletes. No way — zero way — the authorities will be dealing with anywhere near that number of cases. Why? At least half, probably more, will involve substances that are not prohibited, or were not at the time, such as meldonium; substances that are not banned in competition, such as everyone’s 420 friend, marijuana; or substances at trace levels that don’t reach required thresholds. Once more: real life.
Inevitably, too, even more of those samples will not provide conclusive evidence. That means they will not go forward as doping cases.
When you work through it — rather than point fingers — it really, really matters.