CAS 2017/A/4968 Mr Alexander Legkov v. International Ski
CAS 2017/A/4968 Alexander Legkov v. International Ski Federation (FIS), award of 31 August 2017 (operative part of 29 May 2017)
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Skiing (cross-country skiing)
Doping (tampering or attempted tampering with doping control)
Burden and standard of proof applicable to the imposition of a Provisional Suspension under the FIS ADR
Burden and standard of proof applicable to the lifting of a Provisional Suspension under the FIS ADR
Lack of infringement of the athlete’s rights
Assessment of the evidence upon which the provisional suspension is based
Determination of the length of the provisional suspension
1. Provisional suspensions have a necessarily preliminary character. The burden of proof and legal thresholds applicable must reflect the appealed suspension’s provisional nature and track the rules specific to its imposition. The imposition of a provisional suspension requires a “reasonable possibility” that the suspended athlete has engaged in an anti-doping rule violation (ADRV). A reasonable possibility is more than a fanciful one; it requires evidence giving rise to individualized suspicion. This standard, however, is necessarily weaker than the test of “comfortable satisfaction” set forth in Article 3.1 FIS Anti-Doping Rules (ADR), relating solely to the adjudication of an ADRV. Accordingly, a reasonable possibility may exist even if the federation is unable to show that the balance of probabilities clearly indicates an ADRV on the evidence available. Pursuant to Article 7.9.2 FIS ADR, any ADRV suspected of an athlete can serve as cause for a provisional suspension against him or her, should the federation so decide. The federation’s burden under Article 7.9.2 is a limited one, but certainly not devoid of content. No plausible interpretation of Article 7.9.2 can require an athlete to disprove unsubstantiated assertions.
2. Once a suspension has been put in place and is challenged, Article 7.9.3.2 FIS ADR imposes three, independently sufficient criteria for lifting the suspension: a demonstrable lack of “fault” or “negligence” on the athlete’s part, “no reasonable prospect” of the assertion of an ADRV succeeding on the merits, or the presence of “other facts” making it “clearly unfair” to leave the suspension in place. Article 7.9.3.2 thus plainly imposes a higher threshold to lift a suspension than the FIS ADR require to impose one in the first place. Since additional evidence can be adduced in the period between a suspension’s imposition and ADRV proceedings, moreover, the rule does not require that “prospects” be assessed by reference to currently available evidence in isolation. Demonstrating the negative proposition, of no reasonable prospects, therefore requires more than an assertion as to shortcomings with current evidence, such as a patent flaw in the case against the athlete.
3. A provisional suspension – a non-punitive and interim measure – operates under a standard of scrutiny less exacting than that over ADRV proceedings. Yet, principles guaranteeing a fair hearing inhere in Swiss law. However, those principles cannot be infringed where (i) there is neither “conviction” nor yet a formal “charge” of an ADRV, (ii) the suspected ADRV informing the athlete’s suspension is clear i.e tampering with doping controls, (iii) as a matter of procedural due process, the parties’ equality of arms and the athlete’s rights to a fair hearing and opportunity to present his case were satisfied at the first instance and on appeal. In contrast, the athlete’s reference to a presumption of innocence cannot be considered to be availing. In this respect, Swiss “fundamental principles” including those relating to proof of guilt vary on a spectrum depending on the type of proceeding and cannot simply be transposed from criminal to private law. What is more, since there is no finding of guilt where a provisional suspension is at stake, the latter cannot implicate, still less violate, a presumption of innocence.
4. The likelihood of an ADRV and the validity of provisional measures are clearly intertwined. The success of any ADRV charge will depend on further investigations, the outcome of which is at present unknown, indeed unknowable. This tension makes it all the more imperative that Article 7.9 FIS ADR be applied strictly to require evidence demonstrating at least a reasonable possibility of an ADRV. In this regard, the implication of an athlete in a clean urine bank whose existence is adduced by a report commissioned by the IOC i.e. the McLaren Report, the existence of lists of athletes purportedly authorized to take a “boosting cocktail” and scheduled to start in medal races and who likewise enjoyed “protected” status under Russia’s doping Scheme on which the athlete’s code appears particularly when assessed collectively with evidence of tampering with the athlete’s sample bottle, indicate a reasonable possibility of an ADRV. The evidence suffices for the limited purpose of Article 7.9.2 of the FIS ADR.
5. An athlete cannot endorse an indefinite and indeterminable suspension as proportionate. Noting the athlete’s reasonable entitlement to legal certainty, it is deemed appropriate and just that the provisional suspension expire after 10 months, at which time it will be for the federation to consider whether or not to seek a further suspension justified by new developments and within the framework of the FIS ADR.
On 18 July 2016 and on 9 December 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent reports (the McLaren Reports) describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.
Names of individual athletes in the McLaren Report were encrypted by its author prior to publication. By confidential letter dated 9 December 2016, Professor McLaren stated to the International Ski Federation (FIS) that one sample indicative of potential tampering matched the Russian Athlete Alexander Legkov. Professor McLaren further confirmed that the Athlete appeared underneath the code A0467 in his report.
Acting on this information, on 22 December 2016, the Disciplinary Commission of the IOC notified FIS that it was opening an investigation against the Appellant. It noted that, of three urine samples and one blood sample collected and analyzed by the Sochi Laboratory, one of the Athlete's B-samples contained marks indicative of tampering.
On 22 December 2016 the FIS Doping Panel notified the Athlete that a provisional suspension was ordered with immediate effect pending determination of whether or not he had committed and ADRV on basis of allegations described by Professor McLaren.
At the request of the Athlete the IOC informed him in January 2017 that:
"At this stage, the IOC considers that the alleged anti-doping rule violation is, without limitation, "tampering or attempted tampering with any part of Doping Control" pursuant to Art. 2 of The International Olympic Committee Anti-Doping Rules applicable to the XXII Olympic Games in Sochi, in 2014 and the concerned samples have been collected in the context [of the] Olympic Games."
On 25 January 2017 the FIS Doping Panel decides to uphold the imposed provisional suspension pending the findings of the IOC investigations (the Oswald Commission). Hereafter on 30 January 2017 the Athlete appealed the FIS decision with the Court of Arbitration for Sport (CAS).
The Athlete submited that the practices alleged in the McLaren Report do not suffice to demonstrate individual guilt adequate to justify his suspension by FIS. Both the Federation's internal rules and fundamental principles of Swiss and European law mandate, as a condition of any provisional suspension, that the FIS adduce evidence that the Athlete himself committed an anti-doping rule violation. The McLaren Report's intended scope, moreover, was limited to examining high-level practices and not specific athletes' guilt; the Athlete accordingly submits that the FIS falls short of its burden and that the Optional Provisional Suspension must be lifted.
FIS maintains that its imposition of an Optional Provisional Suspension was necessary and legally justified. In its view, the FIS ADR require the Athlete - and not the Federation - to demonstrate certain criteria in order to lift a suspension, once one has been instituted. The Athlete in its view has failed to make out these criteria, least of all that an eventual ADRV charge has "no reasonable prospect" of being upheld. The provisional suspension therefore survives scrutiny.
The CAS Panel assessed the provisional suspension against the evidence filed in this case. Accordingly, the Panel asks whether the FIS has demonstrated that, based on the evidence before it, a "reasonable possibility" existed that the Athlete committed an ADRV. It does so de novo in light of Articles 13.1.l and 13.1.2 of the FIS ADR.
The Panel concludes that the evidence establish a "reasonable possibility" of an ADRV in the Athlete's case. It further considers that the Athlete has not demonstrated with satisfaction the fulfillment of criteria necessary to lift the suspension, though the Panel has decided that it should be modified.
De Panel notes that for some athletes, the McLaren Report unveiled a relatively comprehensive suite of documentary evidence linking them to the Russian Federation's circumvention of doping controls. In these appeals, the Panel is asked to draw inferences based on a small combination of evidence particularly symptoms of tampering observed on the Athlete's urine samples with his appearance in the Duchess List, which purports to explain why such tampering was necessary and to determine whether such inferences meet the legal standards contemplated by the FIS ADR.
Although the Athlete 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.
Secondly, the Panel notes that Professor McLaren, after intensive inquiries, including an experimental verification that a previously unheard-of method of manipulation described by Dr. Rodchenkov was indeed feasible, came to the conclusion that he was a credible witness.
It may be that an examination of individual cases, such as the present ones, will lean to exoneration of the Athlete on the grounds that, irrespective of this troubling background, the evidence ultimately uncovered does not meet the standard of proof that is necessary for sanctions to be pronounced (i.e., that irrespective of the proof of systemic wrongdoing, individual guilt in particular cases is not established to that standard). But at this stage, the context just described leads the Panel to the conclusion that individual connecting factors and inferences which might emerge meet the test of "reasonable possibility" of success, and therefore justify the provisional suspension.
The Athlete has not shown cause to lift the suspension pending the conclusions of the Oswald Commission. At the same time the Panel is sensitive to the concern of the Athlete who stands under the shadow of a suspension undefined in length (which must be balanced, inter alia, against the legitimate interest of other athletes not to find themselves competing against athletes who may well be cheaters).
The Panel appreciates the unusual magnitude and complexity of cases awaiting Mr. Oswald's attention. It cannot however endorse an indefinite and indetenninable suspension as proportionate. Noting the Athlete's reasonable entitlement to legal certainty, the Panel accordingly 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 and within the framework of the FIS ADR. This approach is entirely in accord with Article 7.9.3.2, particularly point (c), as in the Panel's view to impose a longer suspension in all the present circumstances would be clearly unfair.
Therefore the Court of Arbitration for Sport decides on 31 August 2017 that:
1.) The appeal filed on 30 January 2017 against the Decision of the FIS Doping Panel regarding Provisional Measures in the matter of Mr. Alexander Legkov, dated 25 January 2017, is partially upheld.
2.) The Decision of the FIS Doping Panel dated 25 January 2017 is amended as follows:
The Optional Provisional Suspension is maintained until 31 October 2017, after which such suspension shall lapse and Mr. Alexander Legkov shall, in the absence of any antidoping rule violation sanction having been assessed against him, be restored to the status qua ante prevailing at the time of the suspension's imposition.
3.) All other elements of the Decision of the FIS Doping Panel dated 25 January 2017 are confirmed.
4.) The International Ski Federation may, on or after 1 November 2017, re-impose an Optional Provisional Suspension in accordance with the FIS Anti-Doping Rules if the facts and circumstances so merit. Such suspension shall be subject to appeal in accordance with Article 13.7.1 of the FIS Anti-Doping Rules.
5.) This award is rendered without costs, except for the CAS Court Office fee of CHF 1,000, which was paid by Mr. Alexander Legkov and is retained by the CAS.
6.) Each party shall bear its own costs and other expenses incurred in connection with this arbitration.
7.) All other motions or prayers for relief are dismissed.
