24th April 2018
The Court of Arbitration for Sport (CAS) has published two of the 39 decisions in the cases of the Russian athletes who challenged the decisions taken by the Disciplinary Commission of the International Olympic Committee (IOC DC) in relation to the 2014 Sochi Winter Olympic Games. On 1 February 2018, the CAS announced that 27 appeals had been upheld and the other 12 partially upheld.
The CAS panels unanimously found that the evidence put forward by the IOC in relation to this matter did not have the same weight in each individual case. In 27 cases, the evidence collected was not sufficient to establish the existence of an anti-doping rule violation (ADRV). With respect to these 27 athletes, the appeals were upheld, the sanctions annulled and their individual results achieved in Sochi 2014 reinstated.
In the 12 other cases, the evidence collected was sufficient to establish a manipulation of the urine samples and, accordingly, an ADRV. The IOC decisions in these matters were confirmed, with one exception: the athletes were declared ineligible for the Olympic Winter Games Pyeongchang 2018 only, instead of a life ban.
Today, the CAS has published one of the decisions (A. Legkov v/ IOC) where the appeal was upheld (no ADRV established) and one (A. Zubkov v/ IOC) where the appeal was partially upheld (ADRV established). All the CAS appeals procedures were conducted jointly, on an expedited basis, and a combined hearing took place from 22 to 27 January 2018 in Geneva. However, separate decisions were issued in each individual case. The remaining 37 reasoned awards will be issued in the next weeks.
These 160-page awards expose in detail all facts and evidence presented before the CAS during the arbitration process. They analyse the notion of “comfortable satisfaction” as the applicable standard of proof in these matters: the application of the comfortable satisfaction standard is a constant one, but inherent within that immutable standard is a requirement that the more serious the allegation, the more cogent the supporting evidence must be in order for the allegation to be found proven.
In the case of Aleksandr Zubkov, the Panel has explained that, in order to be comfortably satisfied that the Athlete had committed an ADRV of use of a prohibited method, it was insufficient merely to establish the existence of a general sample-swapping scheme; rather, the Panel had to be comfortably satisfied that the Athlete was personally and knowingly implicated in particular acts that formed part of, and facilitated the commission of, the substitution of his urine within that scheme. The Panel concluded that the results of the scientific analysis of the content of the Athlete’s urine samples from the Sochi Games – namely the physiologically impossible level of salt in the Athlete’s samples together with confirmation through DNA analysis that those samples contained the Athlete’s urine and the absence of any concrete and plausible explanation – established to the Panel’s comfortable satisfaction that the Athlete provided clean urine in advance of the Sochi Games; that he did this for the purpose of enabling the subsequent swapping of his urine samples during the Sochi Games; and that his samples at the Sochi Games were in fact subsequently swapped, with salt being added to the substituted urine in an effort to conceal the existence of the substitution. Accordingly, the Panel was comfortably satisfied that the Athlete thereby committed an ADRV in the form of the use of a prohibited method.
In the case of Alexander Legkov, the Panel concluded that the IOC had not discharged the burden of establishing that the Athlete used a prohibited method for the purposes of Article 2.2 of the WADC. In particular, the Panel concluded that the probative value of the circumstantial evidence in that case was insufficient to overcome the absence of direct evidence that the Athlete committed an ADRV of use of a prohibited method.
Both awards are published on the CAS website (www.tas-cas.org/en/jurisprudence/recentdecisions.html).