Alexander Legkov v. Fédération Internationale de Ski (FIS)

II. BACKGROUND FACTS

3. The information detailed in this section is a summary of relevant facts as provided by the Parties in their written pleadings and factual and legal exhibits attached thereto. This section serves solely for the purpose of factual synopsis. To the extent they are necessary or relevant, additional facts may be set out below, in particular in the Analysis of the Merits. The present award only refers to such evidence and arguments to the extent necessary to explain its reasoning; the Panel has, however, considered all facts, claims, and legal arguments put before it.

4. The Athlete challenges an Optional Provisional Suspension, imposed on him by the Federation on 22 December 2016 and based on a potential finding of an anti-doping rule violation (“ADRV”) at the 2014 Sochi Winter Olympic Games. That suspension was based on evidence made available to FIS by the International Olympic Committee (“IOC”) concerning alleged Russian State-sponsored doping practices described in a report by Professor Richard McLaren presented in two installments on 16 July and 9 December 2016 (the “McLaren Report”). The Athlete’s suspension prevents him from competing in FIS- or RSF-sanctioned cross-country skiing competitions pending the completion of an investigation by the IOC.

5. In light of the McLaren Report’s evident significance, the Panel considers it appropriate briefly to outline the history of its publication and the consequences of Professor McLaren’s research, including the suspension of the RSF and the imposition of provisional suspensions by FIS, including of the Appellant.

6. On 8 May 2016, the 60 Minutes television program of the CBS (USA) aired allegations by the former director of the Moscow Doping Laboratory, Dr. Grigory Rodchenkov, relating to an elaborate doping scheme having allegedly been perpetrated from at least 2011 onward in Russia. On 12 May 2016, the New York Times ran an article, “Russian Insider Says State-Run Doping Fueled Olympic Gold”, revealing additional details relating to the scheme described by Dr. Rodchenkov.

7. On 19 May 2016, the World Anti-Doping Agency (“WADA”) appointed Professor Richard McLaren as an “Independent Person” instructed to investigate Dr. Rodchenkov’s allegations. Professor McLaren’s mandate included (paraphrasing from the explicit mandate given to Professor McLaren and reproduced in the introduction to his report): 1. Determining whether the doping control process during the Sochi Games was manipulated, including but not limited to acts of tampering with the samples within the Sochi Laboratory. 2. Identifying the modus operandi and those involved in such manipulation.

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3. Identifying any athlete that might have benefited from those alleged manipulations to conceal positive doping tests. 4. Identifying if this modus operandi was also happening within the Moscow Laboratory outside the period of the Sochi Games. 5. Reviewing and assessing other evidence or information held by Grigory Rodchenkov.

8. On 16 July 2016, the first part of the McLaren Report was published. It concluded inter alia that the WADA-accredited Moscow Doping Laboratory (“Moscow Laboratory”) operated, for the protection of doped Russian athletes, a State-sanctioned scheme of misreporting and concealment of test-positive urine sample results. In what Professor McLaren termed the “Disappearing Positive Methodology”, positive test results were reported to the Ministry of Sport, which generally directed the Moscow Laboratory to report these as negative in the WADA Anti- Doping Administration and Management System (“ADAMS”).

9. With respect to the 2014 Sochi Winter Olympic Games, Professor McLaren detailed the existence of an additional scheme whereby samples, belonging to doped Russian athletes but collected under the eye of international observers, were surreptitiously replaced with clean samples taken out-of-competition (McLaren Report, Part II, p. 97). The report alleged that the Ministry of Sport “directed, controlled and oversaw” the manipulation of protected athletes’ samples with the active participation and assistance of the Russian Center of Sports Preparation (“CSP”), Federal Security Service (“FSB”), and the Moscow and Sochi Laboratories.

10. In an announcement dated 19 July 2016, the IOC stated that a disciplinary commission chaired by Professor Denis Oswald (the “Oswald Disciplinary Commission”) would be established in order to conduct a full repeated analysis and inquiry into all Russian athletes having participated at the 2014 Sochi Games in addition to their coaches, officials, and support staff. The Oswald Disciplinary Commission’s investigative work is currently ongoing.

11. Professor McLaren’s original mandate required him to issue a report prior to the beginning of the 2016 Summer Olympic Games in Rio de Janeiro, Brazil. On the basis of the report’s publication, WADA extended Professor McLaren’s mandate in order to fulfill the third task originally set out to him: “Identify any athlete that might have benefited from those alleged manipulations to conceal positive doping tests”.

12. That report, termed McLaren Part II for clarity in the present award, was published on 9 December 2016. This Report recalled that it was possible to re-open a Berlinger BEREC- KIT® sample bottle without destroying the closing mechanism after the container had been sealed during doping control (McLaren Report, Part I, p. 12; Part II, p. 26). In response to Dr. Rodchenkov’s provision of documentary evidence suggesting that certain athletes had benefited from this process, as well as the provision of a limited number of urine samples, the report commissioned a forensic report by King’s College London in order to ascertain if certain allegations of Dr. Rodchenkov, including that specific athletes had benefited from the process of sample-swapping (the “King’s College Forensic Report”), could be corroborated. That report analyzed a number of sample bottles in WADA’s possession and found that two types of marks

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were present on the internal surface of sample bottle lids that “could not be reconciled with manufacturing”. It described the two marks in the following terms:

- “The first type of mark (Type 1) was a horizontal long impact mark on the inside of the lid, usually below the level of the glass lip on the bottle. During research, these marks were reproduced and found to be present after screwing the lid on forcefully. They are suspected to have been caused by the metal ratchet ring vibrating and impacting against the inside of the lid. These marks were not reproduced when the lid was screwed on carefully. There were some similarities between these marks and marks reproduced when a flat strip of metal (inserted between the lid and the glass bottle) caused a ‘stab’ mark where it is forced over the lip and impacted with the lid. The marks on the sample bottles examined at Kings College could not be distinguished from the marks reproduced by screwing the lids on. Screwing the lids on again after they had been removed may result in multiple Type 1 marks not seen on lids that had only been screwed on once.

- The second type of mark (Type 2) was a series of vertical and often diagonal scratch marks observed on the internal surface of the lid. There were similarities between marks reproduced when a flat strip of metal was inserted between the lid and the bottle to manipulate the metal ring to open the lids. These marks vary in size and shape. None of these marks could be reproduced during research by screwing on any lids. Some of these marks were however reproduced when the metal ring was manipulated with the metal strips and scratched the inside of the lid”1.

13. In the course of assembling Part II of his report, Professor McLaren acquired numerous additional documentary exhibits, several of which have been placed on the record of this appeal by the Respondent and are described in the present award. In total, the McLaren Report relied on thousands of documents of which 1,166 are categorized and contained in the “Evidence Disclosure Package” (“EDP”) database, available online.

14. Taken together, the McLaren Reports declared “beyond a reasonable doubt” that Russian national institutions planned and carried out a “carefully orchestrated conspiracy” aimed at permitting doped Russian athletes to compete dirty while evading the detection of national and international doping controls (McLaren Report, Part II, p. 95). Professor McLaren concluded that hundreds of athletes benefited, directly or indirectly, as “party to the manipulations” of doping controls described in the report’s first installment. Part II of the report additionally noted that Professor McLaren’s initial finding that 312 positive test reports had been misreported had increased, by December 2016, to 500 results.

15. Part II of the McLaren Report concluded, inter alia, the following: - Manipulation of doping controls involved officials in the Russian Ministry of Sport, the CSP and FSB, the Moscow Laboratory, and the Russian Anti-Doping Agency (“RUSADA”), in addition to the Russian Olympic Organizing Committee and individual coaches.

King’s College Forensic Report, EDP0902, p. 12 (page numbers for this document refer to the digital file, since this document is not numbered internally).

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• 695 Russian athletes and 19 foreign athletes “can be identified as part” of the scheme outlined in Part I to conceal potentially positive doping control tests.

• Analysis of 44 B-sample bottles from athletes at the 2014 Winter Olympic Games (“Sochi Games”) showed evidence of scratches and marks indicative of tampering. (McLaren Report, Part II, pp. 18-20.)

16. 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 Federation that one sample indicative of potential tampering matched the Athlete. Professor McLaren further confirmed that the Athlete appeared underneath the code A0467 in his report.

17. 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: “Based on the information in our possession, the B-sample n° 2890803 notably appears to have been surreptitiously opened and the urine collected on 23 February 2014, replaced by a different urine (scratches and marks evidence indicates tampering). At this stage, the alleged anti-doping rule violation is “tampering or attempted tampering with any part of the Doping Control” pursuant to Article 2 of The International Olympic Committee Anti-Doping Rules applicable to the XXII Olympic Games in Sochi, in 2014 (hereinafter: “IOC Anti-Doping Rules”). Further violations which might be brought to light in the course of further investigations are reserved”.

III. THE FIS PROCEEDINGS

18. On 22 December 2016, the Chairman of the FIS Doping Panel notified the Athlete, via the Cross Country Ski Federation of Russia, that he had been suspended with immediate effect, pending determination of whether or not he had committed an ADRV. The FIS explained the provisional suspension was imposed on the basis of allegations described by Professor McLaren concerning alleged Russian State-sponsored doping practices and the Athlete’s suspected involvement in those practices.

19. The Athlete asked that the provisional suspension be revoked and further requested the Laboratory Documentation Package for his B-sample on 28 December 2016. He also requested permission to appear before the FIS Doping Panel in the event of an oral hearing.

20. On 30 December 2016, the FIS Doping Panel rejected the Athlete’s request for revocation and provisionally upheld the suspension. It also, however, invited him to a personal hearing in respect of the matter.

21. The FIS Doping Panel held a hearing on 13 January 2017 by videoconference.

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22. On 18 January 2017, the Athlete challenged his prohibition on training with the Russian national team. The Chairman of the FIS Doping Panel granted the Athlete permission to resume training with the Russian national team on the same date.

23. On 25 January 2017, the Athlete requested that the IOC notify him of (i) the concrete ADRV of which he was suspected and which fell within IOC jurisdiction; (ii) the factual basis therefor; and (iii) details as to additional or ongoing investigations in his case. The IOC’s response, dated 26 January 2017, read in relevant part:

“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”.

24. On 25 January 2017, the FIS Doping Panel upheld the provisional suspension. The operative part of its decision states:

“[T]he opening of the formal investigation by the IOC based on credible prima facie evidence contained in the McLaren Report and the supporting documents (including the description of the systematic doping and covering up), and the protection of the other competitors, as well as the integrity of the sport competitions in having a reliable outcome without the risk of being changed because of a later disqualification of the Athlete, justify the provisional suspension of the Athlete at this point in time. Further investigation will either confirm the suspicion and the provisional suspension will be replaced by a sanction, or demonstrate that the allegations have been groundless”.

25. One member of the Panel dissented from the Doping Panel’s decision. The dissent is noted by the FIS Doping Panel majority in paragraph 27 of its decision and states: “The evidence mentioned in the McLaren Report is not sufficiently convincing and does not support the conclusion that the IOC investigation or a later appeal before the CAS will confirm that the Athlete has committed an ADRV. The requirements for a provisional suspension are not met in this case since there is no reasonable prospect that the allegation of an ADRV will be upheld. The Athlete has lived and trained outside of Russia. He bears no fault or negligence if his sample was manipulated without his knowledge or consent. The long list of negative tests of the Athlete by various laboratories in or around 2014 makes it unlikely that he committed an ADRV at the Sochi Games. Finally, it would be unfair to the Athlete, based on the facts known to date, to suspend him from competing, especially because of the lack of evidence”.

26. The decision was sent via e-mail to the Russian Ski Federation on the date of its dispatch. It forms the basis for the present appeal to the Court of Arbitration for Sport (“CAS”).

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IV. PROCEEDINGS BEFORE THE CAS

27. On 30 January 2017, the Appellant filed a Statement of Appeal to CAS in accordance with Article 13 of the FIS Anti-Doping Rules 2016 (the “FIS ADR”) and Article R47 of the Code of Sports-related Arbitration (“CAS Code”). In it he nominated Mr. Nicholas Stewart QC as arbitrator.

28. The CAS Court Office confirmed receipt of the Statement of Appeal on 2 February 2017 and requested the Parties to indicate whether they wished to consolidate the present procedure with the case CAS 2017/A/4969, in accordance with Article R52 of the CAS Code. The CAS Court Office additionally took note of the Parties’ agreement to conduct the matter as an Article R52 expedited procedure.

29. On 31 January 2017, the Appellant filed his Appeal Brief.

30. On 3 February 2017, the Appellant objected to a consolidation of his case and offered certain information with regard to a potential expedited procedural calendar.

31. The Respondent welcomed the potential consolidation of this case with CAS 2017/A/4969 in a letter dated 7 February 2017 and suggested that the matters be further consolidated with four additional appeals then pending before CAS. It nominated the Hon. Michael J. Beloff QC as arbitrator.

32. By letter dated 15 February 2017, the Appellant challenged the nomination of Mr. Beloff in accordance with Article R34 of the CAS Code. In addition, the Appellant requested that the Optional Provisional Suspension be stayed pending a decision on the merits pursuant to Article R37 of the CAS Code (“Request for Provisional Measures”). Specifically, the Appellant requested that the CAS: “provisional[ly] suspend the Decision of FDP of Respondent dated 22 December 2016 until the decision of the panel on the appeal”.

33. By letter dated 20 February 2017, the Respondent opposed the Appellant’s challenge.

34. Also on 20 February 2017, the CAS Court Office forwarded to the Parties comments by Mr. Beloff dated 16 February 2017 and requested the Appellant to indicate whether he wished to maintain his challenge.

35. On 21 February 2017, the Deputy President of the CAS Appeals Arbitration Division denied the Appellant’s Request for Provisional Measures. A copy of the operative part of the Deputy President’s order was communicated to the Parties on the same date. The reasoned order was subsequently communicated on 4 May 2017.

36. On 22 February 2017, the Appellant notified the CAS Court Office that he did not wish to maintain the challenge.

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37. On 24 February 2017, the CAS Court Office transmitted to the Parties “Joint Comments” prepared by the Respondent with respect to the Appellant’s Request for Provisional Measures (having been transmitted to the CAS Court Office by the Respondent on 20 February 2017).

38. On 27 February 2017, the Respondent filed its Answer.

39. On 28 February 2017, the Appellant noted that he had not received a copy of the Respondent’s Answer and requested leave pursuant to Article R56 of the CAS Code to amend his arguments and produce additional evidence. The Appellant additionally requested a hearing.

40. On 1 March 2017, the Appellant acknowledged receipt of the Respondent’s Answer and reiterated his request for leave to file a supplemental pleading.

41. On 13 March 2017, the Panel was constituted as follows: Prof. Jan Paulsson, President; Mr. Nicholas Stewart QC; and Hon. Michael J. Beloff QC.

42. On 27 March 2017, the CAS Court Office informed the Appellant that he would be given the opportunity to amend his pleadings by 31 March 2017. The Appellant submitted his supplemental submission (“Supplemental Submission”) on 31 March 2017.

43. On 4 April 2017, the CAS Court Office confirmed receipt of the Supplemental Submission and further informed the parties of the Panel’s availability for a hearing on 30 May 2017.

44. On 24 April 2017, in response to further comments by the Parties, the CAS Court Office confirmed that the hearing would be held in Lausanne on 15 May 2017.

45. By letter dated 29 April 2017, the Respondent forwarded to the CAS Court Office an affidavit by Professor McLaren dated 26 April 2017 attesting to certain issues concerning his reports (“McLaren Affidavit”).

46. On 2 May 2017, the Appellant stated that the McLaren Affidavit had been submitted “in contradiction to” Article R56 of the CAS Code and was in his view inadmissible in these proceedings.

47. On 5 May 2017, the CAS Court Office informed the Parties that Mr. Philipp Kotlaba, Attorneyat-Law in Washington, D.C., had been appointed as ad hoc clerk to the Panel.

48. On 10 May 2017, the CAS Court Office circulated to the Parties an Order of Procedure and requested that they return signed copies of the same by 12 May 2017.

49. The Respondent and the Appellant submitted skeleton arguments for use in the hearing on 10 and 11 May 2017, respectively. In connection with his skeleton arguments, the Appellant reiterated his objection to the admissibility of the McLaren Affidavit.

50. On 12 May 2017, the CAS Court Office circulated the Order of Procedure, duly signed by both Parties.

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51. By a second communication dated 12 May 2017, the CAS Court Office informed the Parties that the Panel would benefit from particularly focused argument on a number of issues. In this connection, the CAS Court Office enclosed a list of questions prepared by the Panel for the Parties’ consideration at the hearing.

52. On 15 May 2017, a hearing was held at the Court of Arbitration for Sport in Lausanne, Switzerland. The following were in attendance: Panel: Prof. Jan Paulsson; Hon. Michael J. Beloff QC; Mr. Nicholas Stewart QC; Mr. Philipp Kotlaba (Ad hoc clerk);

Appellant: Mr. Alexander Legkov; Mr. Christof Wieschemann; Ms. Susanne Mantesberg-Wieschemann; Mr. Evgeniy Belov; Mr. Alexander Ponomarev (Interpreter);

Respondent: Dr. Stephan Netzle; Dr. Karsten Hofmann; and Ms. Emile Merkt.

The Parties were given the opportunity to present their cases, to make their submissions and arguments, and to answer questions asked by the Panel. At the conclusion of the hearing the Parties confirmed that they had no complaint regarding the conduct of the proceedings.

53. On 29 May 2017, the Panel issued the operative part of its award. The present award reiterates the dispositif and sets forth the grounds for the Panel’s decision.

V. POSITIONS OF THE PARTIES

54. The following section is a summary of the Parties’ positions. It serves the purpose of synopsis only and does not necessarily include every submission advanced by the Parties in their pleadings. The Panel has, however, considered all arguments advanced before it in deciding the present Award.

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A. THE APPELLANT’S POSITION

55. The Appellant submits 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 Respondent adduce evidence that the Appellant 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 Appellant accordingly submits that the Respondent falls short of its burden and that the Optional Provisional Suspension must be lifted.

1. The Applicable Standard

56. The Appellant submits, first, that the provisions applicable to assessing the validity of the Optional Provisional Suspension – consisting of the FIS ADR but also including principles of due process from Swiss and international law – impose on the Federation a burden which it fails to meet.

57. As a preliminary matter, the Appellant notes that the rules governing a possible ADRV at the Sochi Games fall within the exclusive jurisdiction of the IOC. The Appellant observes that facts underlying non-Olympic ADRVs “could not be subject to investigations of [the] IOC”, since they lie outside of its exclusive jurisdiction. In other words, the Panel is precluded from considering any evidence other than that relating specifically to sample-swapping during the Olympic Games.

58. Turning to the application of the FIS ADR, the Appellant stresses the Panel’s power to review the suspension de novo, i.e., without deference to Professor McLaren’s conclusions or the EDP writ large. He invokes, in this regard, FIS ADR Articles 3.2.3 and 3.2.4, which appear within a provision titled “Methods of Establishing Facts and Presumptions”. In the Appellant’s view, the Panel need not defer to the McLaren Report’s factual assertions, as these have not been “established by a decision of a court or professional disciplinary tribunal of competent jurisdiction which is not the subject of a pending appeal”. The available evidence “is not a full proof but stands to the full review” of the Panel.

59. The Appellant considers the FIS ADR to impose the following burdens of proof on the Federation to justify a provisional suspension:

• First, the Federation must establish a prima facie case that the Appellant has committed an ADRV. With regard to the particular standard of proof, the Appellant draws the Panel’s attention to FIS ADR Article 3.1, which requires assertions of an ADRV to be grounded “to the comfortable satisfaction of the hearing panel”, and submits that this provision governs both Articles 7.9.2 and 7.9.3.2, the provisions applicable to provisional suspensions.

• If (and only if) the Respondent meets its burden above, the burden of proof shifts onto the Appellant. In the event he must then adduce counterevidence sufficient to satisfy one of the three requirements under Article 7.9.3.2 for lifting a provisional suspension, such as demonstrating that there is “no reasonable prospect” of an ADRV being upheld in his case.

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60. To meet its initial burden of a prima facie case, the Appellant submits, the Respondent must at minimum demonstrate that (i) the Appellant himself committed an ADRV and (ii) the Appellant’s “delinquen[cy] is convincingly probable”.

61. The Appellant adds that the legal framework applicable to assessing the provisional suspension includes principles anchored in international and Swiss law. Specifically, the Appellant contends that the presumption of innocence and the right to be informed “of the nature and cause of the accusation” against him, as well as the principle of no judgment without charge, comprise “part of the ‘Ordre Public’ which must be considered by CAS” pursuant to the Swiss Private International Law Statute and the Swiss Code of Criminal Procedure. The FIS ADR “must be interpreted and applied” consistent with these principles.

62. Accordingly, the FIS ADR cannot call for athletes to defend themselves against an unrecognizable charge. Whether on the basis of the FIS ADR or owing to principles such as the presumption of innocence and individualized guilt, a provisional suspension may be justified only by a showing that the Appellant himself committed an ADRV. The Respondent must therefore submit “concretized and substantiated” evidence, not empty assertions, before the burden of proof would shift to the Appellant under FIS ADR Article 7.9.3.2.

2. The Evidentiary Deficit

63. Having set forth the legal standard he deems applicable, the Appellant submits that the evidence on record is insufficient to uphold the provisional suspension. The McLaren Report, in particular, cannot demonstrate any of the conditions which the Appellant considers it to be the Federation’s obligation to satisfy. This section sets forth the Appellant’s position as to why the provisional suspension must fail, beginning first with his characterization of the McLaren Report and continuing with an analysis of the individual documentary assertions on which the Federation purports to rely.

i. Limitations of the McLaren Report

64. Influential though Professor McLaren’s report has been, the Appellant suggests that it does not link him personally to the commission of any ADRV and indeed expressly disavows any intention to do so. The McLaren Report was not intended to justify a provisional suspension under the FIS ADR, nor can it.

65. The Appellant notes first that Part I of the McLaren Report dealt solely with “systemic cover up and manipulation of the doping control process”; it did not “report on individual athletes”. Professor McLaren did uncover evidence in respect of individual athletes in his second Report, but accompanied such evidence with the express reservation that it could not ground an ADRV as a matter of law:

“The IP [Independent Person] is not a Results Management Authority under the World Anti-Doping Code (WADC 2015 version). The mandate of the IP did not involve any authority to bring Anti-Doping Rule

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Violation (“ADRV”) cases against individual athletes …. Accordingly, the IP has not assessed the sufficiency of the evidence to prove an ADRV by an individual athlete” (p. 18).

Additionally, Professor McLaren states: “There was a program of doping and doping cover up in Russia, which may have been engaged in to enhance the image of Russia through sport. That doping manipulation and cover up of doping control processes was institutionalised through government officials in the MofS, RUSADA, CSP, the Moscow Laboratory and FSB, as well as sports officials and coaches. It is unknown whether athletes knowingly or unknowingly participated in the processes involved” (pp. 46 et seqq.).

66. In the Appellant’s view, the limited scope of the McLaren Report has also been recognized by the IOC. A letter dated 23 February 2017 from its Director General, for instance, informed the leadership of national Olympic committees and international federations as follows: “The establishment of acceptable evidence is a significant challenge, as some [international federations] have already experienced; where in some cases they have had to lift provisional suspensions or were not able – at least at this stage – to begin disciplinary procedures due to a lack of consistent evidence”.

67. The IOC’s letter additionally quotes a statement published by WADA on its website on 25 February 2017, recalling that “in many cases the evidence provided may not be sufficient to bring successful cases”. It follows in the Appellant’s view that officials at the highest levels of sport were aware of the McLaren Report’s limitations as a basis for ADRV prosecutions.

68. The Appellant concludes that the McLaren Report “never had the purpose [of finding] an individual guilty”, whether of committing an ADRV or even in demonstrating an athlete’s “benefit or knowledge”. That its publication has had broad effects on Russian and international sport should not detract from the express limitations on which the report is premised. This is reinforced, the Appellant suggests, by the fact that he has not been charged with “any specific doping offense” as a result of the report’s publication to date.

69. Finally, the Appellant notes that much of the evidence in the McLaren Report is founded on allegations by a character unworthy of trust, Dr. Rodchenkov. Witness testimony alleges inter alia that Dr. Rodchenkov accepted bribes from athletes in order to prevent certain samples from appearing positive in ADAMS. In his report, for example, Professor McLaren quotes the following statement which the Appellant considers to refer to Dr. Rodchenkov: “They are working like a Swiss clock. Someone inside the lab is corrupt, not the DCOs. You just need to give (the) number of the athlete’s sample to make it negative”.

70. The EDP confirms Dr. Rodchenkov’s untrustworthiness in the Appellant’s view. E-mail correspondence at EDP1155 contains an exchange between Dr. Rodchenkov and Alexey Velikodniy, a liaison between the Moscow Laboratory and the Ministry of Sport, in which the

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two men discuss soliciting a bribe of RUB 181,224 (approximately USD 3,000)2. The Appellant observes that media reports corroborate Dr. Rodchenkov’s solicitation of bribes and additionally implicate him in a Russian “secret criminal prosecution”, relating to transacting in performance-enhancing drugs, in 2011. The Appellant consequently considers that any elements of the McLaren Report dependent on Dr. Rodchenkov’s testimony, such as how he or Mr. Velikodniy facilitated sample-swapping at the Sochi Games, “may serve to conceal their involvement in criminal corruption”. He accordingly submits that the McLaren Report – reliant as it is on testimony of an individual who is neither available for questioning by the Panel nor trustworthy standing alone – does not establish a valid basis on which to conclude that the Appellant (may have) committed an ADRV.

ii. Individual Bases of Evidence

71. In the Appellant’s view, the McLaren Report’s limitations are apparent not only in the statements of its author and leading sponsors but also inhere in the documents on which the provisional suspension rests.

72. As a general matter, the Appellant argues, Professor McLaren’s EDP should be treated with caution. From a technical perspective, the EDP appears to have been serially amended without explanation or attribution throughout the proceedings, resulting in a record rife with internal inconsistencies. Exacerbating this problem, the Appellant adds, the EDP is cumbersome, difficult to navigate, and occasionally offline – limiting his ability to mount an effective defense. The non-appearance of Professor McLaren at the hearing additionally removed the possibility of posing questions to the report’s chief architect. In consequence the Appellant characterizes the record as unreliable. He requests the Panel to exclude evidence sourced from Professor McLaren as inadmissible on due process grounds, and asks that the affidavit submitted by the Respondent in lieu of Professor McLaren’s appearance likewise be rejected.

73. The evidence’s unreliability is of sufficient severity, in the Appellant’s view, to implicate his fundamental due process rights under Swiss and international law (outlined at paragraph 61 above). The multitude, inconsistency, and unavailability of documents cumulatively deprive the Appellant of a chance to be informed “promptly and in detail of the nature and cause” of the accusations against him, while names of individual athletes and witnesses are blacked out in the EDP – making it impossible to test the EDP’s reliability or identify errors. In light of the evidentiary record’s opacity, the Appellant submits that the “general principle of equality of arms” is likewise unmet.

74. Having sought to establish the unreliability of the evidence by reference to technical deficiencies of the EDP, the Appellant next turns to the individual components informing the Federation’s imposition of his continued suspension, finding these insufficient.

2 Professor McLaren’s English translation reads: “Dear Alex, These fighters, beasts, we need to have 1 2 samples. On [sic] in

competition control and 3 samples for GHRF. Sum total 181.224 rubles. No mercy. Thank you GMR”. The response reads: “With this wrestler you don’t have to be polite. They do not pay, we can tell them [expletive]”.

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a) Evidence of Urine Tampering

75. The McLaren Report’s revelations rest on a central assertion: through subterfuge at the highest levels of Russian sport, contaminated urine samples were exchanged with clean ones in an elaborate scheme enabling certain Russian athletes to avail themselves of prohibited substances undetected. The Appellant denies that he was one of these athletes.

76. The Appellant notes first that he has submitted to numerous doping tests during his career, without a single positive result for doping. For example, the Appellant was tested “at least 137 times” in the period between 2010 and 2014. During the Sochi Games, he provided four samples (one blood sample and three urine samples), each of which likewise tested negative. The Appellant accordingly considers that he has shown, prima facie and pursuant to Article 3.2.1 of the FIS ADR, that “the athlete was clean”.

77. The process by which urine was collected and subsequently analyzed, moreover, left the Appellant no opportunity to conceal or manipulate his sample. In this regard, the Appellant considers the procedure followed in relation to his urine sample of 23 February 2014 typically to describe the controlled conditions in which he provided samples during the Sochi Games: “The athlete submitted his sample on 23.02.2014 properly closed, and it was sealed at 2:36 p.m. by Doping Control Officer Andrey Gavrilev. The correctness of the collection and sealing procedure, according to the present Doping Control Form, was confirmed by Doping Control Officer Andrey Gavrilev and Doping Control Officer Daria Curguzova. After the B sample submission, the bottle was outside the athlete’s reach. After handing it over to the Doping Control Officer, it would have been impossible for him to take the bottle back, open it and close it again”.

78. With collection complete, the samples came under the control of the IOC, whose rules called for the samples’ secure storage at the WADA-accredited Sochi Laboratory, a facility operating under IOC direction. Samples, once collected, therefore remained out of the Appellant’s possession or control. To this the Appellant adds that he “never photographed the bottle containing the urine sample” submitted for analysis – undermining the suggestion that athletes (including presumably the Appellant) made their sample codes available to a third party. The Appellant accordingly submits that he had no opportunity to manipulate samples in the course of submitting to doping control.

79. To the extent any opportunity might have existed to tamper, moreover, the Appellant considers it precluded by virtue of his geographical isolation from Russia. The Appellant’s trainings have taken place outside of Russia since 2011, under the supervision of non-Russian coaches and personnel. Similarly, the Appellant has “used exclusively medical services in Davos”, Switzerland (stemming from an apparent disappointment with Russian doctors following a bout of exerciseinduced asthma in 2008).

80. The Appellant accordingly objects to the Respondent’s assertion that it is “not conceivable” he could have provided out-of-competition urine without a knowledge or awareness of the purpose for which such samples were sought; he submits this assertion is based on a faulty premise, since no such clean urine was ever proffered. Nor would there have been a need to do

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so: Mr. Legkov “never was part of the … chain of distribution”, since the Duchess cocktail and other performance-enhancing drugs were distributed only to athletes directly or via (Russia-based) coaches.

81. The Appellant concludes that he did not and could not have manipulated samples provided in the course of the Sochi Games. To the extent that tampering occurred, the evidence demonstrates only that the Appellant was not immune from the general interventions of Russian sports officials recounted in the McLaren Report, Part I.

82. In any event, however, the Appellant does not consider the McLaren Report to demonstrate the manner by which sample-swapping at the Sochi Games took place and the means by which the Federation claims it can be identified in his case. Professor McLaren, on the basis of testimony provided to him by Dr. Rodchenkov, recounts at length how contaminated samples provided by doped athletes were swapped with clean urine. Whether clean samples were kept and if so, by whom, remains in the Appellant’s view an open question, however. At the very least, such doubts undermine the Federation’s ability to set out a prima facie case of the Appellant’s personal involvement in tampering (if any)3.

83. The Appellant’s criticisms are not limited to Professor McLaren’s conclusions regarding a clean urine bank or the Federation’s assertion that he was one of the system’s beneficiaries. In the notification letter precipitating the Appellant’s provisional suspension, the IOC specifically noted that “scratches and marks” had been detected on the inner lid of one of the Appellant’s BEREC-KIT® B-sample bottles. In the Appellant’s view, however, this evidence is insufficient to ground a prima facie case against him either.

84. First, the Appellant considers it unproven whether the sample belonged to him. He notes that the public versions of EDP documents submitted in this appeal rely on anonymous identification codes in lieu of athletes’ names, such that one cannot verify independently whether the Appellant’s sample corresponds to the code 2890803, identified by the IOC as indicative of an ADRV. The EDP document linking athletes’ anonymized codes to specific sample containers, moreover, is unmentioned in the McLaren Report and provided only in English. This suggests that the document amounts to little more than the “summary and conclusion of IP McLaren, but not a fact provided by a witness or a third person with privileged knowledge”.

85. Second, the Appellant asserts that scratches and marks are readily explicable by innocuous causes and therefore cannot be regarded as a necessary – or even probable – indication of tampering. In this regard, the Appellant also cites the King’s College Forensic Report, a project commissioned by Professor McLaren to verify Dr. Rodchenkov’s description of the methods by which Russian security services allegedly reverse-engineered sample bottles targeted for swapping. That forensic report, the Appellant notes, states that both types of marks (termed Type 1 and Type 2) could have been caused without any intentional manipulation; whereas The Panel does not understand the Appellant to be making the positive assertion that no urine tampering occurred in Russia. Rather, it perceives the Appellant’s submission to suggest that significant doubts exist as to how the system worked, and that in consequence of such doubts the Federation has not made a prima facie case that the Athlete’s specific samples were tampered with, or that he participated in any such scheme (assuming tampering by some third party).

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Type 1 marks were consistent with simply “screwing the lid on forcefully”, Type 2 marks could be reproduced after any “manual manipulation” of the BEREC-KIT® metal ring prior to attachment. Accordingly, the Appellant’s B sample, assessed under the “comfortable satisfaction” test of FIS ADR Article 3.1, does not indicate an ADRV.

b) The Duchess List

86. The Duchess List purportedly derives its name from a popular Russian alcoholic beverage on the initiative of Irina Rodionova, a Russian official who allegedly facilitated collection of clean urine samples from athletes. According to the McLaren Report, these (along with samples’ identification numbers) were subsequently made available to the FSB for swapping at the Sochi Laboratory. Also according to the McLaren Report, appearance on the list indicated that an athlete had been authorized to consume the “Duchess cocktail”, a suite of performance-boosting chemicals allegedly developed by Dr. Rodchenkov. Whereas the Federation insists that the Appellant’s appearance in this list is an indication that he was a direct beneficiary of the system of sample-swapping described by Professor McLaren, the Appellant himself disputes the list’s relevance and considers the document inapposite to a potential ADRV allegation.

87. At the outset, the Appellant questions whether he appears in the Duchess List at all, since “the documents contain no names” and uncensored versions of the original list, if any, is available only to WADA and the IOC. Even assuming his appearance in the Duchess List, however, the Appellant questions its origin and relevance.

88. First, in the Appellant’s view, the McLaren Report’s vague assertions clarify little regarding the list’s origin or purpose. The Russian original and English translation do not correspond, compounding the Appellant’s view as to the document’s unreliability as a technical matter and diminishing its probative value.

89. Second, the Appellant notes that a comparison of the Duchess List (EDP0055) and the schedule of ADAMS test results (EDP1166) indicates that none of the athletes in the Duchess List tested positive at the Moscow Laboratory – including for any of the three ingredients known to comprise the Duchess cocktail. The Appellant considers this unsurprising, since he “prepared and was tested not under the [Disappearing Positive Methodology] system in Moscow but duly in European laboratories”. While pre-Sochi conduct, such as that relating to the Moscow-based “Disappearing Positive Methodology”, does not comprise part of the Oswald Disciplinary Commission’s mandate, the observation remains relevant to the Appellant’s claim that he has never tested positive for any of the Duchess cocktail’s ingredients. Since the Duchess List fails to capture any names which (according to ADAMS) tested positive for those ingredients, the Appellant also considers the discrepancy to invalidate Professor McLaren’s assertion that the list shows athletes authorized to use the cocktail.

90. Third, the Appellant considers his personal testing history logically to preclude the possibility that he doped during the period under IOC investigation. The Appellant provided at least thirteen samples between 1 January 2014 and 5 February 2014, the date of his arrival in Sochi; at least twelve of these tested clean by laboratories outside of Russia and “without any chance” to

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be manipulated. During the Olympic Games themselves, the Appellant adds, three urine samples were submitted, including one sample on 21 February 2014, i.e., a mere two days before the urine sample which according to the IOC exhibited signs of tampering and which triggered the provisional suspension. The Appellant accordingly considers it “evident that he did not use the cocktail prior to or within the Olympic Games”.

91. That the Duchess List does not carry the meaning ascribed to it by FIS is further bolstered, in the Appellant’s view, by a careful reading of Professor McLaren’s report: “[A]ll of the individuals on the Sochi Duchess List were understood by the CSP, the FSB, and MofS to be on the doping program prior to and possibly during the Sochi Games” (emphasis of the Appellant).

92. Professor McLaren’s passage, the Appellant suggests, shows that “not even the author of the document … had concrete knowledge” of whether a listed athlete was using performance-enhancing drugs. Russian officials including Dr. Rodchenkov, Ms. Rodionova, and Mr. Velikodniy (the list’s purported author), though “aware of systematic doping”, neither manufactured nor distributed the cocktail to athletes personally. The Appellant accordingly considers FIS’s reliance on the Duchess List to be unfounded by reference to the McLaren Report and, in any event, undermined by the EDP and the Appellant’s personal testing history.

c) The Medals-by-Day List

93. The Appellant considers the Medals-by-Day List similarly unhelpful to the Federation’s cause. The list, according to the McLaren Report, contained a daily competition schedule compiled and updated throughout the 2014 Sochi Games. Its purpose was to identify high-value athletes whose samples were not to test positive; all athletes appearing on the Duchess List were included in this document.

94. In the Appellant’s view, the Medals-by-Day List raises more questions than it answers. Its origin is unclear, apart from the testimony of Dr. Rodchenkov. The Appellant additionally suggests that several, mutually inconsistent versions of the list exist in the EDP, and numerous athletes, including the Appellant, are listed under competitions in which they did not in fact participate. In particular, the Appellant’s notes his appearance in the Medals-by-Day List and the Duchess List, as well as in EDP1162, in relation to competitions held on 14 and 23 February 2014 in which he either did not compete or achieved a result different from that recorded in these documents.

95. The Appellant concludes that the Federation cannot “deem a document as valid proof for the individual involvement of an athlete insofar as it compromises him” while deeming its faults “irrelevant insofar as it exculpates him”. The Duchess and Medals-by-Day Lists, whether assessed individually or in combination, are incapable of indicating prima facie an ADRV.

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d) E-mails

96. Finally, the Respondent has adduced two sets of emails citing the Appellant, one of which associates Mr. Legkov’s name with an instruction to “warn …as soon as possible” and another in which Dr. Rodchenkov appears to describe the Appellant as an athlete subject to the instruction of “SAVE”.

97. The Appellant contests both emails’ relevance. The Appellant is associated with the word “SAVE”, for instance, in the context of an apparent discussion between Dr. Rodchenkov and Mr. Velikodniy of a sample containing “budenoside”, a glucocorticosteroid inhalant used to treat asthma. Deeming the Respondent to imply that budenoside was a prohibited substance, the Appellant takes the contrary position that the substance, for which he holds a therapeutic use exemption, is legal.

98. The e-mails’ interpretation is further complicated in the Appellant’s view by an apparent ignorance by Russian officials as to which substances were in fact prohibited. The Appellant notes, for example, a message submitted following his provision of a sample on 28 March 2014, which tested positive for budenoside: “Be patient today the federation won[’]t be informed until Friday evening […] but this stupid [expletive] A0467 [Legkov] put on the bike Let him be his own savior”. Dr. Rodchenkov later wrote in reply: “They rescued the goat Legkov”.

99. The Appellant considers the above exchange to indicate that Russian officials believed budenoside to be a prohibited substance requiring concealment, and that Dr. Rodchenkov helped to “save” a result that, in retrospect, did not require saving. The correspondence does not indicate an ADRV but the non-existence of one. That the e-mails’ own authors are unaware of the distinction, in the Appellant’s view, eliminates the EDP’s electronic archive as a basis for drawing inferences.

100. The Appellant also contests the internal reliability of e-mail exchanges in light of apparent inconsistencies between the English and Russian versions of electronic correspondence in the EDP. This includes, apparently, the outright substitution of Mr. Legkov’s surname for the word “passenger” in one of the message’s English translations (Compare EDP0263 with EDP1155). English-language EDP material, in other words, fails to reflect the substance of the alleged Russian original. In result, the Appellant argues that electronic correspondence on record lacks reliability regardless of the substantive assertion for which it is invoked.

e) Conclusions

101. In light of the record and considering the standard of proof set out in FIS ADR Article 3.1, the Appellant submits that “no evidence, standing alone or together”, has established an ADRV to the “comfortable satisfaction” of the Panel. Based exclusively on a report prepared subject to the

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reservation that it not serve as proof of individual athletes’ guilt, the provisional suspension falls well short of FIS’s burden of proof set out in FIS ADR Article 7.9.2.

102. The provisional suspension is, moreover, premised in reality on a theory of guilt by association, i.e., without a showing of individual wrongdoing. Even if the FIS ADR permitted an Optional Provisional Suspension in this case, therefore, the Appellant would deem it to contravene fundamental rights guaranteed under the Swiss Constitution and the European Convention on Human Rights.

103. The Appellant concludes by drawing the Panel’s attention to the suspension’s severity of consequence. The suspension, effective since 22 December 2016, removed the Athlete from competition at the height of the 2016-2017 winter skiing season. Should the suspension remain in place, the next season may well also be out of reach – pending “further notice” as to the Oswald Disciplinary Commission’s investigative work. Nor is the concern merely temporal or defeasible; it is doubtful that the Oswald Commission is in a position to uncover additional evidence to demonstrate an ADRV on the merits.

104. The Optional Provisional Suspension, in sum, is based on defective evidence and is untenable under the FIS ADR. The Appellant accordingly requests the Panel: (i) to set aside the decision of the FIS doping panel of 25 January 2017; (ii) to set aside the provisional suspension of the athlete by the FIS Doping Panel on 22/12/2016. (iii) to condemn the respondent to pay compensation for the legal expen[s]es incurred by the appellant. (iv) to establish that the costs of this arbitration procedure will be born[e] by the respondent.

B. THE RESPONDENT’S POSITION

105. The Federation maintains that its imposition of an Optional Provisional Suspension was necessary and legally justified. In its view, the FIS ADR require the Appellant – and not the Federation – to demonstrate certain criteria in order to lift a suspension, once one has been instituted. The Appellant 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.

1. The Applicable Standard

106. The Federation notes at the outset that the underlying context of this case derives from “systematic, state-organised doping in Russia”. The unprecedented level of interference in Russian sport, it concedes, goes far beyond the personal involvement of specific athletes. Yet upholding the provisional suspension does not require the Panel to be satisfied that an ADRV definitively took place on the evidence before it; rather, the question presented is merely whether evidence existed before the FIS Doping Panel to give rise to a legally cognizable suspicion under the FIS ADR.

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107. The Federation accordingly disagrees with the Appellant’s framing of the Panel’s task in this appeal. The finding that an ADRV has been proven, as distinguished from a finding that a provisional suspension should be imposed, is subject to separate judicial processes under standards wholly distinct from the one embodied in FIS ADR Articles 7.9.2 and 7.9.3.2.

108. The Federation submits that the following legal framework applies to the Panel’s assessment of the provisional suspension under review:

• Article 7.9.2, governing the initial imposition of an Optional Provisional Suspension, grants the Federation a “margin of discretion” in determining whether a suspension is appropriate. This is confirmed by permissive language such as “may” and “optional” (“FIS may impose a Provisional Suspension on the Athlete or other Person against whom the anti-doping rule violation is asserted”). The Federation concedes that its margin of discretion is not unlimited; a “reasonable possibility” (rather than a bare possibility) that the suspended athlete committed an ADRV, however, suffices.

• Under Article 7.9.3.2, once FIS has imposed an Optional Provisional Suspension, the burden of proof shifts to the suspended athlete, who must demonstrate one of three criteria to lift the suspension. The Appellant may demonstrate that the “allegation of a possible ADRV which led to the opening of a formal investigation” has “no reasonable prospect of being upheld”. Alternatively, he may challenge the suspension on one of two remaining grounds – relating to no fault/negligence or other facts that make it “clearly unfair” to impose the suspension. Absent such showings, the suspension remains in place.

109. In this connection, the Federation distinguishes Article R57 of the CAS Code – which endows the Panel with de novo power of review – with what it deems the permissive language of Article 7.9.2 of the FIS ADR. In the Respondent’s view, the Panel “remains bound” by the FIS ADR, “including the margin of discretion provided [to FIS] by these rules”. It cannot, in other words, “simply replace the discretion of the prior instance” with its own discretion. The Respondent adds that Article 7.9.3.2, by shifting the burden onto the Appellant to set aside a suspension already imposed, buttresses the existence of a margin of discretion under the FIS ADR. In this connection, the Respondent denies the relevance of the Appellant’s reference to Article 3.1, which it considers material only to ADRVs, not provisional suspensions.

2. Sufficiency of the Evidence

110. The Federation submits that the McLaren Report, whether assessed holistically or by its individual exhibits, implicates the Appellant with sufficient confidence to justify his suspension. Professor McLaren’s work unveiled an enterprise whose operation could not have gone unnoticed by the Appellant or have proceeded without his participation, particularly in the provision of clean urine subject to illicit sample swaps. Second, the Appellant’s name appears in documents which the Federation suggests are strongly indicative of doping and subsequent cover-up. The Respondent therefore argues for the maintenance of the suspension.

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i. The McLaren Report Is Reliable

111. The McLaren Report’s scope is necessarily broad in nature and transcends individual conduct. At the same time, Professor McLaren identified a system whose viability depended, in the Federation’s view, on the Appellant’s knowledge and participation.

112. The Federation notes that the McLaren Report draws upon thousands of documents in service of its main assertion: that athletes, with the assistance of Russian officials, systematically circumvented doping controls through false reporting of laboratory results and (during the Sochi Games) through the exchange of urine samples believed contaminated with clean ones procured out-of-competition. The Federation notes that Professor McLaren’s findings, combined with incriminating evidence in respect of individual athletes, gave immediate rise to suspicions against the Appellant individually, triggered an immediate IOC investigation into him, and led directly to FIS’s prompt institution of a provisional suspension pending institution of ADRV proceedings.

113. In this regard, the Respondent disagrees that correspondence by IOC or WADA sporting officials indicates a lack of faith in the McLaren Report or its capacity to justify a provisional suspension (and lead ultimately to ADRV findings). The IOC, for example, highlights that the McLaren Report precipitated further investigations of implicated athletes. Rather than suggesting that the report is “unreliable”, the correspondence serves in the Federation’s view as an endorsement of the McLaren Report’s probative value. Similarly, the FIS Doping Panel reasonably concluded that there was a “sufficient likelihood” that the IOC investigation would confirm the suspicions raised by Professor McLaren, resulting in an ADRV conviction.

114. The Respondent considers it possible and prudent to draw inferences regarding the Appellant on the basis of the McLaren Report’s general assertions, even without the assistance of individual documents naming him specifically. In its view, the steps outlined in the McLaren Report “would not have been possible” without the participation of the scheme’s principal beneficiaries: individual athletes.

115. This is particularly true, in the Federation’s view, with respect to a key component of the scheme detailed by Professor McLaren, namely the provision of clean urine samples transported to an FSB storage facility and subsequently exchanged with contaminated samples at the Sochi Laboratory. As clean urine could not be provided without the Appellant’s voluntary participation, FIS submits, it is inconceivable that he remained unaware of the scheme’s prohibited purpose. At minimum, a “reasonable possibility” of an ADRV exists by way of inference from Professor McLaren’s findings.

116. Finally, the Federation notes that other Russian athletes have been prevented from competition as a result of the findings of the McLaren Report even on a far more general basis than that contemplated by the provisional suspension under review. The Federation cites, in this regard, the International Paralympic Committee’s institution of a blanket competition ban applicable to all Russian athletes for the 2016 Paralympic Games in Rio de Janeiro, Brazil. That decision, upheld on appeal (CAS 2016/A/4745), was taken at a time when only Part I of the McLaren

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Report had been published – i.e., prior to Professor McLaren’s identification and implication of any individual athletes. That it survived scrutiny is a testament to the McLaren Report’s strength in justifying broad legal measures to contain doping’s effects.

117. The Respondent views its own stance, emphasized at the hearing, as having a stronger basis that that of the International Paralympic Committee because it has taken a more particularized approach, one attentive to individual circumstances. Only those athletes explicitly identified in Part II of the McLaren Report, it explains, were provisionally suspended by FIS. It follows, in the Respondent’s view, that the McLaren Report is a compelling basis for legal action.

ii. The EDP Supports the Suspension

118. The Federation’s decision to suspend the Appellant relies additionally on documents enclosed with the McLaren Report, Part II. In the Respondent’s view, the EDP supports a “reasonable possibility” that the Appellant committed an anti-doping rule violation and undermines his challenge under FIS ADR Article 7.9.3.2.

a) Urine Samples

119. The Respondent submits, first, that the McLaren Report convincingly demonstrates the existence of a urine sample-swapping scheme in which the Appellant was directly implicated.

120. As observed in the McLaren Report, the doping scheme in operation at the time of the Sochi Games relied on the manipulation of athletes’ urine sample containers in order to exchange (supposedly contaminated) urine with clean samples collected outside of regular competition. Statements by Dr. Rodchenkov concerning the method by which FSB agents allegedly reverseengineered Berlinger BEREC-KIT® sample bottles in order to enable such swaps suggested that manipulation of the bottles resulted discernable marks on the containers’ internal surface.

121. The Appellant’s sample, collected on 23 February 2014, shows both types of marks. The King’s College Forensic Report records the following observations:

2890803 2 x Type 1 marks, 5 x Type 2 marks; fibres observed inside lid

122. The “scratches and mark evidence” detected on one of Mr. Legkov’s B-sample containers in 2014, according to the King’s College Forensic Report and also the Respondent, “could have been made by tools during covert opening” consistent with Part I of the McLaren Report – whereby a Berlinger BEREC-KIT® sample bottle was allegedly opened without destroying the closing mechanism, swapped, and then re-sealed.

123. The Respondent concedes that Type 1 marks can derive from innocuous uses, appearing for instance where a container’s lid is screwed on forcefully – as the Appellant alleges. FIS notes, however, that Type 2 marks cannot be readily explained outside the context of attempted tampering. Those marks – consisting of vertical and diagonal scratches – occurred in the forensic report only where manipulation with a metal strip was used to pry open a sealed bottle,

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in the same way as described by Dr. Rodchenkov and detailed in the McLaren Report. On this evidence, the Respondent submits that the Appellant’s B-sample bottle shows evidence of tampering sufficient to ground a “reasonable likelihood” of an ADRV in which the Appellant was personally involved.

124. It is “not known to the Respondent” whether the Appellant personally supervised the tampering process itself. Considering Professor McLaren’s evidence, however, the Respondent considers it impossible that the Appellant could have provided clean urine without being aware of its illicit purpose: “Regarding the Appellants’ personal involvement it is simply not conceivable that they provided clean urine before the Olympic Games outside of regular doping controls without knowing why they had to provide such urine, namely for the purpose of manipulating the doping controls”.

125. Additional arguments adduced by the Appellant to provide alternative explanations for his conduct, in the Respondent’s view, are without merit. Evidence that the Appellant has submitted repeatedly to doping controls, for example, are no more convincing than his observations that an ADAMS analysis returns no positive test results. This evidence suggests not that no manipulation occurred, only that such manipulation evaded detection.

126. At the hearing, the Respondent similarly rejected the Appellant’s suggestion that clean urine might have been sourced without his knowledge during semiannual physical examinations. The Federation observed that collection of clean urine in hospital cups was inconsistent with the McLaren Report’s description of illicit urine collection using nonstandard containers such as Coca Cola bottles; in any event, FIS deemed the argument insufficiently substantiated.

b) Duchess List

127. The Federation argues that the Appellant’s appearance in the Duchess List provides an additional and compelling indication of his involvement in an ADRV. This document, according to Part II of the McLaren Report, was prepared “before Sochi” and included “athletes known to be taking” the Duchess cocktail, a performance-boosting concoction allegedly developed by Dr. Rodchenkov. Athletes consuming the cocktail were allegedly subject to outof-competition urine collection in furtherance of the Russian Federation’s sample-swapping scheme. The Federation therefore submits that the Appellant’s inclusion leads directly to the conclusion that he benefited from and participated (albeit at an early stage of the process) in the concealment of test-positive urine samples.

128. Additionally, while the Respondent takes note of the Appellant’s claims that the origin and purpose of the Duchess List are not clear from the face of the EDP, it maintains that the document shares a sufficient nexus with Professor McLaren’s narrative of doping circumvention to be of value. The list’s relevance, FIS observes, cannot be severed from the testimony of Dr. Rodchenkov. Those statements attribute the list to CSP director Irina Rodionova and demonstrate its centrality to the Sochi scheme. Apart from Professor McLaren’s own assertions, the Federation considers the Duchess List has obvious relevance given that

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there could be “no need” to draw such a list, as the Federation puts it, “unless it was for a prohibited purpose”.

129. Accordingly, the Federation maintains that the Appellant’s appearance in the Duchess List implies consumption by him of performance-enhancing drugs necessarily consequent on or consistent with the tampering alleged by Professor McLaren and detected in the Appellant’s urine sample.

c) Medals-by-Day List

130. The Appellant’s appearance on the so-called Medals-by-Day List, the Respondent submits, also associates him with the pool of doped athletes flagged by Russian sporting authorities for protection. That list, according to FIS, was prepared in advance of individual events at the Sochi Games. It lists the names of Russian athletes “expected to compete in medal races” and whose samples “should therefore result in a negative finding if tested”.

131. The Respondent contests the Appellant’s criticisms of this exhibit’s relevance. As with its “Duchess” equivalent, the Medals-by-Day list is neither dubious in origin nor divorced from Professor McLaren’s conclusions. The list was prepared by Mr. Velikodniy’s staff. It was updated regularly throughout the Sochi Games. Team composition, moreover, is routinely amended and can be modified in close proximity to an event such as a relay race. For these reasons, the Federation suggests that the existence of inconsistent versions of the list or its failure to reflect perfectly final competition rosters does not undermine its probative value in linking the Appellant to an ADRV.

d) E-mails

132. Finally, the Federation cites to e-mail correspondence in the EDP to buttress its decision to provisionally suspend Mr. Legkov. The correspondence consists of several exchanges between Dr. Rodchenkov and Alexey Velikodniy4.

133. The first message, an e-mail from Dr. Rodchenkov to Mr. Velikodniy dated 10 January 2014, states: “[A0958] PERSONALLY warn as soon as possible”, referring to the code of another Russian athlete, and concludes: “and Legkov with Kryukov TOO” (EDP0263).

134. The second set of e-mails concerns events following the conclusion of the Sochi Games. It begins with a message from Dr. Rodchenkov to Mr. Velikodniy dated 2 April 2014 and states: “Someone here overdosed with inhalations, an incredible amount Either he is sick (has permission ??), or is out of his mind5

The Panel cites to the time-stamps apparent on the versions of e-mails made available by Professor McLaren. Since these messages are based on Eastern Daylight Time, the timestamps from within Russia may differ slightly. The original Russian is idiomatic. In context, the sentence suggests: “He is sick or acting strangely”.

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Check who it is 2870442, M, ski races […] Budesonide (a metabolite of > 30), may have permission”.

135. Apparently in relation to Dr. Rodchenkov’s query as to whether Mr. Legkov had “permission”, presumably to use budesonide, a message dated 3 April 2014 from Mr. Velikodniy states: “He has it, for some reason he did not include it in the protocol”.

136. Finally, a reply dated 3 April 2014 from Dr. Rodchenkov notes: “They rescued the goat Legkov”6.

137. The Respondent does not appear to attribute particular meaning to these exhibits other than to indicate that the Appellant “was considered an athlete whose samples should be treated as ‘save.’” In other words the documents are offered as further evidence that the Appellant’s urine samples would have tested positive absent complicit intervention.

e) Conclusions

138. In light of the foregoing, the Respondent submits that it acted within its margin of discretion under FIS ADR Article 7.9.2 in imposing the provisional suspension. No individual piece of evidence alone suffices to ground an ADRV. Taken together, however, the documents demonstrate the Athlete’s involvement:

“the Russian Ministry of Sport (MoS), through the Center of Sports Preparation of National Teams of Russia and with the help of RUSADA and the laboratories of Moscow and Sochi installed a sophisticated system to protect certain Russian top athletes competing at the Olympic Games from being tested positive for prohibited substances. The Appellant was among these protected athletes”.

139. Both athlete-specific evidence and the “broader context” of systematic doping described in the McLaren Report establish a “reasonable possibility” of doping and/or tampering with doping controls. In the Federation’s view, the Appellant’s express identification in the McLaren Report as a beneficiary of the doping scheme comfortably situates the suspension within the Federation’s margin of discretion under the FIS ADR.

140. Having argued that the record justified its imposition of the suspension pursuant to Article 7.9.2, the Federation concludes that the Appellant falls short of his burden under Article 7.9.3.2 to warrant the setting aside of his provisional suspension. That article provides that an Optional Provisional Suspension “shall be imposed (or shall not be lifted) unless” one of three conditions is met. In the Federation’s view, the Appellant has failed to meet any one: (i) The FIS Doping Panel had “valid reasons to conclude” that the assertion of an ADRV would have a “reasonable prospect of being upheld after further investigation”. Indeed, in the Respondent’s

6 Translations of the Panel.

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view, it is “not conceivable” that the Athlete provided clean urine outside of regular doping controls without an awareness of why he was being asked to do so. (ii) With respect to arguments based on an absence of fault, the Appellant cannot “simply deny any personal involvement”, particularly since the manipulations were dependent on the Athlete’s irregular provision of clean urine. There is only a “very remote possibility” that such samples could have been procured without his knowledge. (iii) Finally, since inability to participate in competitions is expressly excluded under Article 7.9.3.2(c), the Appellant’s exclusion from the Russian championships or other sporting events falls short of circumstances making it “clearly unfair” for the suspension to remain in effect.

141. The Federation concludes by drawing the Panel’s attention to the context in which the McLaren Report was published. The IOC’s notification letter dated 22 December 2016 laid out compelling evidence that had been known to the Federation since at least 9 December 2016. The unprecedented scale of Professor McLaren’s allegations in combination with athletespecific data in the EDP, FIS insists, required an immediate and resolute response.

142. The Federation disagrees that its provisional suspension was imposed disproportionately or at the cost of the Appellant’s due process rights, however. In its view, the Athlete was given a full and fair hearing at the FIS Doping Panel, before the Deputy President of the Appeals Arbitration Division of the CAS, and by this Panel throughout the proceedings on the merits.

143. FIS denies that the Appellant’s treatment contravenes fundamental rights under Swiss or international law. In its view, the Appellant’s submissions “miss the point”. There has for instance been no “conviction without charge” because no ADRV has formally been alleged, much less adjudicated. The FIS Doping Panel explicitly recognized that a provisional suspension neither proves nor presumes the Appellant’s ultimate guilt. On the other hand, the potential ADRV leading to the opening of an investigation against the Appellant and to his provisional suspension has from the outset been clear: “Tampering or Attempted Tampering with any part of the Doping Control”, an offense defined under Article 2.5 of the World Anti-Doping Code (“WADA Code”) and Article 2.5 of the FIS ADR. Accordingly, the Appellant has not been sanctioned without charge, presumed guilty, or deprived of any other fundamental rights.

144. The Appellant’s suspected involvement in an ADRV is the subject of further investigation by the Oswald Disciplinary Commission, and the Respondent admits that the ultimate success or failure of ADRV proceedings depend on that body’s findings. In contrast to the Appellant, however, FIS is optimistic that investigative work carries a healthy prospect of adducing new evidence. Further evidence might be adduced, for example, from (i) re-testing further samples collected from the Appellant before, at, and after the Sochi Games (if available); (ii) forensic analysis of all bottles used for sample collection; and (iii) examination of coaches and witnesses, including laboratory personnel such as Dr. Rodchenkov and persons of interest including Mr. Velikodniy and Natalia Zhelanova (Anti-Doping Advisor to the Russian Minister of Sport).

(operative part of 29 May 2017)

145. The balance of interests in maintaining the provisional suspension is in the Federation’s view, therefore, firmly in its favor. The evidence indicates strongly the Appellant’s involvement in an ADRV, even if the adjudication of an ADRV charge, once formally alleged, must await the result of further investigations. In the meantime, the Respondent notes, the Appellant has been allowed to train with the Russian national team, an accommodation intended to allow him to maintain his competitiveness pending the resolution of his case. Though the Appellant understandably suffers harm from his inability to compete at present, FIS deems the provisional suspension proportionate and attentive to the Appellant’s individual circumstances.

146. Finally, FIS adds that strong interests exist to keep the suspension in place. Maintaining the suspension mitigates the “serious further risk” of requiring retroactive disqualification of the Athlete (should he be found guilty of an ADRV). The potential need to revisit rankings, redistribute medals, or otherwise modify competition results would “diminish the value” of the competition for participants, sponsors, and the viewing public. Indeed, in the Federation’s view, continued participation of athletes suspected of ADRVs casts a shadow over all of Russian sport – including athletes not suspected of any misconduct. Seen in this light, FIS suggests, the Appellant’s provisional suspension is not a “sanction but a safeguard”, one aimed at protecting integrity of sport generally and the interests of clean athletes particularly. The Federation deems its provisional suspension proportionate, taking into account its “strong signal effect” and legal endorsements of more severe measures – including blanket bans on all Russian athletes – in response to the McLaren Report.

147. The Respondent accordingly considers that the evidence on record adequately grounds and justifies the Optional Provisional Suspension. Its prayer for relief reads: (i) The Appeal shall be dismissed. (ii) The Decisions of the FIS Doping Panel dated 25 January 2017 shall be upheld and remain in force. (iii) The Appellants shall pay the Respondent’s costs and expenses related to the Appeals including the costs caused by the proceedings on provisional measures.