CAS 2017/A/4968, Alexander Legkov v. International Ski Federation (FIS), Award of 31 August 2017 (Operative part 29 May 2017).

The International Ski Federation (FIS) imposed a Provisional Suspension on Alexander Legkov, a Russian cross-country skier, prior to charging him with an anti-doping rule violation and based only on allegations contained in the “Independent Person Report,” better known as the McLaren Report. This award addresses only Mr. Legkov’s Provisional Suspension, offering a rare example of an in-depth discussion around Provisional Suspensions, the context in which a Provisional Suspension can be imposed, as well as the decision to lift or maintain it.[1]The award is remarkable for its analysis of the burden and standard of proof in this context, as well as the applicability of general and Swiss legal principles.

Our analysis of the CAS award will focus on the aspects of: (i) the conditions around imposing and lifting a Provisional Suspension, (ii) its compliance with Mr. Legkov’s basic rights, and (iii) the principle of proportionality.

A.       Facts

1.     Background: The McLaren Report

Prompted by reports in the media of an “elaborate doping scheme” operating in Russia, the World Anti-Doping Agency (WADA) appointed the Court of Arbitration for Sport (CAS) arbitrator Professor Richard McLaren to serve as an “independent person” to investigate these allegations.[2]In short, Professor McLaren was charged with investigating whether the allegations – made by Dr Rodchenkov, the former head of the Moscow Anti-Doping Laboratory – were accurate, and if so the extent and modus operandi of the Russian doping scheme, including the identification of Athletes who may have benefitted from it.[3]

In his report, Professor McLaren detailed a two-part scheme, implicating entities from the Ministry of Sport to the Moscow and Sochi anti-doping Laboratories.[4]The first part was a broad-reaching and state-sanctioned practice of “misreporting and concealment of test-positive urine sample results”, a practice Prof. McLaren coined the “Disappearing Positive Methodology”.[5]The second part was a sample swapping scheme during the Sochi Olympics, which surreptitiously replaced selected Athlete’s Samples with clean Samples.[6]

As a result, the International Olympic Committee established the “Oswald Disciplinary Commission”, headed by Professor Denis Oswald “to conduct a full repeated analysis and inquiry into all Russian athletes having participated at the 2014 Sochi Games”, as well as their entourage.[7]This effort was ongoing at the time of publication of this Legkov award.[8]

In the most relevant section to the Legkov matter, Prof. McLaren sought to identify implicated Athletes. Prof. McLaren learned that the “tamper-proof” Sample bottles – the Berlinger BEREG-KIT – were not fail safe, and further, many had been compromised during the Sochi Olympics. To identify which specific Samples had been tampered with, Prof. McLaren commissioned King’s College London to conduct a forensic analysis based on marks discovered on the bottles.[9]In addition, Prof. McLaren reviewed thousands of documents, including the 1,166 that were categorized, catalogued, and put online as part of an “Evidence Disclosure Package”.[10]

Prof. McLaren’s report ultimately concluded “beyond a reasonable doubt” that the Russian institutions orchestrated a conspiracy to permit Russian Athletes who used Prohibited Substances to evade detection in both national and international doping controls.[11]Prof. McLaren found that 500 results had been misreported, meaning “that hundreds of athletes benefited, directly or indirectly, as ‘party to the manipulations’ of doping controls”.[12]

2.     Alexander Legkov’s Provisional Suspension

Prof. McLaren  informed the FIS that one of the Samples showing signs of tampering belonged to Mr. Alexander Legkov.[13]On 22 December 2016, the IOC Oswald Disciplinary Commission notified the FIS that it had opened an investigation regarding Mr. Legkov, stating that

At this stage, the alleged anti-doping rule violation is “tampering or attempted tampering with any part of the Doping Control” …. Further violations which may be brought to light in the course of further investigations are reserved.[14]

B.        First instance proceeding

On the same day, 22 December 2016, the Chairman of the FIS Doping Panel notified Mr. Legkov that he was “suspended with immediate effect, pending determination of whether or not he had committed an ADRV…on the basis of allegations described by Professor McLaren concerning alleged Russian State-sponsored doping practices and [his] suspected involvement in those practices”.[15]

Mr. Legkov challenged in vain the Provisional Suspension in front of the FIS Doping Panel, which decision stated in relevant part

[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.[16]

C.       CAS proceeding

On 30 January 2017, Mr. Legkov filed an appeal at the CAS against the FIS Doping Panel’s decision to Provisionally Suspend him from competition.[17]A hearing was held on 15 May 2017 in Lausanne.[18]

D.       Discussion on the merits

Mr. Legkov’s position can be summarized as follows: The McLaren Report constitutes inadequate evidence to establish a level of individual guilt sufficient to justify the Provisional Suspension according to both the FIS’ rules and fundamental principles of Swiss and European law.[19]

By contrast, the FIS argued that the Provisional Suspension in this case was “necessary and legally justified”, and that Mr. Legkov failed to establish the requisite criteria to lift the Provisional Suspension.[20]

In deciding to uphold Mr. Legkov’s Provisional Suspension, the CAS panel first tackled the preliminary issue of the applicable standard of review (1.), before considering whether such standard complied with fundamental rights and general principles of law (2.), and then turning to the application of the evidence to Mr. Legkov’s case. While the CAS panel found that Mr. Legkov did not show cause to lift his Provisional Suspension, it nevertheless found proportionality issues with a Provisional Suspension of indeterminate length and set an end date upon which Mr. Legkov’s Provisional Suspension would expire (3.).

1.     The applicable standards for imposing and lifting the Provisional Suspension

First, the CAS panel set out to resolve the parties’ dispute over the burdens and standards of proof governing a Provisional Suspension. More particularly: Under what conditions may the FIS impose a Provisional Suspension, and once it is imposed, under what conditions may a hearing panel lift the Provisional Suspension?

The following provisions of the 2016 FIS’ Anti-Doping Rules (FIS ADR) were relevant to the issue:

7.7 Review of Other Anti-Doping Rule Violations Not Covered by Articles 7.2–7.6

FIS shall conduct any follow-up investigation required into a possible anti-doping rule violation not covered by Articles 7.2-7.6. At such time as FIS is satisfied that an anti-doping rule violation has occurred, it shall promptly give the Athlete or other Person (and simultaneously the Athlete’s or other Person’s National Anti- Doping Organisation, the Athlete’s or other Person’s National Ski Association and WADA) notice of the anti-doping rule violation asserted and the basis of that assertion.


7.9.2 Optional Provisional Suspension: In case of an Adverse Analytical Finding for a Specified Substance, or in the case of any other anti-doping rule violations not covered by Article 7.9.1, FIS may impose a Provisional Suspension on the Athlete or other Person against whom the anti-doping rule violation is asserted at any time after the review and notification described in Articles 7.2-7.7and prior to the final hearing as described in Article 8.

[…] The Provisional Suspension shall be imposed (or shall not be lifted) unless the Athlete or other Person establishes that: (a) the assertion of an anti-doping rule violation has no reasonable prospect of being upheld, e.g., because of a patent flaw in the case against the Athlete or other Person; or (b) the Athlete or other Person has a strong arguable case that he/she bears No Fault or Negligence for the anti-doping rule violation(s) asserted, so that any period of Ineligibility that might otherwise be imposed for such a violation is likely to be completely eliminated by application of Article 10.4; or (c) some other facts exist that make it clearly unfair, in all of the circumstances, to impose a Provisional Suspension prior to a final hearing in accordance with Article 8. This ground is to be construed narrowly and applied only in truly exceptional circumstances. For example, the fact that the Provisional Suspension would prevent the Athlete or other Person participating in a particular Competition or Event shall not qualify as exceptional circumstances for these purposes.[21]

Mr. Legkov’s position

Mr. Legkov interpreted the applicable rules (FIS ADR) and law to create a two-step process. First, the FIS has the burden to establish a prima facie case that Mr. Legkov had committed an anti-doping rule violation, having regard to the “comfortable satisfaction” standard set forth in Article 3.1 of the FIS ADR.[22]To Mr. Legkov, the FIS must show “(i) [Mr. Legkov] himself committed an ADRV and (ii) [Mr. Legkov]’s ‘delinquency is convincingly probable’”.[23]Second, if the FIS discharges this burden, then Mr. Legkov bears the burden to establish that one of the three grounds for lifting a Provisional Suspension set forth in apply.[24]

The FIS’ position

The FIS envisioned a similar two-step process, with the key difference being a strongly reduced standard of proof for the FIS to impose the Provisional Suspension. More particularly, the FIS rejected Mr. Legkov’s contention that the “comfortable satisfaction” standard of Article 3.1 should apply in the context of Provisional Suspensions.[25]  Instead, the FIS submitted that it enjoys a “margin of discretion” for imposing a Provisional Suspension, dependent only on a “reasonable possibility” that Mr. Legkov committed an anti-doping rule violation.[26]

The CAS panel’s position

The CAS panel considered and rejected Mr. Legkov’s argument that prior to imposing a Provisional Suspension, the FIS must be “comfortably satisfied” that a violation occurred. Instead, it sought a standard that was more in line with the “necessarily preliminary character” of a Provisional Suspension.[27]

The CAS panel first considered whether  Article 7.7 FIS ADR[28]sets forth the relevant standard to impose a Provisional Suspension, i.e. that the FIS must be “satisfied” that a violation occurred. On one hand, it acknowledged that Article 7.7 could be seen as the “first step” for imposing a Provisional Suspension. In this case, the FIS would first need to be “satisfied” that an anti-doping rule violation occurred, and then, once the violation was asserted and notified, it could then impose a Provisional Suspension according to Article 7.9 FIS ADR. On the other hand, the CAS panel considered it equally likely that Article 7.7 could be seen as the last step in the process of imposing a Provisional Suspension. In other words, Article 7.7 FIS ADR “serves only a procedural function, becoming relevant only after the substantive threshold (located elsewhere) is met”.[29]

To the Legkov panel, ambiguous drafting in the FIS ADR prevented it from reaching a definitive interpretation of Article 7.7, or more precisely, of the relationship between Article 7.7 and 7.9. While the CAS panel saw some merit in considering the “satisfied” standard set forth in Article 7.7 as the substantive threshold that the FIS must cross to impose a Provisional Suspension, it ultimately rejected this view.[30]The CAS panel saw Article 7.9.2’s description of the “review and notification” in Article 7.7 as fatal to the understanding that Article 7.7 FIS ADR serves as a substantive threshold.[31]To the CAS panel “since notification alone cannot ground any burden of proof, Article 7.7 in this context serves only a procedural function”,[32]and therefore does not provide a substantive threshold for imposing a Provisional Suspension.

Curiously, after apparently resolving this issue, the CAS panel concluded that it would decline to make a final ruling upon the relationship between Article 7.7 and 7.9 “not least because the same question arises under the WADA Code 2015, the template for other, including FIS, anti-doping rules”.[33]

Instead, the CAS panel created a substantive threshold of a “reasonable possibility” for imposing a Provisional Suspension by disregarding Article 7.7 and focusing on a cumulative reading of Article 7.9.2 and[34]As support for this approach, the CAS panel emphasized its own role in the process.[35]While the FIS exercises a prosecutorial function when it “asserts” an anti-doping rule violation, the CAS panel’s function is to review the Provisional Suspension.[36]To conduct this review, Article FIS ADR sets forth an “explicit and undisputed standard”, i.e. that the violation has “no reasonable prospect of being upheld”.[37]Carrying this logic one step further, it considered that a “reasonable possibility” standard “anticipates the rejoinder that an assertion has ‘no reasonable prospects’ of being upheld”.[38]

In sum, the CAS panel set out the following legal framework for imposing a Provisional Suspension. First, the FIS holds an initial burden of proof to establish a “reasonable possibility” that an ADRV occurred.[39]This endows the FIS “with broad authority provisionally to suspend athletes who it has reasonable cause to believe committed an ADRV”.[40]Or, in other words, once an Athlete is suspected of an anti-doping rule violation, this “can serve as cause for a provisional suspension against him or her, should the Federation so decide”.[41]Once the FIS exercises this broad authority, the Athlete bears the burden to establish one of the three criteria for challenge set forth in Article FIS ADR.

The CAS panel also set out guidelines for the interpretation of the “reasonable possibility” standard. First, “a reasonable possibility is more than a fanciful one”, in that it “requires evidence giving rise to individualized suspicion”.[42]Second, the standard is “necessarily weaker than the test of ‘comfortable satisfaction’ set forth in Article 3.1” and may even be weaker than the “balance of probabilities” standard.[43]Third, the “reasonable possibility” threshold to impose a Provisional Suspension is plainly lower than the standard required of an Athlete (or other Person) to lift a Provisional Suspension.[44]Finally, and crucially for the outcome of Mr. Legkov’s case, “reasonable prospects of success” – which it seemed to equate with a “reasonable possibility” – may “exist where documents are insufficient (individually or collectively) to ground an ADRV but nonetheless indicate misconduct for which further investigations hold out the prospect of more and better proof”. To discharge the burden to establish the possibility that an anti-doping rule violation was committed under the reasonable possibility standard “requires more than an assertion as to shortcomings with current evidence, such as a patent flaw in the case against the Athlete”.[45]

2.     Compliance of the Provisional Suspension with Mr. Legkov’s basic rights and general principles of law

Mr. Legkov argued that the Provisional Suspension violated his due process rights, was contrary to the presumption of innocence and to his right to know the charges against him. Mr. Legkov submitted that the FIS ADR must be “interpreted and applied” consistent with the principles of (i) the presumption of innocence; (ii) the right to be informed “of the nature and cause of the accusation” against him; and (iii) the right to no judgement without charge. All of these procedural guarantees “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”.[46]The CAS panel acknowledged that certain mandatory principles do apply in international arbitration by virtue of the exhaustive grounds for appeal of an arbitral award, set forth in Article 190(2) of the Swiss Private International Law Act (PILA).[47]These grounds include inter alia, a violation of the right to be heard, of the right to equal treatment, and of Swiss public policy.[48]

For the CAS panel, the measure at stake was not a disciplinary sanction, but a provisional measure.  Thus, it “operate[d] under a standard of scrutiny less exacting than that over ADRV proceedings”.[49]In light of this, the CAS panel emphasized that this case involved neither a “conviction” nor “formal charge”, and that the charge under investigation – Tampering – was clear. It thus saw no violation of Mr. Legkov’s due process rights.[50]As to the presumption of innocence, the CAS panel made the following observations:

The Panel has held that a provisional suspension must be substantiated by more than speculation alone; yet a “reasonable possibility” that the Appellant committed an ADRV in its view is all that is required. In any event, 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. CAS sanctions result in a period of ineligibility to compete and forfeiture of prizes, not deprivation of liberty; what is more, this appeal concerns provisional measures, not a final sanction. Since there is no finding of guilt, the Panel does not consider a provisional suspension to implicate, still less violate, a presumption of innocence.[51]

Finally, the CAS panel emphasized that the issue of the likelihood that Mr. Legkov committed an anti-doping rule violation and the validity of the provisional measures are “clearly intertwined” and that at this point the likelihood of success of establishing an anti-doping rule violation was unknowable, since it depends on further investigations.[52]For the CAS panel, this reality required that Article 7.9.2 FIS ADR was “applied strictly” to ensure that the evidence demonstrated, at a minimum, a “reasonable possibility” that a violation occurred.[53]

3.     Lifting the Provisional Suspension

Following a review of the available evidence, the CAS panel concluded that Mr. Legkov had failed to show cause to lift his Provisional Suspension. In doing so, the CAS panel acknowledged that it could not decide the case “in isolation from the dramatic context” in which it arose.[54]It emphasized that Professor McLaren had declared being convinced “beyond a reasonable doubt” that a systematic doping scheme aimed at eluding detection existed for years in Russia. Moreover, the CAS panel emphasized the immensity of this scheme, with the report identifying “a staggering 695 Russian” Athletes implicated in the Sample manipulation schemes, and with 500 positive Samples being misreported as negative.[55]In this context, the CAS panel underscored that the “individual connecting factors and inferences which might emerge meet the test of ‘reasonable possibility’ of success, and therefore justify the Provisional Suspension”.[56]

Thus, the CAS panel held that Mr. Legkov had not discharged his burden to show that the FIS has “no reasonable prospect” of being upheld, as required by Article FIS ADR in order to lift the Provisional Suspension. To discharge this burden, the CAS panel required Mr. Legkov to establish that “no further evidence reasonably can be expected to arise”, presumably evidence that would confirm his guilt.[57]The CAS panel noted that the Oswald Disciplinary Commission had the possibility of analyzing Samples from the 2008, 2010, and 2012 Olympic, and there remained coaches and laboratory personnel to be interviewed.[58]It thus concluded that “[w]hether the investigative process incriminates or exonerates the Appellant is open to question but his present inability to satisfy the conditions in Article is not.”[59]

Even so, the CAS panel relied on the principle of proportionality to set an end date for the Provisional Suspension. To the Legkov panel, an appropriate balance had to be struck between the legitimate interest of “other athletes not to find themselves competing against athletes who may well be cheaters” and Mr. Legkov who “stands under the shadow of a suspension undefined in length”.[60]Mainly for the reasons that “suspensions gradually lose their essential interim character with the passage of time” and Mr. Legkov’s entitlement to legal certainty, the CAS panel stated that it could not “endorse an indefinite and indeterminable suspension as proportionate”.[61]It thus imposed an end date of 31 October 2017, just over five months after the date on the operative part of the CAS award, and more than ten months after the suspension was imposed. For the Legkov panel, this was completely in line with Article 7.9.3, since “to impose a longer suspension in all the present circumstances would be clearly unfair”.[62]

E.        Comment

In our view, the most important aspect of this case is the (questionable) expansion of an Anti-Doping Organization’s power to impose a Provisional Suspension it may cause. In effect, the CAS panel’s reasoning transforms this power to take temporary measures to preserve a level playing field into a broad authority for an Anti-Doping Organization to exclude an Athlete from competition – in this case for over ten months – based only on a “individualized” suspicion of doping. This stands in contrast to settled CAS practice in this area and is of dubious compliance with due process. Perhaps this can be best understood by the (perceived) need to find an extraordinary solution under the remarkable circumstances surrounding the allegations against Russia in the McLaren Report, but this reason alone is legally questionable. Our call for caution and balance is corroborated by the fact that Mr. Legkov has since then been acquitted on the merits in the matter Legkov v. IOC, the CAS panel finding that no anti-doping rule violation could be established against Mr. Legkov.

Where is the ambiguity?

The key issue in this case – and the source of what the CAS panel deemed to be irremediably ambiguous in the FIS ADR – was this: What threshold must the FIS cross in order to impose a Provisional Suspension in cases like Mr. Legkov’s, i.e. that are not based on a positive test, but involve investigations?

For the CAS panel the source of this ambiguity could be brought back to two key (and supposedly) contradictory observations of the wording of the applicable regulations. On one hand, Article 7.7 FIS ADR provides that “[a]t such time as FIS is satisfied that an anti-doping rule violation has occurred,” it shall (in short) give notice of the anti-doping it is asserting. Thus, being “satisfied” would be the substantive threshold an Anti-Doping Organization needs to meet in order to impose a Provisional Suspension. On the other hand, Article 7.9 refers to the “review and notification” as set forth in Article 7.7. To the CAS panel: “since notification alone cannot ground any burden of proof, Article 7.7 in this context serves only a procedural function”.[63]In other words, since Article 7.7 FIS ADR is merely procedural, it becomes “relevant only after the substantive threshold (located elsewhere) is met”.[64]To the CAS panel, this “elsewhere” was Article 7.9. From this Article 7.9 alone, the CAS panel derived a standard of a “reasonable possibility” that the FIS must meet to impose a Provisional Suspension. This reasoning is not entirely convincing.

First, it is difficult to follow the CAS panel’s reasoning as to why Article 7.7 serves only a procedural function. Perhaps one could say in the abstract that the act of notifying a violation provides little insight as to what substantive threshold is required to conduct that act. But this is not what Article 7.7 says. The provision states that once an Anti-Doping Organization is satisfied that an anti-doping rule violation occurred, it shall notify – or “assert” – the violation. Moreover, Article 7.9.2 states review and notification, and not simply notification, which means that the CAS panel overlooked one of the only two stated purposes of the provision by focusing only on its notification function. In our view, while Article 7.7 may have a primarily procedural function of signaling at what point a violation is formally asserted against an Athlete, it inherently also comprises a substantive prerequisite, i.e. that the case must be, in the Anti-Doping Organization’s reasonably held view (“satisfied”), ready to be handed over to a hearing panel. The investigation process precedes the assertion under Article 7.7, not the opposite.

Second, the CAS panel’s reasoning is difficult to square with the language of Article 7.9.2 FIS ADR. The point of departure for the CAS panel’s reasoning was the intended order of “precedence” between the two provisions, i.e. whether, chronologically speaking, Article 7.7 FIS ADR should be consulted first, and then Article 7.9, or vice versa. In light of this, it appears rather awkward that the CAS panel failed to even mention the phrase in Article 7.9 FIS ADR that addresses this intended precedence, namely that Article 7.9 FIS ADR precisely states that a Provisional Suspension may be imposed “at any time after the review and notification described in Articles 7.2–7.7”.[65]The CAS panel did not reference the phrase “at any time after” in its reasoning. Instead, it merely stated that Article 7.9 “incorporates” Article 7.7 FIS ADR, which seems at odds with a “literal” reading of the provision.

Certainly, instances exist in which the WADC (and the rules based on the WADC) are not crystal clear, and where it may be fair to reach an understanding that goes beyond a strictly literal interpretation. In our view, it is more than doubtful that this is one of those cases. The relationship between Article 7.7 and 7.9 FIS ADR appears rather straightforward. Article 7.7 FIS ADR provides instructions as to when the FIS may assert an anti-doping rule violation, i.e. once it is satisfied from the follow-up investigation that the Athlete or other Person committed an anti-doping rule violation, in other words: when it considers it has sufficient evidence to bring the case before a disciplinary hearing panel under Article 8 WADC. Article 7.9 FIS ADR states that only after this point may the FIS impose a Provisional Suspension. Thus, by taking a simple, sequential view of these provisions, no complicated interpretational exercise is needed to understand that FIS must – at a minimum – be “satisfied” that an anti-doping rule violation prior to imposing a Provisional Suspension. If one follows the approach taken by the Legkov panel, then it would be possible for an Anti-Doping Organization to Provisionally Suspend an Athlete even before a case is asserted. This is both counterintuitive and illogical.

This, of course, does not prejudge whether the Anti-Doping Organization will ultimately succeed in persuading the hearing panel to the “comfortable satisfaction” standard under Article 3.1. But, we submit that the Anti-Doping Organization should at least have reached the conclusion that it has the evidence necessary to do so, and this without being dependent on the outcome of further hypothetical investigations. Thus, since the FIS obviously was not satisfied that an anti-doping rule violation occurred, nor did it assert an anti-doping rule violation against Mr. Legkov, the inquiry should have ended there. And, it should have ended in Mr. Legkov being free to resume competition.

The CAS panel’s interpretation is out of sync with the nature of a “provisional measure”

Not only is the suggested interpretation better in line with the text, it also matches more closely the nature of a Provisional Suspension. The Legkov panel simply labelled the Provisional Suspension as a “non-punitive and interim measure”, without considering its similarities to a disciplinary measure.[66]Provisional Suspensions, or more generally provisional measures, are available to remedy an urgent situation, as a means to prevent irreparable harm and preserve the status quo pending the final resolution of a dispute. Thus, a CAS panel considering a Provisional Suspension must ensure that any interpretation reached is consistent with this basic nature of a Provisional Suspension. Otherwise, what is ostensibly a Provisional Suspension may more closely resemble a disciplinary sanction imposed without appropriate due process and in disrespect of an Athlete’s basic rights. Surprisingly, the CAS panel placed relatively little emphasis on this substantive aspect of Mr. Legkov’s exclusion from Competition, in particular given the fact that it de facto suspended the Athlete for 10 months. This would have deserved a more detailed analysis given its implications for the fairness, and ultimate legitimacy, of the regime. The importance of this distinction is well-illustrated by the (first) Valverde matter, which bears strong parallels to the case at hand.

In the Valverde case, the UCI suspected Mr. Valverde of participating in the doping scheme uncovered by the Operacion Puerto investigation. As a result, the UCI requested a disciplinary procedure be opened, and excluded Mr. Valverde from participating in the World Championships prior to the point he was actually charged with a violation, a measure the UCI implemented to protect the “serenity and reputation” of the Competition.[67]In its reasoning, the Sole Arbitrator distinguished two types of measures that may be taken against an athlete: Those directed at ensuring the sanctity of Athletes’ results (i.e. by preserving a level playing field) and those of a disciplinary nature (i.e. a suspension or fine).[68]

In Valverde, it was reasoned that excluding Athletes for reasons of doping could potentially be either type of measure. It may be more aimed at an Athlete’s results, if, for example, concerns existed that the substance at stake remained in the Athlete’s system and could therefore potentially disrupt a competition.[69]For the Sole Arbitrator, Mr. Valverde’s exclusion was disciplinary in nature. He failed to see how the measure could be aimed at preserving competition if Mr. Valverde was excluded before the Competition even took place, and before being found to have committed an anti-doping rule violation.[70]Further, the Sole Arbitrator emphasized that for Mr. Valverde himself, the exclusion had a punitive nature, especially since if the violation were never to be established, there would be no way to remedy the harm caused to Mr. Valverde.[71]The Sole Arbitrator also stressed that the measure taken against Mr. Valverde bore little resemblance to a provisional measure, since it was implemented based on a “simple suspicion”, without a positive test, and for alleged conduct committed a long time prior to the World Championships.[72]Thus, to the Sole Arbitrator, the exclusion violated a number of Mr. Valverde’s basic rights. The following are particularly relevant to the case at hand:

  • Nulla poena sine culpa. Since Mr. Valverde’s sanction preceded the finding of an anti-doping rule violation, its punitive effect applied regardless of whether Mr. Valverde was at fault, in violation of this basic principle. In his reasoning the Sole Arbitrator distinguished the case at stake from those that almost certainly involve doping, such as in cases involving a positive Sample, as the Adverse Analytical Finding represents almost unshakeable proof of Presence of a Prohibited Substance under Article 2.1 WADC. In these cases, the Anti-Doping Organization has a stronger interest in preserving a level playing field,[73]since it is almost inevitable that the violation eventually will be established.
  • Equality of treatment. For the Sole Arbitrator, a provision that allowed an Athlete to be excluded based only on a mere suspicion of doping carried with it a large risk of being applied in an unequal or inconsistent manner. He stressed that, as opposed to an objective criterion such as a positive test,[74]what constitutes a “suspicion” is subjective.
  • Mr. Valverde’s exclusion violated the principle of proportionality, mainly for the reasons that it was a grave and irreparable consequence for Mr. Valverde, whereas the risk that his participation would prejudice the competition was low.

The Sole Arbitrator’s reasoning in the Valverde matter can be transposed to the situation at hand. Similar to Mr. Valverde’s exclusion from the World Championships, Mr. Legkov was excluded from participating in any competitions, based only on a suspicion of doping, without a positive test, and for alleged conduct committed a long time prior to the proceedings. Just like in the Valverde manner, if Mr. Legkov had been allowed to compete and later was found to have committed an anti-doping rule violation, the results could always be Disqualified to mitigate this harm. Moreover, Mr. Valverde’s exclusion only concerned one competition, whereas Mr. Legkov’s exclusion extended indefinitely into the future, and eventually spanned a more than ten-month period. Thus, Mr. Legkov’s exclusion from Competition bears an even remoter resemblance to a provisional measure than Mr. Valverde’s, and inversely, even more closely resembled a disciplinary measure. Thus, we see no reason why all of the concerns the Sole Arbitrator expressed in Valverde would not apply, even more forcefully, here.[75]

In cases like these that do not involve a positive test (i.e. an Adverse Analytical Finding in the A Sample), we submit that extra care must be taken before imposing a Provisional Suspension. The threshold to establish a Provisional Suspension should come close to what is necessary to establish an anti-doping rule violation, and certainly ought not to depend on further investigation. As emphasized by the Legkov panel, the likelihood that the anti-doping rule violation occurred, and the validity of the provisional measures are intertwined.[76]It is not without reason that the WADC only allows a Provisional Suspension once the Anti-Doping Organization has taken the step of formally “asserting” an anti-doping rule violation. This reduces the risk of the irreparable harm from being excluded from competition with no cause. In the Kreuziger matter, the UCI imposed a Provisional Suspension on Mr. Kreuziger after asserting a violation based on the review of his Athlete Biological Passport. Critical to the CAS panel’s reasoning in confirming the validity of this provisional measure was that the violation was legitimately asserted based upon compelling evidence. Thus, a high likelihood existed that the violation would eventually be established.

To be fair, and to ensure an appropriate balance of interests, any standard imposed must reflect a “high likelihood” that a violation occurred. In the Legkov matter, the provisional measure was evaluated only according to whether a “reasonable possibility” existed the violation was committed. If this standard is interpreted as applying even during ongoing investigations prior to the Anti-Doping Organization being “satisfied” that a violation occurred, we submit it is too low. As underscored in the Valverde matter, a standard that attempts to capture notions akin to a “suspicion” is difficult to apply in an equal manner and may result in excluding an athlete for an unknown time period during the further investigations needed to formally “bring charges”, with little confidence that the Athlete will be convicted. In the Legkov matter, this situation ultimately prompted the CAS panel to declare that an “indefinite and indeterminable” exclusion cannot be proportionate, and to set an end date past which Mr. Legkov’s Provisional Suspension would no longer be in effect.[77]A better approach may be to apply a higher standard at the outset to avoid resorting to the principle of proportionality, and to ensure that a case-by-case analysis of the circumstances identifies an overriding interest in excluding an Athlete from Competition.

Another aspect of the approach taken by the Legkov panel that may lead to unfair results is the evidence considered when deciding whether Mr. Legkov discharged his burden to lift the Provisional Suspension. We submit that this analysis must be based on “currently available evidence”, and not on evidence that may arise from further investigations, as was taken into account by the Legkov panel.[78]It is submitted that only actual evidence (i.e. currently available evidence) can constitute a valid basis to assess the likelihood that a violation will be established. The same would then of course apply when the athlete argues the absence of a “reasonable prospect” that the Anti-Doping Organization will eventually establish an anti-doping rule violation. Hypothetical outcomes of future investigations could equally be in favor of the Athlete or against him, and it is not for the CAS panel to speculate on evidence the contents of which is still unknown and which may never even be obtained. The difference between the standard that the Anti-Doping Organization must meet to impose the Provisional Suspension (“reasonably possibility”) and the standard on the Athlete to lift the Provisional Suspension (“no reasonable prospect”) is already sufficient to weigh in favor of fair competition (and to the detriment of the Athlete) in case of doubt. There is no need to allow the Anti-Doping Organization to “bet” on evidence it does not (yet) have. Otherwise, the protection that Article 7.7 was supposed to afford the Person charged (i.e. a complete review prior to asserting a violation) would be undermined. The WADA Guidelines on Results Management make it clear that a Provisional Suspension is there to be imposed on a Person “after that Person has been notified or charged with an ADRV supported by sound, reliable evidence”.[79]Evidence that does not exist at the time of the evaluation cannot, by definition, be deemed sound or reliable.

This is all the more concerning since, the potential future evidence evoked in the Legkov matter (i.e. reanalysis of Samples from various Olympic Games) would not have been relevant for establishing the Tampering violation for which the Provisional Suspension was imposed, but an entirely different violation. Indeed, the ultimate violation Mr. Legkov would face remained ambiguous throughout the award. The CAS panel confirmed that the violation at stake was Tampering (which, in the WADC system, does not require proof that Tampering was indeed done to cover up Use of a Prohibited Substance or Method). But, at times the discussion expected that additional evidence would be obtained for a violation of Presence (Article 2.1) or Use (Article 2.2), violations that could not be established at the time the Provisional Suspension was imposed because the Athlete had not yet tested positive, nor was there any other evidence of Use. This made it practically impossible for Mr. Legkov to establish any of the criteria to lift a Provisional Suspension, since it was not clear whether he would need to present evidence against the violation of Tampering, or also a violation of Use or Presence of a Prohibited Substance, evidence of which had not been produced yet.[80]

If one needed any further confirmation of the potential unfairness to athletes that the CAS panel’s conclusions may cause, one need look no further than Mr. Legkov’s own situation. On 1 November 2017, the Oswald Disciplinary Commission found that Mr. Legkov had committed a violation of not only 2.5 (Tampering) which was referenced in the matter at stake and Article 2.2 (Use), as it seemed the Legkov CAS panel had implicitly contemplated, but also Article 2.8 (Complicity) which was never even mentioned by the Legkov panel.  In addition to Disqualifying Mr. Legkov’s results, the Commission decided to exclude Mr. Legkov from all subsequent versions of the Olympic Games, due to “severity of the prejudice and the long-lasting harm that has been caused to the Olympic Movement”.[81]On 1 February 2018, however, Mr. Legkov was one of 28 Athletes exonerated of an anti-doping rule violation for lack of sufficient evidence produced by the Oswald Disciplinary Commission.[82]

Thus, the end of Mr. Legkov’s story aligns with the concerns set forth by the Sole Arbitrator in the Valverde matter. After many months of being excluded from Competition, he was eventually exonerated for lack of individual evidence. Of course, the mere fact that an Athlete provisionally suspended is subsequently exonerated on the merits does not render the Provisional Suspension unlawful. However, this may be the case if the Anti-Doping Organization imposed the Provisional Suspension in bad faith, which is to say as a pre-emptive disciplinary measure instead of as a provisional measure.[83]A Provisional Suspension that is imposed prior to the stage at which the Anti-Doping Organization considers itself satisfied that charges can be brought against the Athlete could, in certain situations, qualify as one imposed in “bad faith”. The Legkov panel clearly assumed that this was not the case and was content to limit the Provisional Suspension in time.

Influenced by the “Russian” context?

Future hearing panels should take caution before creating a general rule based on the reasoning in the Legkov award, especially now having the benefit of the CAS award on the merits. It goes without saying that imposing a Provisional Suspension based on any suspicion of doping would frequently lead to questionable results. Instead, panels must take a closer look to ensure that an appropriate balance is struck between an Athlete and an Anti-Doping Organization’s rights in cases that are not based on a positive Sample, i.e. the more “fail-safe” method of establishing an anti-doping rule violation.

Two observations seem worth making to emphasize the very case-specific reasoning of the CAS panel in the Legkov matter:

First, neither of the parties appeared to propose the more straightforward interpretation discussed above (i.e. that the FIS must at a minimum be “satisfied” that an anti-doping rule violation occurred in a way that it considers the case ready to be “asserted” before a hearing panel, before imposing a Provisional Suspension) nor did they appear to emphasize that Mr. Legkov’s “Provisional Suspension” more closely resembled a disciplinary sanction. The ultimate interpretation reached aligned well with the FIS’ position. Indeed, as the CAS panel itself observed this interpretation would mean that it would have no need to consider the various formulations of a standard of proof set forth by the parties. We would only note that CAS panels need not restrict themselves to the specific arguments raised by the parties. In line with the principle if iura novit curia, which has been regularly confirmed to apply in CAS arbitration, it is for the arbitrators to apply the law, and this includes interpreting the law. Thus, CAS panels are free to reach an interpretation of the applicable rules that varies from the parties’ submissions, especially when this would support a much simpler and more legally sustainable solution.

Second, given the CAS panel’s multiple references to the severity of the allegations made in the McLaren report about the systematic nature of its doping scheme, the CAS panel may have opted for its complex legal interpretational exercise with a specific aim in mind: to find a solution that would grant the FIS the authority it needed to impose what it might have seen as a necessary measure for an extraordinary situation. Furthermore, the CAS panel expressed little concern about potential reparations for the harm Mr. Legkov might endure from being improperly excluded from competition for an extended period of time. This attitude may have been rooted in a sense that even if the evidence should ultimately prove insufficient with respect to the individual Russian Athletes – which it did with respect to Mr. Legkov -, this would never rule out that they might somehow have been involved or benefitted from the overall Russian “conspiracy”.

In our view, this case would have been the perfect opportunity to confirm that despite the severity of the allegations put forward against Russia, the CAS would continue to grant Russian Athletes the basic rights guaranteed to all Athletes suspected of anti-doping rule violations. A strong statement to that effect would have reassured detractors of CAS arbitration that, no matter the political circumstances, adherence to basic principles of law remain the utmost priority. Instead, both the complex approach to the question and the result that allows for exclusion from competition based on a mere (if individualized) suspicion of doping by an Athlete risks conveying the unfortunate impression that the CAS was willing to resort to more relaxed “Russian-specific” principles aimed at facilitating the punishment of individual Athletes in the face of serious allegations of systematic doping in their country.

These concerns did not concretize in the award on the merits. In the final award the CAS panels insisted that doping charges can only succeed on evidence that relates specifically to the acts of those charged:

The Panel does not consider it possible to conclude that the existence of a general doping and cover-up scheme automatically and inexorably leads to a conclusion that the Athlete committed the ADRVs alleged by the IOC. Instead, the Panel must carefully consider the ingredients of liability under each of the relevant provisions of the WADC that the Athlete is alleged to have contravened. It must then consider whether the totality of the evidence presented before the Panel enables it to conclude, to the requisite standard of comfortable satisfaction, that the Athlete personally committed the specific acts or omissions necessary to constitute an ADRV under each of those separate provisions of the WADC.[84]

Though some may deplore the outcome of the Legkov matter and think of it as a setback for clean sport, we submit that the CAS panel’s reminder that there is no such thing as ‘collective liability’ is a crucial message to Anti-Doping Organizations. Whether the evidence available on the merits was sufficient to find that Mr. Legkov committed an anti-doping rule violation is not the point here. Ultimately, the principle that no liability can be found based on ‘shaky’ evidence represents a victory for the ‘clean athletes’, giving them assurance that they will not themselves face charges without solid basis in the future

What Russia managed to do, or was allowed to do according to the McLaren Report, is deplorable. But, this obviously does not mean shortcuts must be taken. WADA has already taken steps to improve the anti-doping regulatory framework to expand its capacity to address this type of systematic failures. In particular, the new International Standard for Code Compliance by Signatories came into effect on 1 April 2018. It goes without saying that stretching the rules too far to convict individual athletes out of a sense of “desperate times call for desperate measures” might be counterproductive. In the worst-case scenario, this may weaken the position of anti-doping regulators and call into question the legitimacy of the system by creating the unfortunate impression that Russian Athletes were victimized by the process. Giving this comfort to the alleged perpetrators of the most elaborate doping scheme uncovered in the era of the WADC is a much worse outcome than letting some who may have been involved go unpunished. A better approach that presents a lower risk for the future of anti-doping regulation is to learn from this event and continue to make the system more robust.


[1]In a subsequent award, the panel in CAS 2017/A/5379, Legkov v. IOC, Award of 23 April 2018 addressed the merits of the case, dismissing the IOC’s allegations that Mr. Legkov committed an anti-doping rule violation.

[2]Legkov CAS award at [6]–[7].

[3]Legkov CAS award at [7].

[4]Legkov CAS award at [8]–[9].

[5]Legkov CAS award at [9].

[6]Legkov CAS award at [9].

[7]Legkov CAS award at [10].

[8]Legkov CAS award at [10].

[9]Legkov CAS award at [12].

[10]Legkov CAS award at [13].

[11]Legkov CAS award at [14].

[12]Legkov CAS award at [14].

[13]Legkov CAS award at [16].

[14]Legkov CAS award at [17].

[15]LegkovCAS award at [18].

[16]Legkov CAS award at [24]. One Panel member dissented from this decision on the basis that there was no reasonable prospect that the allegation of the ADRV would be upheld, at [25].

[17]Legkov CAS award at [27].

[18]Legkov CAS award at [52].

[19]Legkov CAS award at [55].

[20]Legkov CAS award at [102].

[21]Legkov CAS award at [153] and FIS Anti-Doping Rules (emphasis added).

[22]Legkov CAS award at [59].

[23]Legkov CAS award at [60].

[24]Legkov CAS award at [59].

[25]Legkov CAS award at [109].

[26]Legkov CAS award at [108].

[27]Legkov CAS award at [158].

[28]Article 7.7 FIS ADR provides in relevant part as follows: “At such time as FIS is satisfied that an anti-doping rule violation has occurred, it shall promptly give the Athlete…notice of the anti-doping rule violation asserted and the basis of that assertion”.

[29]Legkov CAS award at [166].

[30]Legkov CAS award at [166].

[31]Legkov CAS award at [166].

[32]Legkov CAS award at [166].

[33]Legkov CAS award at [175]. Note, this statement is not entirely accurate. While Article 7.7 of the WADC does closely match Article 7.7 of the FIS ADR, Article 7.9 of the WADC is not the template for Article 7.9 FIS ADR. Instead, this provision in the FIS ADR is inspired from WADA’s Model Rules, which is not binding for stakeholders. Moreover, neither Article 7.7 nor 7.9 WADC are among the provisions that must be integrated without substantive change, so there is no duty for the Signatories to implement them verbatim.

[34]Legkov CAS award at [168]. To the CAS panel, the standard it derived from Articles 7.9.2 and 7.9.3 read together was “independent of the precise confluence of Articles 7.7 and 7.9.2 that led FIS to impose a suspension in the first place”.

[35]CAS 2017/A/4968, Legkov v. FIS, Award of August 31, 2017, para. 167.

[36]CAS 2017/A/4968, Legkov v. FIS, Award of August 31, 2017 [168].

[37]Legkov CAS award at [168].

[38]Legkov CAS award at [175].

[39]CAS 2017/A/4968, Legkov v. FIS, Award of August 31, 2017, para. 175. The CAS panel further clarifies at para. 176, that “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. 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”.

[40]CAS 2017/A/4968, Legkov v. FIS, Award of August 31, 2017, para. 172.

[41]Legkov CAS award at [172].

[42]Legkov CAS award at [176].

[43]Legkov CAS award at [176].

[44]Legkov CAS award at [178] (“Article thus plainly imposes a higher threshold to lift a suspension than the FIS ADR require to impose one in the first place”.)

[45]Legkov CAS award at [178].

[46]Legkov CAS award at [61].

[47]Legkov CAS award at [185].

[48]Legkov CAS award at [185]–[186].

[49]Legkov CAS award at [187].

[50]Legkov CAS award at [188].

[51]Legkov CAS award at [189].

[52]Legkov CAS award at [191].

[53]Legkov CAS award at [191].

[54]Legkov CAS award at [234].

[55]Legkov CAS award at [234].

[56]Legkov CAS award at [236] (emphasis added).

[57]Legkov CAS award at [237].

[58]Legkov CAS award at [237].

[59]Legkov CAS award at [237].

[60]Legkov CAS award at [238].

[61]Legkov CAS award at [238].

[62]Legkov CAS award at [238].

[63]Legkov CAS award at [166].

[64]Legkov CAS award at [166].

[65]For easy reference, the full provision reads: “FIS may impose a Provisional Suspension on the Athlete or other Person against whom the anti-doping rule violation is asserted at any time afterthe review and notification described in Articles 7.2-7.7” (emphasis added)

[66]Legkov CAS award at [187].

[67]CAS 2007/O/1381, Valverde v. UCI, Award of 23 November 2007, para. 18 & 44. It must be emphasized that the legal basis of the Mr. Valverde’s exclusion was a provision in the UCI rules at the time that provided in relevant part that  “[a] licensee against whom an investigation has been opened cannot be selected for nor participate in the World Championships until the end of the imposed suspension or until he or she has been acquitted of the anti-doping rule violation” (free translation by the authors), para. 44. Thus, the nature of Mr. Valverde’s exclusion was not the same as Mr. Legkov’s Provisional Suspension. Nevertheless, in our view, and for the reasons set forth in this Comment, the reasoning and analysis conducted by the Sole Arbitrator in the Valverde matter remains relevant to the circumstances in the Legkov matter.

[68]Id. at [55].

[69]Id. at [87].

[70]Id. at [85].

[71]Id. at [90].

[72]Id. at [89].

[73]Id. at [119].

[74]Id. at [128]

[75]It should be noted that the current iteration of the FIS ADR require that a Provisional Suspension shall be lifted if the Athlete is able to establish a “strong arguable case” that he or she bears No Fault or Negligence, which mitigates somewhat the concerns that the Provisional Suspension would be maintained in absence of any Fault whatsoever on the part of the Athlete.

[76]Kreuziger v. UCI at [4.4]

[77]Legkov CAS award at [238].

[78]Legkov award at [178].

[79]WADA Guidelines 2014 (v. 1.0), section 4.0. (emphasis added).

[80]In fact, the case on the merits Legkov v. IOC ended up including charges for Use, Tampering & Complicity (all of which were dismissed by the CAS panel for lack of evidence).

[81]IOC Disciplinary Commission, IOC v. Legkov, Decision of 27 November 17 (operative part 1 November 2017), para. 484.

[82]CAS 2017/A/5379, Legkov v. IOC, Award of 1 February 2018 (operative part). Despite this exoneration, on 9 February 2018 a CAS Ad Hoc Panel denied his joint appeal with other exonerated Athletes to participate in the Pyeongchang Olympic Games (CAS OG 18/03, Legkov et al. v. IOC, Award of 9 February 2018.). At para. 7.18, this Ad Hoc Panel acknowledged that some of the Athletes’ may have been excluded “simply because they are citizens of a country that has been found to have engaged in a systemic manipulation of the anti-doping rules”, but considered that “any unfairness was a consequential effect of the suspension of the [Russian Olympic Committee] and that the process was neither discriminatory nor unfair”.

[83]CAS 95/142, L. v. FINA, 14 February 1996, para 62.

[84]CAS 2017/A/5379, Legkov v. IOC, Award of 23 April 2018, para. 727.