Professor McLaren again attacks Russian sport

On 9th December 2016 Canadian law Professor McLaren issued the second part of his report into the Russian Doping Scandal.  Its full text can be found here.

In this report Professor McLaren sets out in some detail what he claims was a state sponsored conspiracy to dope Russian athletes in preparation for the 2012 London Summer Olympic Games and the 2014 Sochi Winter Olympic Games.

The first point to make about this latest report is that there should never have been more than one report.  As Professor McLaren admits, he has only just finished processing the evidence now, which is why he has presented his final report now.

What that means is that Professor McLaren should have delayed publishing his report until now.  Instead, rather than wait until he had completed processing the evidence, Professor McLaren published an incomplete report last summer as part of his campaign to ban all Russian athletes from competing in this year’s summer Olympic Games in Rio.

As I have repeatedly said this was wrong.  Using an incomplete report to try to ban athletes against whom no finding of wrongdoing had been made by imposing on them a blanket ban based on their nationality was grossly unfair and discriminatory, whilst denying them the presumption of innocence – as Professor McLaren demanded – was a gross violation of their rights and of due process.

The International Olympic Committee was of the same view, which is why Professor McLaren’s campaign to get all Russian athletes banned from the Olympic Games in Rio in the end failed, though he did succeed in getting Russian athletes banned from the Paralympic Games, which took place shortly after.

I have also pointed out what the proper course of action which should have been followed should have been.  This was to set up a full and open inquiry whilst taking proper precautions in the meantime – as was in fact done – to ensure that cheating by Russian athletes at the summer games in Rio was impossible.

This was not the course of action Professor McLaren chose to take, though I would have thought that as a lawyer it was the obvious one for him to take.  As a result he politicised the whole investigation – turning a doping inquiry into a witch-hunt – doing in the process massive damage to his own credibility and to that of his inquiry, and losing for himself the goodwill not just of the Russians but also of many others in the international sporting community especially outside the West.

That Professor McLaren himself seems to have gradually become aware of this is shown by his much more measured comments today, which contrast with those he made last summer. 

Thus on being asked whether Russia should have the 2018 World Cup taken away from it and should be banned from the Winter Olympics in PyeongChang in South Korea, he is reported to have said the following

“My function was to be an investigator and to investigate facts.  It is up to the different parties, like the International Olympic Committee, to make their decision.”

That is of course true, but it is also the diametric opposite of what Professor McLaren was saying and doing last summer, when he was trying to get Russian athletes banned from the Olympic and Paralympic Games.  It is in fact an implicit admission that his conduct then was wrong.

One consequence of the politicisation of this affair is that it has detracted from the allegations themselves.  What more in light of Professor McLaren’s latest report can be said about them?

Firstly, as to Professor McLaren’s latest report, like his earlier report it has to be treated more as a statement of the prosecutor’s case rather than as a final judgment in this matter.

Secondly, though Professor McLaren claims to be providing much more evidence to support his claims in his new report than he did in his first report, I have to say that on my reading of his new report there is actually little in it that is really new.  At the time of the publication of his first report Professor McLaren gave the impression that there was a vast mountain of evidence which proved his case but which for various reasons he was not at that time able to disclose.  Now that he has made what he says is a full disclosure of his evidence, I have to say that it does not seem to me to amount to much more than what he disclosed last summer.

All this is not however to say that there is not a serious case to answer.

Whilst one can take issue with many of Professor McLaren’s claims – as I do – there is no doubt doping did occur in the Russian Olympic teams and that Dr. Grigory Rodchenkov – the former head of Russia’s anti-doping laboratory and Professor McLaren’s star witness – played a major role in it.  It would be perverse to argue otherwise since the Russian authorities have themselves admitted it.

However that does not mean all of Professor McLaren’s claims are true. 

His final report, like his first report, depends heavily – in my opinion excessively – on the evidence of a single witness: Dr. Grigory Rodchenkov. 

Personally I would be far more uneasy about accepting the truth of what Dr. Rodchenkov has to say than Professor McLaren appears to be, given Dr. Rodchenkov’s own admitted role in the doping scandal, and the fact that he is on the run from the Russian police. 

Both of these facts seem to me to give Dr. Rodchenkov an obvious motive to implicate the Russian authorities in his own admitted misdeeds, both in order to exculpate himself in the scandal, and to secure his claim for asylum in the West. 

That fact never seems to worry Professor McLaren or indeed anyone else in the West, where Dr. Rodchenkov is constantly hailed as a whistleblower rather than as a fugitive from justice, even though I would have thought the point was obvious.

As for the forensic evidence Professor McLaren talks so much about, and which he provides to support the testimony of Dr. Rodchenkov, much of this evidence looks to me questionable if only because it turns out to be deductive or inferential rather than factual.

For example, on the crucial question of the illicit opening of the sample bottles, Professor McLaren admits that he has no witness – significantly not even Dr. Rodchenkov – who claims to have seen it done, and therefore has no evidence for how it was supposedly done.  The forensic evidence upon which he relies is purely inferential: the opinion of a single expert as to how it might have been done (not how it was done) based on an already pre-existing assumption that it was done.  

As for the scratch marks on the bottles, to my mind they do not prove anything until it is shown that they can have no other cause than the illicit opening of the bottles.  That is something that requires far more forensic testing than Professor McLaren has had done, and is an issue about which the opinion of more than one expert is required, and concerning which the opinion of the Swiss manufacturer certainly needs to be sought.

Of course none of this means that what Professor McLaren and the expert allege was done to the bottles didn’t happen, or that the bottles weren’t opened as they say they were.   However it does leave their claims open to challenge, and the case nowhere near proved.

It is however in Professor McLaren’s allegation of a gigantic state sponsored conspiracy where he seems to me to be on shakiest ground. 

Not only does the whole case for this conspiracy rest excessively on the testimony of Dr. Rodchenkov, but the supporting evidence to prove the existence of this conspiracy looks to me threadbare. 

The emails Professor McLaren cites in support of his claim for the existence of this conspiracy in my opinion come nowhere close to doing so, whilst the statistical evidence he uses to prove the conspiracy in my opinion does no such thing.  The emails seem to me to contain no ‘smoking gun’ and to be capable of various interpretations, whilst it is notoriously easy to organise random pieces of information to form a statistical pattern, and some of the statistical evidence Professor McLaren produces looks to me suspiciously like that.  

To be clear, the fact that some or even many Russian athletes may have been doping does not mean they were doing it as part of a centralised state sponsored conspiracy, and it certainly does not prove that such a centralised state sponsored conspiracy actually existed.

It should be stressed that just as was the case with Professor McLaren’s first report last summer, this report is empty of contrary evidence and contains practically no testimony from the Russians, whose evidence and arguments Professor McLaren in his report disregards and barely mentions.

It is as if having heard what Dr. Rodchenkov had to say Professor McLaren simply assumed its truth, and then assembled whatever evidence he could in order to corroborate it, whilst ignoring or discounting anything that might contradict it. 

Whilst that is what many prosecutors typically do, a judge carrying out an impartial inquiry – which is what Professor McLaren claims he was doing – would first want to hear what the other side had to say before coming to any conclusions. 

Instead Professor McLaren not only ignored what the Russians have to say, but has made it clear that he did so because he assumes in advance that whatever the Russians tell him will be a lie and untrue.  He was at it again at the news conference following the publication of his report, when he said the following

“It would take a lot to persuade me that they (NB: the Russians – AM) could be totally rehabilitated in time for PyeongChang and have a new culture. When I hear senior people in the Russian sporting and political establishment deny a lot of stuff, every time that happens, I’m thinking it’s going to take longer than it could.”

(bold italics added)

Preventing a defendant from exercising the option of denying accusations made against him, and insisting that the defendant must instead accept the accusations made against him in their entirety without being able to dispute them, and insisting that the defendant must confess his guilt or face dire consequences if he does not do so, is obviously not the right way to arrive at the truth of a matter, and in truth it is a gross violation of due process. 

For what it’s worth my opinion is that if there was a conspiracy the facts point more to Dr. Rodchenkov being its originator and mastermind than to anyone else in the Russian political or sports structure. 

This is in part because some of the elements of the state sponsored conspiracy Dr. Rodchenkov alleges – like the alleged role of the FSB – seem to me to belong more to the world of spy fiction than to real life.  I doubt the FSB had any role in this affair, and Dr. Rodchenkov’s claim it did, and his equally unlikely claim to have been one of its agents, all but confirms that he is not telling the whole truth. 

Professor McLaren’s credulous acceptance of Dr. Rodchenkov’s stories about the role of the FSB point to something else: Professor McLaren’s unfortunately all too typical ignorance of Russia, and his stereotypically Western assumptions about Russia, which inform his entire report.  Unfortunately that has exposed him to manipulation by Dr. Rodchenkov, which has obviously influenced the conduct of his investigation in a most unfortunate way.

Realistically, having made such a strong pitch against Russia last summer, Professor McLaren was in no position to change course now.  To have done so would have exposed him to ridicule and to legal action, and would be irreconcilable with his own sense of pride and self-esteem.  That all but guaranteed that his second report would be no more than a sequel to his first report, which in turn means that the contents of his second report come as no surprise.

The way forward now is to put all the damage done by this affair behind, and to concentrate on setting up in Russia the best and most full-proof possible system of testing, which will enable Russia to set the gold standard in this area, and which will make it possible for Russia to be fully reintegrated in world sport with a minimum of embarrassment.

In the meantime the legal claims Russian athletes are pursuing in various courts must take their course.  It goes without saying that if the Russian athletes prove their innocence then they should be fully compensated for the injury which has been done to them.

As for the future of Russian sports, if the Russians are able to set up an anti-doping system that is accepted as the gold standard – something which though difficult in my opinion is by no means impossible – then in the long run they might actually be the big beneficiaries from this affair.