The Athlete

 Her sample had been found to contain a high level of sodium of nearly 400 mmol/l, which even the Athlete’s expert admitted was “implausible”.

 In actual fact, having regard to the median value for women, “we are really above the level of plausibility here”, which “means that this sample was swapped”.

 Dr. Rodchenkov’s evidence regarding the Russian Women’s Ice Hockey Team was consistent with this forensic evidence.

 No fewer than eight members of the Women’s Ice Hockey Team had been “found with strong evidence, direct evidence of swapping”, which again “indicates that something happened in this team, consisting in doping practices conducted at the team level”.

 The evidence against the Athlete was “compelling”.

574. The IOC and the IOC DC had relied blindly on Dr. Rodchenkov’s allegations and the McLaren Report, as if the McLaren Report was a proven fact.

575. There was no evidence that any of the Sochi Appellants had done anything wrong, and the lives of innocent athletes had been destroyed.

576. Dr. Rodchenkov’s motives for making the allegations were related, inter alia, to his personal fame and financial gains, rather than a desire to fight against doping. He was a criminal who had lied in the past, and his testimony in respect of the Sochi Games was inconsistent and had been proven wrong.

577. The IOC had decided to ignore any evidence exonerating the Sochi Appellants, including evidence gathered by the IOC itself, and adopted a “heads I win, tails you lose” approach, to the athletes’ detriment.

578. Everything was based on inferences, and inferences are not sufficient to prove anything.

579. Dr. Rodchenkov’s account of the “Sochi Plan”, which would necessarily have involved hundreds of corrupt people, including all the DCOs, was not credible.

580. The issue before the Panel was not what the “plan” was, but rather what “actually happened”, and whether the Sochi Appellants had anything to do with what happened.

581. The Panel must be mindful of unconscious bias against Russia and Russian athletes in general, and must focus on the evidence relating to each individual athlete.

582. The IOC bore the burden of proof, notwithstanding the effective reversal of the burden of proof by the IOC DC. The standard of proof was high, and at the “very upper limit” of the sliding scale to be comfortably satisfied, given the seriousness of the allegations.

583. Some procedural flaws in breach of the athletes’ due process rights before the IOC DC could not be, and were not, remedied at the hearing before the CAS; for example, the IOC’s refusal to permit access to the bottles analysed by Prof. Champod. This should cause the Panel to conclude that Prof. Champod’s findings “do not have much evidentiary value, because they could not be fully disputed by the appellants’ experts”.

584. Where there is no objective evidence against the accused, it is not possible to rely solely on circumstantial evidence. Drawing an analogy with CAS 2011/A/2625, there had been a serious failure to investigate and verify the allegations of Dr. Rodchenkov, in respect of the alleged implication of the Sochi Appellants. A party that does not even try to obtain relevant evidence cannot simply rely on circumstantial evidence; were it otherwise, this would amount to a reversal of the burden of proof.

585. Dr. Rodchenkov’s story of what allegedly happened at the Sochi Games was inconsistent, untrue, and cannot have occurred as he claims. Dr. Rodchenkov had no first-hand knowledge of the vast majority of the alleged facts and evidence he had sought to describe. His entire

story, at best, was based on the alleged stories of others; “He, himself, has no clue what was going on”.

586. There were numerous inconsistencies regarding what allegedly happened in the Sochi Laboratory. These included: (a) the times at which Dr. Rodchenkov received the photographs of the DCFs; (b) how he came to learn the identities of the athletes whose samples needed to be swapped; (c) his statement that he destroyed all evidence of the DCFs from his phones (and instructed others to do the same), while keeping a diary relating to the events in question;

and (d) who was taking and sending the photographs of the DCFs.

587. Other aspects of Dr. Rodchenkov’s story defied logic, including: (a) how the sample bottles were transported around the Sochi Laboratory – i.e. hidden in the laboratory coat of Mr.

Kudryavtsev; and (b) his account of rinsing the sample bottles (in a room which had no running water) and depositing the urine into a large plastic tub and proceeding to empty the tub into a toilet, which was situated next to the main entrance and security booth of the Sochi Laboratory, on a frequent basis.

588. There was no contemporaneous evidence in support of Dr. Rodchenkov’s story. His diary entries, which recorded him going to bed by midnight almost every night during the Sochi Games, prove that his whole story of nighttime swapping was fabricated.

589. Further, five witnesses who were there at the relevant time had given evidence that Dr.

Rodchenkov’s account was fiction; they were credible witnesses, unlike Dr. Rodchenkov.

590. The chain of custody documents proved that nearly half of all the samples in question were delivered to the Sochi Laboratory during the day, in the afternoon. This was incompatible with Dr. Rodchenkov’s account of the samples being delivered to the Sochi Laboratory shortly after 01h00, for the purpose of nighttime swapping.

591. Those documents also proved that samples were often processed and sent to the third floor of the Sochi Laboratory for analysis, i.e. “out of the swapping zone”, long before Dr. Rodchenkov says that the swapping took place.

592. Furthermore, some of the samples with multiple T marks were processed during the day, which must mean there was no correlation between T marks and sample swapping.

593. The IOC blindly relied on the tainted investigation of Prof. McLaren. The sole purpose of the IOC’s subsequent analysis, e.g. in respect of marks or scratches, sodium and DNA, was to confirm its foregone conclusion that the athletes must be guilty. Again, it was not an objective or reliable investigation.

594. There were six versions of the Duchess List before the Panel; there was possibly a seventh version of it; and an entirely different document had appeared in the film Icarus, bearing a different name. In sum, the Duchess List, or whichever version of it one wished to look at, did not constitute reliable evidence, and it most definitely did not constitute evidence from

which foregone conclusions could be drawn regarding the implication of innocent athletes in the alleged plan.

595. More than half of the relevant sample bottles analysed by Prof. Champod did not reveal any signs of tampering.

596. The findings of Prof. Champod contradicted the story depicted by Dr. Rodchenkov, in particular his statement that the samples of protected athletes had been “automatically”

swapped. Prof. Champod admitted that: (a) on the majority of the sample bottles of the Sochi Appellants, there were no T marks at all or only isolated T marks; but (b) neither he nor his team members had ever been able to open a bottle without leaving T marks.

597. Prof. Champod’s findings and methodology were flawed. In particular: (a) he started from the proposition that the bottles had been tampered with; (b) he was not looking at possible other sources for the marks; (c) the methodology was developed on the basis of only 21 bottles; (d) his classification and categorisation of marks was not clearly defined; (e) he chose to exclude from his examination fully closed bottles (i.e. bottles closed between 12 and 15 clicks); (f) accordingly, his report included no pictures of what kinds of marks would be left on bottles that had been fully closed; and (g) his assessment of the level of closure of the bottles was unreliable and incapable of verification.

598. By turning its focus to the “number of clicks” issue, the IOC had made a new allegation against the Sochi Appellants that they deliberately failed to close their sample bottles to the fullest extent, in an attempt to create a link between the alleged tampering and the individual athletes.

599. With regard to the DNA and sodium issues, these only applied to a limited number of cases.

600. As to DNA: (a) Dr. Pope had testified that there were different possible sources of contamination; (b) the IOC had disregarded such possibilities; and (c) the IOC had failed to discharge the burden of proving that the one possibility on which it relied, i.e. the intentional mixing of urine, for the purpose of urine swapping, was what actually happened.

601. As to sodium: (a) the athletes with extremely high levels did not have an explanation for those readings; (b) in such cases, any tampering that did occur happened behind the athletes’ back, without their knowledge and without their intent; and (c) those athletes cannot be held responsible for tampering of which they were not a part.

602. With regard to the lifelong bans, the sanctions imposed by the IOC were manifestly disproportionate and incompatible with CAS case law and the applicable rules. The IOC was bound by the WADC; its efforts to change the WADC had been unsuccessful; and it was not permitted to introduce a change through the back door, in blatant disregard of clear CAS jurisprudence. The Olympic Charter was not above the WADC and could not be a basis for lifelong bans. In short, the IOC was not above the law.

603. In conclusion, it was submitted on behalf of the Athlete that the alleged scheme was not sufficiently proven and that there was no evidence of an individual ADRV committed by the Athlete.

604. Against this general background, the Athlete referred to her individual request for relief (see supra para. 50), which was also forwarded in writing to the Panel in advance of the final pleadings. In addition, the Athlete requested a contribution towards her legal fees and expenses of CHF 75,000.