CAS 2009_A_1912 Claudia Pechstein vs ISU

• CAS 2009/A/1912 Claudia Pechstein v/ International Skating Union
• CAS 2009/A/1913 Deutsche Eisschnelllauf Gemeinschaft e.V. v/ International Skating Union
  
  
• CAS 2009/A/1912 Claudia Pechstein vs ISU
• CAS 2009/A/1913 DESG vs ISU

CAS 2009/A/1912 P. v. International Skating Union (ISU) &
CAS 2009/A/1913 Deutsche Eisschnelllauf Gemeinschaft e.V. (DESG) v. International Skating Union (ISU)

• Speed skating
• Doping (blood doping)
• Meaning of the full power of review of the CAS
• Retroactive application of new scientifically sound evidentiary methods
• Longitudinal hematological profiling as a mere evidentiary method
• Anti-doping proceedings without adverse analytical finding and burden of proof
• Absence of adverse analytical finding and departures from the international standards for testing
• Comfortable satisfaction of the Panel as standard of proof for doping cases
• Chain of custody
• Abnormal hematological values and establishment of a doping offence

1. The full power of review of the CAS means that the CAS appeals arbitration procedure entails a de novo review that it is not confined to deciding whether the body that issued the appealed ruling was correct or not. The mission of CAS Panels is thus to make its independent determination as to whether the parties’ contentions are inherently correct rather than to assess the correctness of the appealed decision

2. New scientifically sound evidentiary methods, even not specifically mentioned in anti-doping rules, can be used at any time to investigate and discover past anti-doping rule violations that went undetected, with the only constraint deriving from the eight-year time limitation and the timely initiation of disciplinary proceedings. As long as the substantive rule sanctioning a given conduct as doping is in force prior to the conduct, the resort to a new evidentiary method does not constitute a case of retrospective application of the law.

3. The “use” of a prohibited substance or prohibited method – not depending on an adverse analytical finding – constitutes nowadays an anti-doping rule violation exactly in the same way as it did under the old version of the WADA Code and the anti-doping regulations of the international federations.

4. The “longitudinal hematological profiling” constitutes evidentiary means to demonstrate the violation of the anti-doping rules and this could be utilized as evidence of a doping offence under the older versions of the WADA Code as well.

5. In case of a doping offence without adverse analytical finding, the federation claiming the violation must prove that
- (i) the blood samples used to acquire the athlete’s hematological values and portray her profile were properly taken,
- (ii) there was a reliable chain of custody of the blood samples from the place of collection to the laboratory,
-(iii) the machine used to analyse the blood samples was a reliable equipment to record accurate hematological values,
- (iv) the transmission of those values to, and the storage in, the federation’s data base was reliable, and
-(v) the hematological values of the athlete are reliable evidence of her use of a prohibited method.

6. There is no “factual presumption” that the blood screening tests produced correct result, because, according to the CAS case law, in anti-doping proceedings other than those deriving from positive testing, sports authorities do not have an easy task in discharging the burden of proving that an anti-doping rule violation has occurred, as no presumption applies. Accordingly, the federation bears the full burden to present reasonably reliable evidence to persuade the Panel, by the applicable standard of proof, that the athlete committed a doping offence in violation.

7. In the absence of an adverse analytical finding (where a presumption is provided in favour of the anti-doping organization), the international federation is not mandated to follow the WADA IST and WADA ISL in order to prove the Athlete’s use of a prohibited method. Any reasonably reliable practice of sample collection, post-test administration, transport of samples, analytical process and documentation would suffice. This view is confirmed, a fortiori, by the fact that, even in cases of adverse analytical findings, departures from WADA International Standards do not invalidate per se the analytical results, as long as the anti-doping organization establish that such departure did not cause the adverse analytical finding.

8. The “comfortable satisfaction” test is well-known in CAS practice, as it has been the normal CAS standard in many anti-doping cases even prior to the WADA Code. Several awards have withstood the scrutiny of the Swiss Federal Tribunal, which has stated that anti-doping proceedings are private law and not criminal law matters and that “the duty of proof and assessment of evidence [are] problems which cannot be regulated, in private law cases, on the basis of concepts specific to criminal law”. The standard of proof beyond reasonable doubt is typically a criminal law standard that finds no application in anti-doping cases.

In the period between February 2000 and April 2009 the Athlete Claudia Pechstein underwent numerous in-competition and out-of-competition anti-doping controls. None of these Controls resulted in an adverse analytical finding.

At the same time the ISU collected more than ninety blood samples from the Athlete as part of the ISU blood profiling program. In particular, from 20 October 2007 until 30 April 2009 the ISU collected twenty-seven blood samples from the Athlete, the last twelve of which were collected between January and April 2009.

In March 2009 the International Skating Union (ISU) reported an anti-doping rule violation against the Athlete Claudia Pechstein after her samples, collected in February 2009, showed abnormal blood values, due to the use of a prohibited substance and/or a prohibited method, i.e. blood doping.

Consequently the ISU Disciplinary Commission decides on 1 July 2009 to impose a 2 year period of ineligibility on the Athlete for the use of blood doping, including disqualification of her results.

Hereafter in July 2009 both the Athlete and DESG appealed the ISU decision of 1 July 2009 with the Court of Arbitration for Sport (CAS). The Athlete and DESG requested the Panel to set aside the Appealed Decision and to annul the imposed sanction.

Following assessment of the evidence the Panel, bearing in mind the seriousness of the allegation, finds that the ISU has discharged its burden of proving to the comfortable satisfaction of the Panel that the abnormal blood values recorded by P. in Hamar on 6 and 7 February 2009, and the subsequent sharp drop recorded on 18 February 2009, cannot be reasonably explained by any congenital or subsequently developed abnormality.

The Panel finds that they must, therefore, derive from the Athlete's illicit manipulation of her own blood, which remains the only reasonable alternative source of such abnormal values. As a consequence, the Panel upholds the sanctions already imposed by the Appealed Decision and holds that the Athlete is liable for the full two-year period of ineligibility.

Therefore the Court of Arbitration for Sport decides on 25 November 2009:

1.) The appeals of P. and of the Deutsche Eisschnelllauf Gemeinschaft e.V. against the decision dated 1 July 2009 of the Disciplinary Commission of the International Skating Union are dismissed.

2.) The decision dated 1 July 2009 of the Disciplinary Commission of the International Skating Union is upheld, with the following modification as set out in para. 3.

3.) P. is declared ineligible for two years as of 8 February 2009.

4.) The results obtained by P. on 7 February 2009 at the ISU World Allround Speed Skating Championships are disqualified, with related forfeiture of any medals, points and prizes.

5.) All other motions or prayers for relief are dismissed.

(…).