SII Focus 7th June 2016

Analysis: Pechstein to appeal after German court throws out her case

Claudia Pechstein said she will appeal to the German Federal Constitutional Court, after Germany’s federal court of justice (Bundesgerichtshof) ruled it did not have jurisdiction to hear her case, as the speed skater had voluntarily signed an agreement to arbitrate all disagreements at the Court of Arbitration for Sport (CAS). The court did not consider the science behind Pechstein’s ban – she has never failed a doping test and has always argued that the readings were due to a genetic anomaly, plus are unreliable – for reasons explained below.

Science and history

Pechstein was banned for two years by the International Skating Union (ISU) under Article 2.2 of its Anti-Doping Regulations, after samples of her blood taken during the 2009 ISU Speed Skating Championships showed reticulocytes (immature red blood cells) at 3.49%, 3.54% and 3.38%, returning to 1.37% ten days after the event. These readings were above the ISU’s permitted 2.4% value.

However, Pechstein found an unlikely ally in her claim that the readings are unreliable. On 27 November 2015, the International Association of Athletics Federations (IAAF) released ‘Response to allegations of blood doping in athletics’ in reply to articles by ARD and the Sunday Times alleging that the IAAF ignored blood doping in athletics from 2001 to 2012. ‘Strenuous exercise leads to a decrease of plasma volume for up to two hours, thereby increasing the HGB [haemoglobin] concentration even though there is no increase in red blood cells, and so causing false positives’, it reads. As it is understood that the the ISU did measure reticulocyte content in haemoglobin immediately after exercise, then the IAAF could have inadvertently supported her case.

Setting this potential scientific inaccuracy aside, under the World Anti-Doping Code, a positive sample is not always necessary to establish an anti-doping doping rule violation (ADRV). Comments to Article 2.2 of the 2009 World Anti-Doping Code, which applied at the time, allow ‘use or attempted use of a prohibited substance or method’ to be established ‘by other reliable means, such as…longitudinal profiling, or other analytical information which does not otherwise satisfy all the requirements to establish “Presence” of a Prohibited Substance under Article 2.1’. Such comments are also retained in the 2015 Code, which is currently in force. This allowed the ISU to ban Pechstein based on her 2009 blood values alone.

In 2009, the CAS dismissed her appeal against her two-year ban, a decision which was later supported by the Swiss Federal Tribunal. However on 15 January 2015, the Munich Court of Appeal (Oberlandesgericht München) declared the athlete agreement between Pechstein and the ISU to arbitrate all cases at CAS as void in Germany, due to Pechstein having no choice but to sign in order to compete. It accepted Pechstein’s December 2012 claim for €4.4 million in damages from the ISU, and declared the 2009 CAS decision upholding the ISU’s ban as ineligible in Germany. It also struck out the Swiss Federal Tribunal decision supporting the CAS decision as void in Germany. The ISU then appealed to the Bundesgerichtshof, hence today’s ruling.

Today’s ruling

As previously explained, today’s ruling is not about whether the ISU was correct in its decision to ban Pechstein. The Bundesgerichtshof considered whether the agreement signed by Pechstein to arbitrate all disputes at the CAS is effective, and whether the CAS is competent to hear disputes of this nature. Such agreements are often contained within the ‘athlete agreement’, which elite athletes are required to sign in order to participate in elite sport, giving rise to the question as to whether athletes are offered free choice.

To state the argument in simple terms: sign and you can compete. Don’t sign and you can’t. This conflict was recognised by the Bundesgerichtshof.

‘Before the speed skating World Cup in Hamar (Norway) in February 2009, the applicant signed a contest message pre-formulated by the defendant’, reads its statement on the ruling (the full ruling has yet to be published). ‘Without signing this message, she would not have been admitted to the competition. In the contest message, she undertook inter alia to comply with the anti-doping rules of the defendant. In addition, the contest message contained the agreement of arbitration proceedings before the CAS to the exclusion of the ordinary courts.’

The Bundesgerichtshof clarifies that Pechstein argues that the agreement to arbitrate all disputes at the CAS constitutes abuse of a dominant position in German law under § 19 GWB (Act against restraints of competition), since the ISU holds a dominant position as the only international speed skating body. Pechstein also argues that the list of Arbitrators at the CAS is not impartial, because the sporting federations and the national Olympic committees have a clear predominance in creating the list.

Although the Bundesgerichtshof accepted that the ISU is dominant in the organisation of international speed skating, it did not accept that this meant an agreement to arbitrate all cases at the CAS constituted abuse of that dominant position. It said it had ‘not identified any abusive conduct of the defendant’.

It also rejected the idea that the CAS is biased due to sport choosing the Arbitrators, arguing that sporting associations and athletes do not have fundamentally conflicting interests. ‘Rather, taking part in the global fight against doping is in both the interests of the sporting organisations as well as those of athletes’, it said.

Reaction

Understandably, the ISU welcomed the decision, as did the CAS. ‘This is the confirmation that Claudia Pechstein had a fair trial, not only before the CAS but also before the SFT, and that the judgment of the SFT, which remains in force, settled this matter definitively in 2010’, read a statement. ‘This means that the German courts have no jurisdiction to revisit a final CAS decision. It is also the confirmation that the CAS arbitration clauses inserted in the regulations of sports organisations are valid (as it was already decided by the Swiss Federal Tribunal earlier).’

‘More importantly, like the SFT did in 1993 and 2003, the GFT has emphasised that the CAS is a “genuine arbitration tribunal” in the sense of German law, and that such sports jurisdiction is necessary for the uniformity in sport’, continues the CAS statement. ‘The GFT also notes that the CAS procedural rules guarantee the impartiality and independence of the parties and do not create any imbalance between athletes and sports federations’.

However, others highlighted that the ruling only served to highlight the need to reform the CAS. ‘Despite today’s decision, Claudia Pechstein’s case has highlighted and confirmed concerns of many athletes’ and their unions as to structural and procedural deficits of the highest international sports arbitration court’, read a statement from FIFPro, the international federation of football players associations. ‘In light of on-going efforts for improved governance in sport, the questions raised by the various courts in this procedure should trigger a proactive and inclusive reform of CAS. FIFPro calls on CAS and other sport stakeholders to work with player and athlete unions to ensure a proper structural representation and absolute impartiality of its tribunals and administrations. A recently published governance and human rights review of FIFA’s structure and operations by Harvard professor John Ruggie has also highlighted the importance of a proper arbitration system for athletes.’

“The reasoning of the court does not reflect the practical experience of athletes, the widely acknowledged concerns over the ineffectiveness of current anti-doping regulation and the inexperience of the CAS regarding human rights”, said Brendan Schwab, the Head of world player association, UNI World Athletes, in a statement. “The court’s decision exacerbates the crisis of confidence with sport’s justice system that prevails among player associations, and certainly does not bring this to an end. Reforms must urgently be negotiated with player representatives as recommended by Professor Ruggie. The CAS must have the confidence of those most affected by its decisions – the players.”

Therein lies the nub of the problem. The CAS was initially created to settle sporting disputes. However times have changed. Sport has recently implemented the 2015 World Anti-Doping Code, which places the emphasis on the athlete in arguing for a reduction in the four-year bans it mandates. Many have argued this represents a partial reversal of the ‘innocent until proven guilty’ legal principle. Athletes are now guilty until they can prove they are innocent. Nobody knows this better than Claudia Pechstein.

Today, to be an elite athlete can often be a lucrative career choice and even a two-year ban can represent the end of that career. Is it fair that in its zeal to catch and punish the athletes who generate its revenue, sport gets to decide whether that career should end, based on bad science? Hopefully, that is the question the German Federal Constitutional Court will consider.

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