SII Focus 22nd January 2015

Backstrom case: chat with Olli Rauste, CAS Arbitrator

On 16 January, sporting authorities agreed to back down from attempting to prosecute Swedish ice-hockey player Nicklas Backstrom, who competes for the Washington Capitals in the US National Hockey League (NHL). Backstrom (pictured) had tested positive for pseudoephedrine (PSE) on 19 February at the Sochi 2014 Winter Olympics, after Sweden’s team doctor advised him that he could continue to take Zyrtec-D, a US medicine he had been taking to combat allergies.

All parties involved agreed to issue Backstrom with a reprimand, during proceedings at the Court of Arbitration for Sport (CAS), which was hearing Backstrom’s appeal against a 14 March 2014 IOC finding that he had committed an anti-doping rule violation (ADRV). The World Anti-Doping Agency had also filed an appeal against an International Ice Hockey Federation (IIHF) ruling that Backstrom had not violated the World Anti-Doping Code.

Although the strict liability principle under the Code means that an athlete commits an ADRV if a prohibited substance is found in their sample, flexibility does exist to reduce sanctions under the Code. As WADA puts it on is internet site: ‘As relates to subsequent sanctions (Art. 10 of the Code), the athlete has the possibility to avoid or reduce sanctions if he or she can establish to the satisfaction of the tribunal how the substance entered his or her system, demonstrate that he or she was not at fault or significant fault or in certain circumstances did not intend to enhance his or her sport performance. This means that the burden of proof is on the athlete.’

In Backstrom’s case, it appears likely that the CAS would have found that Backstrom had committed an ADRV, due to the strict liability principle. However, the parties concerned agreed to issue the lowest possible form of sanction under the Code ahead of the CAS’s findings – a reprimand.

The basic approach to the use of medicines is very different in North American professional sports leagues compared to European rules and the rules of the Olympic movement. While professional US sports leagues do have their own rules on doping, many substances that would constitute a doping violation in European sport are permitted. For example, if an NHL player is threatened with overtraining, it is permitted to treat such a condition with hormones. In Europe, such treatment would constitute an anti-doping rule violation. Also, in many other aspects, the NHL rules on the use of medicines are much more lenient. The primary target of the NHL rules on medicines is to protect the players’ health and to educate them on the use of medicines.

Although the NHL doesn’t publish a list of prohibited substances on their internet site, it is understood that use of some substances that would be considered stimulants under the Code is not prohibited. It is assumed that PSE is not a prohibited substance in the NHL. The Sports Integrity Initiative spoke to Finnish anti-doping lawyer, Olli Rauste, a CAS Arbitrator since 1994, who highlighted the differences in approach between US and European sport.

“If we want to see NHL players in the Olympics, we must somehow be able to reconcile these two very different approaches to doping with each other”, said Rauste. “The National Hockey League Players’ Association (NHLPA) cannot accept that just for the sake of a two week Olympic tournament in the middle of their hardest season, those NHL players participating in the Games should follow stricter rules for a period of time. If that is required, those players would give an unfair advantage to other NHL players in their own league not participating in the Games. It would lead to an unfair inequality within the NHL. The participation in the Olympic games must be agreed with the NHL and the NHLPA. I assume (without knowledge, I haven’t, of course, seen the agreement) that there is a standard ‘no bad publicity’ clause in the agreement: Both parties (the IOC and the NHL) undertake to behave in all their mutual dealings in such a manner that participation in the Olympic Games will not cause bad publicity to either. The Bäckström case can be seen as causing bad publicity for the NHL. From this background, I can understand that before the NHL and NHLPA are willing to start their negotiations on the Pyeongchang 2018 Olympic Games, all open issues regarding the Sochi Games must first be settled.”

Rauste also clarified the suggestion, made in a Finnish newspaper article, that he had witnessed events related to doping at the 2002 Salt Lake City Winter Olympics. “Just to avoid any misunderstanding, I did not personally witness any events related to doping testing in Salt Lake City. I just heard that one plastic bag of samples could not be analysed because it lacked all necessary documentation. It was my own conclusion as to whether these samples came from NHL players. I do not, of course, know whose samples they were.”

Regarding the question of athletes from US professional sporting leagues competing at the Olympics and their status under anti-doping rules, Rauste said that it comes down to a simple choice: a) do we want NHL principles on the use of medicines to be applied in the 2018 Olympic ice hockey tournament, and to see NHL players in the Olympics; or b) do we want European / Olympic movement rules on the use of medicines to apply, and not see NHL players there. “Which one is better?” he asked. You can leave your answer to that question in the comment box below!

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