Demonising Justin Gatlin
13th September 2015
FIFPro, the international football players’ union, has pledged to provide financial support to speed skater Claudia Pechstein in her claim for compensation from the International Skating Union (ISU), as part of an effort to reform the Court of Arbitration for Sport (CAS). According to various German news reports, FIFPro and the German trade union of policemen and women will jointly provide €40,000 to support Pechstein (pictured).
‘FIFPro, alongside the German trade union of policemen and women – as well as private donors – will help carry the cost of the procedure in front of the German Federal Court of Justice’, read a FIFPro statement issued today. ‘FIFPro expresses its political and moral support for Ms. Pechstein, whose fight for her own rights can positively impact those thousands of professional athletes around the world, among them the 65,000 footballers recognised by FIFPro […] FIFPro is firmly of the view that CAS does not provide footballers and other athletes with a structure and a process that is fair to athletes […] Urgent reform of the sports arbitration system is needed in which athletes must play an active and equal role. FIFPro is convinced that Ms. Pechstein, with our support, will take a historic step in the near future to help install an arbitration system which respects the rights of all athletes.’
On 15 January, the Munich Court of Appeal (Oberlandesgericht München) declared the athlete agreement between Pechstein and the ISU to arbitrate all cases before the Court of Arbitration for Sport (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 a 2009 CAS decision upholding an ISU ban based on abnormal blood values as ineligible in Germany. It also struck out a Swiss Federal Tribunal decision supporting the CAS decision as void in Germany.
The ISU has appealed the Munich Court’s decision at the German Federal Court of Justice (Bundesgerichtshof). If it follows the lead of the Munich Court, then this could allow other German athletes to bring claims before the State courts. FIFPro said that Pechstein had faced a ‘heavy financial burden’ in arguing her case over the past six years, and a page on her internet site asks for financial donations. FIFPro has previously raised serious concerns about the CAS, which it said lacked ‘basic principles such as independence, equal representation and accessibility’.
Pechstein was banned for two years by the ISU under Article 2.2 of its 2009 Anti-Doping Rules, 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. Although these readings were above the ISU’s permitted 2.4% value, Pechstein had not failed any other anti-doping test and has always said the readings were due to a genetic anomaly and are unreliable.
Under the World Anti-Doping Code, a positive sample is not always necessary to establish a doping violation. 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’.
Pechstein has always denied doping. Last week, she strongly refuted an ISU media release which called into question her evidence that her blood values were due to a genetic anomaly. The Bundesgerichtshof told the Sports Integrity Initiative that it has yet to set a hearing date, as it has yet to receive a response from both parties involved in the case.
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