10 July 2015

ISU critical of DOSB findings in Pechstein case

The International Skating Union (ISU) has claimed that an investigation by the German Olympic committee (DOSB) does not adequately explain Claudia Pechstein’s abnormal blood values, which led to a two-year ban in 2009. It also reiterated that Pechstein (pictured) has not been cleared of doping, disputing evidence presented by the DOSB and Pechstein that appears to show that Pechstein’s blood values could have been caused by a genetic condition. Pechstein has always denied having doped, and immediately refuted the ISU’s claims.

‘ISU’s silence on Ms. Pechstein’s massive media campaign has apparently created a public opinion (including that of the media) that Ms. Pechstein’s abnormal blood values had been fully caused by an alleged inherited blood disease and that the report of the DOSB commission has fully rehabilitated and cleared her of doping’, read the 9 July ISU statement, entitled Claudia Pechstein has not been rehabilitated. ‘Also, the latest decision of the Munich Court of Appeal seems to have contributed to this opinion despite the fact that it did not in any way address the question of whether Ms. Pechstein had doped, but exclusively dealt with complex procedural issues. In addition, it should be noted that the decision is not final; the ISU has lodged an appeal with the German Federal Court of Justice.’

Pechstein was banned for two years by the 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. 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’.

Until the World Anti-Doping Agency (‘WADA’) introduced its ‘Harmonized Protocols and Guidelines for Athlete Biological Passport’ in December 2009, this allowed the ISU to ban Pechstein based on these values alone. In 2009, the Court of Arbitration (‘CAS’) dismissed her appeal against her two-year ban, a decision which was later supported by the Swiss Federal Tribunal.

On 15 January 2015, the Munich Court of Appeal ruled that the agreement between the ISU and Pechstein to arbitrate all cases before the CAS was void in Germany, and declared the CAS ruling ineligible in Germany. It also allowed Pechstein to proceed with a compensation claim against the ISU. ‘It should be noted that the decision is not final’, read the ISU statement. ‘The ISU has lodged an appeal with the German Federal Court of Justice’.

After the ruling, the DOSB commissioned five ‘medical experts’ to assess if Pechstein’s blood values could have been explained by her alleged medical condition. ‘None of the reviewers conclude that on the basis of blood profiles and the erythrocyte characteristics of Claudia Pechstein, doping detection can be performed’, wrote Professor Wolfgang Jelkmann, Director of the Institute of Physiology at the University of Lübeck, in a 29 January DOSB statement, which contains links to all five opinions.

However, the ISU questioned the independence of the DOSB’s investigation. ‘The DOSB has appointed as Chairman and Coordinator of the commission Prof. Dr. W. Jelkmann, who was Ms. Pechstein’s main expert in all proceedings from the very outset of the case and has actively appeared in person and testified on her behalf at hearings before the deciding bodies in both instances’, read its statement. ‘The ISU emphatically believes this person cannot possibly be considered impartial or neutral […] The DOSB expert commission based its findings solely on previous expert opinions, without studying all the scientific data and/or examining new or first hand evidence. The opinions (reports) of the members of the commission also show some other scientific shortcomings, which the ISU will rebut with other experts if required.’

The ISU also cast doubt on Pechstein’s claims that her blood anomalies were due to a genetic condition. ‘The German experts now claim that Ms. Pechstein suffers from a certain inherited blood disease. They cannot agree on the exact type or name of the disease, but state that this disease explains every one of Ms. Pechstein’s abnormal blood values in the past. However, even these experts had to admit that the disease is in “a mild form”. The ISU experts are convinced that this mild form of a genetic anomaly has not been established with sufficient scientific certainty, but that even if it indeed exists, it could at most, explain slight, continuous and stable overturning of reticulocyte production, but does not and cannot explain the previous significant peaks and excess of variation of the haematologic parameters of Ms. Pechstein obtained during the period 2007-09. Also, none of the members of the commission presented in his/her opinion one single patient (less so a study of a group of patients) suffering from the same mild form of blood disease showing that such patients would have a similar blood profile as Ms. Pechstein, thus further eroding the credibility of their findings.’

Finally, the ISU questioned Pechstein’s behaviour. ‘Although Ms. Pechstein had been offered during the proceedings before the ISU Disciplinary Commission and before the CAS to undergo tests for any possible blood disease or anomaly by neutral external experts, she refused to do so. Instead, she underwent tests by her own expert (without any control by or participation of the ISU). This expert concluded on 30.07.2009 preliminarily that there was no indication for a blood disease or anomaly and this report was presented to the CAS […] In addition, the coincidence that Ms. Pechstein had her highest abnormal values frequently at exactly the time of the top world competitions is striking and remains without conclusive explanation by  the DOSB commission. Lastly, the fact that Ms. Pechstein’s blood profile during the period 2000-2006  (ISU blood screening started in 2000)  had never reached those high values obtained during the period 2007-2009, which was decisive for the imposed sanction, together with the fact that in the last entire season  2014/15 her values of % reticulocytes obtained due to ISU testing were in the normal range although she competed under the same conditions as in 2007-2009, does not support the existence of a genetic blood anomaly, because such anomaly can neither be cured nor disappear by itself.’

Pechstein said that by releasing such a statement, the ISU had ‘unmasked’ itself. ‘Imagine that a defendant would be tried by a court of law as a car thief, despite there being no proof that he did not steal the car’, she wrote in a statement issued today. ‘He is not tried because there is proof that he stole the car, but because there is no proof that he did not steal the car!’

Pechstein said that in the last six years, the ISU has not been able to present any proof that she has committed a doping offence. ‘I was […] convicted by a dubious ISU court in which both prosecutors and judges all came from the ISU […] Meanwhile, a clear medical diagnosis is on the table, which explains my fluctuating and temporarily increased reticulocytes. More than a dozen haematologists from six nations have confirmed this diagnosis. For this reason, I have been rehabilitated – namely, by the DOSB. Whether the ISU like it or not, President Alfons Hörmann has rehabilitated me on behalf of German sport.’

Pechstein reiterated that she planned to pursue her claim for damages to the end. ‘I have to lead proceedings before the Supreme Court and even win. Not only for me, but for all athletes. The basic right to appeal to an ordinary court cannot be denied to us, as athletes. We need to be protected from such ignorant functionaries who autocratically create their own world.’

‘If the ISU says that the medical diagnosis is wrong, then I do not understand why the world governing body, before the Supreme Court, tried with a vengeance to prevent the admissibility of my damages claim’, continued Pechstein. ‘If this were true, they need not fear the proceedings before the Court of Appeal in Munich. The process would be the best for both sides. Instead, the ISU has once again issued one of their sparse, anonymous statements [containing] speculation, denials and half-truths.’

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