The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
Athletes will be able to request public hearings at the Court of Arbitration for Sport (CAS), after the Grand Chamber of the European Court of Human Rights (ECHR) rejected (click here to download PDF) Claudia Pechstein’s referral request, meaning that a 2 October 2018 Chamber Judgment becomes final. ‘Following the recommendation of the ECHR, the CAS has already implemented new rules in order to allow public hearings in disciplinary and/or ethics matters’, confirmed the Court of Arbitration for Sport (CAS) in a statement.
In certain circumstances, athletes will also be able to appeal to a State court now that the ECHR Chamber Judgment has become final. This is because the Judgment raised questions about whether requiring the signature of an Athlete Agreement – which requires all disputes to be adjudicated at the CAS – as a prerequisite to participation in elite sport is compatible with the European Convention on Human Rights (EConHR). ‘The ECHR recognises that a non-State dispute resolution mechanism of first and/or second instance, with a possible appeal, even limited, before a State court, as a last instance, is appropriate in this area (of international sport)’, read a carefully worded CAS response to the Chamber Judgment, recognising that State court appeals are possible.
The CAS welcomed the ECHR decision as confirmation that the CAS is a ‘genuine independent arbitration tribunal, offering the guarantees provided by Article 6 § 1 of the European Convention on Human Rights, and that such sports jurisdiction is necessary for uniformity in sport’. As its statement outlines, the CAS also welcomed the ruling as confirmation that sport’s ten year battle with the German speed skater is over. However, Germany’s Federal Constitutional Court (Bundesverfassungsgericht) has yet to issue a final ruling on whether arbitration at the CAS complies with German constitutional law.
The reasoning behind the ECHR’s decision to reject Pechstein’s referral request has not been published. In its October 2018 Chamber Judgment, the ECHR dismissed allegations that the CAS is not independent but, importantly, two of the seven judges disagreed with the ECHR decision and wrote lengthly explanations as to why. As mentioned, the ECHR also found that by requiring Pechstein to sign the Athlete Agreement in order to participate in International Skating Union (ISU) competitions, her agreement to arbitrate all disputes at the CAS constituted forced arbitration, which is not compatible with the EConHR.
In the Chamber Judgment, the ECHR also recognised that sports governing bodies (SGBs) influence the International Council of Arbitration for Sport (ICAS), as they nominate 12 of the 20 ICAS members. Four additional ICAS members are elected by the 12 members appointed by the SGBs. These 16 members then elect the four remaining members.
Also, the ICAS is headed by an International Olympic Committee (IOC) Vice President. The ICAS controls not only who is appointed as a CAS Arbitrator in a particular case, but also who presides over both the CAS and its Appeal Division, as well as who is appointed as its Secretary General.
In appeal cases, the President of the CAS Panel is nominated by the President of the CAS Appeals Division. Since 2013, this has been Corrine Schmidhauser, President of Anti-Doping Switzerland and a former member of the international ski federation’s (FIS) Legal Committee. Before her, IOC President Thomas Bach was President of the Appeals Division from 1994 to 2013. Pechstein is a speed skater, but her case first came before the CAS in 2009.
The ICAS elects three fifths of the CAS members on the basis of a list submitted by the SGBs. One fifth of the CAS members are appointed to represent the interests of the athletes, and one fifth are considered independent experts.
Article 6 § 1 of the EConHR reads: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. Article 6 § 1 also mandates that ‘judgment shall be pronounced publicly’. The CAS doesn’t announce all its judgments, let alone publish them (e.g. the unpublished exoneration of distance runner Adel Mechaal, TAS 2017/A/4967). From 1995 to 2013, research indicates that the CAS published between 13% and 60% of judgments.
Yet the ECHR found that the CAS complies with the requirements of independence and impartiality mandated in Article 6 § 1 of the EConHR. It will be interesting to see what happens next if Germany’s Bundesverfassungsgericht rules that the CAS doesn’t comply with German constitutional law for any of the reasons outlined above.
If the above reads like an extract from a sports law textbook, then well done for continuing to read this far(!) However, the complexity of Pechstein’s case, which has taken her ten years, underlines the difficulty that athletes face in taking disputes outside of sport’s closed arbitration system. Unfortunately, to understand her case, more acronyms as well as sporting and legal jargon is necessary. Sorry.
Pechstein was banned for two years by the ISU under Article 2.2 of its Anti-Doping Regulations, after blood samples 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 at the time.
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, the IAAF’s statement 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, in 2010, was supported by the Swiss Federal Tribunal. 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.
However, on 7 June 2016, the Oberlandesgericht München judgment was quashed by the German Federal Constitutional Court. It reasoned that if it were true that the ISU had a monopoly under German competition law, athletes nevertheless accepted and freely subscribed to the agreement to arbitrate cases at the CAS, and such a practice did not constitute abuse of a dominant position. This judgment has been appealed, and a final ruling has yet to be publicised.
This brings us back to the start of this article. On 2 October 2018 an ECHR Chamber Judgment rejected Pechstein and Romanian footballer Adrian Mutu’s claims, heard together, that the CAS’s lack of independence infringes Article 6 § 1 EConHR. On 5 February, the Grand Chamber of the ECHR rejected Pechstein’s request for a referral.
In the ten years it has taken her to get to this stage, Claudia Pechstein has sacrificed her career and a great deal of money in attempting to prove that she is not a doping cheat. She has been only partially successful.
In 2015, medical experts concluded that the foundation of the ISU’s original judgment against the speed skater could be incorrect. “All evaluators concluded that based on the blood count and features of the erythrocyte characteristics relating to Claudia Pechstein, doping detection cannot be performed”, said Prof. Wolfgang Jelkmann, Director of the Institute of Physiology at the University of Lübeck, in a statement. The German Olympic Committee (DOSB) had tasked five medical experts with analysing Pechstein’s case in 2014.
“Of particular importance to the assessment of the case are the medical reports by Prof. Dr. Stefan Eber and Prof. Dr. Elisabeth Kohne, internationally recognised specialists in the field of paediatric haematology and hereditary abnormalities of red blood cells, which supported Pechstein’s case”, continued Prof. Jelkmann. Pechstein’s argument was that she may have been wrongly convicted due to a blood abnormality that she inherited from her father, which could have explained her elevated reticulocyte counts.
However, the ISU pointed out that Prof. Jelkmann was Pechstein’s main expert in her case against the ISU findings, and also cast doubt on the findings of the experts. It argued that the mild form of genetic anomaly allegedly suffered by Pechstein had not been established with scientific certainty. It argued that such a genetic anomaly could only explain slight overturning of reticulocyte production, but could not explain Pechstein’s haematologic parameters from 2007-9.
Therefore, after ten years, Pechstein’s claim that she did not dope is still subject to speculation. She doesn’t have closure.
Claudia Pechstein should be held up as a hero for her commitment to securing a better deal for athletes. As a result of the ECHR Judgment, the CAS has accepted that:
• Its judgments can be appealed to State courts – even if in limited circumstances and as a last resort;
• If athletes are made to sign Athlete Agreements as a precondition for participation in elite sport, such Agreements cannot be relied upon to force them to arbitrate all disputes at the CAS;
• New rules must be implemented to allow public hearings in disciplinary and/or ethics matters.
The CAS has every right to celebrate the ECHR decision to reject Pechstein’s referral request as a vindication of its status as a genuine arbitration body. However, as SGBs appoint the majority of representatives on the ICAS and CAS, as well as nominating the President of the Appeals Panel in appeal cases, questions remain as to why the ECHR accepted the Chamber Judgment assessment that the CAS’s lack of independence was not an infringement of Article 6 § 1 of the EConHR. It could be that such control over appointment of adjudicators is not considered synonymous with bias, but as the reasoning behind the Grand Chamber’s rejection of Pechstein’s referral request has not been published, this is speculation.
Despite the CAS’s assertion to the contrary, Pechstein’s ten year battle is not over yet. Germany’s Bundesverfassungsgericht may still provide the speed skater with her swansong.
On Wednesday, 20 athletes were pulled from the Tokyo 2020 Olympics because their national athletics...
First, a US athlete claimed that a dodgy burrito had terminated their Olympic hopes and...
• A neglected but critical issue haunting WADA v. Sun Yang The legal fight launched by...