Demonising Justin Gatlin
13th September 2015
Claudia Pechstein will seek millions of Euros in damages from the International Skating Union (ISU), after the Munich Court of Appeal allowed the German speed skater to proceed in a claim for compensation. In a 15 January ruling, the Munich court also declared that the agreement between Pechstein to arbitrate all disputes before the Court of Arbitration for Sport (CAS) is invalid.
Pechstein was prosecuted in 2009 by the ISU under art. 2.2 of its Anti-Doping Regulations after samples of her blood taken during the 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 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 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’. This allows the ISU to ban Pechstein based on her blood profile.
On 25 November, 2009, the Court of Arbitration for Sport (CAS) upheld the ISU’s decision to ban Pechstein. In a significant development last Thursday, the Munich Court of Appeal declared the arbitration agreement between Pechstein and the ISU to resolve all cases before the CAS as void; accepted the claim for damages from the ISU; and declared the CAS decision as ineligible. If the German federal court follows the lead of the Munich Court of Appeal, then this could allow other athletes to bring disputes before the German courts.
It is understood that the ISU is appealing the Munich court’s decision to the German federal court of justice (Bundesgerichtshof). When she submitted her claim for damages in 2012, Pechstein sought €4.4 million in compensation, however it is understood that the current demands are higher.
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