1 December 2015

Pechstein threatens legal action over ‘inhuman’ testing

Speed skater Claudia Pechstein has threatened legal action against the German national anti-doping agency (NADA) after being tested twice in the same day. ‘I’m going to press charges through a criminal complaint…let the courts decide whether Germany’s athletes should have to put up with such an unworthy and inhuman treatment’, she wrote in a 28 November post on Facebook. ‘Your permanent coercion, your serious intervention in my personal rights, as well as your constant attempts to show me as something you want me to be – even after today’s two tests in one day and over 650 previous tests in my career, nothing has changed. I was, am, and always will be clean!’

Pechstein, who is 43 and preparing for her seventh Olympics representing Germany, detailed how she was blood and urine tested at 06:28 at home on 28 November, followed by a second test at 21:20. “Ms. Pechstein is controlled in the same manner as other athletes in the same testing pool and in the same risk group”, NADA spokeswoman Eva Bunthoff told Die Welt. “There are several athletes who are checked twice a day”.

‘We are now no longer in class-or world-class athletes, but only in risk groups’, wrote Pechstein in a second Facebook post yesterday. ‘It’s really unbelievable!’ Pechstein wrote that as NADA is financed by the taxpayer, they need to put pressure on it to answer two important questions for athletes: who sets the risk group and on what basis, and how does an athlete ‘qualify’ to become part of a risk group. ‘The longer I am involved with it, the more sick and inept the entire system turns out to be’, writes Pechstein.

Pechstein’s manager, Ralf Grengel, said that Pechstein bears physical scars from the sheer number of tests she has endured. “You have to look at Claudia’s scarring in the veins”, he told the Deutsche Presse-Agentur (DPA). “The inspections have taken such extreme proportions that we have even had a supervisor who has waived a control because he felt that the many punctures in Claudia’s veins were unacceptable”.

Pechstein is currently fighting a two-year ban imposed by the International Skating Union (ISU) in 2009, which she has served, and is seeking damages of over €4.4 million through the German legal system. She was banned under Article 2.2 of the ISU’s 2009 Anti-Doping rules due to her blood values, despite having never failed a doping test.

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 consistently maintained that the readings were due to a genetic anomaly and are unreliable.

‘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’, read the International Association of Athletics Federations (IAAF) ‘Response to allegations of blood doping in athletics‘, issued on 27 November. As it appears that the the ISU did measure reticulocyte content in haemoglobin immediately after exercise, then the IAAF could have inadvertently supported her case.

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. As reported by the Sports Integrity Initiative, Pechstein’s case is supported by FIFPro. The international football players’ association is supporting her case as part of its efforts to reform the CAS, which it argues is unfair to footballers and athletes.

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