Pechstein Prevails: Persistence Pays Off - CAS Offside?

42-year-old female speed skater Claudia Pechstein, Germany's most decorated winter Olympian with five gold medals and nine in total, was banned by the International Skating Union (ISU) for two years in 2009 over irregular blood results, although she never failed a drugs test. The ISU said the results were evidence she had been doping, a claim Pechstein refuted, saying it was a condition she had inherited from her father. She continued to protest her innocence and took her case to the Court of Arbitration for Sport which upheld the suspension, before then turning to German courts and demanding more than four million euros ($4.67 million) in damages over lost revenues due to the suspension.

The International Skating Union (ISU) had for many years a comprehensive Anti-Doping Program in compliance with the World Anti-Doping Code. This program incorporates both urine and blood testing to identify prohibited substances and also blood screening for hematological “passport”. Claudia Pechstein was declared responsible for an Anti-Doping violation under Article 2.2 of the ISU Anti-Doping Rules by using the prohibited method of blood doping; a two years ineligibility, beginning on February 9, 2009, was imposed on Claudia Pechstein.

In cases arising from an International Event or in cases involving International-Level Skaters, the decision of the ISU Disciplinary Commission may be appealed exclusively to the Court of Arbitration for Sport (CAS) in accordance with the provisions applicable before such court (Article 13.2.1 of the ISU ADR). In this case, the ISU seeks to sanction under Article 2.2 of the ISU ADR (“Use or Attempted Use of a Prohibited Substance or a Prohibited Method”) an athlete who has not tested positive in any of her in-competition or out-of-competition drug tests on the basis of her blood values and profile.

The Court of Arbitration for Sport explained in her decision (25 November 2009) (1.) her vision about the standard of proof:

"54. The “comfortable satisfaction” test is well-known in CAS practice, as it has been the normal CAS standard in many anti-doping cases even prior to the WADA Code (see e.g. TAS 2002/A/403-408, CAS 98/208, CAS OG/96/004). Several awards have withstood the scrutiny of the Swiss Federal Tribunal, which has stated that anti-doping proceedings are private law and not criminal law matters and that “the duty of proof and assessment of evidence [are] problems which cannot be regulated, in private law cases, on the basis of concepts specific to criminal law” (Swiss Federal Tribunal, 2nd Civil Division, Judgment of 31 March 1999, 5P.83/1999, c. 3.d).
55. Therefore, the Panel does not agree with the Athlete‟s contention that the standard of proof must be very close to “proof beyond reasonable doubt” because of the particular seriousness of the allegation against P. The standard of proof beyond reasonable doubt is typically a criminal law standard that finds no application in anti-doping cases. Obviously, the Panel is mindful of the seriousness of the allegations put forward by the ISU but, in the Panel‟s view, it is exactly the same seriousness as any other anti-doping case brought before the CAS and involving blood doping; nothing more, nothing less.
56. Accordingly, with regard to disputed facts the Panel will apply, without further qualifications, the normal “comfortable satisfaction” standard that is provided by the ISU ADR and that has been applied in many CAS cases concerned with allegations of blood manipulation or other serious forms of doping."

CAS ruled the appeals of Pechstein and of the Deutsche Eisschnelllauf Gemeinschaft e.V. against the decision dated 1 July 2009 of the Disciplinary Commission of the International Skating Union were dismissed. The decision dated 1 July 2009 of the Disciplinary Commission of the International Skating Union was upheld and Pechstein was declared ineligible for two years as of 8 February 2009. The results obtained by Pechstein on 7 February 2009 at the ISU World Allround Speed Skating Championships were disqualified, with related forfeiture of any medals, points and prizes.

"They (ISU) took everything from me but I keep on fighting," Pechstein told reporters. Pechstein brought her case before a German court in Munich. Pechstein: "I now have the chance in a proper court, a German court. There I am confident because the ISU must now prove that I doped. There will never be a positive test from me and that is why I am confident."

Pechstein is backed by a commission of the German Olympic Committee concluding that medical evidence on Pechstein’s blood results didn't prove doping. “All experts have come to the conclusion that the blood values of Claudia Pechstein cannot be taken as proof of doping,” said Wolfgang Jelkmann, director of the physiology Institute at the University of Luebeck.

The Munich court said in a statement its ruling "did not recognize the decision by CAS" adding that the ISU decision on the ban was "void". The Munich court had her doubts about CAS and her arbitrators coming all from within the world of sports. More important, the court ruled there was not enough evidence (only Pechstein's hematological 'passport') to proof she had turned into (the use of) doping.

The decision by the Munich Appeal Court (2.) will now require the confirmation from the Federal Court of Justice with the ISU having said it would take the matter to Germany's top court for civil jurisdiction before the case can be heard in a courtroom again.

It is the first time a German civil court has allowed a case to be heard after the world's top sports court, the Court of Arbitration for Sport (CAS), has ruled against it, setting a precedent for potential similar cases. The Munich ruling potentially opens the door for other athletes to go to a civil court rather than accept CAS decisions. Future will tell if the Pechstein judgment will have as much impact on other sports (doping) cases as the Bosman case did in the world of football/soccer.