Pankratov Lawyer: FIS Procedures Flawed, Evidence Insufficient

After three months of silence, the lawyer for Nikolai Pankratov, the Russian cross-country skier accused of breaking anti-doping rules, has gone public.

In comments first made to the German press and confirmed in an e-mail to FasterSkier, Markus Höss, the Stuttgart-based attorney representing Pankratov, has refuted the charges against his client, and accused the International Ski Federation (FIS) of conducting a flawed legal process.

“The procedures by FIS are not ‘fair trial’ [by] any respect,” Höss wrote in an e-mail.

Pankratov was caught by customs at the Swiss border in September with intravenous equipment and 22 vials of Actovegin—a drug derived from calf’s blood that is legal, though closely monitored by anti-doping authorities. He faces a two-year ban if found guilty of possessing banned substances or methods.

Since he was caught three months ago, Pankratov had not spoken publicly, and FIS had also remained mum—resulting in the emergence of very few details about the case.

The revelations from Höss include the fact that Pankratov did not attend the hearing on his own case, as well as an assertion that the medical equipment found in the skier’s car may not have been enough to administer substances intravenously.

Documents provided by Höss also reveal that the charges against Pankratov have changed since September: Originally, the Russian was accused of violating a prohibition against “enhancement of oxygen transfer,” while he now is accused of possession of banned equipment.

Sarah Fussek, FIS’s anti-doping administrator, declined to be interviewed by FasterSkier, citing the fact that the case was still ongoing—though she did write in an e-mail that a decision on Pankratov’s fate was due soon.

In the meantime, though, Höss asserted the case against his client was unfounded. Actovegin is not a banned substance, he said, and the intravenous equipment found in Pankratov’s car was not a complete set—“just parts of it.”

The World Anti-Doping Agency’s (WADA’s) Anti-Doping Code, which is used by FIS, does list intravenous infusions as a “prohibited method.” But according to Höss, the equipment Pankratov allegedly possessed was just two “butterfly” needles and some tubing.

“You have to prove that you have a complete prohibited method,” he said.

Höss said that the Actovegin found in Pankratov’s car was in vials of two milliliters—too small for infusion with an IV. Instead, he said, it was meant to be injected intramuscularly—and Pankratov had a prescription to prove it.

WADA does distinguish infusions, which involve larger quantities of fluids and specialized equipment, from injections, which are made with a syringe.

Injections of non-prohibited medications of up to 50 milliliters are permitted under WADA rules, though that distinction “is really based on an arbitrary volume,” according to David Gerrard, the outgoing chair of a WADA expert group on therapeutic use exemptions. (Therapeutic use exemptions are licenses granted to athletes to use prohibited substances when medically necessary.)

In a so-called “non-analytical finding”—when an athlete, like Pankratov, is caught with suspicious substances or methods, rather than testing positive for their use—Gerrard said that someone found with intravenous equipment could be construed as having “nefarious thoughts in mind.”

Their defense, Gerrard added, would depend on whether the athlete could justify the possession—and he added that “there’s not too many clinical conditions in which we would normally give our patients open access to intravenous or intramuscular equipment.”

In fact, according to documents Höss provided to FasterSkier, FIS did not charge Pankratov with possession of intravenous equipment in its original complaint. Instead, they accused him of violating provision M1 of the WADA Code—which has to do with blood doping and artificial enhancement of oxygen transfer.

But according to Fussek, the FIS anti-doping administrator, Pankratov now stands accused of violating provision M2, the prohibition against infusions.

Höss also argued that FIS’s approach to the hearing process was flawed, contending that the body refused to provide him with the evidence against Pankratov or any formal accusations. While he said that FIS did give notice of hearing times and locations, he said that the dates were non-negotiable, and that they came with no agenda.

“I had just the opportunity to send some fax and e-mail to argue,” he said.

In her e-mail to FasterSkier, Fussek said that FIS had twice invited Pankratov to hearings on the continuation or cancellation of his suspension, which is currently “provisional” pending a ruling on his guilt by FIS’s doping panel. Pankratov declined, Fussek said, though Höss did provide FIS with “detailed communications in written form.”

“Based on this, the provisional suspension has been held up, and is still in place, until a definite decision of the FIS Doping Panel,” she said.

As for the hearing at which the actual case was addressed, Fussek said, neither Pankratov nor Höss attended.

“Pankratov has informed FIS through his legal representative that he does not see his attendance as necessary,” she said. “The hearing has nevertheless taken place, without the participation of…Pankratov and his legal representative.”

A ruling, Fussek said, is due “in the near future,” and she added that Pankratov is free to appeal the case to the Court of Arbitration for Sport.

Höss said that he was not optimistic about the decision going Pankratov’s way. But any appeal, he added, would be up to his client to decide.