After nine months of deliberation on the case, the Court of Arbitration for Sport (CAS) announced from Lausanne, Switzerland, on Tuesday that it decided to uphold Estonian cross-country skier Andrus Veerpalu’s appeal and overturn the three-year competition ban the International Ski Federation (FIS) originally imposed on him in August of 2011 for testing positive for human growth hormone (hGH) in an out-of-competition doping control test in January of that same year.
In a press release, the CAS cites FIS’s failure to “meet the applicable standard of proof with respect to the procedure followed to set the aspects of the decision limits” as the basis for its lack of confidence in the test results collected from Veerpalu. Decision limits are set by the World Anti-Doping Agency (WADA) and establish the difference between a normal and non-normal presence of hGH in the blood, a distinction that is central to avoidance of the risk of falsely positive tests.
In interviews with the media, Veerpalu thanked his legal team and the Estonia Ski Federation for standing by him throughout the court proceedings.
“The last two years have been the most difficult in my life and I would not want anyone to go through that,” he said. “I want to thank everyone who believed in me and my team and gave their support either with a good word, a kind thought or practical help. I am glad that justice prevailed but it does not erase all that I went through those past two years.”
In its ruling, the CAS concluded that “there were many factors in this case which tend to indicate that Andrus Veerpalu did in fact himself administer exogenous hGH, but that, for the reason that procedural flaws have been found in the statistical side of the WADA studies establishing the decision limits, the violation of the FIS Anti-doping Rules cannot be upheld on appeal. Therefore, the ban imposed by the decision of the FIS Doping Panel has been overturned by the Panel.”
Within its 74-page final decision the CAS details its lack of confidence in the reliability of Veerpalu’s positive test and further explains that it is unwilling to run the risk of falsely accusing an athlete of doping, given this lack of confidence:
“The Panel accepts that a dynamic approach to testing may be desirable and acceptable, particularly in the field of anti-doping. However, the Panel must bear in mind the seriousness of the allegations made against the Appellant when assessing whether it is satisfied that the decision limits with regard to hGH have been correctly determined.”
Matthieu Reeb, the secretary general and spokesman for the CAS, explained in a phone interview that there is still the possibility of further action from FIS if a newer, more reliable test is made available, and should the governing body choose to respond.
Reached by phone on Tuesday morning, FIS Secretary General Sarah Lewis referred FasterSkier to the federation’s website. “There’s nothing additional to add,” she said.
Here is what Reeb told us. The interview has been edited and condensed.
FasterSkier: Can you explain these ‘decision limits?’ Was the panel saying that FIS messed up its procedure, or that the analysis guidelines that FIS got from WADA were somehow problematic?
Reeb: The second answer. In fact, FIS had to rely on the scientific information provided by WADA, and such information was not considered as fully reliable to confirm that Mr. Veerpalu [was guilty].
The HGH test in itself is considered as reliable, because the method is admitted. The only problem is the last part, which was also the main discussion throughout the last six months in this case. The values or the statistics provided by WADA were not fully satisfactory in the eyes of the panel.
The statistics were not sufficient to convince the panel that we could exclude any false positive. It’s more a technicality because it was not possible for the panel to exonerate Mr. Veerpalu of any doping offenses. Because the scientific information was not totally reliable, therefore it was not possible to conclude that Mr. Veerpalu had committed a doping offense.
That was the suspicion, but because the panel wanted to be sure of not committing a false positive, they could not validate.
FS: Does this result invalidate the HGH test until the decision limits are fixed somehow?
Reeb: I cannot say what happens with other cases—it’s the first decision we have in this area. We do have another case pending, which is Patrik Sinkewitz. This Veerpalu decision is really the first one. My impression when I read the award is that probably the WADA experts should complete their experiment or their studies and come back with more accurate or detailed information regarding these decision limits. In theory, as long as the 8-year time limit, the statute of limitations, is not passed —in theory it’s possible to reanalyze the samples again, if there’s a new method available. We know this from other sports [where] the test was negative, [and] because of the evolution of science, maybe three or four years later the same sample could be analyzed again and the result could be different.
We did not mention that at all, in the decision. Of course, it’s only my impression that in theory the FIS, after maybe they speak to the WADA, if they can get additional information or a new study regarding the decision limits, they could perhaps initiate a new procedure. This is a question that I would perhaps ask the FIS representative.
FasterSkier: Was FIS premature in using the test?
Reeb: It’s hard to answer that. FIS was certainly convinced that they had all the elements available to have the sanction confirmed by CAS. After we know the decision today, in fact FIS did nothing wrong, I believe. What they’ve done is that they have presented all the data, all the information, the scientific studies, that they could receive from the WADA. And on that basis they did the maximum. I don’t think anything could be criticized on their side. They were using the elements which were available.
FasterSkier: Did the Panel accept the case made by Veerpalu’s lawyers?
Reeb: Honestly, they approved some arguments on both sides. For example, the FIS had the burden of proving that, for instance, the decision limits were reliable and were fully applicable, which they failed. The arguments of Veerpalu have been upheld on this side. But on the other side, Veerpalu was not in position to establish that the entire test for HGH was not reliable. The arguments for FIS have been upheld. They considered arguments on both sides and they accepted some of them, but not all.
In the conclusion, when it was necessary [to determine] which party should pay any indemnity for legal costs, the decision is almost split. I think it’s FIS which has to pay 10,000 Swiss francs to Mr. Veerpalu. It’s more like a sort of compromise, because both parties were right and wrong.
These decision limits, the procedure conducted by WADA to establish these decision limits, contained some flaws or were not totally satisfactory. Because of that, it was not possible to exploit the entire HGH test to ensure whether Mr. Veerpalu [committed a doping violation].
It’s only a small part of the test which did not allow the panel to rule in favor of the FIS.
It’s possible [for FIS] to appeal before the Swiss federal tribunal, but only for limited grounds like violation of due process rights…some more procedural formal elements. The federal tribunal will never review the interpretation of regulation by the CAS, and will not [review the evidence again].
The hGH test used on Veerpalu’s samples is one developed by a German endocrinologist named Christian Strasburger and has been in use since 2004. A newer test was developed more recently by British researchers and was first used in competition at the 2012 London Olympics, where it caught two Russian Paralympic powerlifters and resulted in two-year suspensions from competition.
Stay tuned for more reporting from FasterSkier in the next few days.
Nathaniel Herz is a reporter for FasterSkier, who also covers city government for the Anchorage Daily News in Alaska. You can follow him on twitter @nat_herz.