In a landmark decision on Tuesday, the Court of Arbitration for Sport upheld the appeal of Andrus Veerpalu, an Estonian skier who had tested positive for recombinant human growth hormone. In condemning WADA’s method for setting decision limits – the value in a sample which separates a positive test from a negative one – the court effectively made it impossible to prosecute any other cases based on the same test and same decision limits.
Although the appeal was against the International Ski Federation (FIS), which had banned Veerpalu for three years after February, 2011, test, the main question of the case was not for FIS but instead for WADA. How did they set those limits? The group’s mandate is to be 99.99% certain that a positive test is not a false positive. While the court did not dispute the test’s ability to detect ratios of different isomers in a blood sample, or that these ratios indicate use of recombinant hGH, they said that WADA did not accurately determine that 99.99% confidence level.
The limits chosen by WADA, for men, were 1.81 for kit 1 and 1.68 for kit 2; anything higher was considered a positive test. Veerpalu’s A-sample values were 2.62 for kit 1 and 3.07 for kit 2; the B-sample was 2.73 and 2.00.
The outcome is already being used by the NFL Players’ Association, among others, to decry the use of hGH tests as inaccurate and unusable, but anti-doping administrators aren’t changing their line.
“WADA is deeply disappointed with this situation, but acknowledges the CAS authority and understands that the panel was not comfortably satisfied with the decision limits currently applied to the hGH test,” WADA said in a statement on its website. “WADA will immediately engage in a process to re-establish these limits taking into account the remarks expressed in the CAS award… WADA will therefore encourage Anti-Doping Organizations (ADOs) to continue collecting samples for analysis pursuant to the hGH test and will, based on the larger number of samples now available, advise on revised decision limits shortly.”
FasterSkier talked with Sarah Lewis, the Secretary General of FIS, about how the case proceeded from the federation’s point of view, and what it means for federations prosecuting future doping cases.
FasterSkier: Although the appeal was against FIS, many of the witnesses were from WADA. How did that work?
Sarah Lewis: It has to be that way. The whole point is that WADA doesn’t carry out results management. You have a bunch of different organizations that carry out doping controls. You have the major events organizers, you have international federations, you have national bodies, those are in principal the major anti-doping organizations. And you have WADA, which carries out testing.
But in terms of results management, that’s clearly specified… this was actually a WADA out-of-competition test, but then the results management defaults to FIS. Obviously for us, we carry the responsibility for doing that. Any mistakes carried out in terms of sample collection, analysis done by the laboratory, things that are relevant to the international standards for testing – that’s all defined in the rules.
But when it actually comes to the test itself, basically what the labs are doing is carrying out the analysis in accordance with the WADA standards for laboratory. From an international federation’s perspective, we are relying on the fact that all of the prohibited substances and methods on the WADA list, that they have been scientifically validated and that aspect is not going to be challenged. So that when we receive an Adverse Analytical Finding from a laboratory, we proceed on that, on the basis that the science behind the test is not in dispute.
There are of course other things that can go wrong, with the collection or storage or transportation, or the athlete’s right to be heard, which are contained in the rules. But that’s all very clear in the rules. The one thing that we have no control over whatsoever, because it’s not our business, we’re a sports organization, is the doping tests.
FS: So were you prepared to have the science come under question, or was it surprising?
SL: Well, it had already come up. What happens is the first thing when the appelant makes an appeal, they have to submit their written submissions so that you have an overview of what their case is, why they are appealing the decision. Then the respondent will give its version of events. Then there’s a hearing and both sides have to nominate their experts. But you only know who those will be based on the written submissions, when you have an understanding of what the arguments are.
FS: Did you feel that the WADA experts who were brought in to defend how they set the limits – did you feel like they did a good job, or how did you feel they presented their work?
SL: I’m not really sure that’s something I can comment on, to be honest. Without sufficient expertise, it’s not really possible to say. It all sounded very compelling and convincing and very scientific, and Veerpalu’s experts were countering them. It was a boxing match between both sides. And the panel decided to give the athlete the benefit of the doubt.
In layman’s terms, it’s possible to describe the situation as that Veerpalu was caught doing 180 kilometers an hour, and the speed limit was 120. Then when they checked out the machine to measure speed, they showed that it may not have been accurate between 118 and 119, and at that speed it could be a case that there would be a false positive. And consequently, even though he had done 180 and that’s not disputed, he was nevertheless given the benefit of the doubt because there was a fault in the machine.
FS: Thinking into the future—
SL: We haven’t gotten that far yet.
FS: Okay. But thinking about WADA guidelines and whether they are correct, will this affect your strategy in the future? Is there anything you can do about this sort of thing?
SL: This was the first time this test has been challenged, and it took quite a long time to get there anyway with this test. I think WADA will respond very quickly. They already put a statement up yesterday about it. The point is that the panel confirmed the test itself, and so what do they need to look at? They need to look at the decision limits.
From the time they designed the original decision limits, there have been many, many, many more samples carried out. They have a whole stack more data, which they can use to reassess what the decision limits should be. Presumably, that’s what they’ll do.
They actually brought that into the trail, they said, in the meantime, this is what we have assessed, and I think it was something like 10,000 samples. So it’s a very different situation now… it’s just a question of WADA going through the process and formalizing that.
FS: It seems so unusual for an appeal like this to succeed – do you think that this will embolden athletes in the future to appeal based on the science?
SL: Well, obviously if it’s going to make them challenge the science of every test, then it will get to the stage that nobody will be able to afford to do anti-doping work, and that would not be very funny. But you know, it’s not the first time that the science has been challenged. Each times there seems to be this reaction, like, is this the end of anti-doping as we know it? And of course it isn’t.
Perhaps with this test, there may have been a deadline of wanting to get it done very quickly, namely for the Vancouver Olympics I think it was. In any case, there was a certain deadline that they were really pushing for. Perhaps that influenced the amounts of data they had for the whole process. But it’s a one-off situation.
Of course everybody needs to be sure that the substances and the methods on the list have been properly validated, and that really is the job of their scientific and legal groups and specialists. And this can be just a little bit of a signal that, yes, we have to check and make sure that’s all okay. Sometimes it takes that little reminder or kick to do that, and I’m sure WADA will react in that way to make sure in case there are any other, especially new, developing tests.
With pretty much everything else, there’s so much jurisprudence, there’s so much on-the-record decisions that have been taken, and backed up with admissions. But with a new test, that would be the moment that it could be challenged. So as they come forward with new tests, they have to be sure that every step of the way, this level of documentation is followed.
FS: I can imagine that it probably is a difficult job to have to define that thin line between a negative and a positive test.
SL: I guess it is. It’s like alcohol, drinking and driving. That’s got a different level, and it’s even different in different nations. In some you’re deemed to be over the limit with anything over 0.00, and in others you’re over the limit with considerably more than that.
Epilogue: Luckily for anti-doping agencies and federations like FIS, a new hGH test, using biomarkers instead of the isomers described in our previous article, was debuted at the 2012 Olympics in London, where it caught two Russian Paralympic powerlifters. But was it, too, rushed through the validation stage for a big event? Time will tell…
Chelsea Little is FasterSkier's Editor-At-Large. A former racer at Ford Sayre, Dartmouth College and the Craftsbury Green Racing Project, she is a PhD candidate in aquatic ecology in the @Altermatt_lab at Eawag, the Swiss Federal Institute of Aquatic Science and Technology in Zurich, Switzerland. You can follow her on twitter @ChelskiLittle.