Landgericht Köln, 28. Zivilkammer - 28 O (Kart) 38/05
On 10 August 2003 the Kenyan-American Athlete Bernard Lagat provided a sample in Germany during an out-of-competition doping test which was analysed at the German WADA-accredited laboratory in Cologne.
The Kenyan Athletics Federation (KAF) reported an anti-doping rule violation against the Athlete after his A-sample tested positive for the prohibited substance recombinant human erythropoietin (rhEPO). KAF notified the Athlete on 4 September 2003 of the positive test result and ordered a provisional suspension.
The Athlete requested the B-sample to be tested and hereafter on 29 September 2003 the result of the B-sample did not confirm the test result of the A-sample. This false positive test result of the A-sample was caused by an ineffective rhEPO test.
On 1 October 2003 the IAAF published the news on its webpage that result of the B-test did not confirm the result of the A-Test which is why the Athlete was eligible to run.
In October 2005 the Athlete filed a claim with the Cologne District Court in Germany against the World Anti-Doping Agency (WADA) and the International Association of Athletics Federation (IAAF).
The Athlete claimed compensation of € 155.000 because of loss of income in the second half of 2003, and further loss of income of € 200.000. In this legal dispute the Athlete appealed exclusively to German legal provisions and claimed that German law was applicable.
The Athlete argued that he had lost profit due to the false positive result of the A-sample and the provisional suspension. Also he claimed compensation because he was badly branded in the news due to the announcement and worldwide publication of the positive test result of his A-sample.
The Court concludes that the Athlete failed to show that any of his sponsors or potential sponsors abandoned him due to the news about his positive test result and his provisional suspension. Also after the provisional ban was lifted the Athlete could participate in the years from 2004 in sporting events in Germany without any further restrictions or losses of income.
The Court notes that the Athlete assumed that WADA, IAAF, or the KAF made the announcement of the Athlete’s positive test result. In fact it was a trainer of the Kenyan athletics team who mentioned the positive test result in an interview with a Kenyan newspaper. Also the Athlete failed to adequately illustrate his loss in profit for the sporting events in which he could not participate during the period he was provisionally suspended.
On 13 September 2006 the Cologne District Court in Germany rules that it has no international jurisdiction for the compensation claims of the Athlete. The Court decides that the Athlete’s claim is partially not permissible and otherwise without ground.
