CAS 2011/A/2566 Andrus Veerpalu v. International Ski Federation
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August 21, 2011
In February 2011 the International Ski Federation (FIS) has reported an anti-doping rule violation against the Estonian skier Andrus Veerpalu after his A and B samples tested positive for the prohibited substance recombinant Human Growth Hormone (hGH) at the same time that the Athlete announced his retirement from professional cross-country skiing.
On 21 August 2011 the FIS Doping Panel decided to impose a 3 year period of ineligibility on the Athlete starting on the date of his retirement, i.e. 23 February 2011. The FIS Doping Panel ruled that the Adverse Analytical Finding of hGH in the Athlete’s blood had been proven in violation of the FIS ADR.
In first instance the FIS Doping Panel rejected the Athlete’s argument that the delay between the analyses of the A and B samples had affected the accuracy of the Test. In the matter of the collection and handling of the samples the FIS Doping Panel also rejected the Athlete’s argument that the samples were no longer fit for testing at the time they had arrived at the Laboratory.
Hereafter in September 2011 the Athlete appealed the decision of the FIS Doping Panel with the Court of Arbitration for Sport (CAS).
The Athlete denied having admitted the use of hGH, nor that he had violated the applicable doping rules. He asserted that the Test is unreliable for the following reasons:
- the Test is defective and scientifically invalid, particularly because of unreliable decision limits;
- the Laboratory was not accredited to perform the Test;
- the Test was improperly applied and administered by the DCO and the Laboratory; and
- the Athlete’s individual circumstances render any positive Test result meaningless.
FIS contended that the Athlete’s anti-doping rule violation has been established by three different means:
- through the AAFs from the A and B samples;
- by the alleged admissions from the Athlete of hGH use; and
- from the Athlete’s longitudinal profile, that is, the common range of his previous test results.
The CAS Panel did not admit the FIS’s third submission regarding the Athlete’s longitudinal profile because the FIS failed to submit the relevant DCO reports and laboratory documentation for verification of such results.
Following assessment of the evidence the Panel concludes that the Athlete has failed to meet the required burden of proof regarding the reliability of the Test (except for that of the decision limits). Furthermore the Panel finds that FIS has failed to meet its burden of proof in relation to the reliability of the test’s decision limits and in establishing the violation of FIS ADR by means other than the Test, namely through admission.
Because FIS has not established, to the Panel’s comfortable satisfaction, that the test’s decision limits are reliable, the Panel finds that the Athlete’s AAF is not upheld. The Panel reiterates its view that FIS has proven that the Test itself is reliable, but that, as a matter of procedure, it has not proven the same in respect of the test’s decision limits.
The Panel notes that there are many factors in this case which tend to indicate that the Athlete did in fact himself administer exogenous hGH. However because the decision limits have not been proven as reliable in the course of this proceeding, the violation of the FIS ADR cannot be upheld on appeal. Consequently the ban imposed by the decision of the FIS Doping Panel is overturned.
Therefore the Court of Arbitration for Sport decides on 25 March 2013:
1.) The Appeal filed by Andrus Veerpalu on 12 September 2011 is upheld.
2.) The decision of the FIS Doping Panel of 22 August 2011 is set aside.
3.) The award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Andrus Veerpalu, which is retained by the CAS.
4.) The FIS shall pay to Andrus Veerpalu CHF 10’000 (ten thousand Swiss francs) as contribution towards his costs incurred in the course of these proceedings.
5.) All further and other claims for relief are dismissed.
