The Court of Arbitration for Sport (CAS) delivered a body blow to anti-doping authorities when it published its decision on 13 March 2009 in the case of Finnish biathlete, Kaisa Varis. Despite finding EPO in both her “A” and “B” doping control samples, the CAS cancelled the sanction imposed on her by the International Biathlon Union (IBU) as it held that the IBU had not been sufficiently reasonable in attempting to accommodate her right to be represented at the opening and analysis of her B sample – a right to which she was entitled under the IBU’s own rules. The effect of the IBU’s failure was to render the B sample results invalid, without which there could be no finding that an anti-doping rule violation had occurred.
While the decision is likely to have caused some disquiet among anti-doping organisations and other independent observers, its publication received surprisingly little media coverage. The significance of the decision should not, however, be underplayed as it is a reminder to all anti-doping organisations and laboratories alike, that they must strictly adhere to their own rules and regulations or risk the consequences if they do not.
Varis started her sporting career as a cross-country skier but later switched to the biathlon. While she enjoyed some moderate international success in both disciplines, Varis is more likely to be remembered for the controversies that plagued her career even before this latest episode.
Cross country skiing and first offence
At the 2001 FIS Nordic World Ski Championships, Varis was a member of the 4X5km relay team that was disqualified after it emerged that two of her team members had tested positive for the same prohibited substance (hydroxyethyl starch). Four other members of the Finnish team were also later disqualified after it was found that they had also tested positive for hydroxyethyl starch.
Two years later, at the 2003 World Championships in Val di Fiemme, Varis was initially suspended for five days before the start of the Championships due to an abnormally high heamoglobin reading, but was later allowed to compete when a second test came back with a lower heamoglobin count. Varis went on to compete in the women’s relay event winning a Bronze medal, but was later disqualified when her doping control sample tested positive for the prohibited substance EPO. The International Ski Federation subsequently handed her a two-year ban from the sport and Finland’s Olympic Committee excluded her from participation at the 2006 Turin Winter Olympics.
Biathlon and alleged second offence
Varis eventually turned away from cross country skiing altogether and took up biathlon, where she made remarkable strides up the rankings in very little time. On her debut at the Biathlon World Cup in March 2007, she finished 70th in the 7.5 km sprint race. A few months later, in November 2007, she finished fifth in the 7.5 km sprint event and on 11 January 2008 Varis won her first biathlon World Cup race in the 7.5 km sprint event in Germany, though any celebrations were short-lived when it emerged that the “A” portion of a doping control sample she had provided on 6 January 2008 had tested positive for EPO.
Upon her request, Varis’ “B” sample was then opened and tested on 29 January 2008, though crucially, not in the presence of her nominated representative. The analysis of the “B” sample confirmed the presence of recombinant EPO.
A hearing for this second offence was heard by the IBU Executive Board on 11 February 2008, where it was decided to impose on Varis a lifetime ban for her second offence. Varis and the IBU then agreed to submit Varis’ appeal of the IBU decision to the Court of Arbitration for Sport.
The IBU notified Varis by email on 22 January 2008 of her “A” sample results and also informed her that (i) she had the right to ask for her “B” sample to be tested; and (ii) her or her representative had a right to attend the opening and analysis of the “B” sample, such analysis to take place within 3 weeks of the notification (as per IBU anti-doping rules)1.
Varis confirmed on the same day that she wanted her “B” sample to be tested, following which the Secretary General of the IBU informed her that the Laboratoire Suisse d’Analyse du Dopage (the Lausanne Laboratory) would undertake the “B” sample analysis on 29 January 2008.
On 28 January 2008 Varis’ lawyer wrote to the IBU twice requesting that, as was her right under the WADA Code and the International Standards for Laboratories2, testing of the “B” sample be postponed until her nominated expert had the opportunity to be present to witness the analysis of the “B” sample, indicating that the expert in question would be available on 5 February 2008.
The IBU’s response was that it was prepared to find an alternative representative for Varis who would be able to attend the opening and analysis of her “B” sample on 29 January 2008, and that such measure was sufficient to comply with IBU and WADA rules.
Varis’ lawyer replied once more, reiterating Varis’ position that she should be entitled to appoint her own expert independently and that if the “B” sample analysis were to be undertaken in the absence of that particular expert, it would be a breach of Varis’ rights under the WADA Code and International Standard for Laboratories. The email also demanded an explanation from the IBU as to why it was so reluctant to delay the opening and analysis of the “B” sample until the 5 February (i.e. the date on which Varis’ expert would be available to attend).
Without any further communication, analysis of the “B” sample nevertheless took place on 29 January 2009 and on 1 February 2008, the IBU notified Varis that her “B” sample analysis results confirmed the “A” sample results in that it was also found to contain recombinant EPO.
Article 7.2.3(e) of the IBU Anti-Doping Rules (a mirror of Section 7.2 of the 2003 WADA Code) provided that athletes had to be notified that they had the right:
“to promptly request the analysis of the B Sample or, failing such request, that the B Sample analysis may be deemed waived, the right of the athlete and/or his representatives to attend the B Sample opening and analysis if such analysis is requested, and the athlete’s right to request copies of the A and B Samples laboratory documentation package which includes information as required by the current International Standard for Laboratory Analysis.”
By reference to its own provisions, the IBU anti-doping rules were subject to the World Anti-Doping Code, and to the applicable WADA International Standards for Laboratories, Section 188.8.131.52.2.6 (ISL 184.108.40.206.2) of which provided that “reasonable attempts” had to be made to accommodate the dates on which an athlete or his/her representative could attend opening of the “B” sample.
The IBU argued that, further to the WADA International Standards for Laboratories, testing of the “B” sample was required to take place within 7 working days of notification of the “A” sample results and not 3 weeks as was mandated by the outdated IBU Anti-Doping Rules and as had been communicated to Varis by the IBU. The IBU therefore took the view that it was justified in pressing ahead with the analysis on 29 January 2008, particularly as it offered to find an independent expert to attend the opening and testing of Varis’ “B” sample on her behalf when her nominated expert was unable to attend on the date of the test. The IBU’s position was therefore that it had in fact made “reasonable attempts” to accommodate Varis and so had discharged its burden under ISL 220.127.116.11.2.
The CAS Panel disagreed. Firstly, the test itself was conducted on the 5th working day following notification but Varis was never given the option of having the test rescheduled to any alternative dates, such as the 6th or 7th working days from notification of the “A” sample results. In fact, the IBU never even raised the possibility of changing the date of the “B” sample opening and analysis with the Lausanne Laboratory and so no alternative dates were ever mooted.
Secondly, while the WADA International Standards for Laboratories do indeed prescribe that testing should take place within 7 working days of notification of the “A” sample results, the rules did also provide some latitude should testing have to occur outside of that timeframe. The Lausanne Laboratory confirmed at the hearing that it could indeed have accommodated Varis’ request to test her “B” sample on 5 February (and therefore outside the 7 working days window) if it had been asked to do so.
Thirdly, the CAS Panel held that the IBU’s offer to find an independent witness to represent Varis at the opening and analysis of the sample (which offer was rejected by Varis) was, in itself, insufficient. The Panel took the view that it might have been a reasonable gesture had the IBU first attempted to accommodate Varis’ request for a different date; however, that was not the case and the Panel thus concluded that nothing had in fact been done to accommodate Varis, in addition to which no explanation was ever given to her as to why her request could not be entertained.
The Panel concluded that the IBU had acted “with unreasonable haste and lack of accommodation having regard to the legitimate requests” of Varis and that the IBU had therefore breached ISL 18.104.22.168.2.
The IBU and the Lausanne Laboratory argued that even if a departure from ISL 22.214.171.124.2. was found to have occurred, the CAS should nevertheless not ignore the fact that (i) there was clear and irrefutable evidence that EPO was present in both “A” and “B” samples; and (ii) Varis had previously been sanctioned for taking EPO. The IBU further argued that any breach of ISL in this instance could not have affected the outcome of the testing of Varis’ sample and that Varis had not been able to establish otherwise.
The CAS Panel, however, concluded that the departure from the International Standards for Laboratories was, in this instance, sufficient to render the “B” sample analysis and result invalid, stating that an:
“...athlete’s right to be given a reasonable opportunity to observe the opening and testing of a “B” sample is of sufficient importance that it needs to be enforced even in situations where all of the other evidence available indicates that the Appellant committed an anti-doping rule violation.”
In the absence of a valid “B” sample result to confirm the findings of the “A” sample analysis, the CAS concluded that the IBU had failed to establish that an anti-doping rule violation had occurred and Varis’ appeal was therefore successful.
The Varis decision is likely to have raised a few eyebrows among anti-doping authorities, not least because the Panel appeared disinterested as to whether or not the IBU could prove that the presence of Varis’ representative at the “B” sample opening and analysis would have made any difference to the final outcome of the test.
Indeed, the Panel’s approach may have left some observers dumbfounded given that Article 3.2.1 of the 2003 version of the WADA Code3 provides that where it is established that a departure from WADA International Standards for Laboratories has occurred, the relevant anti-doping authority should be given the opportunity to “establish that such departure did not cause the Adverse Analytical Finding” before determining whether or not an adverse finding should be deemed valid. Instead, the CAS Panel took the position that, in the circumstances, the departure from the International Standards invalidated the result of the test outright, regardless of whether or not the IBU could establish that the presence of Varis’ representative would have made any difference to the test results4.
While the Panel’s approach may, at first glance, appear somewhat perplexing and difficult to reconcile with the provisions of the WADA Code, there is in fact authority for the Panel’s approach. The Panel relied on a previous CAS decision, CAS 2002/A/385 Tchachina v/FIG, in which it had been concluded that:
“As a matter of principle, the Panel is of the opinion that, even if a procedural error is unlikely to affect the result of a B-sample analysis, such error can be so serious as to lead to the invalidity of the entire testing procedure”
In other words, the CAS acknowledged that certain breaches of procedure set out in the WADA Code and the International Standards can be so fundamental that these will automatically render invalid the entire testing procedure.
The implication therefore is that there are some procedures whose breach will automatically invalidate test results while other breaches may not be fatal to the results if it can be established that such breach could not have caused the adverse analytical finding. It is not entirely clear, however, which procedures fall in which category. In the Varis decision, the Panel clearly took the view that an athlete’s right to observe the opening and analysis of a “B” sample was of sufficient importance that test results should be automatically invalidated if the right was not upheld.
Anti-doping authorities may argue that the Varis decision has created uncertainty as to which breaches of procedure will automatically result in invalid sample analyses and which will be defensible. In principle, however, it might be retorted that it should matter little since sports governing bodies and laboratories must be expected to adhere to their own rules and regulations as strictly as athletes are expected to. This long-established principle is encapsulated by the CAS’ decision in USA Shooting & Quigley v. UIT, 1995 (CAS 94/129) in which it was concluded that:
“ The fight against doping is arduous and it may require strict rules. But the rule-makers and rule-appliers must begin by being strict with themselves.”
By mere participation in sport, athletes are held to know and understand the obligations imposed on them by anti-doping regulations and are subject to the principle of strict liability to the extent that even inadvertent or accidental lapses can lead to very severe consequences. The livelihood of athletes can be determined by a single laboratory test and yet athletes have very little involvement in the procedure from the moment they have submitted a doping control sample. The counterbalance must then be that before an athlete can be subjected to such liability, the finding of a prohibited substance that triggers the entire process must be unassailable. As a minimum, therefore, a transparent, workable anti-doping regime requires that International Federations and laboratories comply strictly with their own rules governing testing procedure.
Finally, sports governing bodies and laboratories will do well to remember that even if they are given an opportunity (as they normally would be under the WADA Code) to establish that a departure from the International Standards did not cause an adverse analytical finding, proving it is in itself a very difficult thing to achieve. In the case of CAS 2006/A/1119 Union Cycliste Internationale (UCI) vs Iñigo Landaluce, an athlete had successfully argued that a laboratory had committed a breach of International Standards for Laboratories in the course of testing his doping control sample and so the UCI were left trying to establish that the breach had not caused the positive test. The UCI were unable to do so, the CAS Panel cautioning, “It is virtually impossible to prove a negative fact”.
The upshot of these cases must be that anti-doping authorities, international federations and WADA-accredited laboratories must adhere to their own rules and regulations as rigidly as they expect athletes to or risk the consequences if they do not.