On 26 March 2013, the Court of Arbitration in Sport (CAS) in Lausanne upheld the appeal of Veerpalu against the decision of the Doping Panel of the International Skiing Federation (FIS) on 22 August 2011, which had sanctioned him with a period of ineligibility of 3 years following a positive anti-doping control for human growth hormone (hGH).
Two-time Olympic champion and cross-country legend Andrus Veerpalu has achieved what seemed impossible: despite an adverse analytical finding of recombinant or exogenous human growth hormone (recGH) in both his A and B samples, CAS has overturned his ban (CAS 2011/A/2566 Andrus Veerpalu v. International Ski Federation). Athletes who test positive for banned substances rarely, if ever, win their appeal cases. This case is all the more remarkable as CAS declared the testing method for the detection of hGH to be reliable. However, FIS, the governing body of skiing, which initially handled the case and was the respondent in the appeal, failed to meet the applicable standard of proof with respect to the procedure followed to set the parameters of the test limits, which is essential to avoid the risk of having “false positive” tests. In brief, the test method itself is valid, but the way the anti-doping authorities applied it, namely the way they set the test decision limits, was not.
CAS did not blame FIS, but rather the World Anti- Doping Agency (WADA), which sets the standards and procedures for other anti-doping bodies. The test worked and was scientifically sound, but to be able to put it to use, WADA had to decide what constitutes a positive and a negative test. The CAS Panel could not exclude that the test decision limits set by WADA were overly inclusive and could lead to an excessive amount of false positive results beyond the specificity of 99.99%. Three factors prevented the Panel from concluding that the test decision limits were reliable: (1) The inappropriate exclusion of certain sample data from the dataset; (2) the small sample size; and (3) the data provided on the distribution models used.
This decision will have far-reaching consequences for WADA and their methods for determining test decision limits. WADA will have to adapt its procedure for determining the parameters of test decision limits and there may be implications for athletes that have already been sanctioned based on this test. Also, WADA will have to cease all tests until reliable and scientifically sound test decision limits are available and well established. CAS also made it plain that the burden of proof lies with the anti-doping authority to convince the Panel of the correctness of the test decision limits.
The athletes’ right to fair trial and due process in doping cases was considerably strengthened with this important decision. It is now established that WADA has to guarantee a specificity of 99.99% at least for all their indirect test methods to prevent false positives.