Is CAS ruling on UV light blood treatments consistent?
Published 20 August 2013
It was previously reported in 2012 that Germany’s National Anti-doping agency (NADA) had investigated the use of UV light blood treatment by athletes as potentially a violation of national anti-doping rules1. While the World Anti-Doping Agency (WADA) on 30 January 20122 and the German Sports Arbitration court on 2 Nov 20123 had both deemed that such UV treatments prior to 2011 were not in violation of the anti-doping code, the German NADA disagreed with that position and raised the case to the Court of Arbitration for Sport (CAS) for clarification.
WADA also issued a statement on its website on 27 April 2012 stating that in a letter to the German NADA on April 26, 2012, WADA confirmed the status of Blood U.V irradiation following a careful review of the method by independent experts. WADA confirmed to the German NADA that before January 1, 2011 the method should not be considered prohibited under the World Anti-Doping Program unless further evidence suggests that the actual method used and volume of blood manipulated falls under M1 or other sections of the Prohibited List. However, in a joint statement from the German NADA and WADA on 5 July, it stated that:
'…There was general agreement during the meeting that the letter sent to German NADA by WADA in April 2012 had given an incorrect opinion because it was based on information that was available to it at that time.
Mr. Howman explained that the List Committee had asked itself the wrong questions, and he accepted that NADA was not responsible for any breakdown in communication.
WADA has now been made aware of the information collected by the Prosecutor’s Office in Erfurt, and its jurisdiction. This has assisted in the remedying of any previous misunderstanding or miscommunication…'
The recent CAS decision (“German case”) is now publicly released, and the CAS ruled that the UV-procedure could not be considered a forbidden method under the WADA rules in effect at the time (2007/2008)4. This paper explores the clinical use of UV-light blood treatment (autohemotherapy), the relevant anti-doping rules and precedent case, and questions the underlying reasons for CAS’ recent judgment.
The procedure of autohemotherapy involves drawing blood from the athletes (usually about 50ml). Once extracted, the athlete’s blood in the syringe is then “treated” by various methods. One such method is by UV-radiation. Sometimes, the extracted blood is also “treated” with magnetic fields5, ozone and heat6. The treated blood is then intravenously reintroduced into the athlete.
The process of autohemotherapy was likely first described for therapeutic use in two case study reports in 1934 by Hancock and Knott. The authors described how two critically ill patients (one with septicaemia and another with brain abscess) had spectacularly recovered after reinjection of UV-irradiated blood7. It was only in 1942 that a “proper” clinical study of 151 patients with “severe infection” (not defined by the authors) was conducted. This study showed that the UV-autohemotherapy procedure might be effective in treating severe infections8. With the advent of more effective antibiotics, the technique soon fell out of clinical use for treatment of infections.
Although recent published research has explored the potential application of autohemotherapy in HIV infection and various immune diseases6, 9, the technique remains a novel clinical application in the English speaking countries. It appears there is no evidence-based recommendation for its use for any clinical condition. Autohemotherapy was, however, reported to be popular in the German Democratic Republic and in the Soviet Union in the 1950s10. A review also showed that a patent of the procedure was previously approved in the US11. While theoretical clinical applications in infective and immune-related diseases are possible, there is at present no rigorously controlled studies published to substantiate UV-autohemotherapy having a therapeutic benefit over available pharmaceutical treatments. The procedure also carries potential health risks, either directly as a result of the UV-radiation and/or indirectly through contaminated techniques.
In the context of sport, it is believed by some that the procedure inhibits the detection of erythropoietin (EPO) induced-doping and that the procedure promotes sporting performance through an effect on blood fluidity10. There is no research evidence to validate this belief and it is likely a result of concurrent intravenous saline infusion during the procedure rather than the UV-effect per se. Additionally, while very early studies have suggested that UV-irradiated blood was capable of an increase in the uptake of oxygen8, this has not subsequently been reported in modern scientific studies using advance diagnostic equipment. Such modern research has not been conducted partly because the technique has fallen out of clinical interest and one is therefore reliant on its potential based only on early studies.
At the Salt Lake City Olympics in 2002, it was reported that the International Olympic Committee (IOC) had discovered discarded blood transfusion equipment at the quarters of the Austrian cross-country skiers5. When questioned, the Austrian Ski Federation claimed that the equipment had been for UV-autohemotherapy to treat colds and flu and denied its use for doping. The Federation further indicated that the procedure was common among non-medical practitioners and at health spas in Europe but acknowledged that their team doctor was not aware that the skiers were using this method. The IOC later ruled that two Nordic skiers who had used the technique were in breach of anti-doping rules and deemed UV-autohemotherapy to be a form of blood doping and rejected its use as a legitimate therapy. The IOC disqualified the two athletes and banned their coach and chiropractor from the subsequent two Winter Games.
The technique of UV-autohemotherapy was only specifically addressed as a banned method in 2011 under the prohibited list:
s M2 - Chemical and Physical Manipulation
ss 3 - Sequential withdrawal, manipulation and reinfusion of whole blood into the circulatory system is prohibited
It is currently (2013) banned under the prohibited list:
s M1 - Manipulation of Blood and Blood Components
ss 1 - The administration or reintroduction of any quantity of autologous, homologous or heterologous blood or red blood cell products of any origin into the circulatory system
In the present discussion on the CAS ruling (German case):
For the period of 2007/2008 when the incident occurred, the 2003 WADA Code12 and the 2007 and 2008 Prohibited lists13, 14 would apply.
Under the 2007/2008 Prohibited Lists, the relevant sections are:
- Section M1 (ENHANCEMENT OF OXYGEN TRANSFER)
ss 1: Blood doping, including the use of autologous, homologous or heterologous blood or red blood cell products of any origin
- Section M2 (CHEMICAL AND PHYSICAL MANIPULATION)
ss 2: Intravenous infusions are prohibited, except as a legitimate medical treatment
Application of the Rules and Precedent to the Relevant Facts
In the German case, the facts of UV-autohemotherapy use have been established. As such, the act of withdrawing an athlete’s blood, with or without UV-therapy, and reintroduction into the athlete through an intravenous injection should contravene s M2 of the prohibited list (2007/2008). Because of its broad application, violation of s M2 of the prohibited method (chemical and physical manipulation) should occur even if it cannot be established through scientific means that an enhancement of oxygen transfer exists (s M1).
In the CAS reasoned judgment, the case on s M2 turned on the interpretation that the UV-blood “injection” was not an “infusion” (at ). Given the WADA rules are governed by the English language, this view seems strange considering the term “infusion” in English (according to the Oxford dictionary) is defined as “the slow often continuous injection of a substance”. “Injection” usually, but not necessarily, means into a vein. The volume of such a process is also immaterial since in clinical practice the administration of antibiotics into the vein of <50ml is also termed an infusion. Additionally, it should be noted that the athlete had also reported that the blood drawn from the vein was flowing back through the same cannula (at ).
With regards to the argument on the basis of M1.1, the CAS determined that the title of the section (Enhancement of oxygen transfer) was important to consider. Because the three experts on the procedure were not unanimous in their views of whether there is enough objective evidence to show that enhancement of oxygen transfer occurs with UV-treatment (one agreed that it did; two rejected on the basis of the level of evidence available), the CAS rejected the claim under M1.1 on the basis that it cannot with "comfortable satisfaction" (at ) accept, based on the disagreement of the experts, that UV-treatment enhanced oxygen transfer.
To consider if such a position on s M1 (2007/2008) is reasonable, the following discussion will adopt a purposive approach to the interpretation of the WADA rules and linking it to the scientific information as discussed earlier.
It should be noted that pursuant to article 4.2 of the WADA Code (2003), only a potential to enhance performance need to be established for a substance or method to be considered doping. As earlier described UV-autohemotherapy has the potential to enhance oxygen transfer according to earlier studies8. The question then is what level of evidence is required for the doping context?
Should the onus of proof be on anti-doping agencies to show that something works (prove a positive), or on athletes to show that something does not (prove a negative)? Or is it simply reliant on a substance’s or method’s potential
‘…based on the mistaken belief they enhance performance… whether the expectation of performance enhancement is realistic’ (cited in comment to article 4.3.2 of the WADA Code 2003).
Scientific evidence relies on positive evidence to show a cause-and-effect. Such positive evidence requires a very high evidentiary threshold of 95% statistical probability of a true effect; or something akin to the legal equivalent of beyond a reasonable doubt. This nevertheless still leaves a 5% statistical probability of a false effect. So, can the legal standard rely on a 5% likelihood of scientific effect?
In science, a lack of positive evidence is not a positive lack of evidence. It just means not enough studies have been conducted to provide the necessary statistical data. If anti-doping rules are reliant on the basis of “potential” (instead of proof), what this means in scientific terms is that anti-doping agencies need only establish that a defendant has not shown that something has not worked (fail to prove a negative), which is difficult to do a posteri. Moreover, if there are at least some studies (beyond merely mistaken personal belief) to show that something works (albeit only in very old studies), then such potential would have an equivalent legal standard that would likely fall somewhere between strict liability and a balance of probability.
If we accept that a substance or method can be deemed to fit the WADA criteria based only on its potential, then UV-autohemotherapy would fulfill the potential of health risks (s 18.104.22.168) and performance effects (s 22.214.171.124). But does it also fulfill the criterion of being against the Spirit of Sport (s 126.96.36.199)?
In International Olympic Committee (IOC) v Cross-country skiing/Ski de fond (2002)15 the CAS previously ruled that the definition of Blood Doping pursuant to the Olympic Movement Anti-doping Code (OMAC) includes the administration of the athlete’s own blood irrespective of the amount of blood withdrawn and re-injected; and that the method is an anti-doping violation whether or not it is potentially harmful to athletes’ health and/or capable of enhancing their performance. The CAS also clarified that UV-autohemotherapy did not meet the requirements for legitimate medical treatment. As such, even if a TUE was applied, it would unlikely be granted either prospectively or retrospectively.
While the CAS did not outright declare the method was against the spirit of sport, the Panel did draw on the idea of Olympism and the overall obiter dictum of the case suggesting that the UV-autohemotherapy is contrary to the spirit of sport is certainly persuasive. Because the spirit of sport is a nebulous concept and much debated in academic circles, it is not easy to confirm or deny if something does or does not fulfill it. It should be noted, however, that the potential of health risk, besides being an independent criterion for doping, also forms one of the components of the spirit of sport.
In the German case, the CAS viewed the WADA Code forbidding blood manipulation as applicable only when it is comfortably satisfied that the procedure is scientifically proven to increase oxygen transfer. The CAS found that because such an effect was not conclusively proven, UV-autohemotherapy does not meet the requirements for a forbidden method. Given the previous reasoned decision of the CAS on UV-authohemotherapy in the Austrian case, one wonders if the reasoned decision behind CAS’ most recent judgment is appropriate. Such a position could have future implications on anti-doping cases currently occurring in Australia.
In the Australian cases, various substances were alleged to have been administered to athletes by a sports scientist. Because many of these substances (specifically peptide hormones) were experimental in nature, there is at present very limited objective scientific evidence to show with high enough statistical confidence that they would fall within the catchall criteria of “similar chemical structure or similar biological effect(s)” in the prohibited list. If we draw on the ratio of the German case, it would be a persuasive argument to suggest that national anti-doping authorities would now need a 95% statistical probability level of scientific evidence for CAS to be comfortably satisfied that the catchall criteria and potential apply. This could turn the tables for national anti-doping authorities worldwide that had previously relied heavily on the broad application of potential and various catchall clauses.
In a recent decision in the Australian Federal Court (Anti-Doping Rule Violation Panel v XZTT  FCAFC 95) the court has clarified that the Australian sports anti-doping authority (ASADA) and the Anti-Doping Rule Violation Panel (which acts under the jurisdiction of ASADA) are only able to make assertions and not make findings (at ) that athletes have committed anti-doping rule violations (ADRV). It is also not for Australian courts to make the final determinations about ADRV. This is a unique situation where Australian athletes in Olympic sports without an approved sports tribunal in Australia (e.g. cycling) need to go to the CAS and have ADRV determined on the basis of CAS law (at ). Given the recent decision of the CAS on the German case, ASADA would need to seriously consider its options before pursuing such future actions.
*Special thanks to the assistance of Eva Bunthoff from the National Anti Doping Agency Germany and also Hon. André Haermeyer in their clarification of the German translation of the CAS document.
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission is granted to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- Tags: Anti-Doping | Australia | Australian Ant-Doping Agency (ASADA) | Court of Arbitration for Sport (CAS) | Erythropoietin (EPO) | Germany | National Anti-Doping Agency Germany | World Anti-Doping Agency (WADA)
- What can be done to revive the fight against doping and dopers in sport?
- A tarnished Silver Jubilee: doping in sport 25 years after Johnson and Delgado
- Unheard voices of racism and sexism in sport: Is anti-doping but another “ism” in fairer clothes?
- Anti-doping update from Australia with Paul Horvath - Episode 11
- Anti-doping and medical privacy