June 13, 2012 Blood UV Irradiation

Dear WADA Executive Committee Members, At our meeting on 17 May, you requested that I provide you with a “position paper” in relation to this UV irradiation issue that has arisen in Germany. Consequently, I conducted a thorough review of all of our files and papers in relation to the matter. Without entering into any contentious area or debate, whether that be legal, scientific, or medical, it is obvious to me that we have an issue that has not been fully understood by all who have been engaged. Nor have they been privy to all of the relevant information. As a result, the wrong questions have been asked and opinions have been proffered on the basis of incomplete factual foundation. There are two areas of potential miscommunication and misguidance. The first is that all of the information has not been made available to those who are asked for an opinion. The second is that the question asked of those “experts” has not been the right one. In those circumstances their answers or opinions cannot be deemed to be satisfactory or pertinent. I now have a file which indicates a number of pieces of evidence that were not known by WADA until recently. They include the fact that close to 30 athletes were "treated" with this method, 27 before 2011 and some of them had more than 10 treatments. Two federal prosecutors opened files and have information of pertinence. One athlete raised the matter with the NADA although I am not certain of the timing of that. In late 2010 it seems as if cases were being prepared for sanction processes. Then there was correspondence with members of WADA management in early 2011 with replies being given suggesting that the method was not permitted. It is interesting that the President and I met with the NADA in February 2011 and this matter was not raised with us. Then nothing was heard about the method until the beginning of 2012 when we received more requests for an opinion but there was no mention of our correspondence of April/ May 2011. This is strange in terms of reference but also in terms of the long time lapse. We have no explanation for either.

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Reverting therefore to the issue itself, the method in question needs to be reviewed pursuant to the Prohibited List at the time. This method was used in 2009 and 2010, and therefore, covered by the 2009 and 2010 List. The relevant section of the List read: “M1. ENHANCEMENT OF OXYGEN TRANSFER The following are prohibited: 1. Blood doping, including the use of autologous, homologous or heterologous blood or red blood cell products of any origin. 2. Artificially enhancing the uptake, transport or delivery of oxygen, including but not limited to perfluorochemicals, efaproxiral (RSR13) and modified haemoglobin products (e.g. haemoglobin-based blood substitutes, microencapsulated haemoglobin products), excluding supplemental oxygen. “ The first matter that you should be aware of is that pursuant to normal statutory interpretation of rules and regulations, and depending on jurisdiction, the heading is not always deemed to be part of the text. Therefore, this method has to be examined pursuant to the text contained in either M1.1 or M1.2 and not relying simply on the title. There is no mention in M1.1 of oxygen transfers, nor indeed any mention of oxygen at all. Therefore the question to be asked is whether the method used in Germany can be seen as blood doping a Prohibited Method pursuant to M1.1. The question posed by our team to "experts" was not whether the method was prohibited under M1.1 but whether it was a method that enhanced oxygen transfer or oxygenation. The answers received are therefore to the wrong question and do not clarify whether this does constitutes blood doping under M1.1. There are cases in the past where methods of this sort have been declared to be prohibited. It is important to advise you that exactly the same wording existed in the List managed by the IOC Medical Commission in the early part of this century. Under that List, several athletes and doctors were successfully sanctioned for “blood doping”, including notable cases at the Salt Lake Winter Olympic Games in 2002. We have now also learned that NADA has obtained other opinions from other experts indicating that this method would indeed be prohibited under M1.1. We have not seen these opinions, nor the questions asked to the experts, but this confirms that with all evidence now on the table it is necessary for an independent tribunal to make a ruling. The position therefore is one that I have suggested to the NADA, and that is that these pre2011 cases be put to an appropriate tribunal, to which all of the information and evidence


should be supplied so that full scrutiny and appropriate result management is followed. I have suggested to start with that they choose a case which is the most suitable to be tried, and that the process be commenced as soon as possible. This can provide an immediate precedent for them. There are possibly athletes involved who might be eligible to compete at London. The other aspect that I have been at pains to point out is that WADA itself is not a decisionmaking body. WADA Management must obviously provide advice and guidance in relation to aspects where we are approached for opinions and we have the expertise to respond. However, that advice and/opinion can never be a decision in result management terms nor does it amount to anything that is binding on a tribunal. The appropriate place for decisionmaking in relation to aspects of the Code or the Standards is the relevant tribunal. WADA “experts” can give evidence to such tribunals, and we can do that, but the decisions based on those opinions and all the factual evidence must be taken by that tribunal. This is required in all cases where methods are not fully described by the List, and the facts have to be first established to see if the method is banned. Here we have facts now that we did not have in forming an opinion and the question asked was not the right one. The opinion contained in our letter of April 2012 is therefore wrongly directed and not to be relied upon. It appears however that the NADA is holding out that this letter is definitive and are not pursuing pre-2011 cases which involve 27 athletes. I have pointed out to them that this letter is not a decision from WADA but only an opinion based on the wrong question and without all the facts. It only deals with the potential transport of Oxygen and not with the question of whether such method is prohibited under M1.1. It does show that WADA must be extra careful when responding to requests for opinions of this sort. The position accordingly is that the matter has been returned to the NADA in the way that I have outlined and we await their action. Should any of you have any query, please do not hesitate to contact me.

Yours sincerely,

David Howman Director General

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