I have recently seen a great increase in the abuse of the drug called Clenbuterol, available on the market under the brand name Spiropent, used by prescription only. It is a bronchodilator used for asthma. It has stimulating effects and is abused for its fat burning properties. It is on the WADA Prohibited List and strict sanctions apply when abused without a validly approved Therapeutic Exception.
The earliest case I recall is that of Katrin Zimmerman Krabbe v Deutscher Leichtathletik Verband (DLV) and International Amateur Athletic Federation (IAAF) (Munich Court of Appeal, Germany, 28 March 1996).
Katrin Krabbe was a German athlete, member of the German Athletics Federation (DLV). She tested positive for Clenbuterol and admitted taking it. She had no record of asthma and bought Spiropent on the black market. At that time, Clenbuterol was used for fattening up pigs and calves in order to increase their lean muscle mass.
She received a one-year suspension at first, which the DLV deemed insufficient and decided to suspend her for three years. Katrin Krabbe appealed to the District Court (Landgericht) for a declaratory judgment which would make the suspensions imposed by the DLV and IAAF inapplicable. Her request was dismissed by the District Court. The athlete then took her case to the Munich Court of Appeal.
The Court decided that the two penalties (DLV and IAAF) were separate. The one-year suspension imposed by the DLV was legally enforceable because the appellant was a member, purchased the annual Federation membership card and was thus contractually bound by the rules of the Federation.
According to Article 116 of the German Civil Code (BGB), an implicit contract existed between the athlete and the Federation. The same contract is binding under the US laws. The athlete tried to argue that since Clenbuterol was not on the DLV’s list of prohibited substances, it was presumed to be acceptable. The Court dismissed this argument because the DLV had rightly pointed out that the list of substances also banned the use of substances that had an identical effect to that of those on the list.
In other words, Katrin Krabbe had contravened the principles of sportsmanlike conduct and fair play by taking Spiropent bought on the black market – a substance for which a medical prescription was required – and by refusing to give accurate information on drug test forms. The evidence also showed that Katrin Krabbe was aware of the issues associated with abuse of Spiropent.
However, the IAAF rules did not provide for any review of DLV sanctions, and the court therefore deemed the IAAF sanction excessive. In compliance with IAAF Rule 54, the DLV had decided, via its Legal Committee, to impose a twelve-month suspension for violation of the principles of sporting behavior. Rule 54 was the rule applicable to non-doping cases. IAAF Rule 53.2.2 applied only if the disciplinary procedure described in Rule 54 had not been correctly followed by the National Federation. This implied that Rules 54 and 53.2 could not both be applied to the same case.
Rule 53 could not be used as a legal basis for the punishment of “unsportsmanlike conduct,” which had already been considered and sanctioned by the relevant national sports federation. Furthermore, if, contrary to the above, Rule 53.2 could serve as the legal basis for an extra sanction imposed by the IAAF, the extension of the suspension breached the principle of proportionality. The suspension of 3 years 9 months was excessive. It was generally accepted that a four-year suspension usually meant the end of an athlete’s career.
The DLV Legal Committee therefore considered a two-year ban to be the maximum for a first offence against the rules on doping. The same opinion was held by the “Deutsche Sportbund” and the IOC. Since “unsportsmalike conduct” was less serious than doping itself and since this was the athlete’s first offense, the IAAF’s sanction was excessive, disproportionate and unfair.