Reflections on the WADA 2015 Code v2.0

The World Anti-Doping Agency (WADA) 2015 Code review closed earlier this week. It has been a very interesting process following the various revisions and tweaks to the Code and has really made us think about what is important and/or legally defensible.

Attached to the bottom of this post are the comments that Jon and I submitted on behalf of the Centre for International Sports Law (CISL). Special thanks must also go to the LLM International Sports Law students for their constructive comments, in particular thanks to Leigh and Neil for their respective suggestions….

While it is now too late to submit any additional comments or tweaks in this round of revisions, we would still be very interested to know what your thoughts on the Code are?

The CISL Reflections on the Code: WADA 2015 Code Review (final)

Slippery when wet: Robert Wilson v. GP Haden t/a Clyne Farm Centre [2013] EWHC 229 (QB)

Read the full transcript of the case at: http://www.bailii.org/ew/cases/EWHC/QB/2013/229.html

The claimant (Robert Wilson) received £167,514 damages from the High Court for a lumbar vertebra fracture sustained while sliding down a fireman’s pole from an obstacle course on 4^th August 2009. He alleged that the defendant’s adventure activities centre had breached their duty towards him in negligence and under the Occupiers’ Liability Act 1957 through both the actions (or more accurately omissions) of the instructor and through failing to provide an adequate safety system to cushion his landing from the obstacle. Ultimately he only succeeded in the former, but the case is interesting for the causative reasoning.

 

BACKGROUND

The incident occurred during the final dismount of the “Burma Bridge” section of the ‘Challenge Valley Course’. This course had been in operation for the last 20 years without serious injury and had been used by an estimated 300,000 people. It was set in a wooded area of the Defendant’s centre and comprised 16 obstacles of varying difficulty. The “Burma Bridge” obstacle was in three sections, an inclined log with footholds leading to a wooden platform set in the trees. From here, participants made their way across a rope bridge to a platform set in a second tree from which they then dismounted by using either a vertical scaffold pole or a ladder.

On paper, there is no allegation that the obstacle, activity or centre was inherently unsafe, indeed the ‘Burma Bridge’ was rated by the defendant as having a risk of 3 (for both likelihood of risk occurring and severity) on the traditional five part scale, and while the defendant had identified a number of contra-indicated groups (children under 10yrs, participants with certain special needs etc), the claimant was a 46yr old part-time scout leader, who had already completed the first obstacle (a 6ft log wall) without undue difficulty. Although there is evidence that he didn’t see himself as particularly athletic and had made self-deprecating jokes about being a “fat taxi driver”, there is no suggestion that he was not capable of safely navigating the course with the other 11-12 scouts attending the centre as part of a camp.

Clyne Farm Centre was a member of the British Activities Holiday Association (BAHA) and subject to their BAHA Code of Practice. There is evidence that they had undergone internal and external safety inspections and sensible risk assessments and instructor training notes had been produced in advance of the accident. At the time of the incident, an “occasional” instructor (Miss Haines) was accompanying the group to demonstrate and explain each obstacle. No criticism was made of Miss Haines’ qualifications or experience.

The key question facing the Court was whether these Codes and documents were appropriate and/or followed at the time of the incident?

 

INSTRUCTOR FAILURE

On the day in question, the weather was wet and there had been heavy rain the night before. This was important as the Court heard how this increased the slipperiness of the pole, resulting in a number of dismounts that went faster than the participants were expecting. The Court held that Miss Haines did give two warnings about the weather conditions (once at the start of the activity [26] and repeated again during a demonstration [31]). The Court however rejected her evidence that she had given a third warning just before the dismount down the pole, as this was contradicted by her oral evidence [117].

Indeed, Mrs Justice Swift DBE was highly critical of Miss Haines’ “fanciful” evidence [114], preferring instead that of the claimant and the witnesses [110-113]. This was an important conclusion as Miss Haines had tried to argue that the claimant was the author of his own misfortune by showing off and deliberately letting go of his hands while sliding down. The Court however forcefully rejected this account [58].

The allegations of a breach of duty by Miss Haines can be summarised into two specific areas:

• Failure to demonstrate, or properly instruct the correct technique to be adopted when descending the fireman’s pole.
• Failure to offer the option of using a ladder to descend

The other suggestion raised, that Miss Haines failed to ensure that the Claimant had a good grip on the pole or had been stabilised as he moved to the platform, was later dropped following evidence that any attempt to support the weight of the participant would have been unsafe for both parties [145].

It is perhaps more straightforward to tackle the latter area first. The Defendant risk assessment and training notes specifically stated that all participants should be given the option to descend via either the firemen’s pole or a ladder located alongside the platform [14]. While the Court held that Miss Haines had failed to explicitly offer this choice of alternative methods, it was probable that the claimant would have continued to use the pole (despite his express oral evidence to the contrary being rejected as having the benefit of hindsight) [146].

By contrast, the failure to demonstrate or instruct the correct technique is potentially more complex. Importantly, the Court accepted that there was not an absolute need to perform a demonstration for every obstacle, rather the nature and substance of this briefing was a discretionary judgment by the instructor taking into account the risks and the group experience [135]. The problem in this instance is that Miss Haines did not adapt or review her briefing to match the group.

Miss Haines concluded that the method of sliding down a firemen’s pole was so obvious that it did not need either a demonstration or further instructions beyond that participants should grip it tightly [125]. To a certain extent, the competent performance of the younger children confirmed this [37]. Unfortunately, the claimant was not a young child and had no experience or knowledge in how to slide down the pole [20]. It is not challenged that the accident was caused because the claimant ultimately did not wrap his legs around the pole to slow his descent [125], the question is whether the instructor should have given clear and specific oral instructions, or performed a demonstration, or some combination thereof? Somewhat surprisingly, the defence team did not introduce any additional evidence on this point from any other instructors at either the Centre or in the wider industry as to what they felt was appropriate or what their practice was [139]. This seems a curious omission.

Ultimately at [144], the Court seemed content to leave this choice of methodology to the instructor’s professional opinion, what is clear however is that given the importance of ensuring that there was an instructor accompanying the group and advising on the safe way to navigate the obstacles, this omission to provide ANY advice constituted a failure to exercise proper care, compounded by the lack of adaptation for older participants [140-144].

 

SOFT LANDINGS

The other limb of the claimant’s case is that the defendant had failed to provide appropriate shock absorbent material (for example loose particulates like woodchip, or bark) to reduce the risk and/or severity of any injury caused by impact with the ground. This was important as the Court accepted that the Claimant descended the pole at quite a speed with “his bottom taking most of the impact on landing” [49].

The Court heard evidence on this issue from two expert witnesses, Mr Andrew Petherick (claimant), Mr William Mackay (defendant) who conducted a joint inspection of the accident site on 16^th March 2012. Although this 2012 examination of the site was potentially compromised by earlier excavations (not notified at the time to the claimant) which had been requested by the defendant’s initial expert (Mr Alan Preston) to refute whether the base of the pole was made of concrete [78], the Court did accept that the defendant merely complied with the requests from his expert and there was no intention to deceive [87]. Good practice would however suggest that experts in this area are made aware of their responsibilities to the court process.

The Court also discussed at length the specifications provided by various British and European Standards (BS EN) on the type and depth of materials for play:

• BS 5696 ‘Play equipment intended for permanent installation outdoors’ (1976)
• BS EN 1177 ‘Impact absorbing playground surfacing’ (1997)
• BS EN 1176 ‘Playground equipment and surfacing (2008)
• BS EN 15567 ‘Sports and recreational facilities – Rope Courses’ (2007)

While there was some dispute as to whether these standards applied to this case, and if so, to what extent, ultimately though, this proved to be somewhat of a red herring. Although technically the BS EN standards did not have retrospective effect, the BAHA Code of Practice stated that “the operator must be able to demonstrate that the course meets current standards” [Appendix 7]. As such, the BS EN standards should be used as guidance as to what is appropriate [149]. Interestingly, there is no question that the defendant was not aware of the requirements of the standard, as he had been on the working party to initially devise it! [150]

So, what were the specifications? The interpretation of the relevant standards centred around two key phrases [68]:

Critical fall height – “The height from which is assessed a surface will absorb the impact of a child’s fall sufficiently to reduce the risk of serious head injury”

And the

Maximum free height of fall - “The distance between any accessible part of equipment intended for play and the surface underneath”

From these two distances, it was possible to calculate the necessary minimum particulate depth for the landing area. The latter free height of fall determination was also important, because if the height had been greater than 3m, the defendant would have been in breach of BS EN15567 which required a braking device to be used. Three alternative formulations of calculating this height were discussed [100]:

• from the seated position on the platform – 3.1m
• from the top position of the hands in a hanging position (which would have been greater than 3m). This was Mr Petherick’s preferred choice as it represented a worst case scenario [101]
• from a climbing position – Mr Mackay’s preferred choice, which according to Table 2, para 4.2.8.1 of BS EN 1176:2008, this distance is calculated from a maximum hand support (3.5m) minus 1m (which would result in a fall height of 2.5m)

The Court held that this latter figure was correct, thereby negating the need for a braking device. Ironically, while Dame Swift was critical of Mr Mackay’s understanding of the fall height calculation [105], it would seem that she has similarly erred in her calculations in [153] that the depth of particulate should be 250mm, as this omits the additional 100mm required by the table to allow for particulate displacement. Surely the correct depth value should be 350mm?

When this calculation is combined with Mr Petherick and Mr Mackay’s joint statement [72], this error is not critical, as the statement clearly identifies five areas of agreement that the impact attenuation area should be:

• 300mm deep with an additional 100mm to allow for displacement of the particulates
• The minimum dimensions of the landing area beneath the pole were laid down by BS EN 15567 and should have been approx. 1.38m (depending on the final agreed fall height)
• Lined with polythene (terram) to prevent impregnation of the landing area by soil or water
• Should contain no hard objects such as tree roots
• Should be regularly raked / dug up to avoid compaction

The reality for Clyne Farm is unfortunately a catalogue of errors, with none of the above requirements being met:

• Particulate depth was only 150mm
• The distance from the pole to the nearest edge of the tree was only 0.77m [90]
• There was no terram lining [92]
• Substantial tree roots were visible below 150mm in the landing area [91]
• The contemporaneous photograph of the landing area appeared to show heavy compaction in the vicinity of the bottom of the pole [94]

It is a fairly easy jump from this conclusion to establishing a breach of duty to provide a safe landing area. Surprisingly though, the case then came to a sudden stop. When proving causation, the Court rightly held that it was necessary to prove whether the “failure to provide adequate impact attenuation caused or materially contributed to his injury?” [158]

The problem for the Court is that it was not enough to state that there was a breach, rather the claimant also had to establish a causal link showing that proper impact attenuation surfaces would have protected against or reduced the severity of his injury. The failure to introduce any expert medical or technical evidence to support this, left the court with no choice but to dismiss this part of the claim [165]!

To a certain extent this is an unsatisfactory situation. It is also somewhat difficult to reconcile with the other part of the claim for instructor breach of duty, because if the woodchips had been compliant with the relevant standards, then this could have been used as a defence against the injury. As it is, we are left with the situation that the breach of duty to instruct ‘caused’ the injury (the falling uncontrollably) while the lack of suitable impact attenuation surfaces (the heavy landing) were held to also be a breach but not necessarily causative. I’m confused, isn’t it the landing that hurts not the falling?

Coroner’s Inquest into Search and Rescue Death

On November 24, a coroner’s inquest into the death of search and rescue volunteer Sheilah Sweatman released its recommendations. Sweatmen drowned while trying to recover the body of a woman in a vehicle submerged in the Goat River, near Creston, BC (click here for the CBC story).

A documentary TV crew working on a series on SAR filmed her death. The footage was shown at the inquest but has not been made public. The video shows that after Sweatman connected a steel cable onto the submerged vehicle, the vehicle shifted and moved downstream causing Sweatman to be bucked off the raft and her leg entangled in the cable. Sweatman struggled to keep her head above water for more than five minutes. SAR volunteers tried to row to her and swim to her and give her a rope.

Sweatman’s brother had harsh criticism saying there was no heroics, just a bunch of complacent witnesses standing around.

The coroner’s inquest recommended to Emergency Management British Columbia (EMBC) and the British Columbia Search and Rescue Association (BCSARA) the following:

1. That Emergency Management British Columbia (EMBC) expand the existing Swift Water Task Force to include members of search and rescue operations as well as the RCMP, B.C. River Guides Association, B.C. River Outfitters Association, WorkSafeBC and any other appropriate stakeholders.

2. That EMBC and the B.C. Search and Rescue Association (BCSARA) develop universal standards for swift water rescue and recovery training to ensure consistent language and training applications. These universal standards would require all swift water training providers to conform to these prescribed standards.

3. That EMBC and BCSARA develop universal standards for swift water rescue and recovery equipment.

4. That an audit be conducted of all Search and Rescue (SAR) communities to ensure that each SAR community has the required equipment (including personal protective equipment) and training for their respective communities based on their unique areas. Where it is determined that there is a lack of the required equipment and/or training for that area, immediate consultation with BCSARA and EMBC must occur to determine steps to obtain the equipment and/or training with the goal of safety of all SAR members in BC.

5. That EMBC review and evaluate funding models to better support SAR operations, training and equipment similar to Volunteer Fire Departments’ funding.

6. That Swift Water teams use only their own equipment during search and rescue operations whenever possible. If any unfamiliar equipment is introduced into a task, a proper risk assessment must be completed. The appropriate tools for self rescue and companion rescue must be immediately accessible.

7. That the Volunteer Policy and Procedures Manual specifically the policy for “Utilization of SAR Volunteers for SAR Activities Policy” be reviewed by EMBC to clarify and amend, where required, the roles and responsibilities of varying agencies involved in SAR activities. These groups include, but are not limited to SAR, policing agencies, Coroner, Parks Canada, BC Ambulance and Fire Services.

8. That during an operation, a specific Safety Officer be designated whenever possible. This Safety Officer’s position will be their sole function.

9. That EMBC with the assistance of the SAR stakeholders develop a standardized risk assessment tool for use in Swift Water operations.

In my view, most of the recommendations miss the point and are moot. While a coroner’s inquest is not charged with determining fault, these recommendations largely avoid identifying the factors which caused or contributed to Sweatman’s death. Many of the recommendations are neither novel nor new. As BCSARA president Don Bindon – who I had the honour of working with in SAR in the late 1990s while he was with the RCMP – acknowledged as much in saying, “They are not foreign to us at all. We are implementing some of them already and we’re going to implement the rest to the best of our ability.”

The biggest thing though is Recommendation 6 which stated that the appropriate tools for self-rescue and companion rescue must be immediately accessible.

Combining the above recommendation with the maxim in SAR that search and rescuers not be unnecessarily exposed to risk – which in the circumstances of a body recovery where the sense of urgency is minimal ought to mean that the risk exposure should be very low – clearly shows that something went terribly wrong.

Search and rescue is inherently dangerous. Approximately 6 volunteer (unpaid professional) search and rescuers have tragically died in training or missions in BC in the last 20 years; this averages to 0.3 fatalities per year.

Search and rescuers are true heroes that deserve our gratitude. Their professionalism, technical expertise and tolerance for risk are unparalleled. Our thoughts and prayers go to Sheilah Sweatman’s family and friends and to the Nelson Search and Rescue Group.

“An injury is much sooner forgotten than an insult”: An analysis of the John Terry Criminal and Regulatory cases

• The judgment of the criminal case at Westminster Magistrates’ Court (Mr Howard Riddle presiding) between – R v. John Terry (13 July 2012) will be referred to as [WMC].
• The ruling of the regulatory commission hearing between the Football Association v. John Terry (24^th-27^th September 2012) will be referred to as [RegComm].

The incident between Chelsea defender, John Terry (JT) and QPR defender, Anton Ferdinand (AF) occurred during the course of an FA Premier League match between Chelsea FC and Queens Park Rangers (QPR) on 23^rd October 2011. From an initial altercation, both players attempted to wind each other up through the exchange of a number of ‘industrial’ phrases. JT suggested that AF’s breath smelt, while AF responded with a slow fist pump gesture and made abusive allegations about JT sleeping with his “team mate’s missus”. It was following this latter gesture, that JT made the now infamous statement:

“F*** off, F*** off…[missing disputed words]… f***ing black c**t, f***ing knob-head.”[RegComm: 1.5]

On 22^nd December 2011, after an unidentified member of the public lodged a formal complaint, JT was charged with a racially aggravated public order offence:

“using threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress and the offence was racially aggravated in accordance with Section 28 of the Crime and Disorder Act 1998, contrary to Section 5 of the Public Order Act 1986 and Section 31(1)(c) and (5) of the Crime and Disorder Act 1998.”

As the criminal case, took priority, the FA disciplinary proceedings were stayed until the conclusion of the criminal case (itself temporarily delayed due to a Chelsea FC request to have it heard after the European Football Championships). It was therefore not until the 27^th July 2012 that The FA charged JT with:

“Misconduct pursuant to Rule E.3(1) of it rules and regulations which included a reference to the ethnic origin and/or colour and/or race of Mr Ferdinand within the meaning of Rule E.3(2).”

Although AF admitted that he used abusive and insulting words and behaviour towards JT contrary to FA Rule E.3(1), he was not charged alongside JT as the FA Policy is to only apply on-field sanctions to breaches of E.3(1) rather than take retrospective action, unless the conduct is directed at a match official or third party (spectator) [RegComm: 3.5].

 

When is a question a question?

While all parties agree that JT spoke those words, the crux of both the civil and criminal cases hinged on the disputed words in the middle of the sentence. JT argued that AF had accused him of racial abuse first, and therefore his statement should merely be seen as a forceful rebuttal to AF’s initial comments rather than any new insult [RegComm: 3.4 / 6.2]

JT’s account was corroborated by Ashley Cole (AC), indeed JT even went as far as saying that AF was “not telling the truth in denying that he had used the words first” [RegComm: 6.2]

By contrast, both The FA and the Crown argued that JT had spoken the words to insult or abuse AF.

Unfortunately, despite expert analysis from lip-readers in the criminal trial, it was not possible to definitively identify the exact words used in this middle part as although the match was televised live (and clips subsequently uploaded on the internet), two Chelsea players (John Obi Mikel and Ashley Cole) obscured JT’s face during the disputed part of the sentence. There was similarly no clear camera view of what AF had said immediately prior to JT’s statement.

Interestingly, JT was acquitted in the criminal case, but was subsequently found guilty by the FA Regulatory Commission and received both a four match ban and an index-linked financial penalty of £220,000 plus costs.

So why were there different results on what were ostensibly the same facts?

 

The Criminal Case

While the Chief Magistrate (Mr Riddle) made it clear that he felt that:

• the prosecution had a ‘strong case’
• there was enough evidence for the case to go to trial [WMC: Page 7]
• that JT’s explanation was ‘unlikely’ [WMC: Page 6]
• and that it was unlikely that AF accused JT on the pitch of calling him a ‘black c**t’ [WMC: Page 14]

ultimately he accepted that “it was possible that Mr Terry believed at the time, and believes now, that such an accusation was made” [WMC: Page 14] and given the lack of hard evidence to rebut this view, this doubt was enough to militate a not guilty verdict.

Had this case been brought in Scotland, this may have been a Not Proven verdict, as Mr Riddle’s comments do not exactly represent a glowing endorsement of either JT or AC’s evidence. Indeed, the Regulatory Commission perceptively note at [RegComm: 6.7] that the Chief magistrate’s analysis was couched in terms of “possible” rather than “probable”.

That said, Mr Riddle does also point to inconsistencies and discrepancies in AF’s evidence [WMC: Page 5] and makes the suggestion that despite his evidence to the contrary, it was possible that AF could have been aware of what JT said at the time “but found it easier to say that he wasn’t” [WMC: Page 6] and when AF went to away team dressing room to meet JT & AC, it could have simply been to put the incident behind him.

  

The Regulatory Commission of the FA

Although the Regulatory Commission case adopts a very similar approach, it is worth highlighting a number of important issues.

Double Jeopardy?

JT not only denied the substance of the charge, but challenged the very validity of the charge letter and the jurisdiction of the FA suggesting that the case was an abuse of process and procedurally barred under Regulation 6.8 of the FA Disciplinary Regulations [RegComm: 3.2]

This argument was however rightly dismissed by the Commission. In doing so, they made an important clarification that this was not the FA having a second bite of the cherry, but rather its first bite since “the purpose of the criminal proceedings that were brought by the Crown was not to regulate football” [RegComm: 5.16].

In practical terms, this meant that the Commission was not bound by any of the findings of the Chief Magistrate and could revisit the existing evidence, or consider new evidence in light of the lower civil standard of ‘balance of probabilities’ rather than the stricter criminal test of ‘beyond all reasonable doubt’. This is a longstanding convention, and has been applied worldwide to cases as diverse as OJ Simpson to doping and hooliganism. In this case however, the Commission laid out 4 potential scenarios for sports regulators who considering bringing a disciplinary case after a civil or criminal action [RegComm: 5.14]. For ease of understanding, I have converted these scenarios into a matrix:

The FA could therefore simply resubmit identical evidence from the criminal trial to be considered by the Regulatory Commission. Ironically, the high-profile nature of JT actually counted against him in this regard, as usually the only clearly known facts that are discernible from a criminal case are the acquittal or conviction, unlike the full narrative verdict given in a civil case. In JT’s criminal trial however, the Chief Magistrate prepared a 15 page written verdict which provided a number of material findings.

For me, this provided one of the undoubted highlights of the Disciplinary Panel ruling at [RegComm: 5.8] where the Panel noted that:

“Mr Carter-Stephenson [JT’s counsel] argued that the only “facts and matters” in the judgment that are relevant to the result are those that favoured Mr Terry in the decision that was reached and not those that were adverse to him” - bonus points for effort I suppose!

 

Evidence

Perhaps the biggest difference between the criminal and civil (disciplinary) approaches was in relation to the evidence.

For example, the Regulatory Commission allowed newspaper and video evidence of a match against Barcelona in order to rebut evidence given in the criminal trial that JT had “unusual qualities of self-control and leadership” [WMC: Page 8]. In doing so, the Regulatory Commission treated hearsay evidence as: 

“being inclusionary and can be given such weight as the court thinks fit, unless and until any other issue as to its admissibility is raised which might limit its exclusion.” [RegComm: 7.15]

In this particular case, the video evidence showed “matters that are relevant to our overall assessment of disposition, demeanour and conduct during the critical phase of the match against QPR.” [RegComm: 7.18] by undermining JT’s credibility and character.

This was very much a theme throughout the disciplinary hearing as the Regulatory Commission took a much more hostile view of the witness testimony, and in particular JT’s decision not to give evidence. While the Panel was at pains to stress that it did not make adverse findings against him for not giving evidence, by allowing inconsistencies and criticism to go unchallenged, this is essentially what happened.

The Commission also effectively all but accused JT, AC and the Chelsea Club Secretary, David Barnard (DB) of lying:

• “…we are driven to conclude not just that it is ‘highly unlikely’ that Mr Ferdinand accused Mr Terry on the pitch of calling him a ‘black c**t’, but that he did not.” [RegComm: 7.7(i)]
• “That Mr Terry did not hear, and could not have believed, understood or misunderstood Mr Ferdinand to have used the word ‘black’, or any word(s) that might have suggested that he was accusing Mr Terry of racially abusing him” [RegComm: 7.7(ii)]
• “That Mr Cole did not hear, and could not have believed, understood or misunderstood Mr Ferdinand to have used the word ‘black’ or any other word beginning with the word ‘B’ that had any reference to, or context with skin colour, race or ethnicity…” [RegComm: 7.7(iii)
• “There are then further aspects of Mr Terry’s defence that the Commission finds improbable, implausible and contrived…” [RegComm: 7.8]
• “All of this causes the Commission to have very real concerns about the accuracy of Mr Barnard’s recollections and the motivation for the assertions that he makes in his witness statement about what Mr Cole said in during the FA interview” [RegComm: 7.37]
•  “….shows Mr Barnard’s recollections to be materially defective.” [RegComm: 7.38]

 

 Learning Points for the FA

Of possible note for the FA disciplinary team is that the Commission report highlights two learning points. The first is that the debate over whether AC’s evidence had ‘evolved’ or had been misquoted by the FA investigators could have been avoided had the interview been taped and transcribed and this is something the FA may wish to consider for future investigations.

The second relates to concerns about the inadequacy of the disclosure of FA evidence [RegComm: 8.1]. In particular, the Commission was scathing about the lack of “any kind of established system, procedure or protocol for dealing with the type of disclosure order that was made in this case.” [RegComm: 8.2]. Although the Commission did note that it was reasonably satisfied that the FA had complied with its disclosure obligations, this may be something the FA may wish to revisit to avoid any difficulties in future cases.

  

What constitutes Racism?

Finally, at times both the Magistrates Court and Regulatory Commission seemed to perform linguistic somersaults and contortions worthy of a place on an Olympic Gymnastics team:

“It is not the FA’s case that JT is a racist” [RegComm: 3.4]

And similarly at [WMC: Page 2]: “The issue for this Court to decide is not whether Mr Terry is a racist, in the broadest sense of the word. I have received a substantial volume of unchallenged evidence from witnesses, both in person and in writing, to confirm that he is not…..the issue between the defendant and the Crown is whether Mr Terry uttered the words “f***ing black c**t” by way of insult. If he did then the offence is made out, regardless of what may have motivated him.”

Readers may remember that this was very much a theme that arose in the earlier Suarez incident. It is perhaps worth considering going forward that if using racially aggravated words does not constitute racism, what exactly does? Can one incident be excused or is once one time too many?

For all the media hype surrounding the perceived witch-hunt of John Terry, this case is notable for the confirmation that sport is not above the law, but rather that difficulties in establishing the quality of evidence may mean that internal sporting bodies are better placed to robustly deal with disputes, it is just a shame that on this occasion it has taken so long to do it.

Lance Armstrong, the USADA & Quantum Mechanics (Round 3 of the CAS Eligibility rules?)

Some people have suggested that with the now infamous statement that “enough is enough” by Lance Armstrong on 23^rd August 2012, that that statement represents a final conclusion to a long-running saga. In reality though, it may be more accurate to view this as a change of ends, or the start of the fourth quarter. As the implications of the various statements and cases are analysed, it is likely that any future legal entanglement will focus on the role of USADA and the legality of their sanctioning process. In a sense, this challenge has the very real potential to become Round 3 of the CAS eligibility rules debate, an exciting prospect given the previous knock-out victories in the earlier cases:

• Round 1 was between USOC v. IOC (the Osaka Rule)
• Round 2 was between BOA v. WADA (the Bye-Law))
• Will Round 3 be between UCI / WADA v. USADA?

Tygart’s Cat?

So what do Lance Armstrong, the US Anti-Doping Agency (USADA) and Quantum Mechanics have in common? The answer comes in the form of a thought experiment by Erwin Schrodinger. Schrodinger postulated that the fate of a cat (sealed in a lead box with a flask of poison and a radioactive object) would be unknown until its contents could be observed. Until somebody could actually open the box and confirm its state, the cat would theroretically be both alive and dead. Ironically, the respective statements by Lance Armstrong and Travis Tygart (CEO of USADA) have now set-up a modern day version of this thought-experiment. It would seem from the public documents and court cases that the USADA case is based not on a positive sample (Armstrong has never tested positive for a performance enhancing drug), but rather on secondary evidence produced from statements, testimonies and samples that may be ‘consistent with doping’ that together form a non-analytical violation (see an excellent overview of this area by Richard McLaren in Marquette Sports Law Review). By refuting these charges but not continuing to engage in any future defence, Lance Armstrong has created a state where he is simultaneously innocent (the lack of any killer evidence of a positive sample violation) and guilty (the USADA non-analytical violation) depending on the observation point.

So what are the implications of this position for the USADA and WADA? To understand that, we need to examine the charges against him,

The USADA Letter

On 12^th June 2012, USADA notified six people:

• Lance Armstrong [charges 1-6]
• Johan Bruyneel (Team Manager: USPS / Discovery/ Astana / Radio Shack teams) [charges 2-6]
• Dr Pedro Celaya (Team Doctor: USPS / Discovery / Radio Shack teams) [charges 2-6]
• Dr Luis Garcia del Moral (Team Doctor: USPS team) [charges 2-6]
• Dr Michele Ferrari (Consultant Doctor to USPS and Discovery Channel Teams) [charges 2-6]
• Pepe Marti (Team Trainer USPS / Discovery / Astana / Radio Shack teams) [charges 2-6]

that it was opening formal action against them for their alleged roles in a wide-ranging doping conspiracy involving the United States Postal Service (USPS) (1996-2004), Discovery Channel (2005-2007), Astana (2009) and Radio Shack (2010) teams, specifically relating to six charges:

1. Use and/or attempted use of prohibited substances and/or methods including EPO, blood transfusions, testosterone, corticosteroids and/or saline, plasma or glycerol infusions
2. Possession of prohibited substances and/or methods including EPO, blood transfusions and related equipment (such as needles, blood bags, storage containers and other transfusion equipment and blood parameters measuring devices), testosterone, corticosteroids and/or saline, plasma or glycerol infusions
3. Trafficking and/or attempted trafficking of EPO, testosterone, and/or corticosteroids.
4. Administration and/or attempted administration to others of EPO, testosterone, and/or cortisone.
5. Assisting, encouraging, aiding, abetting, covering up and other complicity involving one or more anti-doping rule violations and/or attempted anti-doping rule violations.
6. Aggravating circumstances justifying a period of ineligibility greater than the standard sanction.

USADA alleged conspirators gave false testimony and statements under oath and in legal proceedings [Page 12, USADA Letter), which may be the reason why media groups may be reconsidering earlier Court defeats: see for example Armstrong v. Times Newspapers Ltd [2006] EWHC 1614 (QB). As of yet though, USADA has not elaborated on what and when the false statements were.

Armstrong challenged the USADA accusations with his own letter and subsequently through the US District Court system (see below). The Court document describes the USADA evidence against Armstrong [page 8]:

• Testimonies from numerous riders, team personnel and others (based on personal knowledge or apparent admissions from Armstrong to them) that he had used EPO, blood transfusions, and cortisone from 1998 to 2005; and EPO, testosterone and HGH until 1996.
• Numerous riders will also testify that Lance Armstrong gave to them / encouraged to use and/or assisted them in using doping products and/or methods (including EPO, blood transfusions, testosterone and cortisone) between 1999-2005.
• Evidence from the Director of the Lausanne Anti-Doping Laboratory (Dr Martial Saugy) that Armstrong’s urine sample from the 2001 Tour of Switzerland was indicative of EPO use which confirmed other witness testimony that a positive test result in 2001 was covered up. (As Lance Armstrong’s counsel later identifies though, this sample no longer exists and in 2011, Dr Saugy was reported as saying that the sample did not constitute a positive test).
• Data from UCI blood collections in 2009 and 2010 which is fully consistent with blood manipulation including EPO use and/or blood transfusions.

The letter from Robert Luskin (Lance Armstrong’s legal team) also put forward a number of interesting questions:

• Why has only one rider (Armstrong) from the four teams been charged?
• How can Armstrong (and effectively the public) overcome concerns over the reliability of the witness evidence? Armstrong perhaps says it best 2/3 down his own statement: “……perverts the system and creates a process where any begrudged ex-teammate can open a USADA case out of spite or for personal gain or a cheating cyclist can cut a sweetheart deal for themselves. It’s an unfair approach, applied selectively, in opposition to all the rules. It’s just not right.”

The WADA Code, Comment to Article 10.5.3 notes that:

“If a portion of the period of Ineligibility is suspended, the decision shall explain the basis for concluding the information provided was credible and was important to discovering or proving the anti-doping rule violation or other offense.”

It will therefore be interesting to see if any ‘reduction in sentences have been applied to previous drug cheats, and if so who.

US Texas District Court (20^th August 2012)

Armstrong’s team most recently brought an ultimately unsuccessful challenge to the USADA letter before the District Court. Essentially, the challenges can be summarised into three main themes:

• USADA lack of authority
• Violation of his due process rights
• The USADA process itself

The first theme that USADA lacked authority to bring such charges against him was because of a statute of limitations (8yr), jurisdictional conflict with the UCI (international cycling union), and a failure of any valid arbitration agreement with USADA.

The statute of limitations can be suspended if there is evidence of a cover-up, but USADA has failed to make public any specific documentation or evidence to support this. By contrast, the latter two challenges are comparatively easier to resolve. Essentially USADA Anti-Doping rules (USADA Protocol for Olympic Movement Testing) effectively govern the implementation of anti-doping policies in USOC national governing bodies (of which USA Cycling implements the UCI rules). As a member of both USA Cycling, and an athlete included within the USADA registered testing pool, Lance Armstrong agreed to be bound by this protocol [Page 26].

Armstrong also alleged that USADA’s charging and arbitration procedures violated his due process rights, specifically:

• Failure to provide an adequate charging document (see below)
• No right to cross-examine or confront witnesses against him
• No right to disclosure of exculpatory evidence
• No right to disclosure of cooperation agreements or inducements provided by USADA
• No right to obtain investigative witness statements
• No right to obtain full disclosure of laboratory analyses or an impartial assessment of their accuracy

Many of these points relate to the inherent distinction between discovery rules in (civil) arbitration proceedings as opposed to criminal proceedings and the Court rightly commented [Page 17] that the reliability of these results and testimony can and should be challenged by any arbitration panel. While that coupled with a valid arbitration agreement should have been enough to dismiss the case, the Court noted that the high-stakes nature of the arbitration (Armstrong’s career and reputation vs the credibility of the USADA’s anti-doping framework) and the risk of further substantial costs, meant that it was important to fully evaluate Armstrong’s case. Further to McLaren’s comments in his article (see earlier), these findings on the gravity of the case could be used to suggest that the arbitration evidential standard of comfortable satisfaction “could move to a very high standard that can become indistinguishable from beyond a reasonable doubt.” (page 211)

The District Court was also scathing about the USADA in places, suggesting their “woefully inadequate charging letter” [Page 17] was:

“so vague and unhelpful that it would not pass muster in any court in the United States. The Court is assured, however, that Armstrong will be given adequate notice of the specific allegations against him in a timely fashion prior to arbitration, and proceeds under the assumption this will actually occur.” [page 9] and it was “of serious constitutional concern”[Page 17].

At [Page 14] that:

“USADA’s conduct raises serious questions about whether its real interest in charging Armstrong is to combat doping, or if it is acting according to less noble motives.”

And later in footnote 36, [Page 27] that:

“Among the Court’s concerns is the fact that USADA has targeted Armstrong for prosecution many years after his alleged doping violations occurred, and intends to consolidate his case with those of several other alleged offenders, including incredibly–several over whom USA Cycling and USOC apparently have no authority whatsoever. Further, if Armstrong’s allegations are true, and USADA is promising lesser sanctions against other allegedly offending riders in exchange for their testimony against Armstrong, it is difficult to avoid the conclusion that USADA is motivated more by politics and a desire for media attention than faithful adherence to its obligations to USOC.”

Indeed, the Court noted it was only the practical realities of the time and money having to rehear the same case once the USADA had sent Armstrong a more detailed charging letter that ensured that this suit was not struck out.

Armstrong finally challenged the process itself, complaining of a potential lack of impartiality, no guarantee of an arbitration hearing, and no right to pursue a judicial review by a US court [IV]. These challenges in particular seem to display either an ignorance of sporting regulation, attempts to muddy the waters or a shotgun approach to law. Indeed, the speculation that a potential CAS Panel would be biased seems quite insulting.

Ultimately, the Court agreed with the USADA (and I must say that I do too) that the best mechanism for resolving these allegations is to test them in arbitration and exhaust these internal remedies first [Page 23].

Round 3?

The ineligibility rule in this case came from the sanctions imposed by USADA, but have they the authority to do so? As Rounds 1 (USOC) and 2 (BOA) have shown, the WADA Code is absolute and any incompatibility and inconsistency with the Code renders that respective rule void. Indeed, for the purposes of anti-doping, it is irrelevant whether USADA is sovereign in the USA as it effectively surrendered this sovereignty to WADA.

So what does the Code say?

[Comment to 2.2] – “Use or Attempted use may also be established by other reliable means such as admissions by the athlete, witness statements, documentary evidence, conclusions drawn from longitudinal profiling, or other analytical information which does not otherwise satisfy all the requirements to establish “presence” of a prohibited sample under Article 2.1”

The fact that USADA did not feel able to charge Armstrong with article 2.1 (Presence) only echoes the ‘non-analytical’ nature of the violation. The problem however with this approach is what constitutes reliable? As Robert Luskin’s letter notes, there is an obvious discrepancy between USADA holding that the UCI blood data in the 2009-10 seasons supports doping and the UCI’s own experts that took a contrary view? This area will need much more explanation from USADA.

Perhaps the most telling quote comes from the Texas judgment at [Page 29]:

“As mystifying as USADA’s election to proceed at this date and in this manner may be, it is equally perplexing that these three national and international bodies [USADA, USA Cycling & UCI] are apparently unable to work together to accomplish their shared goal the regulation and promotion of cycling. However, if these bodies wish to damage the image of their sport through bitter infighting, they will have to do so without the involvement of the United States courts.”

While strictly speaking, Lance Armstrong can be declared guilty of a doping violation in absentia:

Under Article 8.3: “the right to a hearing may be waived…expressly…by the Athlete’s or other Person’s failure to challenge an Anti-Doping Organization’s assertion that an anti-doping rule violation has occurred within the specific time period provided in the Anti-Doping Organization’s rules.”

The decision does leave a somewhat bad taste in the mouth, particularly since the USADA has not gone through a full hearing process. In particular, it is difficult to reconcile the feeling that the Texas Court had that the USADA charges were inadequate and an hour after the statement, suddenly they are sufficient for a lifetime ban!

Indeed, it is perhaps worth reiterating the most ominous part of the Texas Court’s judgment contained in footnote 27 on [Page 18]:

“….If it should come to pass that Armstrong does not actually receive adequate notice sufficiently in advance of the arbitration hearing, and it is brought to this Court’s attention in an appropriate manner, USADA is unlikely to appreciate the result.”

USADA have subsequently suggested that they will reveal evidence against him, but do not wish to do so for fear of prejudicing on-going cases against Bruyneel, Celaya and Marti. The problem I have is that this also works both ways. What if the cases against all 3 defendants were thrown out, does that mean that just as Lance Armstrong was declared guilty in absentia, so he can also be declared innocent?

Perhaps the most important question for any legal challenge though, is that assuming the statute of limitations is not activated, what should Armstrong and the others actually be charged and sanctioned with?

10.2: Ineligibility for Presence, Use or Possession (1^st offence) – 2yrs

10.3.2: Ineligibility for Trafficking or Administration (1^st offence) – 4yrs to lifetime

10.6: For Aggravating circumstances, other than Trafficking or Administration violations, the maximum period of ineligibility to be applied for a standard sanction is 4yrs.

10.7.4: Second anti-violations: “For purposes of imposing sanctions under Article 10.7, an anti-doping rule violation will only be considered a second violation if the Anti-Doping Organization can establish that the Athlete or other Person committed the second antidoping rule violation after the Athlete or other Person received notice pursuant to Article 7 (Results Management), or after the Anti-Doping Organization made reasonable efforts to give notice, of the first anti-doping rule violation; if the Anti-Doping Organization cannot establish this, the violations shall be considered together as one single first violation, and the sanction imposed shall be based on the violation that carries the more severe sanction; however, the occurrence of multiple violations may be considered as a factor in determining aggravating circumstances (Article 10.6).”

It is therefore critical that USADA prove not just the substance (excuse the pun) of some of the doping violations, but that Armstrong was guilty of Administration or Trafficking charges. At present there is only one vague accusation that he distributed EPO to other riders (p.3 USADA Letter), and administration of olive oil and testosterone mix to other riders (p.4 USADA Letter). If these offences cannot be proved, then under 10.7.4, all the other violations should be taken together and his maximum ban should be capped at 4yrs rather than life.

Let’s hope that the UCI and/or WADA challenge the USADA decision, not because I believe that Lance Armstrong is innocent, but because the deficiencies in the USADA process and their lack of any public, credible underpinning evidence for their charges means that at the moment Armstrong is both innocent and guilty. Schrodinger would be turning in his lead box….

 

From a small cede a mighty Code may grow: an analysis of CAS 2011/A/2658 BOA v. WADA

Read the full transcript at: CAS 2011/A/2658 British Olympic Association (BOA) v. World Anti-Doping Agency (WADA)

Although this case was decided on 30 April 2012, it is worth recapping and analysing it here in light of the recent Lance Armstrong decision. It is perhaps easiest to think of the decision less as a one-off and instead as Round 2 of the legalities of ‘eligibility’ and ‘sanctioning’ clauses, with Round 1 being the 2011 CAS decision on the eligibility of LaShawn Merritt to compete despite the IOC ‘Osaka’ rule (the USOC case).

Effectively this case revolves around the interpretation and legality of the 2009 BOA Byelaw “Bye-law of the National Olympic Committee: Eligibility for Membership of Team GB of Persons Found Guilty of a Doping Offence”

Whereas

(i)  the British Olympic Association (the “BOA”) is responsible for the selection of athletes and other support personnel to represent Great Britain and other territories as specified by the International Olympic Committee (“Team GB”);

(ii) the BOA strongly disapproves of doping in sport and does not regard it as appropriate that Team GB should include athletes or other individuals (including but not limited to coaches, medical and administrative staff) who have doped or been found guilty of a doping offence including but not limited to the supply or trafficking of prohibited substances;

(iii) the BOA, in compliance with the World Anti-Doping Code (“the WADC”), recognizes adjudication of competent authorities under the WADC by not selecting athletes or other individuals for accreditation to Team GB while they are subject to a ban from competition under such adjudications;

(iv) the BOA does not regard it as appropriate to select athletes or other individuals for accreditation to Team GB who have at any point committed a serious doping offence involving fault or negligence and without any mitigating factors;

(v) the BOA regards it as appropriate to take as a starting point that any athlete or individual guilty of a doping offence at any point should be ineligible for selection for Team GB, but to provide that an athlete or individual who can establish before an Appeals Panel that on the balance of probabilities his or her offence was minor or committed without fault or negligence or that there were mitigating circumstances for it, may be declared eligible for selection;

(vi) the BOA has accordingly adopted this byelaw.

1.Any person who has been found guilty of a doping offence either

(i) by the National Governing Body of his/her sport in the United Kingdom; or

(ii) by any sporting authority inside or outside the United Kingdom whose decision is recognised by the World shall not, subject as provided below, thereafter be eligible for consideration as a member of a Team GB or be considered eligible by the BOA to receive or to continue to benefit from any accreditation as a member of the Team GB delegation for or in relation to any Olympic Games, any Olympic Winter Games or any European Olympic Youth Festivals.

2. The Executive Board of the BOA shall establish an Appeals Panel made up of

(iii) three individuals………. [the remainder of the byelaw then goes on to discuss the establishment of the Appeals Panel (AP) and the procedures to be followed in the event of an appeal….]

It is a condition of the World Anti-Doping Agency (WADA) Code 2009 that all the rules of all National Olympic Committees (NOCs) are in compliance with the Code (article 20.4.1). WADA had previously confirmed to the BOA that this byelaw was in compliance with the Code via a letter dated 3 March 2009. Following the USOC ruling, WADA again wrote to the BOA, to suggest that the new CAS interpretation meant that the BOA Byelaw was now non-compliant. On 12 December, the BOA filed an appeal with CAS asking for a declaration that this decision was incorrect.

 The fact that both WADA and the BOA requested the same arbitration team (Professor Richard McLaren, Me. Michele Bernasconi and David Rivkin) as the USOC decision, only serves to reinforce the idea of a rematch/round 2. As with the USOC case:

• both parties agreed that CAS has jurisdiction under issues concerning Articles 13.5 and 23.4.4 of the WADA Code
• while Article R57 of the CAS Code provided that a CAS Panel “shall have full power to review the facts and the law”

  

Two Key Questions

While many commentators in the media dressed this decision up as a heroic British fight against doping, where WADA was soft on drugs, against the much harder BOA stance; sadly, the judgment itself was much more mundane and procedural, with Professor McLaren’s analysis focusing on the interpretation of the law, indeed almost disappointingly so. (I wonder if this trend of analysing the merits of the law rather than rhetoric will catch on?)

The case essentially boiled down to two key questions:

1. Was the BOA bound by the provisions of the WADA Code?
2. Was the BOA byelaw a selection (exempt from the Code) or sanctioning policy (bound by the Code)?

The BOA argued that because they were a National Organizing Committee (NOC) rather than a National Anti-Doping Organization (NADO), they were unaffected by the provisions of the WADA Code [5.10]. By contrast, WADA had two rebuttal arguments. The first was a very interesting assertion that it didn’t matter what the BOA were on paper as they were actually an anti-doping organization because they cooperated with the relevant NADO (UK Anti-Doping) both directly and indirectly by initiating, implementing, imposing and enforcing sanctions [5.44]. From the definition of an anti-doping organization (ADO) in article 1 of the Code though, it is unclear as to whether the BOA actually fits within this collective list. Indeed, a strong case could be made that as the BOA does not have any specific anti-doping responsibilities and NOCs were not specifically mentioned by name, it is not actually an ADO. Unfortunately, this point was not specifically addressed in the judgment. Instead, the far-easier means to the same end-point was reached via the second point that as the BOA were a signature of the WADA Code (art. 20.4.1), then they were bound by its provisions [8.12].

  

Natural selection, ducks and speeches

There are a number of interesting points to come from the judgment in relation to selection rules, the first is that CAS confirmed that Eligibility rules are generally exempt from the WADA Code [8.11]

On the face of it, this should mean that answering the second question, ‘was the byelaw a selection policy’ would be a comparatively difficult process. Unfortunately, the reality of the BOA byelaw means that this debate will need to happen in another time and place. While the BOA byelaw might call itself an ‘eligibility for membership rule of Team GB’ that defines the nature of the people selected for the team, this is not enough to save it. Instead the byelaw crumbled under two devastating arguments: the duck test and the sound-bite test.

• Although the BOA tried to distinguish their bye-law from the IOC Osaka rule by suggesting that it concerned selection to the GB team rather than accreditation to an event, this was rejected as irrelevant by the Panel. Instead the panel looked at what was the foundation behind the bye-law and saw that it was underpinned by reference to the WADA Code [recitals 2,3,5,6,7]. (The duck test: if it looks like a duck, walks like a duck and quacks like a duck, it’s a duck!). The Panel also noted that the ineligibility was triggered by a doping violation under the Code and resulted in an automatic ban (a sanction very similar to that in the USOC decision).
• The BOA argument was further weakened by the comments made by supporters and its own members (the sound-bite test).
  • The CAS Panel heard at [8.32] that in the 2007 Ohuruogu case, the BOA’s own Appeals Panel “rejected the BOA submission that the BOA Byelaw is a selection rule and not an anti-doping rule. We see no value in any such distinction. It is clearly an anti-doping rule.”
  • WADA also produced evidence that the BOA Chairman and other members had made speeches praising the deterrent and punishment value of such a byelaw [5.55-5.57]. (Perhaps this emphasises the need for governing bodies to have a consistent, clear brand and strategic direction?)

From here, it was then a simple procedural matter of stating that the BOA byelaw was a doping sanction. Under article 23.2.2 of the WADA Code the BOA as a signatory to the Code had previously agreed to give up its sovereignty in the area of anti-doping, in particular its ability to impose additional sanctions:

“The following Articles (and corresponding Comments) as applicable to the scope of the anti-doping activity which the Anti-Doping Organization performs must be implemented by Signatories without substantive change (allowing for any non- substantive changes to the language in order to refer to the organization’s name, sport, section numbers, etc.):

• Article 1 (Definition of Doping)
• Article 2 (Anti-Doping Rule Violations)
• Article 3 (Proof of Doping)
• Article 4.2.2 (Specified Substances)
• Article 4.3.3 (WADA’s Determination of the Prohibited List)
• Article 7.6 (Retirement from Sport)
• Article 9 (Automatic Disqualification of Individual Results)
• Article 10 (Sanctions on Individuals)
• Article 11 (Consequences to Teams)
• Article 13 (Appeals) with the exception of 13.2.2 and 13.5
• Article 15.4 (Mutual Recognition)
• Article 17 (Statute of Limitations)
• Article 24 (Interpretation of the Code)
• Appendix 1 – Definitions

No additional provision may be added to a Signatory’s rules which changes the effect of the Articles enumerated in this Article.”

It must therefore come as no surprise that the BOA Bye-Law had to be scrapped. We can ultimately draw two conclusions from this judgment.

Either the BOA genuinely felt that their bye-law should be about ensuring only athletes of appropriate character represent Team GB. If so, what could they have done differently? The Panel perceptively noted at:

[8.28] While the BOA claims this selection policy is part of a greater policy that the BOA will select only athletes of good character, the fact is that the only behaviour that is explicitly referred to in the Bye-Law and that renders one ineligible to compete is the commission of a doping violation under the WADA Code.

If the BOA were serious about ensuring that Team GB only contained athletic role-models, criminal sanctions, sexual misconduct and behaviour likely to bring the sport into disrepute should also make athletes ineligible for selection. Although the BOA argued in their brief that this was already the case [5.19], to my knowledge, there is no public documentation of cases where the BOA has considered non-selection for misconduct other than doping?

The CAS Panel also noted the ban was triggered automatically by the inappropriate behaviour, in this instance doping. The BOA may have had more success had this ineligibility been based on a discretionary judgment. The problem with that approach though is that this discretion would surely have been open to challenge and considerable uncertainty.

It seems a minor point, but the CAS Panel also seems contradictory regarding the subject of Appeals. It initially seems to suggest that:

[8.29] If the selection policy were purely designed as a means by which the BOA could have only the athletes of the best character, it would be unnecessary to have an appeals process to assess the “proportionality” of the application of the Bye-Law. In other words, the only thing that matters in a proportionality determination is the behaviour of the individual. Whether the punishment fits the crime is purely an analysis of an individual’s character and prior behaviour.

But then several paragraphs later seems to change its mind:

[8.33]… The fact that the Bye-Law forsees a possibility of an Appeal Procedure is certainly a good instrument to avoid totally disproportionate decisions…..”

Where the two paragraphs cannot be reconciled, the latter is perhaps the more accurate interpretation.

  

Alternatively, the BOA knew, or should have known, that as a signatory to the Code it was unable to make alterations to the anti-doping framework. If so, the judgement owed more to politics and a means of rallying support under introducing life-bans in the new 2013 Code, than any legal uncertainty.

Either way, the judgment shows that the WADA Code is now definitively the dominant force in anti-doping and while organisations and countries may bemoan their lack of sovereignty, for once there is a level playing field.

Exercising a public function: Spelman v. Express Newspapers [2012] EWHC 355 (QB)

Redacted (public version) of the transcript: http://www.bailii.org/ew/cases/EWHC/QB/2012/355.html

Guardian newspaper report: http://www.guardian.co.uk/sport/2012/apr/16/rfu-environment-secretary-drug-taking

A lot has been recently written about Jonathan Spelman, a 17year old boy and son of a Cabinet Minister (Caroline Spelman is Member of Parliament and Secretary of State for the Environment, Food and Rural Affairs) and on the 16^th April he was formally suspended from Rugby by the RFU for 21months for an anti-doping violation: http://www.rfu.com/News/2012/April/NewsArticles/160412_Spelman_judgment.aspx .

While the details of this anti-doping violation are now public knowledge, as is his unsuccessful fight to seek a privacy injunction barring reporting of this, what is perhaps more interesting is the Court’s view about sport.

 

The Background to the case

Jonathan Spelman played rugby for England U16 and for Harlequins RFC however he suffered a serious cruciate ligament injury in September 2011 which prevented him from playing. According to newspaper reports, he then ordered a series of steroids over the internet in an attempt to speed his recovery. The RFU name these substances as: testosterone, drostanolone (both anabolic steroids), growth hormone (GHRP6), human chorionic gonadotropin (HCG), clomid (clomiphene) and nolvadex (tamoxifen).

The Privacy injunction was an attempt to prevent the Daily Star Sunday (a tabloid newspaper) from revealing these allegations, an effort that subsequently failed. The resulting publicity in the media ultimately led to his voluntary appearance before the RFU’s independent disciplinary tribunal last month. Earlier this week, the tribunal reduced his anti-doping violation by three months to take into account his youth, immaturity and admission of guilt.

 

The Privacy Injunction attempt

Although the Daily Star Sunday did not yet have a fully written article, they were making enquiries of various parties to try to corroborate their information about Jonathan. After they approached these sources, they were contacted by the Claimant’s solicitors who instructed them to effectively cease and desist what they felt was an invasion of privacy and a political assault against Mrs Spelman.

By contrast, Express Newspapers argue that by giving full and prior notification of a potential story, they acted properly and responsibly, a principle that Max Mosley has previously campaigned on: http://www.guardian.co.uk/media/2011/jun/02/max-mosley-media-warn-subjects-expose . They also argued that Mrs Spelman was only an incidental aspect to the story [25] and that the key fact is that Jonathan is an elite sportsman who aspires to play at national and international level [66].

The initial hearing was on Saturday 11^th February 2012, see here for a redacted judgment:http://www.bailii.org/ew/cases/EWHC/QB/2012/239.html and http://www.bailii.org/ew/cases/EWHC/QB/2012/392.html

As with many privacy cases, the crux of the case turned on the interpretation of the Human Rights Act 1998 and the balancing exercise that needed to be undertaken between the diametrically opposite rights enshrined by Article 8 (Right to respect for private and family life) and Article 10 (Right to freedom of expression). At [30], the Court confirmed that neither of the Articles took precedence over the other, instead, the importance of each right, the justifications for any interference, and the proportionality of any action should be carefully reviewed. The Court also re-stated the importance of maintaining open justice and the public accountability of the Courts [19].

See: http://www.headoflegal.com/2012/02/24/spelman-injunction-lifted/ for an interesting analysis of this balancing exercise.

As an aside, at [24], there is also an interesting discussion of the mechanics of how Sunday papers work and the exclusivity they prize over the daily titles that could effectively scoop them to reporting ‘their’ story if the injunction was discharged during the week .

 

Unfettered Watchdogs

While the paper expressed the view that it would be cheaper to not contest the injunction, they felt that this would place serious constraints on their freedom of expression and their function as a ‘unfettered Watchdog in a democratic society’. Perhaps surprisingly, the Court broadly agreed and cited what it saw as two key paragraphs specifically applying and underpinning this principle in sport.

6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society — in many cases by choice — automatically entails increased pressure on their privacy.

7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

Resolution 1165 (1998) of the Parliamentary assembly of the Council of Europe on the Right to Privacy

And from the recent Grand Chamber case of Axel Springer AG v. Germany [2012] ECHR 227 (7 February 2012) [90]:

An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest (see Von Hannover, cited above, § 60; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 68, 9 November 2006; and Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June 2009). The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes….. but also where it concerned sporting issues or performing artists (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25, 22 February 2007; Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal, nos. 11182/03 and 11319/03, § 28, 26 April 2007; and Sapan v. Turkey, no.44102/04, § 34, 8 June 2010).

The Court held that given this, and the fact that at least one of the facts was true (and thereby could act as a complete defence to any potential defamation action [60]), it would be in the public interest for the newspaper to publish. The Court did however recognise that such an article could be intrusive or offensive depending on how it was written [102] and reserved the right to award damages (including aggravated damages) for the disclosure of private information if the publisher could not justify its use [120].

 

Child Athletes

The rest of the judgment is comparatively unreported; however I would argue that it is actually the most interesting and far-reaching part! Essentially, the Court moved from the basic proposition that children enjoy no general rights to privacy simply because of their age [53], to suggesting that the fact that Jonathan was nearly 18 was irrelevant as the principles of the case and the public nature of his role would equally have applied by virtue of his status as an international U16 player [72].

While I would not recommend using Mr Justice Tugendhat’s comments at [68] to meet the Government’s legacy sport targets for youth sports participation:

The material benefits to those few children who succeed at the highest level can be fabulous. But these benefits may come at a high price. It is a matter of common knowledge that the effort to achieve the highest honours in sport can damage a person’s health and family life, and lead to an early death, or even to a life of misery when careers end early and in disappointment. But the price in terms of health and happiness may be paid even by the less successful performers (being the overwhelming majority, of course) without their ever obtaining the material or other significant benefits.

It is his subsequent comments that are potentially the most significant. At [69], Tugendhat J suggests that:

69….those engaged in sport at the national and international level are subject to many requirements which are not imposed on other members of the public. Matters relating to their health have to be disclosed and monitored, and they may have little if any control over the extent to which such information is disseminated. It is a condition of participating in high level sport that the participant gives up control over many aspects of private life. There is no, or at best a low, expectation of privacy if an issue of health relates to the ability of the person to participate in the very public activity of national and international sport.

He then proceeds to extend this principle even further beyond professional athletes to journeyman athletes who merely ‘aim for’ rather than necessarily achieve the highest levels of sport [70].  Strictly speaking this area of the judgment is obiter, however it does make me wonder how many current child athletes (and their parents) understand the responsibilities that this extension of the principle entails. Not only are national and international child athletes role models and can legitimately be subjected to public scrutiny, but so now are lower level younger athletes. How far does this diminution of reasonable expectation of privacy extend? County level? What about pupils competing in the National School Games? It will be interesting to see how this area develops.

One last paragraph that sports governing bodies may wish to address is the potential ethical and welfare concerns raised by the Court in [107] that:

…..the demands made on children for the benefit of sport have increased very greatly over that period. Whereas in the past there was relatively little money to be made out of sport by anyone, sport has in recent years generated huge revenues, mostly from broadcasting and other intellectual property rights. So there is a risk that those responsible for organising national and international sporting activities may have interests that conflict with the welfare of the children who participate, or aspire to participate, in these activities.

Is this Tugendhat J’s response to the furore over Tom Daley’s media commitments, or is he suggesting that greater work should be undertaken to ensure that young athletes in professional and elite sport are not just protected from abusive relationships, but from the pressures and responsibilities of playing sport itself?

Ironically, this judgment has only increased these pressures.

Patience is a virtue (except for the Police!): ZH v. Commissioner of Police for the Metropolis [2012] EWHC 604 (Admin)

Case Transcript: http://www.judiciary.gov.uk/media/judgments/2012/zh-v-police-judgment

The case concerned the appropriateness of the police response to an incident at Acton swimming baths on 23^rd September 2008. The claimant was a 16yr old pupil with Autism, epilepsy and various learning disabilities who could not communicate by speech and had a severe aversion to being touched.

On the day in question, ZH was attending the swimming baths for a ‘familiarisation’ visit with his carer (Mr Sateesh Badugu), two other school staff and a number of pupils from the school. Although it was not intended that he would swim or be close to the water, ZH broke away from the school group and stood fixated by the edge of the pool. Unable to persuade ZH to return with the group, the group returned to the school to get additional assistance, leaving Mr Badugu in charge of the claimant. The school now accepts that good practice would have been to have had closed sessions without the public present [146], but no criticism was made of the initial visit, nor of Mr Badugu’s actions in dealing with ZH.

The situation became exacerbated when the Pool manager (Christian Harland), having been notified of the situation by the duty lifeguard (Yvette Burton), became frustrated by what he saw as the “ineffectiveness of the carer” [9] trying to entice ZH away from the pool with crisps. In a panic and in an attempt to break the deadlock, Mr Harland rang the police stating:

“We have a disabled male trying to get into the pool….the carer is trying to stop him and he is getting aggressive…he is quite a big lad” [10]

The initial police response to this incident was in the form of two officers in full uniform (PC Hayley Mckelvie & PC Emma Colley). Following the misleading 999 call, both officers perceived an immediate threat to life, despite ZH having been standing calmly by the shallow end of the pool for at least 40mins with several lifeguards nearby [70].

PC McKelvie went to speak to ZH, without speaking to Mr Badugu first, and touched ZH gently on his back. The Court held that this was the catalyst for ZH to jump in the shallow end of the pool [79]. The police officers justified their actions on the basis that:

“no-one was taking control and the police had to do so, and be seen to be doing so” [15, 76 & 77]

While ZH could not swim, the presence of the lifeguards and the fact that they formed a cordon to prevent him from getting to the deep end meant he was in no imminent danger. During this time, more carers and school staff arrived, however despite ZH being in the water for between 5-10mins, the police did not consult the carers for advice, or for help in formulating a plan, and none was offered to the police [21].

Three further police officers (PC Susan Tither, PC Varinder Sooch & PC Stuart Hunter) arrived at the pool and they then proceeded to forcibly remove ZH from the water. As he was lifted out of the water, he was immediately placed forcibly on his back and all five officers applied force to his body to restrain him [25]. Despite the carers repeatedly asking the police not to restrain him in this way as he was autistic and epileptic [26], two police officers shouted loud clear commands to ZH, while leg restraints and two pairs of handcuffs were applied, during which process, ZH lost control of his bowels.

ZH was then carried from the building and placed alone in a cage in the rear of the police van, still in handcuffs and leg restraints and soaking wet. His carer was not allowed to go into the cage with him, but was able to calm him enough to persuade the police to remove the restraints.

The claimant successfully brought three main actions against the police: trespass to the person (assault, battery & false imprisonment), and claims under the Disability Discrimination Act 1995 and the Human Rights Act 1998.

 

Assault, Battery & False Imprisonment

Although the claimant alleged the unlawful application of force in touching or restraining, the Police argued that their actions were justified under the Mental Capacity Act 2005. While the defendant did not have to have the exact provisions of the Act in mind while they were applying the force they did have to demonstrate that:

• The claimant lacked capacity  (YES)
• Any act was in his best interests (NO)
• There was an imminent danger of severe injury (NO)
• This belief was genuine (YES)
• It was a proportionate response to the likelihood and severity of any harm (NO)
• The response was the least restrictive way of dealing with the incident (NO)
• The views of the carers were be considered (NO)

The Court held that as there was no emergency at any stage of the incident, the police were not acting in ZH’s best interests. The failure to consult with the carers before approaching ZH, removing him from the pool or restraining him on poolside was also unreasonable [125], unnecessary, and disproportionate [127]. ZH could also have been placed in a warm room within the building rather than the police van. While the Police tried to argue their actions were necessary, this was rejected by the Court as it would circumvent the provisions of the Mental Capacity Act 2005 [44].

 

Disability Discrimination Act 1995, s.21b

The claim under the Act was essentially that it was unlawful for a public authority to discriminate against a disabled person in carrying out its functions, or in failing to make any adaptations where necessary. In particular the Court held that 8 adaptations could have been made:

• Identify with carers the best way of communicating
• Take reasonable steps to address the situation
• Allow the claimant opportunities to communicate with his carers
• Allow the claimant an opportunity to move at his own pace
• Application of force was a last resort and should be at the minimum level necessary
• Responding to advice from carers as the situation developed
• Adopt alternative strategies to afford protection for C’s safety
• Prioritising adoption of calm, controlled and patient approach with the claimant

This duty on the Police to make reasonable adjustments and to inform themselves of the situation was a continuing and non-delegable duty throughout the incident. Indeed, even if the school or its carers had been in breach of a duty to inform the police of ZH’s condition [121], this did not excuse the police from liability under the Act [137].

 

Human Rights Act 1998 claim

The claimant was successful in claiming under three headings:

• Art 3 (inhuman / degrading treatment) – taking into account the whole period of restraint
• Art 5 (right to liberty) – while the use of restraint can be justified, on this occasion, “its use for a significant period of time on an autistic epileptic young man…was in the circumstances hasty, ill-informed and damaging” [145]
• Art 8 (right to respect for private life) – the police action was not justified as proportionate in the circumstances.

  

Implications

The Court was at pains to note that the Police did not act in any ill-intentioned way towards the claimant, indeed one might argue that the police were placed in a difficult and volatile situation by a misleading call. It is also true that while the claimant was not in imminent danger, he was in a dangerous situation that had the potential to escalate rapidly. Ultimately however, liability arose because the police jumped in at the deep end by failing to consult with the respective carers or use softer, more persuasive methods of control.

The case raises interesting points in relation to the tension between paternalism (in ZH’s best interests even though it might be distressing to be restrained) and libertarianism (ZH should be allowed to do whatever he wants). As with anything, the context is all-important. If the police had been called when ZH had only just moved and become fixated by the water, or if it had been near the deep-end, or in a busier pool where there was more potential for accidental bumping / injury to the public, then the police response may have been more easily justified.

Ironically, the key failing of the police was not in immediately taking control of the situation, but rather in becoming fixated with an aggressive solution to a perceived problem, and demonstrating an inability to communicate with people around them. If officers had deferred to, consulted or sought advice from the carers (even if it was later disregarded as inappropriate), many of the problems could have been avoided. On the other hand, would the police have been criticised for delegating too much of their authorit? The incident also raises the tricky question of how they should evaluate the competency of any ‘expert advice’ they receive during an incident?

Hockey coach sentenced to 2 years for multiple sexual assaults to minors

In a case whose perpetrator’s actions span three decades and has attracted a considerable amount of attention, former hockey coach Graham James was sentenced three days ago to two years in prison for sexual assault. James plead guilty to sexually assaulting two teenage boys hundreds of times while they were players on teams he coached.

James is a former Western Hockey League Coach of the Year and 1989 Hockey News Man of the Year. James had been previously convicted of a sexual assault in 1971 and was also sentenced to three-and-a-half years in 1997 for sexually assaulting two other boys, including former National Hockey League (NHL) player Sheldon Kennedy.

The sentencing for his most recent conviction has properly generated wide-spread criticism.

Provincial Court Judge Catherine Carlson accounted for the abuse of trust, the degrading and humiliating nature of the sexual assaults – repeated hundreds of times to victims under the age of 18 – and whose cumulative effect has been significant and devastating to victims Todd Holt and Theoren Fleury.

However, Carlson J. also pointed out that Mr. James expressed remorse, apologized to his victims and has experienced what she called ‘an extreme degree of humiliation’ – factors that warranted a reduction in his sentence from a possible maximum of 10 years to the two year sentence handed down.

A Globe and Mail editorial (click here to read) entitled ‘Judge didn’t grasp magnitude of James’s crimes’ accurately, in my view, captures the criticism: ‘There is something annihilationist about what he did. It was an obliterating violence he committed on their sense of personhood, repeated over and over and over and over. These crimes need a sentencing approach that recognizes the difference between one or two sexual assaults and the hundreds that Mr. Holt and Mr. Fleury endured. Not a single one of those assaults should receive a sentencing discount …. [H]is behaviour needs to be denounced to express society’s revulsion and pain at the victimization of the vulnerable, and at the abuse of trust. Provincial Court Judge Catherine Carlson spoke of that abuse, of degradation, of the total control exercised by Mr. James, but then gave him credit for an expression of remorse, an apology, the “extreme degree of humiliation” he experienced and his willingness to come back from Mexico without an extradition hearing. He deserved no such credit.’

A two year prison sentence for savage predation upon two vulnerable and trusting human beings is not enough.

Jumping Backward to Poppleton again: Why ‘Pinchbeck v. Craggy Island Ltd (2012) [2012] All ER (D) 121 (Mar)’ may have been wrongly decided

While the case itself is unreported except in the All England Reporter, a number of newspapers carry the story: http://www.dailymail.co.uk/news/article-2115749/Craggy-island-leap-Louise-Pinchbeck-leapt-wall-hurt-ankle-100k-payout.html

The Claimant (Louise Pinchbeck) successfully brought a negligence claim against Craggy Island Ltd (an indoor rock-climbing centre) for injuries sustained during a bank team-building day organised by her employer in March 2008.

While the claimant had not had much experience rock-climbing, she had spent two hours that morning being closely supervised by two instructors top-roping on a high (40ft) wall with safety harnesses. The injury occurred when she was bouldering without any harnesses on a low (4m) wall and twisted her ankle when she jumped off onto the matting suffering compound ankle fractures.

Although an attempt was made by the defendants to suggest that P’s apology for making a fuss amounted to an admission of guilt, the Court held that this apology should only be taken as an expression of embarrassment and the case proceeded to trial.

While an instructor was supervising the low wall, the claimant argued that no formal instruction for the low wall was given to her other than not to have more than two people on the wall at any one time and she felt that the bouldering wall was almost like a ‘play session’ to cool down. The  defendant disputed this allegation and suggested that the claimant received a full safety briefing, however the court held that on the balance of probabilities, the claimant had not been given any clear instructions on how to descend from the wall, and that no clear prohibition was given not to jump.

The Court further held that the defendant had assumed responsibility for the claimant by providing instructors and that:

“the defendant had known that the claimant had, to that point, only climbed upwards that day and had therefore known, or ought to have known that she was at a disadvantage on the low wall. By not instructing her not to jump down from the wall, the defendant had failed to discharge its duty of care to the claimant.”

The Court also held that the instructor should have:

• Been aware that there had been previous injuries sustained historically from other climbers
• observed that the people P was climbing with had also jumped from the wall, prior to P’s injury

This seems a crazy counsel of perfection and one has to wonder what has happened to the doctrine of inherent risk, or to the application of s1 of the Compensation Act? Indeed, while the case digest summary shows the Court was cited Poppleton, they also seem to have disregarded the CA judgment in favour of the earlier (now overruled) High Court decision! Jeremy Howe’s digest summary (in his report of the case for the All England Reporter) suggests that the Court held that the risk of this injury could and should have been prevented by proper instruction, and that this breach of duty made the case unsuitable for an application of the volenti non fit injuria principle, although the claimant should be held 1/3 contributory negligent.

While this analysis is indeed legally correct, it presupposes that there had been a breach of duty. If this is true, possibly the Court was swayed by what it saw as a culpable failure of the defendants that needed punishment, rather than any general duty owed to climbers / boulderers. Indeed without this explanation, it seems difficult to reconcile with the recent CA rugby case of Sutton v. Syston where a breach of duty by the club (to perform a pitch inspection) did not ultimately cause the accident.

It may be worth considering whether had the defendants not ‘assumed responsibility’ by providing an instructor whether liability would have been imposed? To the best of my knowledge, there is no formal qualification for a UK bouldering instructor to hold (unlike the Single-pitch award for top-roping). Given this, did the defendants actually owe the claimant a duty to provide an instructor, or to remind them that jumping from a wall onto mats was dangerous? Indeed, hadn’t we already established both this lack of a duty and the fact that gravity hurts in Poppleton?

If this is indeed an accurate reflection of the case, the sooner it can be appealed the better, to leave it as it is would indeed be a backward jump.