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Why Lloris’ head injury was so severe that even the FA and Tottenham lost consciousness…

November 6, 2013

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brain

Although Tottenham’s website thankfully confirms that Hugo Lloris has been given the all-clear following a precautionary CT scan, if the outcome had been more tragic, Tottenham, the FA and the Premier League could all have been sued in negligence law, and most likely would have lost.

This article will review what liability exists, why, and what steps need to urgently be taken in order to manage this risk.

 

WHAT HAPPENED

Tottenham Hotspur played Everton in a Barclays Premier League match on the weekend. Near the end of the game (77th minute according to BBC live text website), the French international goalkeeper, Hugo Lloris suffered a head injury and brief unconsciousness following a collision with Romelu Lukaku’s knee in a challenge.

After a brief delay for treatment, Lloris was not substituted and played out the remaining 15mins of the match.

 

SO WHAT NEGLIGENCE LIABILITY EXISTED?

While the challenge between Lukaku and Lloris was not negligent, the actions by the team and authorities afterwards could create a liability along similar lines to the English boxing case of Watson v. British Boxing Board of Control (BBBC) [2000] EWCA Civ 2116. In that case, the governing body of boxing (the BBBC) were found liable for failing to implement what were known medical protocols to mitigate the risks of brain damage.

What is interesting is that despite the time-gap and the obvious differences between the two sports, there is a striking similarity between the two incidents:

  Watson Lloris
No player liability for the initial blow Eubank punch Lukaku challenge
No referee liability Referee stopped fight correctly Referee stopped game correctly
Rules of the game were followed BBBC rules on medical treatment followed At face value, FA [p.596] & Premier League [O.9] rules on medical treatment of head injuries followed as qualified medical personnel consulted
Medical professionals from outside the industry recommended more stringent rules Neurosurgeons attacked the BBBC rules pre-watson incident Stringent rules on concussion management recommended following NFL concussion suit, and other incidents particularly in Ice Hockey and Rugby

 

If we adopt the same Watson-esque reasoning for Lloris, a number of parties could therefore potentially be liable in negligence for breaching their duty of care towards the goalkeeper:

 

The Medical Professionals from the Club, and/or the Manager

Tottenham have based their media defence on the fact that they followed the FA rule on Head Injuries [6]:

All Clubs shall ensure that any player in a league match having left the field with a head injury shall not be allowed to resume playing or training without the clearance of a qualified medical practitioner.”

Because a qualified medical practitioner from the club assessed Lloris pitch-side, Tottenham argued that they were fully compliant with the relevant rules; and at first glance, this view seems correct. The situation however changes with a closer, more detailed examination of the FA rules on medical treatment. The next page of the FA rules states that:

Any player remaining immobile and unresponsive to verbal commands following a head injury will be regarded as being unconscious and treated in accordance with established principles for extrication and management of the unconscious player. There will be no return to play during that day……”

and further on that:       

“A player may suffer a transient alteration of conscious level following a head injury. It should be noted that under these circumstances, “transient” may coincide with the period of time between the injury and the arrival of the medical attendant at the player’s side. On-pitch assessment will include Maddocks questions as well as demonstration of conjugate gaze, “normal” visual acuity and full visual fields to confrontation. The player will only be allowed to resume play if asymptomatic and with normal co-ordination…..If a deficit is observed the player must be immediately removed from the field of play and regarded as suffering from a concussive head injury. There will be no return to play that day.”

The 4th Consensus statement on concussion in sport (supported and endorsed by FIFA) similarly says,

If any one or more of these [five] components are present [which includes loss of consciousness], a concussion should be suspected and the appropriate management strategy instituted.”

Given that it was widely reported in the media that Andre Villas-Boas (AVB) [the Tottenham Manager] admitted that:

“He [Lloris] doesn’t remember it so he lost consciousness. It was a big knock but he looked composed and ready to continue.”

This would seem to suggest that with either interpretation, by continuing to play Lloris, Tottenham was in violation of the FA rules. Either Lloris was briefly fully unconscious, in which case there should be no return to play, or he had an observable deficit (dizziness, memory loss etc) in which case he should not have returned to play.

The only justification for allowing Lloris continuing to play would be that the injury was transient. This is however a difficult medical decision that should be made solely by medical professionals, ideally in a quiet, non-pressurised environment. In a post-match interview with Sky however, Villas-Boas suggests (at 2m30 in) that:

“The medical department was giving me signs that the player couldn’t carry on, because he couldn’t remember where he was….but he was quite focused and determined to continue, so when you see this kind of assertiveness it means he is able to carry on, and that is why it was my call to delay the substitution.”

Based on the mechanism of injury and his unconsciousness on the pitch, the evidence strongly suggests that Lloris sustained some type of concussion. Indeed his post-match rehabilitation would support this conclusion as it looks to be proceeding along the lines of a concussive injury (CT scan, medical assessment, rest). Given this, the Tottenham decision to allow Lloris to keep playing would seem contrary to the FA rules on Head Injuries and raises serious question marks over the influence of the medical staff in this decision-making process. Were they overruled by AVB? Or did the medical staff make this decision free from any managerial interference?

If the recommended solution was simple [removal of the player], would have comparatively little effect on the game [a substitute keeper was available and ready] and the risks of failing to do this were significant [death, or serious injury from second impact syndrome / Chronic Traumatic Encephalopathy (CTE)], then arguably if an injury had result, it would have been negligent not to have taken these steps.

  

The FA / Premier League Rules.

Even if we take the alternative superficial view of this incident (that Tottenham acted within and implemented the relevant FA / Premier League rules on Head Injuries), this is not sufficient to excuse their duty of care to the player. It could however be used as persuasive evidence that the Club had acted reasonably by taking appropriate advice and relying on the FA scientific experts to lay down appropriate medical rules (outside the competence of the club). Liability would then pass to the governing body / league for negligent rule-making.

Indeed, just as the Court of Appeal held in Watson that:

“The Judge held that it was the duty of the Board, and of those advising it on medical matters, to be prospective in their thinking and to seek competent advice as to how a recognised danger could best be combated. He held that he was left in no doubt that the Board was in breach of its duty in that it did not institute some such system or protocol as that which Mr Hamlyn was later to propose. He held that anyone with the appropriate expertise would have advised the adoption of such a system.” [121]

So this finding is equally instructive to this incident. It would be surprising if anybody in professional sport was not aware of the risks associated with concussion following protracted litigation in North America from both the NFL American Football players association, and NHL ice-hockey players, not to mention recent rugby incidents – most notably George Smith’s infamous return to the field following a heavy collision.

Could or should the FA have done more? Arguably yes. As regulators of the game, there needs to be a clearer stance taken as to how the rules should be applied, and whether in the first instance, they are actually strict enough. While there have recently been some clubs that display admirable restraint, for example Norwich’s substitution and treatment of Robert Snodgrass following a heavy collision with a defender, there have equally been occasions this season where concussed players have continued to play – indeed ironically, Lukaku himself was briefly knocked out during the Everton-West Ham game on September 21st. If the FA and Premier League are aware that players are not being substituted, then their continued tolerance of this practice must surely constitute tacit acceptance?

As Watson shows though, even full adherence to the FA rules may not act as a defence to a negligence claim if other sports or medical professionals implemented more stringent standards.

  • For example, any ice-hockey player suspected of concussion in the NHL is removed from the bench to a quiet place so that a full Sports Concussion Assessment Tool (SCAT2) test can be administered. 
  • Similarly, the NFL test for American footballers based on the SCAT test typically takes 8-12minutes to complete.
  • Perhaps most tellingly though, Dr Barry O’Driscoll (formerly the IRB medical advisor) recently stated that “it’s ferocious out there…there is no test that you can do in five minutes that will show that a player is not concussed….to have this acceptable in rugby, what kind of message are we sending out?”

What is considered reasonable should therefore be judged in the context of safe practice recommended by the medical experts in the field, for example, adopting the 4th Consensus statement on concussion in sport, supported and endorsed by FIFA (amongst other signatories), or reviewing literature and protocols from North America where awareness of concussive injuries seems to be much better understood. It is not sufficient for The FA to argue that their rules on head injuries are the strictest that they have ever been, or that with FIFA F-MARC accreditation the medical facilities at St. George’s Park are world class, instead what is needed is a world-class implementation of safe, effective rule-making and sadly this weekend’s incident exposes the deficiencies in the current system.

 

Recommendations

This article would suggest four actions need to be taken urgently:

  1. The FA or League to impose disciplinary sanctions for clubs acting against the safety of a player – If no sanction exists for ignoring or misapplying the FA rules on Head injuries (or any other medical condition affecting the safety of participants), then medical staff and managers are not incentivised, beyond their own professional values, to make ‘correct’ or ‘safe’ decisions. What is instead needed is for the FA to implement fines or other disciplinary measures for a failure to follow agreed medical protocols. The FA (and clubs) have a duty of care to protect the safety of the players, and much as hard-helmets and ear-protection are mandatory and punishable by health & safety violations in the construction industry, so the FA need to implement a system of enforcement for the (mis)application of their rules.
  2. The FA or League to implement ‘medical suspensions’ akin to yellow and red cards. Just as players might receive suspensions following red cards, so automatic minimum medical suspensions could be triggered followed head injuries. If players, coaches and officials were not just educated about the risks of concussion and return-to-play protocols, but had to abide by minimum suspensions (for example, 5 days), then this would help to reinforce the potential seriousness of the injury. Clubs would of course be free to extend this recuperation as needed, but a minimum mandatory rest-period could also help change public perception that athletes were not being brave by continuing to play and wimps for being substituted, but rather that this decision was taken out of their hands by the governing body. A system of governing body / league ‘medical suspensions’ would also assist with epidemiology as it would make it easier to track repeated concussive injuries or identify particular high-risk athletes.
  3. The FA to review concussion best practice in other sports. Following the clear principle laid down by the Court of Appeal in Watson, the FA as the industry regulator has a duty of care to provide best medical practice, and continuously review these protocols in light of other sports or medical guidelines, with a view to making alterations to the current rules if necessary. [At the time of writing, this recommendation seems to already be in progress]
  4. Consider whether independent medical teams should have ultimate decision-making authority over clubs.  Finally, to avoid any appearance of undue influence, conflict of interest or pressure being exerted on club medical staff (as was observable with Dr Wendy Chapman, the club doctor at the centre of the ‘Blood-gate’ scandal in rugby), it may be advisable for the FA to leave the decision over whether a player sustained a concussive injury, or other medical condition affecting the safety of a player, to an independent doctor available on the side-line. Of the four recommendations, this last point is however more controversial and would add an additional expense to games, particularly since the other three recommendations could equally be applied throughout the Football League structure comparatively easily.

Whether footballers are viewed as human beings, or as multi-million pound club assets, they deserve the protection and safety of the very best medical protocols, whether they want this protection (or in this incident, not). The injury to Lloris represents a warning to the FA that it is not just the professional football clubs that would face negligence liability, but rather the regulator would also be liable for a failure to act in the face of foreseeable injuries. Concussions may be comparatively invisible, but that doesn’t mean the regulator should be as well….

 

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

October 10, 2012

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  • 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 (24th-27th 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 23rd 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 22nd 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 27th 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.

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

September 2, 2012

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Some people have suggested that with the now infamous statement that “enough is enough” by Lance Armstrong on 23rd 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 12th 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 (20th 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 (1st offence) – 2yrs

10.3.2: Ineligibility for Trafficking or Administration (1st 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….

 

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

September 1, 2012

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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.

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Restoring Respect: Why Mediation could have provided a better solution to the Suarez/Evra case

February 19, 2012

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Report of the Independent Regulatory Commission: http://nav.thefa.com/sitecore/content/TheFA/Home/TheFA/Disciplinary/NewsAndFeatures/2011/luis-suarez-written-reasons

See also: http://www.guardian.co.uk/football/blog/2012/feb/12/liverpool-apologies-luis-suarez-manchester-united; http://www.guardian.co.uk/football/2012/jan/01/fa-report-luis-suarez-patrice-evra

Rightly (or wrongly), the Suarez/Evra case has dominated discussions in the media since November, while the FA may have felt that Liverpool FC’s decision not to appeal the Commission’s verdict meant that they could draw a line under the incident; following ‘handshake-gate’ last week, the controversy has re-ignited once again. This article will examine whether the use of mediation instead could have provided all parties with a much more effective and lasting solution.

 

RACIST LANGUAGE

The original incident was sparked by a foul during the 15th October 2011 Premier League fixture between Manchester United FC and Liverpool FC at Anfield. The match was always likely to be fiercely contested, however on this occasion Luis Suarez (Liverpool striker) fouled Patrice Evra (Manchester United captain / left back) in the 58th minute. On the 63rd minute, as Evra was marking Suarez for a Liverpool corner, heated words were exchanged in Spanish between the two players over the earlier foul. Evra subsequently alleged that racist language was used by Suarez towards him.

Following an investigation, on 16th November, the Football Association (FA) charged Suarez with Misconduct contrary to FA Rule E3:

  • using abusive / insulting words and/or behaviour towards Mr Evra contrary to Rule E3(1) [A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour]
  • and inclusion of a reference to Mr Evra’s ethnic origin and/or colour and/or race in breach of E3(2) [In the event of any breach of Rule E3(1) including a reference to any one or more of a person’s ethnic origin, colour, race, nationality, face, gender, sexual orientation or disability (an “aggravating factor”), a Regulatory Commission shall consider the imposition of an increased sanction…..]

Suarez denied all the charges and requested a personal hearing.

An independent Regulatory Commission met between 14-20th December 2011 to hear the charges, and after lengthy deliberations, found the charges proved (although not in their entirety). The panel imposed a £40,000 fine, suspension for eight first team matches and warned Suarez as to his future conduct as well as ordering him to pay costs [8].

Last Saturday, having fully served his suspension, Luis Suarez was back in the team to play Manchester United at Old Trafford. In the customary Premier League pre-match handshake, Suarez deliberately bypassed Evra’s outstretched hand and in doing so exacerbated what was already an incendiary situation.

So what could have been done differently?

 

MEDIATION & RESTORATIVE JUSTICE

This article will suggest that had the FA used mediation, instead of, or indeed to supplement their traditional disciplinary mechanism, then the conflict could have been resolved.

The initial Suarez case effectively turned on which player’s account of events you believed. While both players agreed on how the incident started, there was considerable divergence on what exactly was said, when, in what context and by whom. Rightly or wrongly, when the affair then became publicly aired through the media, positions hardened, and given the prospective penalties if either accusation was proved (Suarez is a racist, or Evra is a liar), it is perhaps unsurprising that many people came out in support of their respective favourite (resulting in the now infamous Tshirts worn by the Liverpool players and the Klu Klux Klan mask printed in the Manchester United fanzine). The problem is that each action taken immediately after the match escalated the dispute, raising the stakes and firmly entrenching the battle-lines between each side. By the time of the hearing, the solution was always going to be win-lose.

In light of these tensions, the key question therefore becomes was the disciplinary commission hearing the right solution to this problem, or at worst, did it further inflame the situation? This article will suggest the latter. To understand why, it is worth pausing for a second to define mediation. Essentially mediation is one of the oldest forms of conflict resolution and uses neutral third parties to facilitate discussions with all parties in order to resolve the issues in dispute, in a non-binding process. While it is true that the disciplinary commission was comparatively informal, it could not be further removed from mediation.

By its very nature, the disciplinary commission was inherently adversarial and arbitrary. The commission decided any facts in dispute, whether the FA charges had been proved or disproved, and what sanctions, if any, should be awarded. The victim (Evra)’s role in the process was limited to giving evidence on behalf of the FA (witness), while the offender (Suarez) effectively spoke through his legal counsel who made excuses on his behalf (spectator). At no time was there the opportunity to examine and challenge the underlying motivation that led to Suarez’s comments. Instead, once the charge(s) had been proved, a penalty was imposed and the case was closed. Is it any wonder then that after the penalty was spent, tensions between the two players still persisted?

In reality, none of the stakeholders achieved a successful resolution to the conflict:

  • Evra did not receive an apology, indeed he was accused of fabricating malicious lies [327], slighting Suarez’s regional identity (later rejected by the panel [363]) and was ultimately held by the Panel to have initiated the confrontation [240] and used an offensive phrase towards Suarez [87]
  • Suarez was held to have spoken abusive and insulting words which had racial elements to them [392] and was branded as a racist in the media, although the FA [223], Commission [454] and Evra [232] all expressed a belief that Suarez was not a racist
  • The incident flared up again the next time the teams played, causing damage to the FA Respect campaign.

 

Instead, a better approach would have involved traditional mediation or included an aspect of restorative justice (a Victim-Offender Reconciliation Program (VORP) inspired by the Canadian ‘Elmira case’).

This latter model is based on four key principles (see E Gillman’s paper for more details):

1) Understanding that the wrong was committed against a specific person (Patrice Evra) rather than necessarily society. While it is true that in saying what he did, Luis Suarez undermined the FA Respect and Kick it Out campaigns, any public protection argument should be balanced with the need to reconcile the two players and repair any damage committed

2) Challenging attitudes toward offender – in particular how to re-integrate the offender (Suarez) back into the community as a positive citizen

3) Challenging the retributive response – the focus of restorative justice is on providing a range of opportunities for dialogue, negotiation and problem solving in order to encourage accountability, rather than simply imposing punitive sanctions (£40,000 fine, eight game suspension)

4) Victim participation in process – those who have been harmed (Evra) by the offender should have a primary, active role in determining what needs to be addressed, being given the opportunity to be acknowledged and heard, having a role in how the resolution should happen and receiving support services for healing and closure.

While such a system is becoming increasingly common in the criminal justice system, disciplinary frameworks in sport are still comparatively traditional and punitive. Interestingly, under Article 1 of its mediation rules, the Court of Arbitration expressly excludes mediation from all disputes relating to disciplinary matters. This article is not suggesting that such an approach would necessarily be appropriate for all potential offences, for example prosecuting doping offences would be an obvious example where attempts at mediation might be inappropriate, however there were three distinct opportunities where mediation techniques could have provided a better solution to the Suarez case.

 

MEDIATION BEFORE ANY HEARING

The first opportunity was to have mediation occur before the commission hearing. Professional Footballers’ Association (PFA) Chief Executive (Gordon Taylor) did offer to mediate between the two players immediately after the incident, however his offer was rejected.

While I appreciate that it was important to have a full inquiry into the incident, mediation still has its place. One model that could have been used was the German penal model which integrates VOPR into criminal procedure and sanctioning. Such a system encourages voluntary mediation to take place before trial in order to attempt early reconciliation between the parties. Any apology, restitution or compensation that is agreed between the parties prior to the trial can then be used to mitigate any sanctions that would have been imposed subsequently. Such an approach would have had a number of advantages in this case, as the parties might have been less hostile at any commission hearing. If the prime motivation for Evra was to receive an apology and personal redress from Suarez, he would have been far more likely to receive this in a private mediation session rather than the public and considerably more formal commission hearing. It could have also negated much of the hostile media coverage of the incident; Suarez would have similar incentives for participating, as an early admission of his culpability may have defused many of the tensions thereby improving his position in relation to any penalties imposed by the FA. The speed that mediation can occur would also have enabled the incident to have been defused in a much quicker timeframe.

Of note, is that the Mediation process is still valuable even if the parties ultimately fail to agree any resolution as it enables the key issues to be identified for any later hearing and the parties to have at least heard each other’s point of view. Had the clubs (and players) not been of equal international status and resources, mediation would have also been useful for reducing any potential power imbalances between the parties.

 

MEDIATION DURING THE HEARING

Using mediation during the hearing may have broken down a lot of the animosity and helped the panel to reach findings of fact quicker. It would also have enabled the commission to explore underlying motives leading up to the incident, from all parties. As it was, the Commission was focused (hamstrung?) into making a decision on the Charge (and any penalty) and nothing else [222].

As with anything, mediation is not a complete panacea as it will very much depend on the victim (Evra)’s willingness to actively take part in proceedings and explain his reaction and pain in a neutral environment. As it was, Evra’s evidence before the Commission was challenged by Suarez’s legal team as malicious lies in order to exact vengeance for Suarez’s foul and subsequent failure to offer an unrestricted and unequivocal apology! [327]). Indeed, the Commission itself commented that Mr Suarez made what we considered to be such an unarguable assertion in his witness statement, ie that pinching was an attempt to defuse the situation when it plainly was not [249] and again at [267] once more, we were troubled by the fact that Mr Suarez advanced this case to us and relied on it to the extent that he did, when it was unsustainable. Such actions are inherent though in a legal dispute where the burden is on proving fault and casting doubt on the opponent, but could perhaps be avoided by a skilled mediator.

Although the action was initially framed as an investigation into the use of offensive racist language, by the end of the hearing, the focus somewhat shifted into the acceptability of words spoken in the heat of the moment in order to provoke Evra and cause him to be sent off, thereby gaining a competitive advantage in the game [414]. This is an important distinction, not in the context of the FA Charge (once it is accepted that the offensive word was repeated seven times, sanctions will ensue), but rather in educating future conduct (both Suarez’s and the wider footballing family).

All parties to the dispute ultimately accepted that cultural differences could represent a source of conflict if they are not respected, valued or understood. Indeed, there were language difficulties by both sides; Suarez spoke little English [235], while Evra’s initial allegation that the Spanish word Suarez had called him translated as n**~$%*, was later withdrawn and replaced with black [274]. What made the matter even more contentious though was that while the panel accepted that the Spanish word ‘negro’ can be employed with the intent to offend and to offend in racial terms [171], it is by no means always used offensively. Indeed, in Uruguay, the term can also be used as a friendly form of address [172], however in all situations, it depends heavily on the context in which it is used [201]. In this incident, in the context of animosity, confrontation and hostility, the Panel held that the language was designed to be abusive and insulting [205], although it is clear from the comments that Suarez posted to Facebook and Twitter the day after the incident that he did not share this perception and he was upset at accusations of racism [161]. Unless Suarez himself accepts genuine contrition for the incident (as opposed to cursory apologies issued by the Club on his behalf), feelings of unfairness may still fester.

It is also worth noting that conflicts may have multiple underlying causes and the incident was perhaps not as one-sided as it was portrayed in the media. While Suarez’s behaviour should rightly be condemned, the fact that Evra was seen to initiate the conflict and use an offensive phrase against Suarez (seemingly condoned by the authorities as the phrase did not contain racial slurs) could leave Suarez feeling somewhat hard done by. This absolutely does not defend what Suarez said subsequently, but certainly could form part of the underlying conflict structure, and was left unaddressed by the Panel and FA. Mediation on the other hand, would have allowed Suarez to express any feelings he might have about this and may have prevented Evra’s exuberant post-match celebrations immediately after the second match (condemned by all sides), which could have acted as a trigger event to a new conflict.

 

MEDIATION AFTER THE HEARING

The Commission announced their ruling (plus findings of fact) at 3pm on 20th December. After hearing submissions from both parties (The FA and Suarez) on penalties, it then adjourned at 4:40pm to consider the appropriate sanction(s). It subsequently announced its decision on penalties at 6:20pm that evening [44].

Is quick justice lasting justice? Indeed it is worth considering what the objective of the Commission actually was and what effect it hoped to have on Suarez? At [454], they stated that “Mr Suarez said in evidence that he will not use the word “negro” on a football pitch in England in the future, and we believe that is his genuine and firm intention”  but does this solve the underlying conflict structure or fulfil Patrice Evra’s needs?

It is perhaps illuminative to look at the FA submissions on what they feel the appropriate penalty should have been: at [408] an increased sanction was required to punish Suarez and also to ensure that it is widely known that the FA deprecates and will not accept racist behaviour. In other words, a deterrent sanction is called for…. [410] aggravated because Suarez is an international footballer of exceptional ability playing for one of the best-known clubs in the world.

Does this mean that the penalty system should be subjective? If you are a rubbish player at a lower league club, and you say exactly the same words, you should be entitled to a lesser penalty? The FA (and ultimately the Commission) view is almost biblical – an eye for an eye, behaviour control through punitive sanctions to act as a deterrent for other wrongdoers.

However, it should be questioned whether alternative approaches would have been more appropriate:

“Much deviance is expressive, a clumsy attempt to say something. Let the crime then become a starting point for a real dialogue, and not for an equally clumsy answer in the form of a spoonful of pain.” (N Christie, Limits to Pain 1981)

If the ultimate aim of the process was to stop the downward spiral and underlying issues, then Suarez should have been re-integrated him back into the football community over a period of time following successful rehabilitation and re-education. It is right that he should be held to account by the community, but he should also be offered forgiveness if he has accepted responsibility for his actions and then expressed genuine remorse. Marking him out as an offender does little to ensure future compliance with rules, although it may be appropriate if public safety was an issue.

It is encouraging that the PFA is once again offering to mediate in the on-going row, but I fear that this may be too little too late. A better future solution would have been to have the hearing if the facts were in doubt, but to mediate before any final sanctioning decision. One model that may be of interest is the Australian approach that referred all AFL cases of racial misconduct to mediation as a key part of the process to educate offenders about the issue of racism.

In particular, T Humphrey gives the example of how in 1999, “Peter Everitt, after abusing Scott Chisholm mid-game, took a compromise settlement at mediation that involved a self-imposed four-week suspension, a $20,000 fine, a racial awareness training program, loss of match payments and a public apology to Chisholm, his family and the aboriginal community.” (Dust in the Balance, ISLR (2008))

If any English post-hearing mediation involved all the relevant stakeholders (the FA, Evra, Suarez and representatives from the wider football community) and guidance was given as to appropriate ranges of sanctions, there is scope for a much more appropriate and agreed solution. Suarez should be punished for what he said, at issue though is how to make him accept that what he did is wrong in order to reduce any risk of re-ofending. Anybody can simply view a punishment as a slap on the wrist and a temporary hurdle to be endured.

Ultimately, the question then becomes: should any or all of these mediation approaches be adopted, would FIFA and the media (as moral arbiters of the game) accept such an outcome?

 

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Contemporary Issues in Sports Law and Practice 2011

November 15, 2011

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Friday November 4, 2011

Over the weekend, I finally managed to collate my various thoughts and notes into some semblance of order.

Firstly, our thanks must go to De Montfort University (DMU) and the British Association for Sport and the Law (BASL) for hosting what was once again a very enjoyable afternoon of speakers exploring a variety of key sports law topics. The half-day conference heard from six speakers, the first plenary session focusing primarily on football and Europe, the second plenary session focusing more on the investigatory and disciplinary processes behind the scenes:

Nick Craig (Director of Legal Affairs, the Football League) gave a presentation on ‘Financial Fair Play and the Football League’.  While the UEFA Club Licensing Regulations have been in place from the 2004/05 season (the current Licensing Manual is now in its 2nd edition), UEFA have also launched Financial Fair Play Regulations (FFPR) to be applied from the summer of 2011 with the view that all clubs in European competition break-even by 2018. The topic is hot news at the moment in both the mainstream press and more specialist legal coverage.

There were number of particularly interesting points about the contrast between the FFPR being applied in the Premier League as a condition of entry into European competitions, and the Football League (FL) model where the licensing regulations are intended more as a regulatory mechanism to control the clubs and force them to become more sustainable. Legally this agreement with the FL clubs represents a “soft” law approach where the clubs “agree  to actively work to introduce measures”, “increase transparency” and encourage clubs to operate”….  Time will tell how effective the league will be with this increased regulatory authority.

The big stick comes in Article 12(2) of the FFPR which states that:

2 The membership and the contractual relationship (if any) must have lasted – at the start of the licence season – for at least three consecutive years. Any alteration to the club’s legal form or company structure (including, for example, changing its headquarters, name or club colours, or transferring stakeholdings between different clubs) during this period in order to facilitate its qualification on sporting merit and/or its receipt of a licence to the detriment of the integrity of a competition is deemed as an interruption of membership or contractual relationship (if any) within the meaning of this provision.

This clause effectively holds that any club going insolvent restarts this three year process from scratch when it transfers its assets to a new owner, preventing clubs from ditching their debts and picking up where they left off free of all those troublesome creditors.

The devil as always is in the detail though, and while the cornerstone of the FFPR programme is in achieving break-even status, there are loopholes or ‘Acceptable Deviations’. In particular, the ability to lose €5m over the three years covered by the FFPR period (rising to a €45m loss if this is covered by equity contributions) neatly sidesteps the break-even provision, while Annex I A(d) of the FFPR lists an exception for:

d) Non-applicability of the three-year rule defined in Article 12(2) in case of change of legal form or company structure of the licence applicant on a caseby-case basis;   

or put another way, all clubs are equal, but some clubs are more equal than others, particularly if they might be a marquee name with large attendances and gate receipts!

 See also: http://www.financialfairplay.co.uk/ for more information on the FFPR rules

 

Chris Anderson (Associate, Brabners Chaffe Street Solicitors) gave a presentation on ‘Development Compensation for Young Football Players’.  One of the key drivers for this talk was the decision in ECJ – Case C-325/08 Olympique Lyonnais SASP v. Olivier Bernard & Newcastle United FC [41]:

“…In that regard, it must be accepted that, as the Court has already held, the prospect of receiving training fees is likely to encourage football clubs to seek new talent and train young players…”

 This will be a theme, the blog hopes to come back to in the near future, but essentially how much / little should be paid to clubs training (effectively as hot-houses) for new talent.

 Chris drew distinctions between:

  • the FIFA system which compensated for both the training costs of a player (although at times there were concerns these payments were ‘damages-based’ rather than a reflection of the actual training costs), and the ‘solidarity mechanism’ (which effectively acted as a wealth redistribution system to share up to 5% of any transfer between clubs training the player between the ages of 12 and 23).
  • The current domestic system which was based on agreeing costs (either by the agreement with clubs, or by reference to the Professional Football Compensation Committee (PFCC))
  • The proposed NEW domestic ‘Elite Player Performance Plan (EPPP)’ provisionally scheduled to start in July 2012. This system was created and driven by the PL to specifically produce greater numbers of talented home-grown players through increased coaching time and a more transparent (and legally defensible) fixed training cost mechanism. The new system is split into three main phases:
    • The Foundation Phase (U9-U11):  every academy charges a flat fee
    • Youth Development Phase (U12-U16): standardised model of fixed payments based on academy status
    • Professional Development Phase (U17-U21): Clubs (or PFCC) agree appropriate fee

 See also alternative perspectives from: http://www.bbc.co.uk/blogs/paulfletcher/2011/02/football_league_fears_over_pla.html; http://www.fiveyearplanfanzine.co.uk/News/football-league-votes-to-back-elite-player-performance-plan.htmlhttp://www.leedsunited.com/news/20111021/united-ceo-on-a-dark-day-for-football_2247585_2489344

 

Simon Boyes (Senior Lecturer, Nottingham Trent University) gave a presentation on ‘Sport and the European Union after the Lisbon Treaty’. The presentation traced the history of sport in the EU from its initial lack of academic interest, through the various reports, declarations, models and specificities to the present day and the Treaty of Lisbon. In doing so, Simon very much emphasised the evolutionary rather than revolutionary road to Lisbon. What was particularly interesting about the presentation was the thought that the EU was acting not so much as a regulator, but rather as a facilitator / supporter and using sport as a vehicle to engage in wider social missions (e.g. anti-doping, racism, corruption etc). These “softer” words such as “promotion…contribution…taking account of….developing” very much echoed Nick’s earlier talk on incorporating the UEFA licensing model into the Football League. Have all sporting regulators now embraced the softer stick? I thought that was just supposed to be horse-racing?

Any current discussion on Europe would not be complete without mentioning the recent Karen Murphy ruling (see here for a more in-depth analysis), and this was no exception! Interestingly, Simon suggested that fairness and openness were starting to creep into the ECJ rulings as values to be protected and upheld. This might be a trend to watch, particularly given the agenda for good governance and transparency.

 

 

Max Duthie (Partner, Bird & Bird Solicitors) gave a presentation on ‘The Sports Disciplinary Process’. The presentation started with, what seemed to be a recurring theme at the conference, the reluctance of the law to become involved in regulating sport (unless there was a clear departure from the rules / natural justice). Instead, Max pointed to the private, contractual nature of the disciplinary process, with governing bodies imposing their own regulatory codes of behaviour on the athletes under their jurisdiction.

Where I think that this presentation became more controversial was in the issue of jurisdiction, in particular who the sports were purporting to regulate. Max gave a number of examples:

  • Direct contractual links (Paul Stretford)
  • Implied contracts / contracts by conduct (Petr Korda)
  • Voluntary submission to jurisdiction (Dean Richards)

However, where I think the issue becomes greyer is in Sports Codes like the recent Lawn Tennis Association (LTA) Competition Regulations, effective from 1 September 2011:

1.3 By organising, entering, playing tennis in and/ or participating in any way in an LTA Official Competition (including as officials, staff, coaches, representatives, agents, medical staff, relatives and associates of a Player, a Player’s entourage and spectators), a person and/or entity agrees to be bound by and to comply with these Regulations.

It is one thing to bind an athlete to a particular code of conduct, but quite another to hold that they should be responsible for the conduct of all spectators, especially when the player is court-side during a match. On a similar theme, the regulations merely state ‘relatives’ – does this mean all relatives? Or do we need to apply an Alcock-esque ‘close-ties of love and affection test’?

There was also a particularly interesting discussion on whether disciplinary sanctions should be fixed or variable and Max talked about the trade-off between consistency (fixed) and discretion / proportionality (variable), before warning of the cautionary tale of Delon Armitage and the implications that plea-bargaining might have on future tribunals.

See also: http://www.guardian.co.uk/sport/2011/nov/08/delon-armitage-london-irish-england?newsfeed=true  

 

 

Adam Brickell (Head of Legal Compliance, British Horseracing Authority) gave a presentation on ‘The Investigative Processes of the British Horseracing Authority (BHA)’. The highly technical and diagrammatic nature of the presentation makes it somewhat difficult to summarise in any way that could begin to do justice to it. That said, Adam did make a number of interesting observations about the role of the BHA, and in particular the 5 areas that it is currently addressing:

    • Clear rules and regulations for participants
    • An effective investigative and intelligence capability
    • Robust disciplinary and licensing structures
    • Comprehensive, on-going education programme
    • Partnership approach with the Police, Betting industry and Gambling Commission

Two areas that may be of particular interest to watch in the future, are the concern that a number of betting firms are based offshore and, while they currently assist the BHA through Memorandums of Understanding (MoUs), these MoUs are not legally binding should the companies wish to subsequently withdraw their support. The second issue is linked to this and concerns the lack of regulation surrounding spread betting companies.

As an aside, Adam’s talk also continued Max’s theme from earlier about the regulation (or failure to regulate) members of the public not bound by the organisations rules. In particular, Adam gave the example of 6 individuals who placed suspicious bets on a particular horse, but fell outside the jurisdiction of the BHA when they decided not to cooperate with the investigation.

The final presentation belonged to Jonathan Merritt (Senior Lecturer, DMU) who gave us a sneak preview of his new PhD research into ‘Anti-Doping and Equestrianism’. We wish you every success in this venture…

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Double Jeopardy: CAS 2011/0/2422 USOC v. IOC

October 17, 2011

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Read the CAS verdictIOC rules; WADA Code

The case of the United States Olympic Committee (USOC) v. International Olympic Committee (IOC) (CAS 2011/O/2422) concerned the validity and enforceability of a particular IOC regulation prohibiting drug violators from competing in the next edition of the Olympic Games following their period of suspension.

The IOC rule was known as the “Osaka rule” and was enacted in Japan on 27 June 2008:

“The IOC Executive Board, in accordance with Rule 19.3.10 OC and pursuant to Rule 45 OC, hereby issues the following rules regarding participation in the Olympic Games:

  1. Any person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension.
  2. These regulations apply to violations of any anti-doping regulations that are committed as of 1 July 2008. They are notified to all International Federations, to all National Olympic Committee and to all Organizing Committees for the Olympic Games.“

While this rule applied to all Olympic athletes, in practice only a certain sub-set of athletes were affected:

  • Athletes not guilty of a doping violation – rule does not apply
  • Athletes guilty of a doping violation (with less than 6 months suspension) – rule does not apply
  • Athletes guilty of a doping violation (over 6 months suspension) who wish to compete in non-Olympic competitions  – rule does not apply
  • Athletes guilty of a doping violation (over 6 months suspension), but not selected by their National Olympic Committee (NOC) – rule does not apply
  • Athlete guilty of a doping violation, still serving their suspension – rule has no immediate effect
  • Athlete guilty of a doping violation at an Olympic Games  – rule has no immediate effect
  • Athlete guilty of a doping violation (over 6 months suspension), and selected by their National Olympic Committee (NOC) – RULE APPLIES

The case was brought against the IOC because one of those affected athletes, LaShawn Merritt was prevented by the rule from representing the USA at London 2012. Merritt had previously tested positive in an out-of-competition test for ExtenZe (a ‘male performance’ product containing the banned substance DHEA); and while the doping panel accepted that the substance was used inadvertently and that there was no intention to dope, Merritt still received a ban from competitions.

The crux of the case can be seen from Merritt’s current position. His ban ended earlier this year on 27 July 2011, however despite his eligibility to compete in any other competition, Merritt was still prevented from competing in next summer’s 2012 Olympics Games. He and USOC argue that this additional ban is unfair for two main reasons, because it violated the principle of double jeopardy (ne bis in idem) [7.2] and that the imposition of an additional doping sanction was in contravention of the WADA Code (article 23.2.2). USOC also argued that the rule resulted in unjustifiable discrimination between athletes and that the IOC rule should be “cancelled and declared null and void, or alternatively, that a mechanism be allowed for a case by case review of the appropriateness of the applicability of the Decision to each specific athlete” [2.9]

By contrast, the IOC argued that the rule constituted an eligibility rule [7.4] as to who could qualify as a competitor in the Olympics under Rule 45.2 of the Olympic Charter rather than as an additional sanction, that the rule protected the values of the Olympic Movement from the “scourge of doping” [7.5], that athletes had no automatic right to participate in an Olympic event [7.8] and that the rule did not conflict with double jeopardy (ne bis in idem), as it pursued a wholly different purpose than an anti-doping ineligibility sanction [7.8].

 

THE CAS RULING

All parties recognised that uncertainty surrounding the application of the decision was unhelpful, particularly since CAS had previously provided two Advisory Opinions in this area, one requested by the IOC had concluded that Rule 45.2 was an eligibility rule [8.7], while a Confidential Opinion to an unnamed International Sporting Federation (ISF) held that the application of a similar rule by an ISF was intended to be penal in nature and therefore could not constitute an eligibility rule [8.8].

It was therefore agreed that CAS had the ability to definitively settle the dispute (R27 of the CAS Code) and three arbitrators were chosen to hear the case: Professor Richard H McLaren (Canada), Me. Michele Bernasconi (Switzerland), and David w. Rivkin, Esq. (USA).

Both parties agreed that the applicable regulations of the arbitration (R58 of the CAS Code) should be:

  • Swiss Law (including fundamental principles)
  • the Olympic Charter (OC), in particular, rules 41 (eligibility), 44 (applicability of WADA Code) & 45 (Olympic participation)
  • and the WADA Code, in particular, s.10.2 (sanctions for 1st violation), s20.1.1 (IOC implementation of Code), 23.2.2 (prohibition against substantive changes to the Code) and appendix 1 (definition of ineligibility)

WADA also independently submitted an amicus curiae brief on 13 July 2011 to ensure that the arbitration panel would have as comprehensive a view as possible of the potential issues surrounding the IOC regulation, particularly since there was a suspicion that tribunal doping sanctions were being manipulated to stay under 6 months to avoid being caught by this rule [3.11].

 

ELIGIBILITY RULES

Previous CAS Jurisprudence (RFEC v. Alejandro Valverde v. UCI (CAS 2007/O/1381 [76]) suggested that: “qualifying or eligibility rules are those that serve to facilitate the organization of an event and to ensure that the athlete meets the performance ability for the type of competition in question.” [8.9]. In particular it was noted that qualifying (eligibility) rules define certain attributes or formalities required of athletes, rather than sanctioning undesirable behaviour.

Because IOC Rule 44 expressly incorporated the WADA Code as underpinning the Olympic Games, the IOC were bound by WADA’s definition of ineligibility. Unfortunately for them, under Article 10 of the WADA Code, ineligibility was held to be a sanction. In making this decision, the Panel held that the fact that an athlete could participate at other International competitions was irrelevant [8.16].

From this conclusion, the IOC was always going to lose as under Article 23.2.2 of the WADA Code, signatories of the Code could not add any additional provisions “which change the effect of […] the periods of eligibility provided for in Article 10 of the WADA Code.”

Because Rule 44 increased the period of ineligibility from the original doping violation (between 6months to 2 years) to the number of days until the next Olympics Games, the IOC regulation was not in compliance with the WADA Code and as such had to be struck out as invalid [8.44].

The Panel did not state that such an additional sanction could never occur, simply that such a rule needed to be incorporated within Article 10 of the WADA Code when the Code was next reviewed. To satisfy any proportionality requirements, the Panel also recommended that a first instance adjudicatory body should review any appeals [8.27].

 

The British Olympic Association (BOA) By-law

Much of the talk this week has been over whether the BOA by-law is legitimate in the wake of this ruling, and what implications this might have for Dwayne Chambers and David Millar. BOA Bylaw 25 sets out that:

“any person who is found to have committed an anti-doping rule violation will be ineligible for membership or selection to the Great Britain Olympic team”.

Importantly, the bye-law also gives individuals the right to appeal (something that distinguishes the BOA Bye-Law from that of other NOCs).

Taken at face value though, the same issues from the USOC case apply, in that any athlete guilty of a doping violation is ineligible for selection on a British Olympic team. If this USOC decision was extended to the BOA, then it is strongly arguable that this requirement also constitutes a sanction attributable to the same behaviour and resulting in the same consequence (ineligibility from competition) [8.36]. Or more colloquially, If it looks like a duck, walks like a duck and quacks like a duck, it’s a duck!

Again, taken at face value, the only significant difference between the two rules would seem to be that the BOA by-law has an inherent appeals process, which would negate any proportionality requirement.

Is this enough though, arguably no.

There is one alternative argument though that may solve the BOA problem. At footnote 11 of the USOC decision, the CAS Panel noted that:

“If the IOC issued a rule that persons convicted of a violent felony were not eligible to participate in the Olympic Games, such a rule would likely not violate the principle of ne bis in idem, because the effective purpose of that sanction would be different from the purpose of the criminal penalty associated with that violent felony.”

Therein might lie a possible defence for the BOA. If the BOA rule was based around a different purpose than simply a sanction associated with taking drugs, but was linked to eligibility, for example an athlete’s role as an ambassador representing their country, then following footnote 11, it could be argued that the by-law had a different purpose and was therefore valid and enforceable. Such a stance echoes the comments of Colin Jackson, interviewed immediately after the judgment by the BBC:

http://news.bbc.co.uk/sport1/hi/olympics/15199159.stm

If the BOA by-law was interpreted as a ‘moral / ethical behaviour clause’, should it be limited to just drugs and doping violations though? Do we want athletes representing our country who were guilty of criminal offences? If the by-law was extended this would also help in removing the WADA ‘consistency’ argument, as different jurisdictions around the world impose different criminal sanctions and offences.

Or should we just fall into line with WADA and the rest of the world and reduce our rules to the lowest common denominator?

http://news.bbc.co.uk/sport1/hi/olympics/15159569.stm

 

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Who’s Gonna Ride Your Wild Horses? (apologies to U2)

August 14, 2011

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On 21, 22nd July & 2nd August, the British Horseracing Authority (BHA) disciplinary panel considered the case of Howard Johnson. Johnson had been a licensed horse trainer for the past 25yrs and had had some success.

The case against him fell into two main categories, permitting a horse to continue to race following a prohibited operation, and several counts of doping using anabolic steroids (because the BHA updated their rules midway through this period, some of the charges relate to the 2007 rather than 2009 rules).

 

PROHIBITED OPERATION

The first set of charges relate to a palmar neurectomy carried out to the (left) near forelimb of Striking Article, a chestnut gelding (originally worth £150,000). The operation, carried out on 8 April 2008, by Johnson’s vet (James Emson) effectively cut sensation to the horse’s lower leg (http://www.horsetalk.co.nz/lameness/tha-navicular.shtml). While there is no doubt that the operation was necessary because since January of that year, the horse had been lame from an ‘extremely severely ulcerated corn in his left fore-heel’, a neurectomy does not cure the underlying pathology, but merely masks any signs of pain, allowing the horse to carry on day-to-day activities.

Unfortunately because of the risks to both the horse and to its rider, any horse who has received this operation is automatically prohibited from riding as it will not be able to feel any pain in that leg, giving it both an unfair advantage and the potential for it to cause permanent damage to itself without it realising.

This is indeed what happened at Musselburgh on 7 February 2010 when Striking Distance pulled up lame, 5 fences from the finish. Immediate veterinary treatment at the course showed that the horse had ruptured its near-fore superficial digital flexor tendon and it was euthanized at the course. The resulting post-mortem enquiry by the BHA led to this case.

To his credit, at no time in the enquiry did Johnson seek to hide the neurectomy, admitting it straight away in a phone call, instead he pointed to his lack of awareness of the BHA rules that such an operation was prohibited. The BHA however found that ignorance of this rule was not a defence, indeed it only compounded the severity of the sentence, given the risks to both rider and horse.

While there is no published recommended penalty in Guide to Procedures and Penalties 2011, it can be seen from the BHA judgment that the panel adopted a strict liability approach. Once it had been established that Striking Distance had had an operation, and then continued to race, the offence was made out. The BHA automatically disqualified Striking Distance’s results in each of the 8 races (Rule 188 of the Orders and Rules of Racing (ORR) 2007 & Rule (C) 37 of ORR 2009 – Fitness to run).

Johnson was also charged with breaches of Rule 51(i) of ORR 2007 & Rule (C) 22 of ORR 2009, for failing to conduct his business of training racehorses with reasonable skill and care. In light of the gravity of the offences and Johnson’s reckless ignorance of the rules, the BHA suspended his trainer licence for 3yrs.

 

PROHIBITED STEROIDS

The second category of charges relate to the covert use of Laurabolin (an anabolic steroid containing Nandrolene) on a number of horses. Following a doping test on 6 December, it was discovered that one of Johnson’s horses had trace amounts of nandrolene. As these amounts were too small to constitute a positive sample, the BHA conducted an unannounced inspection of the stables on 19 January, taking 100+ blood samples.

The interesting part of the case is that although all the samples proved negative, and there were no medical records (these had been destroyed during a fire in 2009), the BHA did find evidence in Johnson’s Head Lad (Ray White)’s diary that suggested three horses (Whiskey Magic, Mintaka Pass  & Montoya’s son) had received anabolic steroid injections. This was later confirmed by records from the veterinary surgery.

The records and various testimony suggested that the injection of Laurabolin was used a booster to perk the horses up when they returned to the stables from a race, if they seemed weak or in poor condition, rather than for any clinical indication. Johnson however tried to argue that this was in the horses’ best interests, that it was acceptable to administer steroids if they were not in training, and that after receiving the injections, the horses would be rested for 28 days (coincidentally the time it would take for the steroids to be undetectable!)

The panel found that if use of a prohibited substance occurred during training, it constituted a doping offence. By comparing the dates of the injections against the training records of the horses, they held that:

  • Both Whisky Magic and Montoya’s Son were in-training
  • there was insufficient evidence however for Montaka Pass, although the panel noted concerns about the clinical justification of the injection (currently the subject of an alleged investigation by Royal College of Veterinary Surgeons)

Because the offences had come to light via non-analytical findings rather than positive sample collections, Rule 239 of ORR 2007 and Rule (C)55 did not apply and the panel instead charged Johnson with breaching Rule 220(iii) ORR 2007, Rule (C) 50.3 (strict liability) & Rule (A) 30 of ORR 2009 (prejudicial to integrity etc). Ultimately the panel applied a 1yr disqualification to run consecutively with the other charges, resulting in a combined penalty of 4yrs, starting on 19 August 2011. During this time, he is forbidden to enter any licensed premises under the control of any racing body worldwide, including training yards and racecourses.

Newspaper reports suggest that Mr Johnson will not be appealing these charges, and will release a full statement early this week.

 

HUMAN ATHLETES

This case raises a number of interesting comparisons with human athletes. For example, compare the BHA position on prohibiting neurectomies because of the risk of damage to the horse (and rider) with that of professional footballers: http://www.sabotagetimes.com/football-sport/dominic-matteo-i-was-given-painkilling-injections-at-leeds-united-and-liverpool-and-now-i-cant-even-lift-my-kids/; and http://www.guardian.co.uk/football/2011/mar/07/alex-mcleish-barry-ferguson-injection

Some might argue that horses cannot consent to whether they want an injection or not so we should err on the side of caution, but is this really so different for professional human sport? With the stakes so high, can athletes really say no when asked by their manager to play through the pain? Or is there a responsibility on teams / leagues to effectively protect athletes from themselves? There is some limited precedent for this idea as actual / suspected concussions currently prohibit an immediate return. What other operations / procedures could prohibit a return to play, and how long should this prohibition last?

It is also interesting to compare the position of human non-analytical doping findings (http://www.wada-ama.org/World-Anti-Doping-Program/Sports-and-Anti-Doping-Organizations/The-Code/), with the position of the BHA (http://rules.britishhorseracing.com/Orders-and-rules&staticID=126634&depth=3). Maybe it is time that the BHA is more explicit about its use of intelligence?

See also this article on applying non-analytical rules to horse racing: http://www.governmentlaw.org/files/Non-analyticalPositivesFinal.pdf

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I wasn’t THAT bad was I? (Brennan v. Health Professions Council [2011] EWHC 41 (Admin))

February 9, 2011

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See also: http://blogs.bmj.com/bjsm/2011/01/23/bloodgate-reversal-of-fortune-ethicist-lynley-anderson-comments/; http://www.guardian.co.uk/sport/2011/jan/21/harlequins-physio-brennan-overturns-bloodgate-decision

Read the Full transcript of the case at: http://www.bailii.org/ew/cases/EWHC/Admin/2011/41.html

The case concerns the appeal by Stephen Brennan, the former head physiotherapist at Harlequins Rugby Football Club (RFC), against the punishment imposed by the Health Professions Council (HPC) for his part in the ‘Bloodgate’ scandal.

‘Bloodgate’ concerned a European Rugby Cup (ERC) match between Harlequins RFC and Leinster on the 12th April 2009. Harlequins were losing the match, and their head coach, Dean Richards, wanted to bring their principal fly half (Nick Evans) back onto the pitch. The problem was, as Evans had been substituted for another player (Tom Williams), the only way this would be possible is for Williams to go off himself due to a ‘blood injury’. Brennan, as Harlequins head physiotherapist, went onto the pitch to talk to Williams during a stoppage in play. During this time, he gave Williams a fake blood capsule he conveniently had in his bag. A couple of minutes later, Williams bit down on the capsule and following Brennan’s inspection of him was substituted by the referee. Evans came back onto the pitch, but subsequently (or justly, depending on your viewpoint) missed a crucial kick.

To cover their tracks against the suspicions of the ERC match director, the Leinster team doctor and the 5th official, Dr Chapman (the Harlequins team doctor) deliberately cut William’s lip. Brennan then photographed this cut to support his actions.

At an ERC investigation into what they suspected was a fake blood injury, Brennan lodged a false account of what had happened and prepared false witness testimony for both Nick Evans and Tom Williams. However, this testimony fell apart as Tom Williams later confessed to the ERC what had happened. All parties involved Williams, Brennan, Richards, Chapman etc were all punished by the ERC (Brennan being banned from participation in all rugby activities for 2 years). Stephen Brennan and Dr Chapman were also brought in front of the disciplinary panels of their professional bodies.

On the 14th September, the Competence and Conduct Committee of the Health Professions Council (HPC) struck Brennan from its register for misconduct, it did however note that Mr Brennan’s clinical skill was not in issue [10]

Effectively while Brennan does not dispute that he was at fault, the case is his appeal against the severity of the HPC sanction. In effect, while the HPC had the power to make one of four sanctions:

  • Caution Brennan for a period of 1-5 years – appropriate if the lapse is isolated, low risk of recurrence or the registrant has taken remedial action [17].
  • Impose conditions of practice for upto 3 years – appropriate where the failure or deficiency is capable of being remedied, there is no risk of future harm, and there has been no breaches of trust or evidence of dishonesty [18-20].
  • Suspend his registration for upto 1 year
  • Strike him off the HPC register – appropriate if there is a finding of deliberate dishonesty, rather than ignorance of the appropriate standards:
    • “last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure. Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. An inability or unwillingness to resolves matters will suggest that a lower sanction may not be appropriate.” [22]

 While Brennan freely admits at [8] that he:

  • Purchased a number of fake blood capsules and kept one in his bag during the match
  • provided a capsule to Tom Williams and encouraged him to cheat
  • actively attempted to conceal the fabricated injury to deceive match officials and Leinster RFC
  • prepared false and/or inaccurate statements for two players to use at the ERC enquiry
  • lied during his own testimony to the ERC enquiry
  • had fabricated blood injuries to players on at least four other occasions between 2006-09

He argues that the HPC sanction (striking off) was unduly punitive, as the primary objective of an HPC sanction (the future protection of the public) was not at issue in this case [45] and that Dean Richards was accepted to have instigated the incident [11].

Brennan further argues that any sanction awarded should be a balancing exercise between his rights, the deterrent effect to other registrants, the reputation of the profession, and the public confidence in the regulatory process [13].

 The High Court nearly agreed with him at [45], when it suggested that the HPC Committee had not adequately dealt with the case for why Mr Brennan should be struck off. In particular, Mr Justice Ouseley stated that the HPC’s reasoning was not legally adequate; in that it does not enable the informed reader to know what view it took of the important planks in Mr Brennan’s case. Instead, Ouseley J required the Panel to:

  • Consider how the individual had responded
  • The sincerity and effectiveness of that response
  • The reality of repetition in view of his insight into how the practice of the profession related to his obligations to his employer in professional sport
  • Any punishment inflicted by the sport’s regulatory body
  • The effect which various sanctions would have on the legitimate objectives of sanction for unfitness to practice

That is not to say the High Court is saying that the HPC Panel were wrong in making the decision they did, rather the decision to remit the case back to the Panel is saying that the HPC didn’t give enough reasons to underpin and support this decision and they would need to review and more fully reason their decision. Interestingly, the Court also explicitly accepted two instances where striking off would not be disproportionate:

  1. If Mr Brennan was insincere in his evidence to the committee and had not grasped the need to stand up to an employer applying pressure to abuse his professional qualifications [61]
  2. Where the sanction was for important for deterrent reasons or to prevent damage to the reputation of the profession.  Such an argument would however depend on other factors such as any sporting sanction imposed, and punishments to other parties.

What made this case unusual was the tension between traditional ‘unfitness to practice’ and sporting sanctions:

“Mr Brennan’s dishonesty occurred in unusual circumstances since patients were not harmed, and what was done at the behest of a dishonest coach on behalf of their joint employer. Cheating a professional sport, abusing one’s position as a physiotherapist to cheat and then lying to the sport’s disciplinary body is serious misconduct, but the sanction here required a bespoke consideration of how the general words of the sanctions policy, which cover all situations, should be applied to this particular and unusual case.” [52]

and

“The punishment for cheating in sport and lying about it was for the sport’s regulatory body. What was for the HPC was the relationship between cheating in sport and lying about it, and his position as a physiotherapist, notably his abuse of that position to enable the cheating to take place, and his reliance on his professional position to assure the first ERC hearing that as a physiotherapist he would not lie. This relationship required careful attention if sanction was not just to become a further punishment; and the Committee did not address this issue in its expressed reasoning.” [54]

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Contemporary Issues in Sports Law and Practice, 2010

November 9, 2010

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Many thanks to De Montfort University (DMU) and the British Association for Sport and the Law (BASL)  for hosting what was once again a very enjoyable afternoon of speakers. The half-day conference heard from five speakers exploring very diverse, but equally key topics:

  • Karen Moorhouse (RFL) discussed the Rugby Football League’s renewable three-year Club Licensing scheme and how this differed from a more American-style franchise system. The talk explored all aspects of this scheme from an overview of the current system and the criteria employed to define the applicable standards, to how the RFL had anticipated any potential challenges (both legal and fanbase). The proof of the pudding will really come in the next licensing round though when at least one Super League club will not have its current licensed renewed….
  • Alistair Maclean (The FA Group) gave an overview of the FA Group’s commercial rights. This was a very informative (and colourful) presentation and provided a thorough explanation of the new commercial strategy (FA Partner Programme 2010-14), blending a comprehensive whistle-stop tour through the FA Rights Inventory with commentary on the practicalities underpinning each branded item.
  • The blog’s very own, Jon Heshka (Thompson Rivers University, Canada) presented a paper on regulating ‘Technological Doping’ in sport. Jon outlined the key issues and controversies facing sport stemming from the current unprincipled approach to technology before analysing what options regulators and governing bodies could take. In particular, the talk debated the use of the WADA criteria for chemical enhancement and Jon posited whether the solution really lay in our definition of what were the essential characteristics of sport.
  • Christopher Stoner QC (Serie Court Chambers) provided a (much-needed) insight into Paralympic Disability Classification. The talk briefly covered all aspects of classification from a historical introduction to the current criteria for assessment, protests and appeals. What became particularly evident at the end of the talk was that while the current classification system has been in operation for a number of years, it is still evolving and being refined. It will be interesting to see what changes (if any) are made to protests ahead of the forthcoming 2012 Paralympics…
  • Ian Lynam (Partner, Charles Russell LLP) evaluated the use of player quotas in UK Sport, in particular, whether leagues could implement caps on the numbers of ‘foreign’ players. Essentially there were two key elements to this presentation, Direct Discrimination (as epitomised by the recently dropped FIFA 6+5 rule) and Indirect Discrimination (as seen in UEFA’s ‘Homegrown Player’ rule. Ian then rounded the event off with practical advice to any governing bodies wishing to implement such a rule.

The date for next year’s Contemporary Issues Event has now been set for 4th November 2011, information on how to book will follow nearer the time.

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