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

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

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

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

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

 

The Background to the case

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

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

 

The Privacy Injunction attempt

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

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

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

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

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

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

 

Unfettered Watchdogs

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

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

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

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

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

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

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

 

Child Athletes

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

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

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

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

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

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

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

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

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

Ironically, this judgment has only increased these pressures.

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

Read the CAS verdict; IOC 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 1^st 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

 

Ignorance is bliss (at least in the case of doping sanctions!)

In two recent English doping tribunals, The Football Association v. Kolo Touré [26 May 1011] and UK Anti-Doping v. Mark Edwards, the knowledge, experience and professionalism were considered relevant factors in the determination of the appropriate disciplinary sanctions.

The Football Association v. Kolo Touré [26 May 1011]

Disciplinary proceedings were brought against Manchester City and Ivorian footballer, Kolo Touré (‘KT’) after his urine sample tested positive for bendroflumethiazide (a Thiazide diuretic listed under Category S5: Diuretics and Other Masking Agents), contrary to Rule E25 (Doping Control) of the Football Association’s Rules of Association.

The facts themselves were not in dispute:

• Touré admitted that the sample taken after the Man Utd v. Man City match on 12^th February 2011 contained bendroflumethiazide.
• There was no complaint made about the testing or sample collection procedure, and KT declined to have the B sample tested
• Similarly no challenge was made as to how the Specified Substance (bendroflumethiazide) entered KT’s body. The panel accepted that this was due to “water tablets” which he had started taking the month before due to a misplaced perception that he was fat (the tablets removed excess water from the body by increasing how much and how often you passed water).
• While KT disclosed on the sample collection form that he had taken “HERBALLIFE [sic] NUTRITION” supplements in the last 7 days prior to the test, he did not disclose his use of the water tablets. The Commission did however accept that this omission was not sinister and that he had not intended to enhance sporting performance or mask the use of a performance enhancing substance [43].

Given that the player admitted and regretted the presence of the positive sample and that it was his first doping offence, the case therefore boiled down to the degree of KT’s culpability.

While the minimum penalty for a first offence under the Football Association Doping Control Programme Regulations 2010-2011 (‘FADR’) is for two years (FADR 44, Part 6), under Regulation 64.9, the Commission “may replace” the minimum penalties to a warning and reprimand without any period of suspension, if the player can establish to the “comfortable satisfaction” of the Panel that there was corroborating evidence to support the applicable conditions set out in FADR 66-73. In this instance, Touré relied upon FADR 67 (no intention to enhance sporting performance / mask the use of a performance enhancing substance).

KT provided unchallenged evidence that his wife (MT) asked her friend [MD] to check with the unidentified clinic, where the tablets had been purchased, as to whether the tablets were “fine for a footballer” [29]. Apparently the receptionist referred this enquiry to a doctor and relayed the advice back to MD, who then passed this onto MT. KT also argued that prior to travelling to an away game, he had put the water tablets into a drug dosette marked “herbalife” which also contained his “Herbalife” products and asked the club doctor to verify that everything in the bag was ok. This evidence was however contradicted by the club doctor who stated that he had never been shown the water tablets [33] and if he had, would unequivocally said that they were prohibited and not to be used [51b].

Although the Commission accepted the argument that the nature of the specified substance should be taken into account when assessing any period of suspension / ineligibility [50], it found that KT was at fault because the checks he made were limited, perfunctory and wholly inadequate [54], indeed:

• KT did not check directly with the clinic, relying simply on ‘multiple hearsay’ from MT and MD. (Interestingly, the Commission stated that they would have found him at fault even if he had checked with the clinic himself, as he should have made proper enquiries with the club of his own doctor [51a.iv])
• His approach to the Club Doctor was inadequate. Indeed, KT’s failure to tell the Doctor he was taking the tablets, ask specifically about the tablets or show the bottle the tablets came from fell markedly below the standard that the Commission would have expected from a professional footballer [51b.v]
• He did not carry out his own research into the legality of the tablets

KT was suspended for 6 months from the date of the FA’s provision suspension (2 March 2011) and ordered to pay the costs of the hearing.

UK Anti-Doping v. Mark Edwards (NADP 7 June 2011)

The defendant, Mark Edwards (ME) was an experienced Olympic shot-putter who had competed for more than 20years of national and international competitions. On 19^th August 2010, ME was selected for the English team for the Delhi 2010 Commonwealth Games that October. In accordance with the standard pre-Commonwealth Games testing programme, ME was selected for a “no notice” out-of-competition drugs test to be carried out at his home on the 15^th September 2010. The urine sample collected that day was tested and found to contain two prohibited anabolic agents, namely, exogenous Testosterone and a metabolite (4-chloro-3a-hydroxy-17-oxo-androst-4-ene) of Clostebol, both of which are listed on WADA’s List of Prohibited Substances. As such ME was charged with two counts of Doping Offences under UK Athletics (UKA) rule 32.2(a) (Presence of a Prohibited Substance or its Metabolities or Markers in an Athlete’s Sample) and later 32.2.b (Use by an athlete of a Prohibited Substance).

As ME did not dispute the laboratory findings or request testing of his B sample, the strict liability element of the charges, particularly in relation to Clostebol was made out, the only explanation was how they entered his body.

Rather than admitting the charges, ME attacked all elements of the process. His first argument was to contend that because he had telephoned UK Athletics the day before the test on the 14^th September to inform them that he was withdrawing from the England team for ‘medical reasons’, in addition to sending two emails on the 16^th and 17^th September confirming that he was retiring from all competitions, UKAD had no jurisdiction to test him [3.4.1].

This was however dismissed by the Panel as the athlete had contractually consented to abide by all UKA competition rules when he had joined an affiliated club (Newham & Essex Beagles Athletics Club) earlier that year [3.4.11]. While he had indeed withdrawn from competition, there is no evidence that ME had resigned in writing (as required by UKA rule 3.7) from the Athletics club and therefore he still remained under UKA jurisdiction on the date of the sample collection [3.4.23].

The Panel also noted that there was a distinction between retirement and withdrawal from a registered testing pool, and the evidence was put before the tribunal that the defendant was aware due to a previous retirement through injury in 2002, that even though he had retired from competition, he could still be liable to no-notice drug testing during the following 12 months [3.4.17]. The final blow for ME is that he submitted to testing on 15^th September even though he had told the Doping Control Officer (DCO) that he had retired [3.4.18] and the Sample Collection form filled out during the test noted no irregularities, complaints or problems.

The lack of complaint on the contemporaneous form also helped undermine the defendant’s allegations that the sample collection process was incorrectly carried out. Indeed, the panel found that ME was not a credible witness [3.4.28], that there was no evidence to suggest that the DCO had departed from the International Testing Standard [3.4.29] and that the sample was received intact by the laboratory [3.4.30]. As such ME did not meet his burden of proof for having the charges dismissed [3.4.34].

With no explanation for the presence of the prohibited substances, the panel had no option but to find against ME. What was interesting however was what came next. Although the standard period of ineligibility is 2 years, the Panel held that IAAF Rule 40.6 allows them the discretion to increase that sanction to 4 years if there was evidence of aggravating factors such as a failure to admit the anti-doping violation promptly or the presence of multiple substances (both of which existed in this case). As such the Panel imposed a 3 year period of ineligibility on ME from 3 November 2010 [3.5.57].

 

FURTHER QUESTIONS

What is particularly noteworthy about both of these cases is the suggestion that both transgressions were made by senior athletic role-models. In Kolo Touré’s case, the Panel held that he should have known better because he was an experienced professional footballer:

“[KT] has received anti-doping education. He has been tested many times before. He has appeared in an anti-doping film. He is a seasoned and experienced international player. “ [23]

“Further, a player in the position of KT might be expected to carry out his own researches of anti-doping information and literature; a wealth of it is easily and freely available. For example, the World Anti-Doping Code 2011 Prohibited List is widely available. According to the undisputed evidence of Jenni Kennedy, at the start of this season the FA provided the PFA with sufficient anti-doping information packets for each Premier League and Football League player. The packets contain inter alia an anti-doping advice card which includes on the first page examples of prohibited substances printed in red ink; diuretics and other masking agents are listed there. “ [51c]

In Mark Edward’s case, the panel stated that:

“…The Athlete is a senior athlete and a role model in the throwing community. He runs a sports therapy business and has a history of working with disabled athletes. In 2008, he attended the Paralympic Games as a full time employed UK Athletics Performance Coach. In these circumstances we consider that an increase in the period of ineligibility is appropriate.” [NADP: UKAD v. Edwards, 3.5.5]

Taken together, do these two cases mean that professional athletes have a higher responsibility to comply with anti-doping rules? In echoes of Lord Donaldson’s infamous quote in the negligence case of Condon v. Basi [1985] 1 WLR 866, 868 that: “there will of course be a higher degree of care required of a player in a First Division football match than of a player in a local league football match.”

Is it the case that more is expected from professional athletes because of their seniority or their status as role models within the community, or is simply that they should have known better? If so, it may be one occasion where ignorance is indeed bliss. Ironically, penalising seniority and experience would seem to undermine the incentives for athletes to engage with the current education policy currently undertaken by governing bodies and anti-doping regulators…..

Kolo Toure decision for distribution

ME_Decision_263

Tackling Doping in Sport 2011

Kris and I have been invited to speak at next week’s Tackling Doping in Sport 2011 Conference in London, England.

It promises to be the world’s premiere conference on anti-doping.

It is headlined with such speakers as David Howman (WADA Director General), Pat McQuaid (UCI President), Andy Parkinson (UK Anti-Doping CEO), Travis Tygart (US Anti-Doping Agency CEO), Richard Budgett (Chief Medical Officer for the 2012 London Summer Olympic Games) and many others.

The programme includes presentations on using intelligence to combat doping, gene doping, use of hypoxic devices, recent case law, anti-doping in cycling, FIFA ADR, advancements in the use of biological markers, and potential civil liabilities arising from doping control.

Our presentation is entitled ‘Technological Doping: Assessing the competency of sport to regulate technology’ and is part of a session on borderline issues in anti-doping.

The Tackling Doping in Sport 2011 Conference is on March 16-17, 2011 at Twickenham Stadium in London. The conference website is http://www.tacklingdopinginsport.com/index.asp

Is Rugby Union soon to follow in the footsteps of Cycling and Athletics?

Sources: http://news.bbc.co.uk/go/pr/fr/-/sport1/hi/rugby_union/my_club/bath/8093596.stm http://www.timesonline.co.uk/tol/sport/rugby_union/article6737649.ece http://news.bbc.co.uk/sport1/hi/rugby_union/8174825.stm

Following several doping related incidents 2009 seems to be a year the RFU and Bath Rugby may want to either put behind them or feel proud of.

It all started in January when it evolved that Matt Stevens had failed a drugs test and then in February was banned for 2 years. (see the following link for the full story http://sportslawnews.wordpress.com/2009/03/06/matt-stevens-starts-2yr-drug-ban/)

Then in June Michael Lipman, Alex Crockett and Andrew Higgins quit Bath following claims that they refused to take drugs tests. It was alleged that Lipman, Crockett and Higgins had taken recreational drugs whilst at an end of season party. As a result their then club Bath requested they take drugs test. The 3 players were said to have dodged these requests. However all 3 deny that they were avoiding tests and in doing so they walked out on the club, claiming “scurrilous and unsubstantiated allegations” had forced their exit.

In July Justin Harrison admitted taking cocaine and was suspended from playing or coaching for 8 months for “actions prejudicial to the interests of the game”. Harrison admitted to taking the class A drug in the toilets of a West London pub and he also confessed to shouting “Class A, it’s OK, everyone’s doing it” on a coach carrying members of the Bath academy.

Now we are in the second week of August and following the goings on in June Lipman, Crockett and Higgins have been suspended by the RFU for 9 months after being found guilty of misconduct for failing to comply with their club’s request for a drugs test. What is interesting is that all allegations that the players had taken the drugs were dropped at the start of the hearing, which then allowed the hearing to focus on whether the club’s requests were reasonable or whether the 3 players actions in quitting the club after being asked to take the tests were reasonable.

The panel chaired by Judge Jeff Blackett fully supported the club’s actions and stated, “If the players had nothing to fear from taking a drugs test then they would have taken them.” They then went on to say, “The reality of the case was that at the time when asked to take a drugs test, the players believed there was a risk of positive results.

“This was either because they knew they had ingested drugs or they had drunk so much alcohol that they could not remember whether or not they had ingested drugs. Each of the players therefore decided to play for time, keep out of contact and then hide behind legal defence.”

Richard Mallett, solicitor acting on behalf of Lipman, Crockett and Higgins, said: “All three players are absolutely devastated by today’s result and that they have now been suspended from playing the game they love.” However, there is no sign of an appeal at the moment. This is possibly because everything that was stated in the panel’s summing up is true and their actions have hit home, after all nothing screams guilty more than refusing or obviously avoiding a drugs test on several occasions. The 3 players will now have a lot to do in repairing their damaged reputations.

Whilst some may feel disheartened that Rugby Union seems to be following in the footsteps of cycling, athletics, swimming etc and gaining a reputation for doping, others may see the shining light at the end of the tunnel. 2009 may be viewed as a breakthrough in tackling drugs in Rugby. Especially with premiership Rugby growing in popularity recreational drugs can no longer be ignored.

“The RFU disciplinary panel takes no pleasure in imposing its sanction as the players involved are decent young men,” the judgment added. “There is also a need for a strong deterrent in this sanction.”

The RFU supports Bath’s tough stance on what seems to be a zero tolerance for drugs, whether they be performance enhancing or purely recreational. In addressing the issues raised players will be subject to a new education programme next season whilst Bath’s head coach wants to push through a new code of conduct for all to abide by, which includes a ban on recreational drug use. Other clubs and sports should perhaps take a leaf out of Bath’s book by taking the initiative and going above and beyond that which is covered by WADA regulations to preserve the quality and reputation of the sport whilst protecting the health and welfare of its players and all those young people who look to professional sports players as role models.

Schumacher (the cyclist) gets a 2yr drugs ban

Source: http://news.bbc.co.uk/sport1/hi/other_sports/cycling/7928676.stm;  http://news.bbc.co.uk/sport1/hi/other_sports/cycling/7668224.stm

 

German Cyclist, Stefan Schumacher has been banned from cycling for two years (until 21 January 2011) after failing a drugs test during last year’s Tour de France. Schumacher tested positive for Cera (Continuous Erythropoiesis Receptor Activator), a variation of EPO.

 

Somewhat predictably, Schumacher proclaimed his innocence: “One thing is clear: I have not doped and I have nothing to hide,” and vowed to clear his name at the Court of Arbitration for Sport.

 

Three other riders (Italy’s – Leonardo Piepoli and Riccardo Ricco, and Austrian – Bernhard Kohl) also admitted to using CERA at the 2008 Tour. Two other riders, Spaniards Manuel Beltran and Moises Duenas Nevado, tested positive for an older version of EPO during the Tour itself, and Kazakhstan’s Dmitri Fofonov failed a test for heptaminol after stage 18.

 

 

Biological Athlete Passports

Source: http://news.bbc.co.uk/sport1/hi/front_page/7908777.stm ; http://www.wada-ama.org/en/dynamic.ch2?pageCategory.id=754; http://www.newscientist.com/article/mg20126983.800-cheat-test-turns-athletes-blood-into-a-passport.html .

 

The World Anti-Doping Agency (WADA) has announced that it is very close to being able to implement the long awaited “Athlete Passport” system. It is hoped that the passport will provide testers with a lifelong “biological fingerprint” of competitors to compare drug-samples against and will be a key component in the central ADAMS (Anti-Doping Administration & Management System) Database. More details of ADAMS can be found here: http://www.uksport.gov.uk/pages/adams/

 

Any anomalies in blood chemistry, such as raised haemoglobin levels (associated with EPO abuse) or other biological disturbances would then allow further tests to be conducted and potential cheats identified at a much earlier stage than at present.

 

The idea has been pioneered by the International Cycling Union (UCI), the Federation Internationale de Skiing (FIS) and the International Amateur Athletics Federation (IAAF), and further trials of the scheme will take place at the World Athletics Championships in Berlin this summer.

 

Although the UCI has been at the forefront of piloting the passport scheme, and last year took 8,300 blood samples from 804 cyclists, its efforts are not currently being supported by WADA, after the UCI President sued WADA following a row over Floyd Landis’s appeal against his doping ban. http://www.uci.ch/Modules/ENews/ENewsDetails.asp?id=NjE5MQ&MenuId=MjI0NQ&BackLink=%2Ftemplates%2FUCI%2FUCI5%2Flayout.asp%3FMenuId%3DMjI0NQ

Suspended Italian footballers may get last minute reprieve

Source: http://www.tas-cas.org/en/infogenerales.asp/4-3-3042-1092-4-1-1/5-0-1092-15-1-1/ ; http://soccernet.espn.go.com/news/story?id=622094&&cc=5739 ; http://www.timesonline.co.uk/tol/sport/football/european_football/article5671739.ece; http://news.bbc.co.uk/sport1/hi/front_page/7907742.stm ; http://www.bbc.co.uk/blogs/gordonfarquhar/2009/02/wada_not_wavering_on_whereabou.html

The full text of CAS 2008/A.1557 WADA v. CONI, FIGC, Daniele Mannini & Davide Possanzini can be downloaded from here:  http://www.tas-cas.org/recent-decision

The Court of Arbitration for Sport (CAS) will now re-open the proceedings of the two Italian footballers (Daniele Mannini & Davide Possanzini) who last month were awarded a one year competition ban after arriving late for a drug test in 2007. Both the World Anti-Doping Agency (WADA) and the Italian Professional Football Association (FIGC) had indicated that they would not stand in the way of any appeal.

In the original case both Mannini and Possanzini were banned for 15 days by the Italian Olympic Committee, however this suspension was appealed by WADA, who argued that the usual punishment was 2 yrs. The court accepted this, but reduced the ban to one year to reflect the fact that the players bore “no significant fault” for providing a late sample.

The incident happened on 1^st December 2007, when both players were ordered to attend a drugs test to give blood and urine samples. En route to the test though, they were ordered by both the President of Brescia and the Brescian coach to attend a post-match dressing down following the club’s third successive defeat and this detour made them 10-25 minutes later for the drugs test.  The door to the dressing room was subsequently blocked from the inside which prevented the doping control officers from gaining access to keep the players in visual control.

Indeed, Michel Platini (President of UEFA) hit out at the original decision at a news conference, stating that:  “This decision was simply scandalous. Football has to find a way to fight back against Wada, who do as they please, when they please. It’s the same with the ‘whereabouts’ rule. I totally support the recommendation not to follow Wada’s code. Wada can find footballers for 330 days out of the year. I think they have a right to be left alone for one month each summer.”

Unsurprisingly, WADA responded to these (somewhat naive) comments arguing that for any testing to be effective, you can’t just take 30 days out and call it a ‘holiday’. As Gordon Farquhar (the BBC’s Sports News & Olympic Correspondent) says, all sports are equal but some sports (*cough*  football and tennis  *cough*) think they are more equal than others!

For what it’s worth, I hope that the two Brescian footballers escape a ban as they were only following team orders, and that any penalty should be on Brescia rather than specific individuals. That said I think football has to decide whether it follows ALL of WADA’s rules or goes its own way, it can’t pick and choose the rules it likes, and discards the rules it doesn’t.

Matt Stevens starts 2yr Drug Ban

Source: http://news.bbc.co.uk/sport1/hi/rugby_union/my_club/bath/7915732.stm; http://www.guardian.co.uk/sport/2009/jan/22/matt-stevens-bath-england-suspension;  

Matt Stevens (England prop) has received a two-year drugs ban until January 18^th 2011, after testing positive for a prohibited substance (though to be cocaine) during a routine urine sample, last December. The ban covers all aspects of rugby (playing / coaching / even promoting the sport). Stevens has opted not to appeal and instead accepts “full responsibility” for his actions.

 

He is quitting his club rugby side, Bath, to spare them any further embarrassment, and instead will focus attention on opening a new cafe (Jika Jika) this summer in Bath.

 

Martin Johnson (England Rugby Manager) has commented that: “Matt has admitted that he has a problem and is seeking help. We support him in that but all rugby players must understand that they are responsible for their actions, and that includes lifestyle choices.”

 

As Cocaine is also a Class A recreational drug, Stevens is lucky that he is not facing imprisonment or criminal charges. Lets just hope that the new cafe is not like the ones that you can find in Amsterdam!

 

See the Sky Sports Interview here: http://news.sky.com/skynews/Home/video/Matt-Stevens-England-Rugby-Player-Admits-Taking-Drugs-And-Faces-Two-Year-Ban/Video/200901315207503?lid=VIDEO_15207503_MattStevensEnglandRugbyPlayerAdmitsTakingDrugsAndFacesTwoYearBan&lpos=searchresults

Legal opinion on Whereabouts system published

Source: http://www.wada-ama.org/en/newsarticle.ch2?articleId=3115769

“WADA has now published online a legal opinion released in November 2008 by legal experts from the law firm Covington & Burling LLP about the compatibility of WADA’s Anti-Doping Administration & Management System (ADAMS) [the ‘whereabouts’ system] with European data protection laws.”

You can download a .pdf of this legal opinion here: http://www.wada-ama.org/en/newsarticle.ch2?articleId=3115769