Tag Archives: anti-doping

Reflections on the WADA 2015 Code v2.0

March 3, 2013

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Tablets

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

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

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

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

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

April 18, 2012

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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 16th 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 11th 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.

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

June 19, 2011

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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 12th 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 19th 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 15th 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 14th September to inform them that he was withdrawing from the England team for ‘medical reasons’, in addition to sending two emails on the 16th and 17th 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 15th 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

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Tackling Doping in Sport 2011

March 9, 2011

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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

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

August 15, 2009

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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 https://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.

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Schumacher (the cyclist) gets a 2yr drugs ban

March 12, 2009

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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.

 

 

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Biological Athlete Passports

March 12, 2009

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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

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