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Category Archives: Sports Legal

Armstrong’s lawyers get 20 days to amend the Complaint

In the US Federal Court , Texas Judge Sam Sparks has given Lance Armstrong’s lawyers 20 days to amend the Complaint  seeking a temporary restraining order against USADA, filed in Federal Court on 8 July 2012. The Judge, in accordance with the Federal Court Rules which require the Complaint to provide a “short and plain statement”, noted that the original Complaint was lengthy, 80 pages, and included “allegations” that were wholly irrelevant to Armstrong’s claims”.

(Original Complaint attached).

Lance Re-files in Federal Court

Lance Armstrong’s lawyers have re-filed an (amended) Complaint  seeking a temporary restraining order against USADA. The Judge had previously rejected the form of the Complaint (too long, 80 pages, containing “allegations” that were wholly irrelevant to Armstrong’s claims”), because it was not in accordance with the Federal Court Rules which require the Complaint to provide a “short and plain statement”. In substance Lance is trying to halt the process which requires him, next, to file an response to the USADA charges, leading to an initial hearing before a 3 member panel from the American Arbitration Association.

(The Amended Complaint will be attached when available.)

Lance’s Action Headed for Federal Court Determination

On 10 July 2012, Lance Armstrong’s lawyers re-filed the  (Amended) Complaint  seeking Orders as follows:

a.       An injunction staying the USADA requirement that by 14 July 2012 Lance elect to go to AAA arbitration or accept sanctions (this date was later extended, by agreement with USADA, for 30 days, to allow this Federal Court proceeding to be determined).

b.       A permanent injunction staying USADA from imposing sanctions (including disqualification of previous results) on the basis of the facts in the USADA charging letter.

c.        Declarations that USADA lacks jurisdiction to bring the charges asserted in the USADA charging letter.

d.       Damages against USADA.

e.        Costs.

 

The Amended Compliant is attached below.

 

Lance’s team makes multiple arguments in the Complaint, including:

  1. USADA’s procedures, designed primarily for cases where there have been positive results, do not afford Armstrong due process.
  2. Armstrong has not had a charging document that fairly tells him the claims that he must defend (not even when they occurred, which rules apply?).
  3. Armstrong has no guarantee of a hearing by the Tribunal with final say (the AAA panel is appealable to CAS, which need not decide to hold a hearing).
  4. Armstrong has no right to cross-examine his accusers (citing the Greg Lemond example, where Floyd Landis was refused the right to cross-examine, yet the Lemond statement was accepted).
  5. Armstrong has no right to an impartial arbitration panel (CAS members all appointed, limited term, paid, by USOC, incentivised therefore to side with USADA, very limited examples of athletes succeeding).
  6. Armstrong would have no right to exculpatory evidence, contrary to the legal position in a criminal trial.
  7. Armstrong would have no right to disclosure by USADA of witness agreements, contrary to the legal position in a criminal trial.
  8. Armstrong would have no right to disclosure by USADA of investigative witness statements, contrary to the legal position in a criminal trial.
  9. Armstrong would have no right to obtain full disclosure by USADA of laboratory analyses, nor impartial assessment whether the laboratory procedures are accurate (and the panel can be comfortably satisfied that any improper procedure did not cause an adverse finding).
  10. Under USADA’s procedures, Armstrong has no right of review by a USA court.
  11. The charges are outside the 8 year limitation period.
  12. USADA improperly induced witnesses, in violation of the WADA Code provisions (requiring reduction in ineligibility periods on this ground only after charges are brought and a period of ineligibility has been determined). Further, the offering of inducements violates federal law in relation to offering inducements for sworn testimony.
  13. The Review Board process, meant to be a check on abusive charging decisions, was circumvented, in USADA hand-picking the neutral experts, not providing the evidence supporting the charges to the Review Board, and having ex parte communications with the Review Board. The Review Board did not issue a considered evaluation. Armstrong was not given adequate notice of the charges or opportunity to respond.
  14. USADA is using information collected I the grand jury process.
  15. Lance having retired, USADA does not have jurisdiction, UCI does.

 

The key argument, it seems to me, is that USADA’s processes would deny Lance his right to due process under the Fifth Amendment, particularly relevant given that Lance is substantially (massively) affected by the outcome, and is in the extra-prone to injustice category of the “non-analytical positives” (athletes charged albeit that they have not had a positive test result against them.

 

Noting that USADA has not yet been required to respond, the arguments look (to me) strong in favour of Lance’s request for interim court intervention. If this assessment is right, we can expect a temporary stay, and Orders giving USADA the chance to respond, sometime before 12 August 2012 (within the 30 days agreed extension between Lance and USADA).

 

 

 

The legal arguments Lance v USADA

Lance v USADA – The Legal Arguments

In June 2012, USADA sent charging to Lance Armstrong (and others). Those letters were the first formal step in the anti-doping prosecution by USADA. This process raises big legal issues, partly, due to the athlete involved, but equally, this will be the most important case yet of the “non-analytical positives” (prosecution of an anti-doping violation in the absence of a failed test).

Background to the “Non-Analytical Positive” Cases:

Since the BALCO cases commencing in September 2004, the WADA Code, and all sports codes, have provided for the prosecution of athletes in the absence of an analytical positive test result. Michelle Collins was suspended for 8 years (USADA had sought a life ban) based on email evidence and blood and urine test results that evidenced a pattern of doping. Michelle Collins had never failed a drug test, and denied doping.

Interestingly, Michelle Collins had relied on her Fifth Amendment (due process) right against self-incrimination. The CAS Tribunal, however, agreed with USADA that this right did not apply outside criminal cases, and that it was open to CAS to draw an adverse inference against her. CAS repeated this approach for Chryste Gaines and Tim Montgomery.

CAS suspended Michelle Collins for 8 years, on the rationale that that BALCO athletes who admitted guilt, and cooperated by giving evidence against others, such as Kelli White, had been suspended for 2 years, BALCO athletes who admitted guilt, but would not cooperate by giving evidence against others, such as Alvin Harrison and Regina Jacobs, had been suspended for 4 years, Michelle Collins had not been shown by USADA to have “trafficked” or encouraged others, so a lifetime ban was not warranted, Michelle Collins’ failure to plead guilty warranted double the suspension of BALCO athletes who admitted guilt, but would not cooperate by giving evidence against others.

There have followed, in the USA, Chryste Gaines (2 years), Tim Montgomery (2 years), in Australia, Mark French (cyclist) and Sevi Marinov (weightlifting national coach) (drugs found in their rooms, both suspended at the initial 1 member CAS hearing, both then successful on appeal to the 3 member CAS), Olga Yegoreva and others (7 Russian athletes with manipulated samples) and Boevski  and others (3 Bulgarian weightlifter with manipulated samples) (all suspended where samples were manipulated, albeit no evidence that they had done the manipulating themselves), and others.

The key legal question has always been whether these non-analytical positive athletes should be entitled or not to the same Fifth Amendment due process protections afforded to any criminal defendant? or something less on the basis that they are contractually bound to the processes decided by the sports federations to which they belong?

Lance Armstrong is the latest in this line. He is looking like a defendant who may take the argument further than ever before.

Lance’s Federal Court Action

Lance, like always, was invited by USADA to put material before the USADA Review Board (an athlete protection mechanism designed to require USADA to establish a sufficient basis for the process to proceed to a hearing), contesting whether there was sufficient in the USADA charging letter to charge Lance. Lance’s response was that USADA had failed to disclose the proposed witnesses or their evidence, he was unable to know/answer the charges made against him, that USADA was treating the review board as a rubber stamp, effectively seeking to deny him the protection of that review board process, that USADA had obtained evidence wrongly, in trading concessions/reduced penalties, etc, (the “jailhouse snitch” argument), for evidence, and in obtaining evidence leaked from the now-discontinued grand jury process, that the only 2 identifiable claims against Armstrong (the Swiss lab tests from 2001 where the lab director had since denied the tests were sufficient to found a violation, and USADA providing, raw data only, no expert analysis, 2009/2010 blood test results, which showed no abnormality and had been published on Armstrong’s own website at the time as proof of the opposite) had no merit. In addition, Lance said, most of the material was outside the 8 year limitation period. USADA, conversely, said, in response, that it had ten-plus witnesses (without naming them, or setting out what they would say), who would say that Armstrong doped, trafficked, and participated in a conspiracy. The USADA Review Board decided in favour of USADA.

On 10 July 2012, Lance Armstrong’s lawyers filed an (Amended) Complaint before Judge Sam Sparks in the Federal Court, Texas Division, seeking an injunction staying the USADA requirement that Lance, within 3 days, elect to go to AAA arbitration or accept sanctions (this date was later extended, by agreement with USADA, for 30 days, to allow the Federal Court proceeding to be determined), a permanent injunction staying USADA from imposing sanctions (including disqualification of previous results) on the basis of the facts in the USADA charging letter, declarations that USADA lacked jurisdiction to bring the charges asserted in the USADA charging letter, plus damages against USADA and costs.

Lance’s team makes multiple arguments in the action:

  1. USADA’s procedures, designed primarily for cases where there have been positive results, do not afford Armstrong due process.
  2. Armstrong has not had a charging document that fairly tells him the claims that he must defend (not even when they occurred, which rules apply?).
  3. Armstrong has no guarantee of a hearing by the Tribunal with final say (the AAA panel is appealable to CAS, which need not decide to hold a hearing).
  4. Armstrong has no right to cross-examine his accusers (citing the Greg Lemond example, where Floyd Landis was refused the right to cross-examine, yet the Lemond statement was accepted).
  5. Armstrong has no right to an impartial arbitration panel (CAS members all appointed, limited term, paid, by USOC, incentivised therefore to side with USADA, very limited examples of athletes succeeding).
  6. Armstrong would have no right to exculpatory evidence, contrary to the legal position in a criminal trial.
  7. Armstrong would have no right to disclosure by USADA of witness agreements, contrary to the legal position in a criminal trial.
  8. Armstrong would have no right to disclosure by USADA of investigative witness statements, contrary to the legal position in a criminal trial.
  9. Armstrong would have no right to obtain full disclosure by USADA of laboratory analyses, nor impartial assessment whether the laboratory procedures are accurate (and the panel can be comfortably satisfied that any improper procedure did not cause an adverse finding).
  10. Under USADA’s procedures, Armstrong has no right of review by a USA court.
  11. The charges are outside the 8 year limitation period.
  12. USADA improperly induced witnesses, in violation of the WADA Code provisions (requiring reduction in ineligibility periods on this ground only after charges are brought and a period of ineligibility has been determined). Further, the offering of inducements violates federal law in relation to offering inducements for sworn testimony.
  13. The Review Board process, meant to be a check on abusive charging decisions, was circumvented, in USADA hand-picking the neutral experts, not providing the evidence supporting the charges to the Review Board, and having ex parte communications with the Review Board. The Review Board did not issue a considered evaluation. Armstrong was not given adequate notice of the charges or opportunity to respond.
  14. USADA is using information collected from the grand jury process.
  15. Lance having retired, USADA does not have jurisdiction, UCI does.

The substantive complaint by Lance Armstrong is that USADA’s processes deny him his Fifth Amendment right to due process. This argument has usually failed. But the circumstances here militate towards that due process right, maybe more so than in previous instances.

On 19 July 2012, USADA filed a Notice of Motion to Dismiss Lance Armstrong’s Action seeking an injunction to restrain the USADA anti-doping violation process. USADA’s key grounds:

  1. The Ted Stevens Olympic and Amateur Sports Act (“Sports  Act”) (a federal Act establishing arbitration as the exclusive forum for eligibility disputes in sports) pre-empts Armstrong’s claims.
  2. Armstrong has failed to exhaust his administrative remedies (a strong historical, factor relevant to the court’s discretion, against granting an injunction).
  3. Armstrong’s claims must be arbitrated (Lance, like all athletes, has regularly contracted to be bound by the arbitration process).
  4. Armstrong’s claims fail on the merits.

The USADA argument, on its face, is the traditional view, adopted by the courts in previous cases, (eg Mary Decker Slaney’s case), ie that Congress has determined, in clear terms, that USOC and USA Cycling are the bodies best able to deal with such disputes. Further, the courts have, consistently, required a person to exhaust their administrative remedies before seeking court intervention in relation to those processes. On this basis, USADA says, the Federal Court must dismiss, or at least stay, the court action pending the arbitration process.

The Federal Court action will be hard fought. Both sides raise valid arguments. Judge Sparks may or may not prefer the long-held view argued by USADA. Either way, we can expect to see the Judge’s ruling on this important legal argument, before 12 August 2012 (when the 30 day agreed USADA extension runs out), referred, by whoever loses, in the Appeals Circuit.

On balance, the due process argument seems to be at least worthy of better court examination, not to be dismissed simply because, right or wrong, that is what courts have always done previously. The difference, here, might be the enormous stature of Lance (not merely as an athlete, but as a cancer messiah), and the overdue court examination of the unusual position of the athletes charged on circumstantial evidence rather than a failed test.

John McMullan

26 July 2012

Lance (and UCI) further argues the USADA Jurisdiction

On 3 August 2012, Lance Armstrong’s legal team filed a response to USADA’s 19 July 2012 Motion to Dismiss.

 

USADA’s substantive arguments:

  1. The Ted Stevens Olympic and Amateur  Sports Act (“Sports  Act”) (an Act establishing arbitration as the exclusive forum for eligibility disputes in sports) pre-empts Armstrong’s claims.
  2. Armstrong has failed to exhaust his administrative remedies (a strong historical, factor relevant to the court’s discretion, against granting an injunction).
  3. Armstrong’s claims must be arbitrated (Lance, like all athletes, has regularly contracted to be bound by the arbitration process).
  4. Armstrong’s claims fail on the merits.

Armstrong’s key arguments in response:

1.        UCI, not USADA, has jurisdiction under the UCI Anti-Doping Rules (on which USADA relies in its charging letter) because:

a.       UCI collected the samples relied upon by USADA;

b.       UCI “discovered” the claimed violation (WADA Code, Article 15.3: “results management and hearings are the responsibility of and shall be governed by the procedural rules of the Anti-Doping Organization that initiated and directed Sample collection”).

c.        UCI has jurisdiction over Lance, as retired cyclist, as the organisation having jurisdiction at the time of claimed violations (pre- 13 August 2004, UCI’s anti-doping rules provided that they alone apply to international events, the charging letter refers to violations between 1996 and 2005, no specific conduct alleged after 13 August 2004);

d.       UCI asserts jurisdiction and has directed USADA not to proceed further. (In fact, UCI released a written statement on 7 August, following exhibiting its correspondence to USADA in this case on 6 August 2012 , confirming its direction to USADA, and publicly criticizing the due process aspects of USADA’s process in relation to Lance Armstrong and the 5 related respondents).

e.        UCI also has exclusive jurisdiction under the WADA Code

f.         USADA has no jurisdiction to bring a consolidated action against 6 people (There is no WADA Code violation for participating in an alleged doping conspiracy).

2.        The Sports Act applies only to amateur athletes, not Lance.

3.       Even if the Sports Act applied, it would not pre-empt this challenge, ie a common law and Fifth Amendment due process challenge (not an eligibility dispute).

4.      Armstrong should not have to go through the arbitration process, where that arbitration process is the subject of challenge over jurisdiction.

5.     Armstrong did not, in fact, agree to the arbitration process, saying:

a.       USADA has the burden of proving any agreement to arbitrate;

b.       USADA has not established any agreement to arbitrate (the USADA Protocol relied upon by USADA do not apply to Armstrong, his annual international licence are governed by the UCI Anti-Doping Rules);

c.        Armstrong’s membership of USA Triathlon has no relationship to the matters alleged in the charging letter.

 

USADA argue that the courts have traditionally taken the view, in previous cases (eg Mary Decker Slaney’s case), that Congress has determined, in clear terms, that USOC and USA Cycling are the bodies best able to deal with such disputes. The court, in Mary Decker Slaney’s case, had, in fact, veered away from a review of the validity of a drug test: “an endeavour (a court) cannot partake in”). Armstrong, in response, refers to the Tonia Harding case, and other cases, where the court had concluded that judicial intervention was warranted : “where the association has clearly breached its own rules, that breach will imminently result in serious and irreparable harm tp the plaintiff, and the plaintiff has exhausted all internal remedies”.

 

The USADA  jurisdiction argument took a dramatic twist over the weekend. UCI released a statement on Saturday (7 August), disputing that USADA has jurisdiction, and directing USADA to refer its files to UCI. Surprisingly, UCI went beyond this and expressly condemned USADA’s processes, on the basis of due process, in particular:

  1. 3 respondents banned for life, because they did not respond to USADA charging letter;
  2. USADA refused to provide UCI with evidence that the 3 respondents had received the USADA charging letter;
  3. no neutral review of the evidence relied upon by USADA;
  4. the 3 respondents banned for life were not given the evidence relied upon by USADA;
  5. the 2 respondents due to file a defence by 15 August 2012 have not been given the evidence relied upon by USADA;
  6. according to the World Anti-Doping Code and UCI’s Anti-Doping Rules that USADA claims to apply, the UCI is the authority having results management for this case.

 

A copy of the UCI statement is attached. The most damning (for USADA) part of the UCI statement:

 

For the UCI it is clear that USADA claims an authority that it does not have and uses procedures that violate basic principles of due process.

 

This action is listed for hearing on 10 August 2012 (before the 30 day agreed USADA extension runs out). Judge Sparks, of course, may or may not prefer the long-held view argued by USADA. Either way, we can expect to see an appeal from the Judge’s ruling on this important legal argument, referred by whoever loses, in the Appeals Circuit.

 

John McMullan

6 August 2012

Lance responds again to USADA’s jurisdiction arguments before the 10 August Hearing

The material is flying in real time between Lance Armstrong’s team and USADA. On 9 August 2012, Armstrong filed yet further material on the USADA/UCI jurisdiction argument, ahead of the Friday (10 August) hearing.

 Amstrong’s further response to USADA’s  jurisdiction arguments:

  1. USADA says that Armstrong, as a member of USA Cycling, falls under the United States Olympic Committee (USOC) authority, a jurisdiction over US cyclists separate and independent from any jurisdiction asserted by UCI. Armstrong says no, he held an international license, that required him to abide by the UCI ADR.
  2. Armstrong, as a member of USA Cycling, did not agree to be bound by the USADA Protocol. He absolutely did not agree to arbitrate   his constitutional and common law due process claims or his tortious interference with contract claim.
  3. USADA’ arguments fail:
    a.       USADA, in its charging letters, agrees that this matter is governed exclusively by the UCI ADR, not USA Cycling’s regulations or Protocol.b.       USADA’s new theory of independent or concurrent jurisdiction is wrong.c.        USADA’s argument that its Protocol and USA Cycling’s regulations take precedence over the UCI ADR is wrong.d.       USADA does not have authority to disregard UCI’s determination that it has exclusive jurisdiction over this matter.

    e.        USADA ignores that charges involve samples taken by UCI.

    f.         UCI has jurisdiction even if the charges did not involve UCI samples.

           g.     USADA ignores that UCI has exclusive jurisdiction over Armstrong as a retired cyclist.

 4.      USADA does not discharge its obligation to demonstrate the agreement to arbitrate.

 5.     USADA’s Sports Act argument ignores the Tonya Harding line of cases (ie that courts have jurisdiction to ensure that amateur organisations follow the applicable rules).

Armstrong has exhibited a (further) UCI letter dated 9 August 2012  to USADA (copy attached), saying (in part):

Please note that UCI works for clean cycling and is doing all it can to fight doping.  There is

no conflict of interest here as the UCI is the most interested party in that the sport of cycling

is as clean as possible.  UCI’s anti-doping programme is second to none and even WADA

has admitted that.

We also find it important that current cycling is clean and in this respect we regret that

USADA probably allowed riders that admitted doping to participate in the Tour de France,

even if the facts that they allegedly testified upon date from many years ago.

Anyway the protection of the rights of clean athletes does not justify that the rules of antidoping, including those on jurisdiction and fair trial, are not respected, on the contrary.

There is however a political problem in that anyone who questions some aspects of the fight

against doping or criticizes actions or statements  of WADA or another ADO or asks for

respect for the own rules is immediately depicted as lenient on doping or accused of

obstruction.

I just want to refer to UCI’s intention which is to submit the file for results management

assessment to a neutral body and with the respondents being given a copy of the file and

being able to have their say.  This is an open, neutral, transparent and fair way of dealing

with the case rather than USADA making the most serious public accusations and

condemnations while hiding the file….

 Armstrong also exhibits a UCI letter dated 9 August 2012  to WADA (copy attached).

 

 The hearing is on today, tomorrow … (10 August), well, real soon. Judge Sam Sparks, lucky you.

 

John McMullan

 

Judge Sparks Denies Lance an Injunction, but leaves door open

On 23 August 2012, Judge Sam Sparks dismissed Lance Armstrong’s suit in the US District Court Western District of Texas (Austin) of the Federal Court, asking for an injunction to restrain USADA from proceeding against him . The judgment is attached below.

 The Judge found:

  1. Armstrong’s due process claims lack merit.
  2. The court lacks jurisdiction over Armstrong’s remaining claims, or alternatively declines to grant equitable relief.

 The key issue for the Judge in finding the due process complaints lacked merit was that Lance’s challenges are anticipating unfairness rather than being subject to them now. Lance’s challenges:

(a)     that he was not provided a adequate charging document;

(b)     that he has no guarantee of a hearing before CAS;

(c)      that he has no right cross-examine/confront witnesses against him;

(d)     that he has no right to an impartial panel;

(e)     that he has no right to disclosure of exculpatory evidence;

(f)      that he has no right to disclosure of cooperation agreements or inducements provided by usda;

(g)     that he has no right to obtain investigative witness statements;

(h)     that he has no right to obtain full disclosure of laboratory analyses or an impartial assessment of their accuracy;

(i)       that  he has no right to judicial review of the arbitrators’ decision by a US court;

are all based on speculation of bias (rather than actual bias).

 Judge Sparks said:

 “Like the Supreme Court, this Court declines to assume either the pool of potential arbitrators, or the ultimate arbitral panel itself, will be unwilling or unable to render conscientious decision based on the evidence before it.”

 Further, the Judge reasoned:

 “Further, Armstrong has ample appellate avenues open to him, first to the Court of Arbitration for Sport … where he is entitled to de novo review, and then to the  courts of Switzerland, if he so elects.”

 The Judge, however, dismissed the suit without prejudice, ie Lance can come back if things develop. Further, Judge Sparks expressed some judicial (and welcome) views on the USADA processes.

 His Honour was critical of USADA’s process:

 “As the Court stated at the hearing, ….. the deficiency of USADA’s charging document is of serious constitutional concern. Indeed, but for two facts, the Court might be inclined to find USADA’s charging letter was a violation of due process, and to enjoin USADA from proceeding thereunder. First, it would likely of no practical effect: USADA could easily issue a more detailed charging letter, at which point Armstrong would presumably once again file suit, and the parties would be back in this exact same position some time later, only poorer for their legal fees. Second, and more important, USADA’s counsel represented to the Court that Armstrong will, in fact, receive detailed disclosures regarding USADA’s claims against him at a time reasonably before arbitration, in accordance with routine procedure. The Court takes counsel at his word. With the understanding that Armstrong has received all the process he is due at this time, and will receive adequate notification of the charges against him in time to prepare a defense, the Court rejects Armstrong’s …. challenge. …… ”

 Judge Sparks then concluded that the Federal Court had no jurisdiction. The Sports Act had (“whether or not this was a good choice is, of course, debatable”) determined that sports eligibility questions would be decided through arbitration rather than federal lawsuits.

 His Honour referred to the Mary Decker Slaney case, noting that the court had said: “… when it comes to challenging the eligibility determination of the USOC, only a very specific claim will avoid the impediment to subject matter jurisdiction that (the Sports Act) poses”. The Slaney court had quoted the Tonia Harding case, in the Oregon District Court as follows:

 “There the court cautioned that…… ‘courts should rightly hesitate before intervening in disciplinary hearings held by private associations …. Intervention is appropriate only in the most extraordinary circumstances, where the association has clearly breached its own rules, that breach will imminently result in serious and irreparable harm to the plaintiff, and the plaintiff has exhausted all remedies.’ Yet, while carving out this limited exception to the preemption created by the Amateur Sports Act, the opinion forewarned that while examining whether internal rules had been complied with, the courts ‘should not intervene in the merits of the underlying dispute.’ ”

 Judge Sparks held, ultimately, that:

  1. Armstrong was not in danger of irreparable harm. The USADA jurisdiction issue, itself, was to be determined by the arbitrators. Further, any finding by the arbitration panel might, itself, be overturned by CAS. “In short,  any harm Armstrong might suffer is, at this point, entirely speculative.”
  2. Armstrong has not exhausted his internal remedies, namely the arbitration procedures in the USADA Protocol. Judge Sparks: “If the panel’s resolution is manifestly unjust and devoid of any reasonable legal basis, Armstrong may have a judicial remedy; but this court cannot act on the basis of a hypothetical injury.”
  3. Armstrong’s agreement with USOC bound him contractually to submit his due process concerns, themselves, to the arbitration process.

 

Finally, His Honour determined that, even apart from his decision on jurisdiction, if he did have such jurisdiction he would decline an equitable remedy, firstly because, for the above reasons, Armstrong was not in danger of irreparable harm, and secondly because , as a matter of international comity, the court declined to: “circumvent the longstanding system of international arbitration in Olympic sports by unilaterally enjoining that system’s operation”.

 Judge Sparks finished with a comment for USADA:

 “…. there are troubling aspects of this case, not least of which is USADA’s apparent single-minded determination to force Armstrong to arbitrate the charges against him, in direct conflict with UCI’s equally evident desire not to proceed against him….

 The events in USADA’s charging letter date back fourteen years, span a multitude of international competitions, and involve not only five non-citizens of the United States who were never licensed in this country, but also one of the most well-known figures in the history of cycling. 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 are apparently unable to work together …..  

 So now we wait for Lance’s next step. The appeals circuit? or AAA arbitration, starting off with a serious argument on jurisdiction?

John McMullan

23 August 2012

 

Lance Armstrong: The next of the non-analytical positive cases?

The attached letters between USADA and Lance Armstrong’s legal team are the first formal step in the anti-doping prosecution by USADA. The process will be, potentially, the most important case to date due to  the athlete involved, but equally, the most important to date “non-analytical positive” (prosecution of an anti-doping violation in the absence of a failed test).

Lance’s response to USADA’s charging letter, the initial step prior to the review board process (an athlete protection mechanism designed to require USADA to establish a sufficient basis for the process to proceed to a hearing) was generally as follows:
1. USADA fails to disclose the proposed witnesses or their evidence, Armstrong is unable to know/answer the charges made against him. USADA is treating the review board as a rubber stamp, effectively seeking to deny Armstrong the protection of that review board process.
2. USADA has obtained evidence wrongly, in trading concessions/reduced penalties, etc, (the “jailhouse snitch”argument), for evidence, and in obtaining evidence leaked from the now-discontinued grand jury process.
3. The only 2 identifiable claims against Armstrong (the Swiss lab tests from 2001 where the lab director has since denied the tests were sufficient to found a violation, and USADA providing, raw data only, no expert analysis, 2009/2010 blood test results, which show no abnormality and which were published on Armstrong’s own website at the time as proof of the opposite) have no merit.
4. Most of the material is outside the 8 year limitation period.

USADA, conversely, says that it has ten-plus witnesses, who will say that Armstrong doped, trafficked, and participated in a conspiracy.

The process is likely, in my view, to showcase the critical justice issues that are thrown up in this key area of “non-analytical positives”. The likelihood is that Lance will challenge, in the USA courts, the level of acceptable proof against an athlete charged on the basis of evidence, not including a failed test, and the USADA/Court of Arbitration for Sport regime generally.

About time.

John McMullan

Dr Bruce Malcolm Reid v Australian Football League

 

Doc Reid re-argues Lance’s Legal Argument – Time for the Courts to Intervene?

 

In Dr Bruce Malcolm Reid v Australian Football League, Supreme Court of Victoria, Proceeding No SCI 2013 04575, the universally respected Essendon Football Club doctor, Dr “Doc” Reid, is arguing for declarations and an injunction to restrain the AFL from hearing the disciplinary charges against him, and asking that such charges be heard by an independent arbiter.

 

The charges against Dr Reid are limited to that he:

 

  1.       “was part of the decision-making processes of the Club in respect of the development and implementation of a scientifically pioneering program relating to the administration of supplements to its players, knowing that:

 

(a)     the program was to push the legal limit;

 

(b)     the program involved innovative supplement practices and compounds;

 

(c)     the program involved the use of allegedly beneficial, if exotic, mysterious and unfamiliar compounds;

 

(d)     the program’s ftness strategy and use of supplements varied sharply from prior practices at the Club;

 

(e)     the program involved injecting players with an unprecedented frequency.”
(Particulars Paragraph 3)

 

  1.        “made no direct inquires of ASADA in relation to whether AOD-9604 was a prohibited substance”;
    (Particulars Paragraph 21(b))
  2.       was a person named in an Essendon protocol concerning the use of supplements circulated on 15 January 2012;
    (Particulars Paragraph 17)
  3.       failed to take adequate steps to ensure that the Protocol was properly implemented after becoming aware that substances had been administered that had not been approved.
    (Particulars Paragraph 32-35)

 

In Dr Reid’s case, on a careful reading of the charges, even if correct, (the charges are 100% contested), at worst it might be said that Dr Reid was not sufficiently interventionist.

 

There is zero suggestion in the charges (or anywhere else) that Dr Reid ever administered, or supported the use of administering, any performance enhancing drug. (In fact, Dr Reid’s letter dated 17 January 2012, and James Hird’s text message on 30 January 2012, suggest that Dr Reid positively opposed any such practice.)

 

Dr Reid makes the usual athlete/accused argument, ie that the sports establishment hearing structure is weighted against the athlete/accused, and that he is denied a fair hearing. The AFL runs the usual sports establishment defence, ie that it is simply a matter of contract, to which the athlete/accused previously committed, and that the sports establishment is the body best equipped to deal with such claims.

 

These arguments are particularly key given that Dr Reid is , like all of the category of athletes who have been charged with performing enhancing drugs charge , on the basis of evidence rather than a failed drug test (collectively called “non-analytical positives”), charged on as yet un-substantiated evidence. In their case, though the punishment in relation to the performing enhancing drug charges is no less than an athlete accused who fails a drug test, and though the mere fact of being charged will usually disrupt or end their sports career, and some instances, including Dr Reid, may have even worse consequences, the accused has none of the enduring protections of a criminal accused.

 

In substance, the non-analytical positive athlete/accused usually complains that they are being denied a fair hearing (in the USA, denied the Constitutional right to “due process”). There seems to be substantial strength in their complaints.

 

The Legal Arguments:

 

Dr Reid has previously made the following legal arguments to the AFL Commission in relation to the request for an independent arbiter to be appointed:

 

1.       The AFL Commission is not a body that is equipped to provide a fair hearing, for the following reasons:

 

a.        the complexity of the case, including (complex) legal issues;

 

b.       the case will be of lengthy duration;

 

c.        because of a and b, and because the Charge may affect Dr Reid’s professional reputation, the case therefore requires a full-time arbiter;

 

d.       reduced prospect of error and appeal if heard by an appropriately qualified person;

 

e.       less likelihood of interlocutory applications to the Supreme Court in the running of the case;

 

f.         issues of relevance and publicity in this case require a an arbiter less likely to be affected by extrinsic factors;

 

g.        Dr Reid’s legal case includes highly perjorative submissions about the AFL;

 

h.       A case involving a medical professional’s reputation is in a special category;

 

i.         Dr Reid cannot get a just hearing from the AFL Commission, after it has involved itself in the approval of the settlements with the other defendants.

 

2.       Bias, both actual and apprehended, on the part of the AFL Commission.

 

In this proceeding, Dr Reid asserts that the AFL Commission cannot hear the charges against him in an unbiased manner because of:

 

  1.        Conflict

 

a.        The charges raise factual matters already considered and determined by the AFL Commission.

 

b.       The determination of the charges raises questions about conduct by the AFL.

 

  1.       Comments

 

a.        “a most unfortunate matter”

 

b.       “it might be a lonely day” (for Dr Reid);

 

c.        “We can’t let – no matter how clever they were in disguising what they were doing, we can’t ever let a group of people take hold of a player group in the way that this group did. That must never happen again”

 

d.       “responsibility, I think, has not been easy to assign, but I think it has been reasonably assigned”

 

e.       “frankly, what happened [at Essendon] is probably the worst thing that has happened in a footy club”

 

The AFL has not yet delivered its arguments. We can guess that those arguments will include:

 

  1.        that athletes and support personnel sign up to the AFL rules, as a matter of contract they commit to the process set out in those rules;
  2.        that the AFL Commission is well-equipped to adjudicate on this type of matter, because of its experience and expertise in this area;
  3.       the courts are not well-equipped to deal with the particular issues relating to sports enhancing performance drugs.

 

USA Decisions on this Type of Claim:

 

These arguments were, in fact, recently re-run in the USA by perhaps our most famous non-analytical positive accused athlete, Lance Armstrong. On 23 August 2012, Judge Sam Sparks in the US District Court Western District of Texas (Austin) of the USA Federal Court, dismissed Lance Armstrong’s suit asking for an injunction to restrain USADA from proceeding against him. The Judge found:

 

  1.        Armstrong’s due process claims lacked merit.
  2.        The court lacked jurisdiction over Armstrong’s remaining claims, or alternatively declined to grant equitable relief.

 

Firstly, Judge Sparks concluded that the due process complaints lacked merit, and that Lance’s challenges were anticipating unfairness rather than Lance having been subject to actual unfairness. Lance’s specific due claims had included:

 

  1.       that he was not provided an adequate charging document;
  2.       that he had no guarantee of a hearing before CAS;
  3.       that he had no right cross-examine/confront witnesses against him;
  4.      that he had no right to an impartial panel;
  5.        that he had no right to disclosure of exculpatory evidence;
  6.        that he had no right to disclosure of cooperation agreements or inducements provided by USADA;
  7.       that he had no right to obtain investigative witness statements;
  8.       that he had no right to obtain full disclosure of laboratory analyses or an impartial assessment of their accuracy;
  9.      that  he had no right to judicial review of the arbitrators’ decision by a US court;

 

Judge Sparks concluded that each of these complaints were based on speculation of bias (rather than actual bias).

 

Judge Sparks said:

 

“Like the Supreme Court, this Court declines to assume either the pool of potential arbitrators, or the ultimate arbitral panel itself, will be unwilling or unable to render conscientious decision based on the evidence before it.”

 

Judge Sparks reasoned that Armstrong was not in danger of irreparable harm if the USADA jurisdiction issue, itself, was to be determined by the arbitrators. Further, any finding by the arbitration panel might, itself, be overturned by CAS. “In short,  any harm Armstrong might suffer is, at this point, entirely speculative.”

 

His Honour was further confirmed in his view in that Lance had not (as yet) exhausted the avenues open to him:

 

“Further, Armstrong has ample appellate avenues open to him, first to the Court of Arbitration for Sport … where he is entitled to de novo review, and then to the  courts of Switzerland, if he so elects.”

 

Judge Sparks, however, dismissed the suit without prejudice, saying that Lance could come back if and when things developed (ie if and when he was in fact subjected to actual unfairness rather than anticipated unfairness).

 

Secondly, Judge Sparks concluded that the Federal Court had no jurisdiction under the USA Federal Amateur Sports Act, requiring such proceedings to be referred to arbitration. His Honour noted that the Sports Act had (“whether or not this was a good choice is, of course, debatable”) determined that sports eligibility questions would be decided through arbitration rather than federal lawsuits.

 

His Honour referred to the Mary Decker Slaney case, noting that the court had said there:

 

“… when it comes to challenging the eligibility determination of the USOC, only a very specific claim will avoid the impediment to subject matter jurisdiction that (the Sports Act) poses”.

 

The Mary Decker Slaney court had quoted the Tonia Harding case, where an Oregon District Court had said:

 

“There the court cautioned that ….

 

…. courts should rightly hesitate before intervening in disciplinary hearings held by private associations …. Intervention is appropriate only in the most extraordinary circumstances, where the association has clearly breached its own rules, that breach will imminently result in serious and irreparable harm to the plaintiff, and the plaintiff has exhausted all remedies.

 

Yet, while carving out this limited exception to the preemption created by the Amateur Sports Act, the opinion forewarned that while examining whether internal rules had been complied with, the courts ‘should not intervene in the merits of the underlying dispute.

 

(emphasis added)

 

Finally, Judge Sparks determined that, even apart from his decision on jurisdiction, if he had found that he had such jurisdiction he would have declined an equitable remedy, firstly because, for the above reasons, Armstrong was not in danger of irreparable harm, secondly because , as a matter of international comity, the court declined to: “circumvent the longstanding system of international arbitration in Olympic sports by unilaterally enjoining that system’s operation”.

 

As events turned out, Lance Armstrong ultimately chose not to challenge the sports drug charges, and later again, publicly admitted that the charges were true.

 

Conclusions

 

There can be no doubt that this case is serious. Doc Reid is universally regarded as having a brilliant, long, respected, and personally loved, life in football, faces potential public shame, the potential loss of his medical licence, and an unhappy end to that long career.

 

Yet Doc Reid, in the legal system, must run the same legal arguments that ultimately failed Lance Armstrong.

 

The Supreme Court will now determine this crucially important issue.

 

Can’t wait.

 

 

 

Middleton J Dismisses the Applications

Middleton J Dismisses the Applications

Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority; James Albert Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019

 

On 19 September 2014, Federal Court Justice Middleton dismissed the EFC and Hird applications for  a declaration that “ the investigation conducted by ASADA … which was referred to as part of “Operation Cobia” … was ultra vires “,  and injunctions restraining ASADA from issuing any notice or relying on information obtained in the investigation, and a permanent injunction restraining ASADA from using any information from the investigation for any purpose under its Act. The joint investigation was, according to ASADA, was part of a wider investigation by ASADA under the Australian Sports Anti-Doping Authority Act 2006 (Cth) (‘the Act’) and Sch 1 (‘the NAD Scheme’) of the Australian Sports Anti-Doping Authority Regulations 2006 (Cth) (‘the Regulations’). EFC and Hird said that ASADA had no power to conduct the investigation in the way it was conducted (involving the use by ASADA of AFL “compulsory powers” and unauthorised disclosure of information), that the investigation was undertaken for improper purposes, and that ASADA breached its confidentiality obligations during the course of the investigation and in the provision to the AFL of an interim report.

See attached file titled “Middleton J Dismisses the Applications” for full analysis.

 

 

 

 

 

Essendon FC v ASADA : James Hird v ASADA

Essendon FC v ASADA : James Hird v ASADA

 Australian Federal Court Challenge mirrors Lance Armstrong’s Challenge in the USA Courts:

On 27 June 2014, Justice John Middleton in the Australian Federal Court will set out a timetable to a hearing in the legal challenges by Essendon FC and James Hird against ASADA’s legal process. Essendon FC and James Hird ask for a declaration that “ the investigation conducted by ASADA … which was referred to as part of “Operation Cobia” … was ultra vires “,  and injunctions restraining ASADA from issuing any notice or relying on information obtained in the investigation, and a permanent injunction restraining ASADA from using any information from the investigation for any purpose under its Act.

The show cause letters sent by ASADA last week to Essendon FC players are the first formal step in the anti-doping prosecution by ASADA. The process will be, potentially, the most important Australian sports drug case to date due to  the athletes involved, but equally, the most important case to date in Australia of a “non-analytical positive” (prosecution of an anti-doping violation in the absence of a failed test).

We recently saw a very similar legal challenge ahead of the review board process reference by Lance Armstrong. Lance’s response to USADA’s charging letter to him, (the initial USA step prior to the review board process, as in Australia, an athlete protection mechanism designed to require USADA to establish a sufficient basis for the process to proceed to a hearing) had been generally as follows:
1. USADA had failed to disclose the proposed witnesses or their evidence, Armstrong was unable to know/answer the charges made against him. USADA is treating the review board as a rubber stamp, effectively seeking to deny Armstrong the protection of that review board process.
2. USADA had obtained evidence wrongly, in trading concessions/reduced penalties, etc, (the “jailhouse snitch” argument), for evidence, and in obtaining evidence leaked from the now-discontinued grand jury process.
3. The only 2 identifiable claims against Armstrong (the Swiss lab tests from 2001 where the lab director has since denied the tests were sufficient to found a violation, and USADA providing, raw data only, no expert analysis, 2009/2010 blood test results, which show no abnormality and which were published on Armstrong’s own website at the time as proof of the opposite) have no merit.
4. Most of the material was outside the 8 year limitation period.

USADA, conversely, had said that it had ten-plus witnesses, all who would say that Armstrong doped, trafficked, and participated in a conspiracy.

Lance’s legal challenge ultimately failed, not because, as USADA had argued, such cases are never to be reviewed by the courts, but rather because, in Lance’s case, his claims of unfairness were premature.

The Essendon/Hird challenges, equally, ask the Australian Federal Court to stop the process, saying that the investigation is not in accordance with the ASADA legislation. Unlike Lance, however, their challenge is attacking an existing process, not a future one.

This is getting interesting.

Background to the “Non-Analytical Positive” Cases:

 

Since the BALCO cases commencing in September 2004, the WADA Code, and all sports codes, have provided for the prosecution of athletes in the absence of an analytical positive test result. Michelle Collins was suspended for 8 years (USADA had sought a life ban) based on email evidence and blood and urine test results that evidenced a pattern of doping. Michelle Collins had never failed a drug test, and denied doping.

 

Interestingly, Michelle Collins had relied on her Fifth Amendment (due process) right against self-incrimination. The CAS Tribunal, however, agreed with USADA that this right did not apply outside criminal cases, and that it was open to CAS to draw an adverse inference against her. CAS repeated this approach for Chryste Gaines and Tim Montgomery.

 

CAS suspended Michelle Collins for 8 years, on the rationale that that BALCO athletes who admitted guilt, and cooperated by giving evidence against others, such as Kelli White, had been suspended for 2 years, BALCO athletes who admitted guilt, but would not cooperate by giving evidence against others, such as Alvin Harrison and Regina Jacobs, had been suspended for 4 years, Michelle Collins had not been shown by USADA to have “trafficked” or encouraged others, so a lifetime ban was not warranted, Michelle Collins’ failure to plead guilty warranted double the suspension of BALCO athletes who admitted guilt, but would not cooperate by giving evidence against others.

 

There have followed, in the USA, Chryste Gaines (2 years), Tim Montgomery (2 years), in Australia, Mark French (cyclist) and Sevi Marinov (weightlifting national coach) (drugs found in their rooms, both suspended at the initial 1 member CAS hearing, both then successful on appeal to the 3 member CAS), Olga Yegoreva and others (7 Russian athletes with manipulated samples) and Boevski  and others (3 Bulgarian weightlifter with manipulated samples) (all suspended where samples were manipulated, albeit no evidence that they had done the manipulating themselves), and others.

 

The key legal question has always been whether these non-analytical positive athletes should be entitled or not to the same Fifth Amendment due process protections afforded to any criminal defendant? or something less on the basis that they are contractually bound to the processes decided by the sports federations to which they belong?

Lance Armstrong was the latest in that line. He was looking like a defendant who might have taken the argument further than ever before. As it turned out, Lance decided against continuing. But the USA Federal Court did not rule out intervening if the right circumstances ever came along.

Lance’s USA Federal Court Action

 

Lance, like always, was invited by USADA to put material before the USADA Review Board (an athlete protection mechanism designed to require USADA to establish a sufficient basis for the process to proceed to a hearing), contesting whether there was sufficient in the USADA charging letter to charge Lance. Lance’s response was that USADA had failed to disclose the proposed witnesses or their evidence, he was unable to know/answer the charges made against him, that USADA was treating the review board as a rubber stamp, effectively seeking to deny him the protection of that review board process, that USADA had obtained evidence wrongly, in trading concessions/reduced penalties, etc, (the “jailhouse snitch” argument), for evidence, and in obtaining evidence leaked from the now-discontinued grand jury process, that the only 2 identifiable claims against Armstrong (the Swiss lab tests from 2001 where the lab director had since denied the tests were sufficient to found a violation, and USADA providing, raw data only, no expert analysis, 2009/2010 blood test results, which showed no abnormality and had been published on Armstrong’s own website at the time as proof of the opposite) had no merit. In addition, Lance said, most of the material was outside the 8 year limitation period. USADA, conversely, said, in response, that it had ten-plus witnesses (without naming them, or setting out what they would say), who would say that Armstrong doped, trafficked, and participated in a conspiracy. The USADA Review Board decided in favour of USADA.

 

On 10 July 2012, Lance Armstrong’s lawyers filed an (Amended) Complaint before Judge Sam Sparks in the Federal Court, Texas Division, seeking an injunction staying the USADA requirement that Lance, within 3 days, elect to go to AAA arbitration or accept sanctions (this date was later extended, by agreement with USADA, for 30 days, to allow the Federal Court proceeding to be determined), a permanent injunction staying USADA from imposing sanctions (including disqualification of previous results) on the basis of the facts in the USADA charging letter, declarations that USADA lacked jurisdiction to bring the charges asserted in the USADA charging letter, plus damages against USADA and costs.

 

Lance’s team made multiple arguments in the action:

  1. USADA’s procedures, designed primarily for cases where there have been positive results, did not afford Armstrong due process.
  2. Armstrong had not had a charging document that fairly told him the claims that he must defend (not even when they occurred, which rules apply?).
  3. Armstrong had no guarantee of a hearing by the Tribunal with final say (the AAA panel is appealable to CAS, which need not decide to hold a hearing).
  4. Armstrong had no right to cross-examine his accusers (citing the Greg Lemond example, where Floyd Landis was refused the right to cross-examine, yet the Lemond statement was accepted).
  5. Armstrong had no right to an impartial arbitration panel (CAS members all appointed, limited term, paid, by USOC, incentivised therefore to side with USADA, very limited examples of athletes succeeding).
  6. Armstrong would have no right to exculpatory evidence, contrary to the legal position in a criminal trial.
  7. Armstrong would have no right to disclosure by USADA of witness agreements, contrary to the legal position in a criminal trial.
  8. Armstrong would have no right to disclosure by USADA of investigative witness statements, contrary to the legal position in a criminal trial.
  9. Armstrong would have no right to obtain full disclosure by USADA of laboratory analyses, nor impartial assessment whether the laboratory procedures are accurate (and the panel can be comfortably satisfied that any improper procedure did not cause an adverse finding).
  10. Under USADA’s procedures, Armstrong had no right of review by a USA court.
  11. The charges were outside the 8 year limitation period.
  12. USADA had improperly induced witnesses, in violation of the WADA Code provisions (requiring reduction in ineligibility periods on this ground only after charges were brought and a period of ineligibility had been determined). Further, the offering of inducements violated federal law in relation to offering inducements for sworn testimony.
  13. The Review Board process, meant to be a check on abusive charging decisions, was circumvented, in USADA hand-picking the neutral experts, not providing the evidence supporting the charges to the Review Board, and having ex parte communications with the Review Board. The Review Board did not issue a considered evaluation. Armstrong was not given adequate notice of the charges or opportunity to respond.
  14. USADA was using information collected from the grand jury process.
  15. Lance having retired, USADA did not have jurisdiction, UCI did. 

The substantive complaint by Lance Armstrong was that USADA’s processes denied him his Fifth Amendment right to due process. This argument had usually failed. But the circumstances here militated towards that due process right, maybe more so than in previous instances.

 

On 19 July 2012, USADA filed a Notice of Motion to Dismiss Lance Armstrong’s Action seeking an injunction to restrain the USADA anti-doping violation process. USADA’s key grounds:

  1. The Ted Stevens Olympic and Amateur Sports Act (“Sports  Act”) (a federal Act establishing arbitration as the exclusive forum for eligibility disputes in sports) pre-empted Armstrong’s claims.
  2. Armstrong had failed to exhaust his administrative remedies (a strong historical, factor relevant to the court’s discretion, against granting an injunction).
  3. Armstrong’s claims must be arbitrated (Lance, like all athletes, had regularly contracted to be bound by the arbitration process).
  4. Armstrong’s claims failed on the merits. 

The USADA argument, on its face, was the traditional view, adopted by the USA courts in previous cases, (eg Mary Decker Slaney’s case), ie that Congress had determined, in clear terms, that USOC and USA Cycling were the bodies best able to deal with such disputes. Further, the courts had, consistently, required a person to exhaust their administrative remedies before seeking court intervention in relation to those processes. On this basis, USADA said, the Federal Court must dismiss, or at least stay, the court action pending the arbitration process.

 

It seemed, then, that the Federal Court action would be hard fought. Both sides raised valid arguments. On balance, the due process argument seemed to be at least worthy of better court examination, not to be dismissed simply because, right or wrong, that is what USA courts had always done previously. The difference, here, seemed, possibly, the enormous stature of Lance (not merely as an athlete, but as a cancer messiah), and the overdue court examination of the unusual position of the athletes charged on circumstantial evidence rather than a failed test.

 The USA Federal Court – Judge Sam Sparks

 On 23 August 2012, Judge Sam Sparks dismissed Lance Armstrong’s suit in the US District Court Western District of Texas (Austin) of the Federal Court, asking for an injunction to restrain USADA from proceeding against him . (The judgment is on this website.)

  The Judge found:

  1. Armstrong’s due process claims lacked merit.
  2. The court lacked jurisdiction over Armstrong’s remaining claims, or alternatively declined to grant equitable relief.

 The key issue for the Judge in finding the due process complaints lacked merit was that Lance’s challenges are anticipating unfairness rather than being subject to them now. Lance’s challenges were all based on speculation of bias (rather than actual bias).

  Judge Sparks said: “Like the Supreme Court, this Court declines to assume either the pool of potential arbitrators, or the ultimate arbitral panel itself, will be unwilling or unable to render conscientious decision based on the evidence before it. ….  Further, Armstrong has ample appellate avenues open to him, first to the Court of Arbitration for Sport … where he is entitled to de novo review, and then to the  courts of Switzerland, if he so elects.”

 The Judge, however, dismissed the suit without prejudice, ie Lance could come back if things develop. Further, Judge Sparks expressed some judicial (and welcome) views on the USADA processes. His Honour was critical of USADA’s process:

 “As the Court stated at the hearing, ….. the deficiency of USADA’s charging document is of serious constitutional concern. Indeed, but for two facts, the Court might be inclined to find USADA’s charging letter was a violation of due process, and to enjoin USADA from proceeding thereunder. First, it would likely of no practical effect: USADA could easily issue a more detailed charging letter, at which point Armstrong would presumably once again file suit, and the parties would be back in this exact same position some time later, only poorer for their legal fees. Second, and more important, USADA’s counsel represented to the Court that Armstrong will, in fact, receive detailed disclosures regarding USADA’s claims against him at a time reasonably before arbitration, in accordance with routine procedure. The Court takes counsel at his word. With the understanding that Armstrong has received all the process he is due at this time, and will receive adequate notification of the charges against him in time to prepare a defense, the Court rejects Armstrong’s …. challenge. …… ”

 Judge Sparks then concluded that the Federal Court had no jurisdiction. The Sports Act had (“whether or not this was a good choice is, of course, debatable”) determined that sports eligibility questions would be decided through arbitration rather than federal lawsuits.

 His Honour referred to the Mary Decker Slaney case, noting that the court had said: “… when it comes to challenging the eligibility determination of the USOC, only a very specific claim will avoid the impediment to subject matter jurisdiction that (the Sports Act) poses”.

 The Slaney court had quoted the Tonia Harding case, in the Oregon District Court as follows:

 “There the court cautioned that…… ‘courts should rightly hesitate before intervening in disciplinary hearings held by private associations …. Intervention is appropriate only in the most extraordinary circumstances, where the association has clearly breached its own rules, that breach will imminently result in serious and irreparable harm to the plaintiff, and the plaintiff has exhausted all remedies.’ Yet, while carving out this limited exception to the pre-emption created by the Amateur Sports Act, the opinion forewarned that while examining whether internal rules had been complied with, the courts ‘should not intervene in the merits of the underlying dispute.’ ”

 Judge Sparks held, ultimately, that:

  1. Armstrong was not in danger of irreparable harm. The USADA jurisdiction issue, itself, was to be determined by the arbitrators. Further, any finding by the arbitration panel might, itself, be overturned by CAS. “In short,  any harm Armstrong might suffer is, at this point, entirely speculative.
  2. Armstrong had not exhausted his internal remedies, namely the arbitration procedures in the USADA Protocol. Judge Sparks: “If the panel’s resolution is manifestly unjust and devoid of any reasonable legal basis, Armstrong may have a judicial remedy; but this court cannot act on the basis of a hypothetical injury.
  3. Armstrong’s agreement with USOC bound him contractually to submit his due process concerns, themselves, to the arbitration process. Finally, His Honour determined that, even apart from his decision on jurisdiction, if he did have such jurisdiction he would decline an equitable remedy, firstly because, for the above reasons, Armstrong was not in danger of irreparable harm, and secondly because , as a matter of international comity, the court declined to: “circumvent the longstanding system of international arbitration in Olympic sports by unilaterally enjoining that system’s operation”.

      Judge Sparks finished with a comment for USADA:

     “…. there are troubling aspects of this case, not least of which is USADA’s apparent single-minded determination to force Armstrong to arbitrate the charges against him, in direct conflict with UCI’s equally evident desire not to proceed against him….

     The events in USADA’s charging letter date back fourteen years, span a multitude of international competitions, and involve not only five non-citizens of the United States who were never licensed in this country, but also one of the most well-known figures in the history of cycling. 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 are apparently unable to work together …..  

The Australian Federal Court – Justice John Middleton

So now we wait for Essendon FC and James Hird, to take on ASADA, before Justice John Middleton in the Australian Federal Court.

The process is likely, in my view, to showcase the critical justice issues that are thrown up in this key area of “non-analytical positives”. The likelihood is that Essendon FC and James Hird will challenge, in the Australian courts, the level of acceptable proof against an athlete charged on the basis of evidence, not including a failed test, and the ASADA/Court of Arbitration for Sport regime generally.

About time.

 John McMullan

Is there an Out for Sharapova? TBC….

Is there an Out for Sharapova? TBC….

She said she had been taking meldonium on medical grounds since 2006 and that she was unaware that it was placed on WADA’s Prohibited List in January 2016. The media recently speculated that Maria Sharapova may plead a range of mitigating circumstances, including a retrospective application of the Therapeutic Use Exemption (TUE). A TUE allows an athlete to use, for therapeutic purposes only, an otherwise prohibited substance.

– A Belleville, LL.B., LL.M

Oliviera v USADA

In Oliviera v USADA, the Court of Arbitration for Sport considered the cases surrounding reduction of the 2 year penalty where a cyclist was the subject of a positive test, due to a contaminated supplement. In the circumstances of the efforts taken by the cyclist to determine that the supplement contained no prohibited substances, and her elite but reasonably inexperienced status as a cyclist, with little formal training in relation to prohibited substances, and her early acceptance of a provisional suspension, the panel concluded that her suspension should be reduced from 2 years to 18 months, and the start date for the suspension should be the last date on which she had competed.

WADA & FIFA v. Cyprus Football Association (CFA), Carlos Marques & ors

In WADA & FIFA v. Cyprus Football Association (CFA), Carlos Marques & ors, the Court of Arbitration for Sport was considering several appeals. A coach had administered, openly, “supplements” to his soccer players, which later proved to be contaminated. Two players later tested positive for Oxymesterone. The 2 players sought reductions to their penalty on the basis of “no significant fault or negligence”. Those 2 players also assisted in the anti-doping process, and sought a penalty reduction in relation to that assistance. The coach was given a 4 year sanction for “administering” a prohibited substance. “Other players” were heard to have taken those supplements, but were not tested. WADA sought sanctions against those “other players”, on the basis of evidence rather than tests (ie non-analytical positives). The Panel concluded:

  1. The 2 players were not entitled to a reduction of sanction, in these circumstances, on the basis of “no significant fault or negligence”. The cases all require exceptional circumstances for this reduction (and, in this case, they had been “very negligent”).
  2. The 2 players were, however, entitled to a reduction of sanction, in these circumstances, on the basis that they had “assisted” in the anti-doping process.
  3. The coach’s 4 year sanction was confirmed.

WADA had not discharged its burden of proof to the comfortable satisfaction of the Panel, in relation to the “other players” (ie non-analytical positives).

Wen Tong v. International Judo Federation

In Wen Tong v. International Judo Federation the Court of Arbitration for Sport upheld an appeal by Wen Tong, a Chinese judoka and winner of the 78kg gold medal in judo at the Beijing Olympics, relating to a postive test for clenbuterol in July 2009, on the grounds that the process was flawed. The test occurred on 8 September 2009, following a gold medal win in the IJF World Championship in Rotterdam in August 2009. The International Judo Federation (IJF) was informed of the result on 14 September 2009, who informed the Chinese Judo Association (CJA), but it did not inform Ms Tong until 18 October 2009. On that day, the CJA advised Ms Tong of the positive test, but gave her no information as to the amount of clenbuterol, nor any documentation.

Further, Ms Tong was told that requesting her B sample to be tested could result in antagonising the IJF, a delayed start to any suspension, and an increase on any ban, and suggested that co-operation might help her towards a possible return in time for the London 20101 Olympics (not possible, in fact, if she received a sanction greater than 6 months). Ms Tong insisted on the B sample being tested. (In fact, this request was never sent by the CJA to the IJF, and ultimately, on 14 November 2009, Ms Tong was convinced by the CJA to withdraw the request. In fact, the CJA had already written, a day earlier, to the IJF, withdrawing the request for testing of the B sample.) On 25 November 2009, the IJF nevertheless tested the B sample, which tested positive.

In October 2009, Ms Tong had written a draft letter to the IJF, which she sent to the CJA, advising that the only way clenbuterol might have entered her system was through eating contaminated meat at an informal BBQ with friends at a restaurant. The CJA did not send this letter to the IJF.

On 4 April 2010, without advising Ms Tong, the IJF imposed a 2 year ban. (Without Ms Tong’s knowledge, the CJA had agreed with the proposed ban at the time.)

Ms Tong eventually heard of her ban, on the internet, on 9 May 2010. On 19 June 2010, the CJA provided some (incomplete) documentation in relation to documents surrounding her positive clenbuterol test, and the IJF letter notifying the CJA of the 2 year ban.

At the Court of Arbitration for Sport hearing, the IJF did not participate. Ms Tong argued:

  1. She did not knowingly ingest clenbuterol.
  2. The lab testing her A sample used a machine that had not been calibrated for over 18 months, in violation of ISL standards.
  3. She was not given any chance to be present/represented at the opening and testing of her B sample.
  4. (Ms Tong initially argued that the concentration of clenbuterol fell below the lab’s testing protocol. This argument was later withdrawn.)
  5. The IJF was guilty of repeated and serious failures to inform Ms Tong of her “essential procedural rights”. These failures were cumulatively so extreme as to invalidate the entire process (as per Varis v IBU and Tchachina v International Gymnastics Federation).
  6. Alternatively, Ms Tong acted with “No Fault or Negligence”, or alternatively with “No Significant Fault or Negligence”.

The Tribunal agreed with Ms Tong that the IJF decision dated 4 April 2010 should be annulled on the grounds that was not given any chance to be present/represented at the opening and testing of her B sample.

 

 

 

CAS decides on 2 year ban for Contador

The Court of Arbitration for Sport has decided that Alberto Contador Velasco, 3 time winner of the Tour de France, is guilty of an anti-doping violation, stripped him of a number of results, including the 2010 Tour de France victory, and given him a 2 year ban, back dated to August 2010.

On 21 July 2010, at the 2010 Tour de France, Mr Contador tested positive for a tiny amount of clenbuterol (a prohibited substance under the 2010 WADA Prohibited Substances List, listed as “Other Anabolic Agent”) from a urine test following a rest day after stage 16. Mr Contador believed that he may have eaten contaminated meat, leading to the result.

The process was submitted to the Comite Nacional de Competicion y Disciplina Deportive (CNCDD) of Real Federacion Espanola de Ciclismo (RFEC). In January 2011, the Spanish examining judge of the RFEC considering the anti-doping violation proposed, rejected by Mr Contador, a 1 year ban, (reducing the 2 year ban to 1 year on the basis of no significant fault or negligence). Subsequently, on 14 February 2011, the CNCDD acquitted Mr Contador, concluding:

  1. It was most probable that the result was due to eating contaminated meat. The low controls on meat production in Spain, plus the very low concentration of clenbuterol in Mr Contador’s body, suggested no voluntary doping. Mr Contador, in eating meat, even exercising maximum prudence, did not know/suspect that he was eating meat contaminated with a prohibited substance. This was not negligent behaviour.
  2. The extremely small amount of clenbuterol had not enhanced the athlete’s performance.

The UCI and WADA each appealed the RFEC decision to the Court of Arbitration for Sport (CAS). The appeals were consolidated and heard on 21-24 November 2011.

The UCI and WADA, separately, argued as follows:

  1. UCI met its burden of proof by establishing to “more than comfortable satisfaction” that Mr Contador had committed an anti-doping violation as the A and B samples presented a prohibited substance.
  2. Mr Contador is responsible for ensuring no prohibited substance enters his body. Mr Contador has the burden of proof to establish how a prohibited substance was in his body, and that he bears no fault or negligence (to avoid any sanction), or that he bears no significant fault or negligence (to reduce the sanction).
  3. Mr Contador must establish, on the balance of probabilities, that the contaminated meat was the source of the clenbuterol. UCI says he has not met this burden in this instance.
  4. The evidence, here, was more consistent with the clenbuterol being a result of a blood (doping) transfusion, and/or food supplements. The evidence suggests that the contaminated meat was not the source of the clenbuterol, rather it was more to be a result of doping practices.

Mr Contador argued as follows:

  1. On the balance of probabilities, the prohibited substance came from contaminated meat. Accordingly, Mr Contador bore no fault or negligence.
  2. The UCI and WADA theories re blood transfusion, and/or food supplements, should be rejected.
  3. If CAS disagrees with this view, then Mr Contador’s results following the 14 February 2011 RFED decision should not be set aside.

The CAS Panel advised the parties that it would hear from the many experts in expert’s’ conferences, where all experts dealing with the same issue were present.

The issues to be decided by the CAS Panel were:

  1. Did Mr Contador establish, to the required standard of proof, how the prohibited substance entered his system?
  2. If Mr Contador could establish, to the required standard of proof, how the prohibited substance entered his system, does he, in those circumstances, bear no fault or negligence or no significant fault or negligence?
  3. If required, what sanction should be imposed (how long a suspension? when should that start? which results would be disqualified? …. ).

The Panel concluded that the athlete bears the burden of proof to establish how the prohibited substance entered his system, and that he bears no fault or negligence or no significant fault or negligence, on the balance of probabilities.

In relation to the meat contamination theory, though satisfied that Mr Contador ate meat at the relevant time, and that it was a possibility that the meat was contaminated, the Panel was not prepared to conclude from a mere possibility that the meat was contaminated that an actual contamination had occurred.

In relation to the blood transfusion theory, the panel gave no weight to the “tainted environment”, or “in bad company” argument (ie that athletes in his team had, in the past, been involved in doping). On the basis of the evidence, the Panel concluded that the athlete’s blood parameters could not establish a blood transfusion. The Panel looked at a number of technical parameters, and ultimately concluded that although the blood transfusion theory is a possible explanation for the clenbuterol test result, in light of all the evidence, it was unlikely to have occurred.

The panel concluded, from the material before them, including that Mr Contador took supplements in considerable amounts, that athletes had frequently tested positive because of contaminated supplements, then the food supplement theory was a more likely possibility. Ultimately, however, the Panel did not conclude that this had occurred on the balance of probabilities.

The panel confirmed that, albeit that there were theories before it as to the cause of the clenbuterol test result, the burden of proof to establish how the prohibited substance entered his system, and that he bears no fault or negligence or no significant fault or negligence did not shift from the athlete. Accordingly, it found that Mr Contador has committed an anti-doping violation.

As there was no basis to reduce the usual penalty, Mr Contador was suspended for a period of 2 years.

As to the start date for the suspension, the Panel applied the discretion available where there had been substantial delays in the hearing process not attributable to the athlete, and concluded that Mr Contador’s suspension should be back dated to August 2010 on the following factors in particular:

  1. the failure by UCI and WADA to put material before RFEC;
  2. the CAS proceedings lasting over 9 months;
  3. the CAS proceedings being extended due to the athlete having to answer complex submissions in relation to the blood doping theory;
  4. the provisional suspension between August 2010 and Mr Contador’s acquittal on 14 February 2011.

The Panel, however, against Mr Contador’s submissions, concluded that Mr Contador’s results from the 2010 Tour de France and after were thereby disqualified

Cielo & ors v CBDA (the Brazilian National Swimming Federation)

In Cielo & ors v CBDA (the Brazilian National Swimming Federation), the Court of Arbitration for Sport was again considering the penalty to be applied in relation to athletes who registered positive anti-doping test results, where the cause was found to be an inadvertent ingesting of prohibited substances, from taking of contaminated supplements.

4 Brazilian swimmers had positive test results for Furosemide (a diuretic, on the prohibited list as a masking agent) at a Brazilian national swimming event (Maria Lenk) in May 2011. Each athlete accepted the A Test and waived the B sample analysis. The athletes had taken caffeine tablets, with the benefit of medical advice (caffeine is not a prohibited substance under the FINA Rules.) There was evidence from Mr Cielo (undisputed) that about 90% of elite male freestyle swimmers take caffeine at swimming events. The athletes, and team doctor, had taken extreme care in relation to the pharmacy, and taking of the caffeine tablets, without problem, for some months. At the Maria Lenk, in May 2011, however, all 4 had positive results. Ultimately, it was determined that the cause of the adverse test results was the contamination of the caffeine capsules by Furosemide. (There was evidence of an unusual, one-off, error, at the pharmacy.)

FINA agreed that the 2 pre-conditions for reduced penalty had been met:

  1. that the athletes had established how the Specified Substance entered their bodies;
  2. that the athletes had shown that the Specified Substance was not intended to enhance performance or mask the use of a performance enhancing substance.

The Tribunal concluded:

  1. The taking of caffeine was to be treated as a “supplement” rather than a “medication”.
  2. The degree of “fault” in this case was at the very lowest end of the spectrum contemplated by the FINA Rules/WADC. (It was difficult, the Tribunal concluded: “to see what, if anything,  else the athletes could have done reasonably or practically to avoid the positive test results”.)
  3. Under the FINA Rules/WADC, however, the defence of No Fault or Negligence was not available (see the detailed discussion of the relevant rules applying to this case).
  4. Accordingly, the Tribunal concluded the appropriate sanction to be a Warning.
  5. (In relation to 1 athlete, a previous sanction had been imposed. Rejecting an argument that a principle of proportionality ought to apply, the Tribunal imposed the minimum sanction of 1 year, and then, having regard to his waiving the B sample, exercised its discretion to start the 1 year from the date of his sample collection.)

Lance Armstrong: The next of the non-analytical positive cases?

The attached letters between USADA and Lance Armstrong’s legal team are the first formal step in the anti-doping prosecution by USADA. The process will be, potentially, the most important case to date due to  the athlete involved, but equally, the most important to date “non-analytical positive” (prosecution of an anti-doping violation in the absence of a failed test).

Lance’s response to USADA’s charging letter, the initial step prior to the review board process (an athlete protection mechanism designed to require USADA to establish a sufficient basis for the process to proceed to a hearing) was generally as follows:

1. USADA fails to disclose the proposed witnesses or their evidence, Armstrong is unable to know/answer the charges made against him. USADA is treating the review board as a rubber stamp, effectively seeking to deny Armstrong the protection of that review board process.

2. USADA has obtained evidence wrongly, in trading concessions/reduced penalties, etc, (the “jailhouse snitch”argument), for evidence, and in obtaining evidence leaked from the now-discontinued grand jury process.

3. The only 2 identifiable claims against Armstrong (the Swiss lab tests from 2001 where the lab director has since denied the tests were sufficient to found a violation, and USADA providing, raw data only, no expert analysis, 2009/2010 blood test results, which show no abnormality and which were published on Armstrong’s own website at the time as proof of the opposite) have no merit.

4. Most of the material is outside the 8 year limitation period.

USADA, conversely, says that it has ten-plus witnesses, who will say that Armstrong doped, trafficked, and participated in a conspiracy.

The process is likely, in my view, to showcase the critical justice issues that are thrown up in this key area of “non-analytical positives”. The likelihood is that Lance will challenge, in the USA courts, the level of acceptable proof against an athlete charged on the basis of evidence, not including a failed test, and the USADA/Court of Arbitration for Sport regime generally.

About time.

Liao Hui v. International Weightlifting Federation (IWF)

Liao Hui is a Chinese weighlifter. In September 2010 he tested positive to Boldenone (a steroid). Liao was suspended for 4 years, (rather than 2 years). Liao appealed to CAS, in relation to to testing procedure defects (this was unsuccessful, and against the increase of sanction from 2 years to 4 years. The CAS panel upheld this part of the appeal, and reduced the sanction to 2 years. The panel said:

In the present case the Panel is not persuaded to the degree of comfortable satisfaction that such aggravated circumstances exist. In the case at hand there is no indication that the Appellant committed the anti-doping rule violation “as part of a doping plan or scheme, either individually or involving a conspiracy”. Nor is there an indication that the Appellant used the prohibited substance on multiple occasions. In the case at hand the Appellant was submitted to two doping controls on the same day. The first doping control resulted – unlike the second one – in a negative finding. This is all the more surprising since the second test conducted by IWF was an“announced test”, i.e. that the Appellant knew at the time when he submitted to the first doping  control that a second one would follow shortly. In addition, the Appellant has submitted to other doping tests on 24 August 2010 and 30 August 2010  all of  which were reported negative. It follows from this that there is no evidence on file that Appellant has made “repetitive use of a prohibited substance” or that he was undertaking any steps beyond simply having the prohibited substance or its metabolites in his specimen. Furthermore, no evidence has been adduced that the Appellant would  “likely enjoy the performance enhancing effects of the anti-doping rule violation beyond the  otherwise applicable period of ineligibility” (i.e. the two-years-sanction). Finally, the Panel notes that there is no evidence on file that the Appellant “engaged in deceptive or obstructing conduct to avoid the detection or adjudication of an anti-doping rule violation”.

XZTT and Anti-Doping Rule Violation Panel [2012] AATA 728 (23 October 2012)

In XZTT and Anti-Doping Rule Violation Panel[2012] AATA 728 (23 October 2012), the Administrative Appeals Tribunal of Australia was consideringa cyclist’s appeal against two decisions by ASADA’s Anti-Doping Rule Violation Panel (ADRVP)  to make entries into the Register of Findings under the National Anti-Doping Scheme (the NAD Scheme).

 

In October 2010, the athlete (un-named) tested positive to benzoylecgonine (principal metabolite of cocaine) a race in China. Under the 2009 WADA Code, the use of cocaine is only prohibited in-competition, however the presence of the metabolite in a sample taken during a subsequent competition is an anti-doping violation. The amount detected in the sample was lower than the usual usual cut-off for a positive finding for cocaine. Article 7.2 of the 2009 WADA Code requires that an athlete be notified of the positive test result, and separately, given the right to have the B sample tested, “promptly “ (within 7 days). The athlete was not advised of the positive test for 4½ months. The race occurred on 23 October 2010, the UCI received the lab results on the A sample on 4 November 2010, but did not notify the athlete (who continued to compete). The athlete was first notified by the UCI, on 25 March 2011.

 

In the 25 March 2011 notice, the UCI:

  1. notified the athlete of an adverse analytical finding from the A sample;
  2. advised that he was provisionally suspended, “pending a hearing”;
  3. giving the athlete the option to have the B sample tested.

The B sample confirmed the presence of benzoylecgonine. Two weeks later the UCI wrote to XZTT to “confirm the presence of the Cocaine and to advise that the UCI would be writing to CA (Cycling Australia) to request CA to open disciplinary proceedings.” On 30 May 2011, the General Manager, Anti-Doping Programs and Legal Services ASADA, advised that the matter would be referred to the ADRVP for consideration. The athlete was invited to make submissions in response to the notice. The athlete denied using a prohibited substance, and, further, argued that the UCI had breached its own rules considerably. Two 2 months later, the ADRVP advised the athlete that the panel had made two adverse findings against him. The Cyclist appealed to the AAT.

 

The Tribunal concluded:

  1. The two decisions by the ADRVP to make an entry in the Register of Findings under the NAD Scheme were set aside.
  2. The ADRVP decisions to make an entry in the Register of Findings were based were findings of a “possible” violation. As a matter of law, such a finding was not open to the ADRVP. For an entry placed on the Register of Findings, the ADRVP must first make a ‘finding’ as defined under clause 1.05 of the NAD Scheme, ie “a finding …. that an athlete or support person has committed an anti-doping rule violation”.
  3. The matters were to be remitted to the ADRVP.

 

The Tribunal indicated, further , that in relation to the ADRVP re-consideration, certain mitigating factors might properly be taken into account by the ADRVP:

[235] Included in the factors the ADRVP may wish to take into account in mitigation are those that: (a) from 25 March 2011 until the date of the Tribunal’s decision XZTT remained subject to a provisional suspension that has prevented him from participating in all professional cycling events; (b) that despite the requirements of the WADC and the UCI Anti-Doping Rules, XZTT experienced gross breaches of his entitlement to have the allegations against him dealt with in a timely way; (c) that XZTT did not contribute to the delays in any way; (d) that XZTT entered into a commercially disadvantageous contract, which included a provision to the effect that if he were to be found to have breached anti-doping rules his contract would be terminated and which he would not have entered into but for the delay in the UCI in notifying him of his testing results; (e) that the finding of a violation on his part for ‘use’ In-Competition of cocaine has been set aside by the Tribunal; and (f) that the amount of metabolite of cocaine detected in XZTT’s samples was below the threshold normally accepted as establishing a positive finding for use of cocaine and could not have affected his performance.

Australian Football League & ESP Merchandise Pty Ltd v Hard On Sport Pty Ltd & David Sumiga

In Australian Football League & ESP Merchandise Pty Ltd v Hard On Sport Pty Ltd & David Sumiga [2012] VSC 475, the Supreme Court (Vickery J) was considering an application to set aside an Anton Piller order,  relating to the open sale by the defendants of AFL football merchandise without AFL authority.

The AFL and its licensee (ESP) claimed that the defendants in selling AFL merchandise without AFL authority:

  1. infringed the AFL’s copyright in AFL photographs;
  2. infringed the AFL’s trade mark rights in unauthorised AFL memorabilia, including guernseys, shorts, boots, names (including “AFL”, AFL club names, club nicknames, logos, images of the AFL premiership cup, the Brownlow medal, and the Norm Smith medal), posters, cards, photographs, etc;
  3. knowingly (or in a recklessly indifferent manner) induced AFL players to sign memorabilia without the AFL’s authorisation such that those players were breaching their contractual obligations to the AFL (and, in some instances, to ESP);
  4. misrepresented that unauthorised AFL memorabilia was, in fact, authorised by the AFL;
  5. were passing off unauthorised AFL memorabilia as authorised by the AFL.

No defence was made in relation to the copyright claim. (Section 10 of the Copyright Act 1968 (Cth) includes a photograph as “artistic work” whether the work is of artistic quality or not.

No defence was made in relation to the trade marks claim under Section 20 and 120 of the Trade Marks Act 1995 (Cth). The defendant, however, referred to Arsenal Football Club PLC v Reed . In that case, an unauthorised vendor sold Arsenal memorabilia outside the Arsenal ground. At trial, the court had found the vendor’s use of trade marked items as not being an indication of the origin of the goods sold, but rather, being a sign depicting club loyalty or affiliation. That decision, His Honour noted, was, however, overturned on appeal. Vickery J noted that the point remained arguable in Australia, but any defendant would face the persuasive precedent of the UK Court of Appeal.

The plaintiffs claimed that the defendants, breach of Section 18 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) misrepresented that unauthorised AFL memorabilia was, in fact, authorised by the AFL. His Honour concluded, on the evidence as it stood when the Anton Piller order was made, was “sufficiently compelling” to make the order. Similarly, His Honour concluded that case in relation to the defendants passing off unauthorised AFL memorabilia as authorised by the AFL, the evidence as it stood when the Anton Piller order was made was, also, sufficiently strong to make the order.

In relation to the inducing breach of contract claim, His Honour concluded that, in this instance, the evidence was not sufficiently strong (on this basis) to justify the issue of a search order, noting:

  1. the gravamen of the tort of inducing breach of contract is intention;
  2. in relation to the knowledge of the relevant contract, the question will always be whether the alleged wrongdoer had sufficient knowledge of its terms to appreciate that his conduct, if acted upon, would result in an interference with the contractual rights of the other party to the contract.

His Honour further noted that there was some argument in relation to the interpretation of the player’s obligations under the CBA in this respect.

Vickery J, in deciding whether AFL had made sufficient disclosure in obtaining the original order, reviewed the legal principles underlying the grant of Anton Piller order, noting the court’s emphasis, in Anton Piller KG v Manufacturing Processes Ltd, to the effect that such an order was at the “extremity” of the court’s powers, and that “such orders would rarely be made, and only where there was no alternative way of ensuring that justice was done to the applicant”. His Honour observed that it was “in recognition of the extraordinary nature of this remedy” that certain protections were built into the court’s Practice Note, the standard of proof, and the common law supporting the order.

His Honour reviewed the authorities in relation to the obligation on the plaintiff seeking an ex parte remedy to disclose all matters relevant to the exercise of the court’s discretion. In this instance, the defendants said that the plaintiff had not given full, frank disclosure in relation to:

  1. the plaintiff’s examination of the defendant’s Facebook page;
  2. the open, public, nature of the defendants’ business;
  3. signed items (approx 120-130) by the AFL Chairman (Vickery J concluded that would be potentially relevant to the inducing breach of contract claim);
  4. the AFL memorabilia market being widespread (approx 30-50 participants, over 20,000 items for sale on eBay);
  5. the plaintiff’s affidavit evidence being based on information from a commercial competitor of the defendants;
  6. arguments that (relating to inducing breach of contract claim) that there is no explicit prohibition on players signing memorabilia, and/or past players not being party to the current Collective Bargaining Agreement (Vickery J concluded that would be potentially relevant to the inducing breach of contract claim).

Ultimately, however, His Honour did not conclude that the omissions should lead to the Anton Piller order being discharged altogether, but rather, it should be discharged only in relation to those items based on the inducing breach of contract claim alone.

His Honour considered the following in relation to whether to extend the injunction and the balance of convenience:

  1. There was a strong prima facie case in relation to the causes of action pressed by the plaintiffs.
  2. Release of signed grand final jumpers into the market would have a devastating effect on the likely revenues to be gained from the AFL’s Premier memorabilia Program. Official AFL Memorabilia would be affected indirectly, the presence of unauthorised AFL memorabilia in the market would harm sales and revenue which ought to flow to the plaintiffs, and AFL clubs. AFL supporters buying memorabilia, knowing that funds will go back to the game and their AFL club are misled when they purchase unofficial memorabilia. Consumers do not easily recognise unauthorised AFL memorabilia. The unauthorised AFL memorabilia products would turn up on eBay, etc, sales of these products would likely be undocumented, evidence against the defendants would be lost. Accordingly, if an injunction was not granted, the plaintiffs would be at risk of serious damage that could not be compensated by damages.
  3. On the evidence, the defendants would be likely to continue to infringe the property rights of the plaintiffs if not restrained.
  4. Against this, the defendants would lose profits from supplying merchandise in the lead up to Christmas.  Further, the defendants would be unable to compete with competitors.
  5. The trial is set down for speedy hearing, commencing on 3 December 2012. In combination with the plaintiffs’ undertaking as to damages, the defendants would be protected.

On this basis, His Honour extended the injunction restraining the defendants from selling AFL memorabilia until further order.

UCI v Alex Rasmussen & Denmark NOC &SF

In UCI v Alex Rasmussen & Denmark NOC &SF, the Court of Arbitration for Sport was reviewing the Demark NOC and Sports Federation’s decision in favour of cyclist, Alex Rasmussen, in relation to a claimed failure to comply with location notification obligations. The WADA Rules (and the Denmark Association rules) make a combination of three missed tests and/or filing failures within 18 months constitutes an anti-doping rule violation. The Rules require athletes to provide/keep updated, their “whereabouts” for the purpose of out-of-competition testing. Rasmussen had failed to keep his whereabouts updated in in February 2010, during 3rd quarter 2010, and (this was a disputed breach) on 28 April 2011. In relation to the 28 April 2011 filing failure, the breach had not been notified by UCI to Rasmussen within 14 days, as required under the IST (International Testing Standard). The Tribunal concluded that the UCI failure 2011 to notify Rasmussen within 14 days did not prevent UCI from recording it as a missed test, on a number of grounds, including that

a departure from the IST can invalidate the finding of an anti-doping rule violation only in the event that the particular anti-doping  rule violation had been caused by the departure itself. The Tribunal reduced the period of suspension form 2 years to 18 months (relating to degree of guilt), and determined that the suspension start from October 2011, when ineligibility was first imposed.

Frank Schleck tests positive – another contaminated supplement case?

Frank Schleck has had a positive test result for the diuretic Xipamide at the Tour de France. To date, there is no explanation by Schleck. The recent CAS decision (attached) relating to Alex Kolobnev, who tested positive for a banned diuretic at last year’s Tour, and was later cleared by CAS on the basis of “no significant fault” may prove to be a guide for the outcome in this case.

Kutrovsky v. International Tennis Federation

In Kutrovsky v. International Tennis Federation, the Court of Arbitration for Sport was reviewing a decision by the ITF in relation to a 25 year old tennis player who had ingested methylhexaneamine (MHA) in an over the counter supplement called “Jack3d”. The ITF had decided that the player was to be suspended for 2 years.

The panel first dismissed an argument by the ITF that the Decision being appealed, was entitled to a fair measure of respect since, inter alia, it is cogent and well-reasoned, so that the Panel should not depart from it unless it identifies a compelling reason to do so. The panel confirmed that under Article R57 of the e Code of Sports-related Arbitration, the panel has “full power to review the facts and the

law on this appeal”, quoting Kendrick v ITF:

 

10.2  Rule 57 of the Code […] is phrased in the widest terms. The power is

firstly a “full one” and, secondly “to review the facts and the law”; i.e. both.

It has been described in awards too numerous to name as a de novo power.

…..

10.6  Where, as is the case with Article R57 of the Code, rules or legislation

confer on an appellate body full power to review the facts and the law, no

deference to the tribunal below is required beyond  the customary caution

appropriate where the tribunal had a particular advantage, such as technical

expertise or the opportunity to assess the credibility of witnesses.” (emphasis

added)

The panel then, in a detailed, reasoned, decision, reviewed decisions from earlier (and inconsistent) CAS panels had differed in the interpretation of WADA Article 10.4 (Elimination or Reduction of the Period of Ineligibility for Specified Substances under Specific Circumstances):

10.4 Elimination or Reduction of the Period of Ineligibility for Specified

Substances under Specific Circumstances

 Where an Athlete or other Person can establish how  a Specified Substance

entered his or her body or came into his or her Possession and that such

Specified Substance was not intended to enhance the Athlete’s sport

performance or mask the Use of a performance-enhancing substance, the

period of Ineligibility found in Article 10.2 shall be replaced with the

following:

First violation: At a minimum, a reprimand and no period of Ineligibility

from future Events, and at a maximum, two (2) years of Ineligibility. To

justify any elimination or reduction, the Athlete or other Person must produce

corroborating evidence in addition to his or her word which establishes to the

comfortable satisfaction of the hearing panel the absence of an intent to

enhance sport performance or mask the Use of a performance-enhancing

substance. The Athlete’s or other Person’s degree of fault shall be the

criterion considered in assessing any reduction of the period of Ineligibility.

Article 10.4 imposes 2 conditions on any reduction in penalty:

  1. the athlete must establish how the specified substance entered his/her body;
  2. the athlete must establish that such specified substance was not intended to enhance his/her sport performance.

In this case, the athlete argued that he did not know that he did not know that Jack3d contained MHA, did not know what MHA was, so he could not have taken MHA with intent to enhance his sporting performance. (Jack3d was labelled as containing “1,3-Dimethylamylamine HCI”, he did not know that “1,3-Dimethylamylamine HCI” was a synonym of MHA).

The panel reviewed a number of (arguably inconsistent Tribunal/CAS decisions) re supplements:

Foggo v National Rugby League

(Professional rugby league player, purchased/used Jack3d, adverse analytical finding for MHA. Club encouraged preworkout supplements.  Very limited formal anti-doping education. Athlete assured by store that product was clean, consulted conditioning coach, research on ASADA website. CASA sanction 6 months.

Duckworth v. U.K. Anti-Doping

Young rugby player ingested Jack3d. Checked every ingredient on label against Global Drug Reference website. Used product openly, confirmed with supplement salesman that the product was legal. Tested positive for MHA. Tribunal sanction 6 months.

Jasdeep Toor v. Canadian Anti-Doping Program

27-year old soccer player, no team doctor or trainer, no formal doping education, purchased Jack3d on recommendation of store (GNC) salesman.  Did not check labelled ingredients or speak with trainer or coach about product. Canadian tribunal noted: “the protein shake powder was sold by a reputable national vitamin supplement store over the counter.  The fact the product was marketed and sold over the counter while containing a banned substance cannot be ignored when the athlete’s degree of fault is assessed in this case”.  Tribunal sanction 2 months.

International Basket Federation v. Weeden,

Veteran basketball player purchased Jack3d at a supplement store while visiting the U.S.A. Used periodically during sport season. No antidoping education, no club specialist advice re supplement use. Little/no research about supplement. Tribunal sanction 6 months.

RFU v. Steencamp

Young athlete purchased “USN Anabolic Nitro” to assist with fatigue. Trainer pitched product as  “like a Red Bull but stronger”.  Athlete not in “anti-doping regime” before, limited education. Informed salesman that he was professional athlete subject to drug testing, and was aware that he needed to check out the ingredients. Tribunal sanction 3 months.

U.K. Anti-Doping v Dooler

Semi-professional rugby league player tested positive for MHA. Product called “Xtreme Nox Pump” taken to assist with aching muscles, fatigue and recovery. Athlete made internet searches against WADA List of Prohibited Substances, which did not readily identify that the product might contain MHA. Tribunal sanction 4 months.

Kendrick v. ITF

Veteran tennis player ingested unlabeled energy supplement to assist with jetlag. Had participated in various  anti-doping education programs. Because of his experience on tour, his anti-doping education, his “serious lack of due diligence” when taking an unlabeled drug, CAS panel sanctioned athlete for 8 months.

As to what an athlete must show to prove that he/she did not intend to enhance sport performance, the panel noted 3 possibilities as to an athlete’s state of knowledge:

  1. no knowledge that the product contained a specified substance (contamination cases);
  2. no knowledge that a substance contained in the product was a specified substance (as in this instance);
  3. knew that the product contained a substance and that it was a specified substance.

The majority ultimately concluded that the correct approach (this may be the final position following the revision of the WADA Code in January 2015) was the approach adopted in Foggo v National Rugby League. In a reasoned discussion as to the interpretation of Article 10.4, the majority of the panel concluded that the mere fact that the athlete did not know the product contained a specified substance did not itself establish the relevant absence of intent. The panel quoted Foggo:

WADC 10.4 would not be satisfied if an athlete believes that the ingestion of the substance will enhance his or her performance although the athlete does not know that the substance contains a banned ingredient. The athlete must demonstrate that the substance “was not intended to enhance” the athlete’s performance. The mere fact that the athlete did not know that the substance contained a prohibited ingredient does not establish absence of intent.

Ultimately, the panel concluded, in this instance that Article 10.4 was not applicable.

The panel then considered Article 10.5.2 (No Significant Fault or Negligence ). Article 10.5.2 provides:

10.5.2 No Significant Fault or Negligence

If an Athlete or other Person establishes in an individual case that he or she bears No Significant Fault or Negligence, then the  otherwise applicable period of Ineligibility may be reduced, but the reduced period of Ineligibility may not be less than one-half of the period of Ineligibility otherwise applicable …

The panel noted that, under this provision, an athlete was required to establish that his/her fault or negligence, viewed in the totality of the circumstances and having regard to the criterion for “No Fault or Negligence”, is not significant having regard to the doping offence. The panel reviewed the circumstances in this case: “….. against the fundamental duty that he or she owes under the Programme and the WADC to do everything in his or her power to avoid ingesting any Prohibited Substance”.

The factors taken into account by the panel:

Favourable

  1. actually did some research, Jack3d, WADA Prohibited List, “the most rational first step”;
  2. he would have never found the Specified Substance on the WADA Prohibited List, unfortunately not on the list as labelled;
  3. no anti-doping education provided to him by his federation, …;
  4. limited experience with anti-doping literature and processes;

Non-Favourable

  1. naïve to believe store salesman;
  2. did not seek guidance from the ITF or WADA;
  3. his enquiries with respect to the contents of Jack3d were inadequate, internet, did not contact any of the relevant sport or anti-doping organisations, Google search on “Jack3d” would have alerted to drug-testing issues.

Based on these factors, the CAS panel decided that the appropriate sanction was 15 months.

UCI v Alex Rasmussen & Denmark NOC &SF

In UCI v Alex Rasmussen & Denmark NOC &SF, the Court of Arbitration for Sport was reviewing the Demark NOC and Sports Federation’s decision in favour of cyclist, Alex Rasmussen, in relation to a claimed failure to comply with location notification obligations. The WADA Rules (and the Denmark Association rules) make a combination of three missed tests and/or filing failures within 18 months constitutes an anti-doping rule violation. The Rules require athletes to provide/keep updated, their “whereabouts” for the purpose of out-of-competition testing. Rasmussen had failed to keep his whereabouts updated in in February 2010, during 3rd quarter 2010, and (this was a disputed breach) on 28 April 2011. In relation to the 28 April 2011 filing failure, the breach had not been notified by UCI to Rasmussen within 14 days, as required under the IST (International Testing Standard). The Tribunal concluded that the UCI failure 2011 to notify Rasmussen within 14 days did not prevent UCI from recording it as a missed test, on a number of grounds, including that

a departure from the IST can invalidate the finding of an anti-doping rule violation only in the event that the particular anti-doping  rule violation had been caused by the departure itself. The Tribunal reduced the period of suspension form 2 years to 18 months (relating to degree of guilt), and determined that the suspension start from October 2011, when ineligibility was first imposed.

Cielo & ors v CBDA (the Brazilian National Swimming Federation)

In Cielo & ors v CBDA (the Brazilian National Swimming Federation), the Court of Arbitration for Sport was again considering the penalty to be applied in relation to athletes who registered positive anti-doping test results, where the cause was found to be an inadvertent ingesting of prohibited substances, from taking of contaminated supplements.

4 Brazilian swimmers had positive test results for Furosemide (a diuretic, on the prohibited list as a masking agent) at a Brazilian national swimming event (Maria Lenk) in May 2011. Each athlete accepted the A Test and waived the B sample analysis. The athletes had taken caffeine tablets, with the benefit of medical advice (caffeine is not a prohibited substance under the FINA Rules.) There was evidence from Mr Cielo (undisputed) that about 90% of elite male freestyle swimmers take caffeine at swimming events. The athletes, and team doctor, had taken extreme care in relation to the pharmacy, and taking of the caffeine tablets, without problem, for some months. At the Maria Lenk, in May 2011, however, all 4 had positive results. Ultimately, it was determined that the cause of the adverse test results was the contamination of the caffeine capsules by Furosemide. (There was evidence of an unusual, one-off, error, at the pharmacy.)

FINA agreed that the 2 pre-conditions for reduced penalty had been met:

  1. that the athletes had established how the Specified Substance entered their bodies;
  2. that the athletes had shown that the Specified Substance was not intended to enhance performance or mask the use of a performance enhancing substance.

The Tribunal concluded:

  1. The taking of caffeine was to be treated as a “supplement” rather than a “medication”.
  2. The degree of “fault” in this case was at the very lowest end of the spectrum contemplated by the FINA Rules/WADC. (It was difficult, the Tribunal concluded: “to see what, if anything,  else the athletes could have done reasonably or practically to avoid the positive test results”.)
  3. Under the FINA Rules/WADC, however, the defence of No Fault or Negligence was not available (see the detailed discussion of the relevant rules applying to this case).
  4. Accordingly, the Tribunal concluded the appropriate sanction to be a Warning.
  5. (In relation to 1 athlete, a previous sanction had been imposed. Rejecting an argument that a principle of proportionality ought to apply, the Tribunal imposed the minimum sanction of 1 year, and then, having regard to his waiving the B sample, exercised its discretion to start the 1 year from the date of his sample collection.)

WADA & FIFA v. Cyprus Football Association (CFA), Carlos Marques & ors

In WADA & FIFA v. Cyprus Football Association (CFA), Carlos Marques & ors, the Court of Arbitration for Sport was considering several appeals. A coach had administered, openly, “supplements” to his soccer players, which later proved to be contaminated. Two players later tested positive for Oxymesterone. The 2 players sought reductions to their penalty on the basis of “no significant fault or negligence”. Those 2 players also assisted in the anti-doping process, and sought a penalty reduction in relation to that assistance. The coach was given a 4 year sanction for “administering” a prohibited substance. “Other players” were heard to have taken those supplements, but were not tested. WADA sought sanctions against those “other players”, on the basis of evidence rather than tests (ie non-analytical positives). The Panel concluded:

  1. The 2 players were not entitled to a reduction of sanction, in these circumstances, on the basis of “no significant fault or negligence”. The cases all require exceptional circumstances for this reduction (and, in this case, they had been “very negligent”).
  2. The 2 players were, however, entitled to a reduction of sanction, in these circumstances, on the basis that they had “assisted” in the anti-doping process.
  3. The coach’s 4 year sanction was confirmed.

WADA had not discharged its burden of proof to the comfortable satisfaction of the Panel, in relation to the “other players” (ie non-analytical positives).