Graham and Anti-Doping Rule Violation Panel

[2016] AATA 807

Graham and Anti-Doping Rule Violation Panel [2016] AATA 807 (14 October 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5380
Re	Carole Graham
APPLICANT
And	Anti-Doping Rule Violation Panel
RESPONDENT

DECISION

Tribunal	Deputy President S E Frost
Date	14 October 2016
Place	Sydney

The decision under review is affirmed.

...........................[sgd].............................................

Deputy President S E Frost

Catchwords

SPORT – anti-doping – refusal to grant entry to ASADA officers – possible anti-doping rule violation – whether Applicant was ‘support person’ for purposes of the National Anti-Doping Scheme – whether participants in bodybuilding competition were ‘athletes’ for purpose of National Anti-Doping Scheme – decision under review affirmed

Legislation

Australian Sports Anti-Doping Authority Act 2006, ss 4, 13
Australian Sports Anti-Doping Regulations 2006, Sch 1, cl 1.06, 1.07, 4.10-12, 7.02(1)

Legislation Act 2003, s 13(1)(b)

Cases

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Secondary Materials

World Anti-Doping Code 2015, Appendix 1

REASONS FOR DECISION

Deputy President S E Frost

14 October 2016

PART A – INTRODUCTION

1. On 18 and 19 October 2014 a bodybuilding competition involving about 130 participants was held at Sydney Olympic Park. 

2. On the second day of competition an officer from the Australian Sports Anti-Doping Authority (ASADA) arrived at Olympic Park for the purpose of carrying out ‘doping control’ (drug testing) on selected competitors.  The Applicant, Carole Graham, refused to allow the ASADA officer access to the competition venue.  As a result the ASADA officer was prevented from carrying out any drug testing on the competitors.

3. In due course the Chief Executive Officer (CEO) of ASADA, after issuing a ‘show cause’ notice to Mrs Graham, referred her actions to the Anti-Doping Rule Violation Panel.  The Panel considered the material provided by the CEO and was satisfied that there had been a ‘possible anti-doping rule violation’ by Mrs Graham.  Accordingly, as required under the relevant legislative scheme, the Panel ‘made an assertion that there has been a possible anti-doping rule violation’ by Mrs Graham.

4. The substance of the Panel’s decision is an assertion that Mrs Graham’s conduct in refusing the ASADA officer access to the competition venue amounts to the possible violation of an anti-doping rule, namely ‘tampering or attempted tampering with any part of doping control’.  Mrs Graham disputes the Panel’s decision.  She has applied to the Tribunal for review of the decision. 

5. I have decided I must affirm the decision under review.  I will explain why.

   PART B – THE ISSUES BEFORE THE TRIBUNAL

6. The issues for determination by the Tribunal arise under Australia’s sports anti-doping laws, which are contained in the Australian Sports Anti-Doping Authority Act 2006 (the ASADA Act) and the Australian Sports Anti-Doping Authority Regulations 2006 (the Regulations). Schedule 1 to the Regulations contains what is known as the National Anti-Doping Scheme, or NAD scheme, which implements the General Anti-Doping Convention[1] and the UNESCO Anti-Doping Convention[2].  The specific issues before the Tribunal are:

   ·whether Mrs Graham was at the relevant time a ‘support person’ for the purposes of the NAD scheme; and

   ·whether the participants in the bodybuilding competition were ‘athletes’ for the purposes of the NAD scheme.

   [1] Defined in the ASADA Act as “the Anti-Doping Convention, done at Strasbourg on 16 November 1989 [1994] ATS 33”, as amended

   [2] Defined in the ASADA Act as “the International Convention Against Doping in Sport, adopted by the UNESCO General Conference at Paris on 19 October 2005”, as amended

   B.1 – ‘Support person’

7. In her Statement of Facts, Issues and Contentions, Mrs Graham noted at [19] that ‘[i]t is far from clear what is the relevant definition of “Support Person” for the purposes of this application’.  I agree.

8. As at October 2014, when the bodybuilding competition took place, s 4 of the ASADA Act defined the expression ‘support person’, wherever appearing in that Act, to mean ‘an individual who works with or treats one or more athletes participating in, or preparing for, sporting activities’. As a result, in reliance on s 13(1)(b) of the Legislation Act 2003, and absent a contrary intention, the expression when used in the NAD scheme would have taken the same meaning.

9. However, clause 1.07 of the NAD scheme provided differently.  As at October 2014, it said:

   1.07  Meaning of support person

   (1)The anti-doping rules apply to all persons who are involved as support persons in a sport with an anti-doping policy and such persons are subject to the NAD scheme.

   (2)For the NAD scheme, a support person is:

   (a)   a person who works with or treats 1 or more athletes participating in, or preparing for, sporting activities in 1 or more of the following capacities:

   (i)coach;

   (ii)trainer;

   (iii)manager;

   (iv)agent;

   (v)team staff member;

   (vi)official;

   (vii)medical practitioner;

   (viii)para-medical practitioner; or

   (b)   any other person who works (as a volunteer or otherwise) with, or helps, an athlete subject to the NAD scheme to participate in, or prepare for, sports competition.

10. The Regulations were subsequently amended by the Australian Sports Anti-Doping Authority Amendment (World Anti-Doping Code and Other Measures) Regulation 2014 (the 2014 Regulation), which repealed the existing clause 1.07 and substituted a new one[3]:

    1.07  Classes of support persons subject to the NAD scheme

    (1)Support persons involved in a sport with an anti-doping policy are subject to the NAD scheme.

    (2)The anti-doping rules apply to all support persons subject to the NAD scheme.

    [3] Clause 61 in Schedule 1 to the 2014 Regulation

11. That amendment commenced on 1 January 2015 but clause 129 in Schedule 1 to the 2014 Regulation introduced a new clause 7.02(1) (the Application Clause) into the NAD scheme, which provides:

    The NAD scheme, as in force after the commencement of the amending regulation[4], applies in relation to an anti-doping rule violation, whether the violation occurred before or after that commencement.

    [4] Defined to mean the 2014 Regulation (clause 129 in Schedule 1 to the 2014 Regulation, and clause 7.01 in the NAD scheme)

12. An amendment to the ASADA Act, also in 2014, by the Australian Sports Anti-Doping Authority Amendment Act 2014 (the 2014 Act) introduced a new definition of ‘support person’.  The expression now means ‘an athlete support person within the meaning of the World Anti-Doping Code[5]’.  The relevant amendment introduced by the 2014 Act commenced on 1 January 2015[6]. Prior to that date, ‘support person’, for the purposes of the ASADA Act, had the meaning set out in [8] of these reasons.

    [5] The ‘World Anti-Doping Code’ is defined in the ASADA Act to mean ‘the World Anti-Doping Code adopted by the Foundation Board of WADA [the World Anti-Doping Agency] on 5 March 2003 at Copenhagen’, as amended

    [6] Clause 2 in Schedule 1 to the 2014 Act; table item 2 in s 2(1) of that Act

13. There is no provision in the ASADA Act, as amended, similar to the Application Clause in the amended NAD scheme. That means the definition of ‘support person’ that I need to consider, when coming to assess whether Mrs Graham’s conduct is subject to the oversight of ASADA, is the definition in s 4 of the ASADA Act, as it existed in October 2014 – ‘an individual who works with or treats one or more athletes participating in, or preparing for, sporting activities’. I regret to say that in reaching that conclusion I do not agree with either of the parties on the question as to which definition applies. In my view it is not, as submitted by Mrs Graham, the definition in the former clause 1.07 of the NAD scheme ([9] of these reasons), and it is not, as submitted by the Panel, the current definition in s 4 of the ASADA Act ([12] of these reasons). It cannot be the former, since the Application Clause provides that the NAD scheme as it currently exists (without a definition of ‘support person’ in clause 1.07) applies in relation to all anti-doping rule violations, no matter when they occurred. Nor can it be the latter, since the current definition in s 4 did not exist at the time of the alleged violation and there is no statutory provision that deems it to have done so. I should add that if the Panel’s submission were correct, the Panel would nevertheless encounter some problems (and indeed, it will continue to encounter problems for any violations that take place on and from 1 January 2015) since the World Anti-Doping Code[7] does not contain a definition of the expression ‘athlete support person’.  It does contain a definition of the similar expression ‘athlete support personnel’[8], but that is not the same thing.  Perhaps the Panel and ASADA may consider seeking corrective action on that point.

    [7] The World Anti-Doping Code 2015, reproduced at T22, incorporates revisions to the World Anti-Doping Code that were approved by the World Anti-Doping Agency Foundation Board in Johannesburg, South Africa on 15 November 2013.  The revised 2015 World Anti-Doping Code is effective ‘as of 1 January 2015’: T22-438

    [8] The WADA Code definition of ‘Athlete Support Personnel’ is: ‘Any coach, trainer, manager, agent, team staff, official, medical, paramedical personnel, parent or any other Person working with, treating or assisting an Athlete participating in or preparing for sports Competition’

    B.2 – ‘Athlete’

14. As at October 2014, ‘athlete’ was defined in s 4 of the ASADA Act to mean ‘a participant in a sporting activity who is subject to the NAD scheme’. Section 13 of the ASADA Act provided that the NAD scheme must, among other things, ‘provide that one or more specified classes of athletes and support persons are subject to the NAD scheme’. Clause 1.06 of the NAD scheme then provided relevantly as follows:

    1.06  Classes of athletes subject to the NAD scheme

    (1)The anti-doping rules apply to all persons who are involved as athletes in a sport with an anti-doping policy and such persons are subject to the NAD scheme.

    (2)The following classes of athletes may be tested by the CEO under the NAD scheme:

    (a)   athletes in the CEO’s registered testing pool;

    (b)   athletes in the CEO’s domestic testing pool;

    (c)   international-level athletes;

    (d)   athletes who compete in international events;

    (e)   athletes who compete in national events;

    (f)    athletes for whom the CEO is required or permitted to test under a contract or an anti-doping arrangement; and

    (g)   athletes in the registered testing pool of an International Sporting Federation or national anti-doping organisation.

15. The ASADA Act definition was amended by the 2014 Act; from 1 January 2015 an ‘athlete’ is ‘a person who competes in sport and who is subject to the NAD scheme’. The following note appears directly after the definition:

    The NAD scheme must provide that one or more specified classes of athletes are subject to the NAD scheme (see paragraph 13(1)(a)).

16. From 1 January 2015, the substituted clause 1.06, introduced by the 2014 Regulation, now provides:

    1.06  Classes of athletes subject to the NAD scheme

    (1)Persons who compete in sport are subject to the NAD scheme if the sport has an anti‑doping policy.

    Note:A person who competes in sport and who is subject to the NAD scheme is an athlete (see section 4 of the Act).

    (1A)The anti‑doping rules apply to all athletes.

    (2)The following classes of athletes may be tested by the CEO under the NAD scheme:

    (a)   athletes in the CEO’s registered testing pool;

    (b)   athletes in the CEO’s domestic testing pool;

    (c)   international‑level athletes;

    (d)   athletes who compete in international events;

    (e)   athletes who compete in national events;

    (f)    athletes for whom the CEO is required or permitted to test under a contract or an anti‑doping arrangement;

    (g)   athletes in the registered testing pool of an International Sporting Federation, or a national anti‑doping organisation or regional anti‑doping organisation;

    (h)   athletes who are present in Australia at the time of the testing;

    (i)    athletes serving a period of ineligibility.

17. No matter which definition applies, the question of whether the participants in the bodybuilding competition were ‘athletes’ boils down to whether they were either ‘participants in a sporting activity’, or alternatively ‘competing in sport’ (there is no relevant distinction between the two concepts), but in either case only if the sport has an anti-doping policy.

    PART C – THE FACTS

18. Mrs Graham and her husband Paul Graham have been involved in the bodybuilding and fitness industry since the late 1970s[9].  They are the directors of Muscle & Fitness Pty Limited[10], a company that promotes fitness activities in Australia and conducts events such as bikini model competitions, fitness events and bodybuilding competitions.  Muscle & Fitness is also involved in the sale of fitness equipment and the publishing of magazines on health and fitness.

    [9] T16-286

    [10] Exhibit A1 at [1]; T16-286

    C.1 – International governance of the sport of bodybuilding

19. Mr and Mrs Graham describe themselves as ‘Australia’s IFBB representatives’[11].  IFBB is the International Federation of Bodybuilding & Fitness, an organisation whose objects include ‘to develop, promote and control the sport of bodybuilding and fitness on an international scale’, ‘to develop and strengthen friendship and cooperation among the Members of the IFBB’, ‘to legislate rules for the sport of bodybuilding and fitness’ and ‘to implement an anti-doping program in accordance with such antidoping rules as may be enacted for that purpose’[12]. Clearly, the IFBB purports to govern the sport of bodybuilding and fitness at the international level.

    [11] T16-286

    [12] T8-227

20. Mrs Graham has been involved with the IFBB for about 30 years.  She has been the Secretary of the Judges Committee[13] and the Secretary of the Technical Committee[14].  At one stage she was appointed a member of the IFBB Disciplinary Committee[15] but she stepped down from that position once it became clear that she was unable to attend committee meetings.

    [13] T3-92

    [14] T8-211

    [15] T3-92

    C.2 – Australian governance of the sport of bodybuilding

21. The governance of the sport of bodybuilding and fitness in Australia is not so clear.  The IFBB Constitution makes provision for ‘National Federations’ to become affiliated with the IFBB.  A National Federation is ‘an affiliated national sport governing body for the sport of bodybuilding and fitness that has been duly recognized by the IFBB based on one National Federation per country’[16]. 

    [16] T8-226

22. A casual observer may be inclined to assume that the National Federation for Australia is IFBB Australia.  There is a website, that provides information about bodybuilding events and other matters of interest to people seeking information about bodybuilding and fitness.  The website, which is operated by Mrs Graham, prominently displays a logo for IFBB Australia, and that logo is modelled closely on the logo of the IFBB.  But curiously, IFBB Australia is not a legal entity; it is a registered business name, owned by Muscle & Fitness[17].  IFBB Australia does not have a constitution and it does not have any rules[18]. 

    [17] Exhibit A2

    [18] Exhibit A1 at [3]

23. The precise relationship between the IFBB, Muscle & Fitness, IFBB Australia and participants in bodybuilding events and competitions in Australia is quite confusing and difficult to unravel.  Mr Knowles, counsel for the Panel, explored the relationship in cross-examination of Mrs Graham:

    And members of IFBB Australia who wish to participate in international competitions have to pay a registration fee to IFBB Australia don't they?---Not to participate in international.

    Well, to participate in Australian national competitions do participants have to pay a registration fee to IFBB Australia?---They pay the registration fee which goes to my company called Muscle & Fitness.

    And they become members of IFBB Australia, is that the case?---Umm, a membership, yes.

    So they do become members of IFBB Australia?---Which is owned by my company Muscle & Fitness.

    But I suggest to you that IFBB Australia is also the national affiliate of the IFBB in Australia?---No.

    So, it's just coincidence, is it, that the IFBB logo forms part of the IFBB Australia logo?---As I mentioned before, there’s a few different ways to explain it.  If a person wishes to join to go internationally that's when they become a full member to be able to compete on an international basis.  Then they are bound by the rules of the IFBB.  But before that if they just want to participate on a local level then it is not necessary for them to particularly become a member of it.

    But they do have to be member of IFBB Australia, isn't that the case, to participate ---? ---May I just ask, if we are referring to the time of the actual event, 2014?

    Yes, 2014?---So, no. (emphasis added)

24. Despite the unqualified, one-word answer highlighted above, Mrs Graham had earlier said, in response to the same question, ‘it’s not as straightforward as that … it’s an affiliate in certain ways … [for example] if we wish to send competitors to international events’.  

    C.3 – The October 2014 event; registration and membership requirements

25. The advertising poster for the event[19] includes Muscle & Fitness branding in the top right-hand corner and the IFBB Australia logo in the top left-hand corner.  Towards the foot of the poster appear the words ‘Produced by Paul & Carole Graham’.  Mrs Graham claims that it was Muscle & Fitness that conducted the October 2014 event[20].

    [19] T8-224

    [20] Exhibit A1 at [6]

26. People wishing to participate in the competition had to register for the event, either by completing a registration form online, or turning up at the event and registering on the day[21]. 

    [21] Exhibit A1 at [7]

27. Mrs Graham explained in her witness statement[22]:

    If a competitor competing in the event wished to be eligible to participate subsequently in an international event conducted by the IFBB he or she is required to become a member of Muscle & Fitness and IFBB Australia by completing the membership form (a copy of which is attached and marked “B”) and paying the applicable fee.  Not all competitors on the 19 October 2014 were members of Muscle & Fitness or IFBB Australia.

    [22] Exhibit A1 at [8]

28. The form at Attachment “B” to Mrs Graham’s statement is described as ‘2015 IFBB 1 Year Membership Subscription’.  It appears to have been downloaded from the IFBB Australia website and it contains Muscle & Fitness branding as well as the IFBB Australia logo.  It includes the following text:

    You must be a member in order to be eligible to be considered for any international events such as IFBB World Championships, Arnold Classics, Olympia etc and to be able to qualify to win your Pro Card.

29. A fair reading of that form would suggest that the instruction ‘You have to be a member’ means you have to be a member of IFBB Australia if you want to be considered for any of the nominated (international) events. 

30. The October 2014 event is described in the IFBB Australia 2014 Contest Calendar[23] as the ‘NSW & National Championships’.  A number of other events are also listed in the Calendar, which has the following note towards the end:

    If you compete in one of these contests in your home state, you can qualify for the 2015 Arnold Australia.

    [23] T3-93/96

31. Mrs Graham agreed that the ‘Arnold Australia’ is an international event.  She also accepted that participants in some (but not all) divisions of the bodybuilding segment of the Arnold Australia competition would have to agree to be bound by IFBB international rules.  However, when Mr Knowles took her to the following statement in the Calendar:

    To enter the competitions you must be a member of IFBB Australia and hold a current 1 year membership

    she responded that membership of IFBB Australia was only required if competitors wished to compete in international events – even though ‘the competitions’ listed in the Calendar included local as well as international events.  The qualification in Mrs Graham’s response appears to be consistent with the comment in her witness statement, referred to in [27] of these reasons, and also with the statement in the membership subscription form, referred to in [28] of these reasons.  I find that the qualification as expressed by Mrs Graham is accurate, even though it conflicts with the statement in the Calendar. 

1. I therefore find that people who wished to participate in the October 2014 event were able to do so even if they were not members of IFBB Australia.

2. Nevertheless, I infer from Mrs Graham’s witness statement at [8], as reproduced in [27] of these reasons, that there were some competitors in the October 2014 event who were, in fact, members of IFBB Australia.  The question is, what flows from that?  I repeat what Mrs Graham said in cross-examination (see [23] of these reasons):

   If a person wishes to join to go internationally that's when they become a full member to be able to compete on an international basis.  Then they are bound by the rules of the IFBB. …

3. In context, Mrs Graham was talking about a person joining IFBB Australia, not the IFBB international organisation.  But that is a distinction without a difference.  The fact is that individuals are not offered direct individual membership of the IFBB; instead, athletes, judges, administrators and other officials become members of the IFBB ‘by virtue of their association with their National, Regional or Continental Federation pursuant to the terms and conditions as set out in the constitution and rules of the respective National, Regional or Continental Federation’[24]. As already mentioned, IFBB Australia has no constitution and it has no rules. If Article 9.3 of the IFBB Constitution were read literally, that could mean that membership of IFBB Australia does not provide a pathway to membership of the IFBB, an outcome that seems to fly in the face of the apparent intent of the Constitution itself, not to mention Mrs Graham’s own understanding of the relationship between the international governing body and IFBB Australia.

   [24] Article 9.3 of the IFBB Constitution, T8-229

4. In any event, Mrs Graham was at pains to emphasise that the October 2014 event was not an international event.  She said this in her witness statement:

   [9]I am familiar with the procedure involved for an athlete (who is eligible) to participate in an international event conducted by the IFBB.  In those circumstances, an athlete is required to complete a form which is headed “Waiver of Liability” before competing.  By signing the form the athlete agrees, amongst other things, as follows:

   “In order to participate as a Competitor in this Event, I the undersigned Athlete do hereby agree to be bound by the IFBB Constitution and Rules, the IFBB Code of Ethics, and the IFBB Anti-Doping Rules.  I further agree to co-operate fully with the IFBB and the event organiser.”

   The athlete also agrees to waive any rights in relation to liability as a result of participating in the event.  Attached hereto and marked “C” is a copy of a “Waiver of Liability” form used in an IFBB international event.

   [10]I have analysed the list of participants in the event on the 19 October 2014 and compared it with the records of Muscle & Fitness and IFBB Australia and say that none of the athletes competing on that day had previously signed a form in the nature of Annexure “C”. 

5. As for her involvement in the event itself, Mrs Graham said:

   [11]I attended the event on 19 October 2014 at Homebush and my role was to co-ordinate the event and ensure that it ran smoothly including the efficient operation of the lighting and sound.  I also compered the event.

   …

   [13]The venue was booked and paid for by Muscle & Fitness.  Sponsorship was obtained by Muscle & Fitness, photographers were engaged by Muscle & Fitness and insurance coverage was taken out in the name of Muscle & Fitness.  IFBB played no part in the event.

   [14]My role at the event was that described in paragraph 11.  I had no association or contact with the athletes competing at the event on the day and I had not worked with or treated or helped any of the athletes prepare for the event either as a volunteer or otherwise either on the day or at all.

6. In cross-examination Mrs Graham said ‘I’m a promoter, I’m an MC, an organiser. … I organise the light and sound, I organise chairs and tables, general bits and pieces such as that.’

   PART D – WHAT DOES THE PANEL’S DECISION SIGNIFY?

7. The Panel’s decision is a decision to make an assertion that there has been a possible anti-doping rule violation by Mrs Graham.  The Panel’s decision to make that assertion follows from its remaining satisfied that there has been a possible anti-doping rule violation by Mrs Graham, after notification to her (by the CEO of ASADA) that the Panel is so satisfied, and the Panel’s consideration of any submissions made on her behalf in relation to the assertion. 

8. The rather convoluted process for bringing matters to a head is set out in clauses 4.07A, 4.08, 4.09 and 4.09A of the NAD scheme.  Clause 4.12 of the NAD scheme then provides as follows:

   The participant to whom an assertion relates may, within 28 days of receiving notice of the assertion from the CEO[25], apply to the Administrative Appeals Tribunal for review of the ADRVP’s decision to make the assertion.

   [25] It is the CEO of ASADA, rather than the Panel itself, who notifies the participant of the Panel’s assertion: clauses 4.10 and 4.11 of the NAD scheme

   PART E – WHAT IS THE TRIBUNAL’S ROLE ON REVIEW?

9. The Tribunal’s role on review is by now well known. It was described in the following way by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68:

   The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.

10. In the current case the question is whether the decision ‘to make an assertion that there has been a possible anti-doping rule violation’ by Mrs Graham is the correct or preferable decision on the material before the Tribunal. 

11. In opening Mrs Graham’s case, her counsel, Mr Weber SC, noted that the specifics of her conduct on the day in question were not in contest in the current proceeding; the issues before the Tribunal are whether Mrs Graham was a ‘support person’ and whether the participants were ‘athletes’.  In that context, Mr Weber accepted that Mrs Graham’s conduct ‘might possibly constitute tampering within the definition under the [NAD scheme]’ but emphasised that it cannot do so if either of the two contentious issues is decided in her favour.  Her actual conduct – what she said, what she did – might be examined elsewhere, depending on the outcome here, but it is not the focus of the current proceeding.

12. Mr Knowles, in opening the Panel’s case, said this:

    I take it from what was said by my learned friend about an acceptance that if Mrs Graham is possibly a support person and if the participants were possibly subjected to – or capable of being subject to ASADA’s testing jurisdiction, that there is no issue that it could possibly be tampering, that there is also no point in disputing for these purposes what was and what wasn’t said between the ASADA doping control officer and Mrs Graham at the time. 

13. Therefore, putting aside the specifics of Mrs Graham’s interaction with the ASADA officer, and mindful of the precise characterisation of the decision under review as the decision ‘to make an assertion that there has been a possible anti-doping rule violation’ by Mrs Graham, I approach the questions before me on the basis that unless Mrs Graham satisfies me either that she was not a ‘support person’, or that the participants were not ‘athletes’, the decision under review must be affirmed.  That is because, unless Mrs Graham can satisfy me as to one of those propositions, it must remain the case that the ‘assertion’ that there has been a ‘possible’ anti-doping rule violation is the correct or preferable decision. 

14. In the circumstances, though, it is convenient to address the questions in reverse order.

    PART F – WERE THE PARTICIPANTS ‘ATHLETES’ FOR THE PURPOSES OF THE NAD SCHEME?

15. In reality the question is whether the participants were ‘athletes’ who were ‘subject to the NAD scheme’ – which, for practical purposes, means capable of being tested by the CEO under the scheme.

16. I have dealt with the meaning of ‘athlete’ in Part B.2 of these reasons.  The questions are:

    (a)were the participants in the October 2014 event either ‘participants in a sporting activity’ or ‘competing in sport’; and

    (b)does the sport have an anti-doping policy?

17. The answer to question (a) is undoubtedly ‘yes’; for the avoidance of doubt, I would answer ‘yes’ to both alternatives posed.

18. The answer to question (b) is not so straightforward.  There is no doubt that the sport of bodybuilding has an anti-doping policy at the international level: T3-117 and following are the IFBB Anti-Doping Rules (IFBB Rules) as at January 2009.  Whether the sport has an anti-doping policy in Australia, or whether it needs to have one, is not so clear.  IFBB Australia has no constitution and no rules, so there is no document formulated by IFBB Australia that replicates, or adopts, the IFBB Rules.  However, the IFBB Rules themselves provide, in the ‘Introduction’, under ‘Scope’, as follows:

    These Rules shall apply to the IFBB, each Affiliated Federation of the IFBB, and each participant in the activities of the IFBB or any of its Affiliated National Federations by virtue of the participant’s membership, accreditation, or participation in the IFBB, its Affiliated Federations, or their activities or events.

19. The evidence here, as provided by Mrs Graham and referred to in Part C.2 of these reasons, is that IFBB Australia is an ‘affiliate’ of the IFBB ‘in certain ways’.  What little material there is from the IFBB is dated, and in any event not definitive: for example, a letter from the International President of the IFBB to ASADA in August 2008[26] says that a bodybuilder in Australia becomes a ‘member by association’ of the IFBB by joining the ‘IFBB-recognized National Federation in Australia’, but the letter does not expressly state that IFBB Australia is that ‘National Federation’.  It goes on to state:

    The IFBB anti-doping policy applies to all affiliated members.

    …

    An “affiliated member” means a National, Regional or Continental Federation that has been duly recognized by the IFBB as the national, regional or continental sport governing body for the sport of bodybuilding and fitness, on the basis of one such member per country, region or continent.  Australia and New Zealand form “IFBB Oceania” and each is an affiliate-member of the IFBB.

    [26] T3-115/116

20. Things appear to have changed in the intervening eight years but, even with the benefit of Mrs Graham’s evidence, the position is still unclear. She did say that to participate in Australian national competitions, a participant would have to pay a registration fee ‘which goes to [her] company called Muscle & Fitness’. She then accepted, or at least did not deny, that by paying the registration fee the person would become a member of IFBB Australia. Under Article 9.3 of the IFBB Constitution, athletes become members of the IFBB ‘by virtue of their association with their National … Federation’, and by Article 9.2, members of National Federations ‘agree to be bound by the Constitution and Rules’ of the IFBB. I have not been able to identify any organisation, other than IFBB Australia, that might be regarded as the National Federation for Australia, and I must say that I think Mrs Graham would be reluctant to entertain the notion that any organisation other than IFBB Australia might be regarded that way. On that basis, there is little room for the view that, at least in respect of individuals who are members of IFBB Australia, the sport of bodybuilding does not have an anti-doping policy that applies to them.

21. Although Mrs Graham tried to position the October 2014 event as a private event, organised and conducted by Muscle & Fitness, it was always going to be difficult to distance IFBB Australia from the event, especially since IFBB Australia is owned by Muscle & Fitness and the IFBB Australia logo featured so prominently in the advertising and marketing.

22. The poster for the October 2014 event advertised the event as the ‘NSW & National Championships’ and the IFBB Australia 2014 Contest Calendar described it the same way.  Some of the participants in the event were members of IFBB Australia.  I accept that none of the participants had signed a ‘Waiver of Liability’ form, but that by itself cannot be the determinant of whether any of them were bound by the IFBB Rules, or whether they were competing in a sport that has an anti-doping policy.

23. Athletes who compete in national events (such as the October 2014 event) are within the classes of athletes who may be tested by the CEO under the NAD scheme.  Having regard to all the material before me, and for the reasons I have expressed, I am not satisfied that the participants in the October 2014 event did not include ‘athletes’ who were ‘subject to the NAD scheme’.

    PART G – WAS MRS GRAHAM A ‘SUPPORT PERSON’ FOR THE PURPOSES OF THE NAD SCHEME?

24. I have dealt with the meaning of ‘support person’ in Part B.1 of these reasons.

25. The question is whether Mrs Graham is ‘an individual who works with or treats one or more athletes participating in, or preparing for, sporting activities’.  In that definition the search is for a person who can fairly be characterised as an individual who ‘works with or treats’ athletes who are actually participating in, or preparing for, sporting activities.  Working with or treating an athlete who does participate in or prepare for sporting activities, but is not doing so at the time when the ‘working with or treating’ is being conducted, will not bring an individual within the definition.  There must be a nexus not only with the athlete, but also with the athlete’s activity of either participating in, or preparing for, sporting activities.

26. It is not straining language to find that Mrs Graham’s activities on the day – even if they were confined to organising the lighting and sound, and compering the event – amount to ‘working with’ the athletes who were participating in the competition.  I find that to be the case.

27. In case I have wrongly identified which definition of ‘support person’ applies in this case, I turn now to consider the alternatives identified by the parties.

28. First, the definition identified by Mrs Graham is the October 2014 version of clause 1.07 of the NAD scheme, quoted in [9] of these reasons.  To be within that definition, Mrs Graham must be either:

    (a)a person who works with or treats 1 or more athletes participating in, or preparing for, sporting activities in one or more of the capacities specified in clause 1.07(2)(a) of the NAD scheme; or

    (b)any other person who works (as a volunteer or otherwise) with, or helps, an athlete subject to the NAD scheme to participate in, or prepare for, sports competition.

29. The only one of the specified ‘capacities’ in which Mrs Graham might be taken to have been ‘working with’ athletes (I need not concern myself with the ‘treating’ limb), for the purposes of paragraph (a) above, is as an ‘official’.  This is because Mrs Graham might reasonably be regarded as an ‘official’ of IFBB Australia as a consequence of her directorship of Muscle & Fitness, the company that owns the business name.  But which, if any, of her activities might be classified as ‘working with’ the athletes?  More to the point, what activities of an ‘official’ might ever be regarded as ‘working with’ athletes?  It seems to me that some examples of such activities might be refereeing or umpiring, judging, or point-scoring.  Mrs Graham’s evidence is that she was working as a promoter, a master of ceremonies, an organiser, and that the only tasks she performed were the mundane tasks of organising the light and sound, and the chairs and tables – tasks she would no doubt contend had only a remote connection with the competition itself.

30. In my view, if this is the relevant definition, Mrs Graham must make a positive case that she was not ‘working with’ athletes in the capacity of an ‘official’, and beyond making the bare assertions in her statement, at [11] and [14], she has not done so.

31. As far as paragraph (b) in [59] above is concerned, it is at least arguable that her activities, even if they were confined to those summarised in [60], amounted to ‘help[ing] … athlete[s] … to participate in … sports competition’.  I am not satisfied, on the balance of probabilities, that she was not doing so.

32. Finally, the definition identified by the Panel is the current definition in s 4 of the ASADA Act, which is the WADA Code definition of ‘Athlete Support Personnel’, namely ‘Any coach, trainer, manager, agent, team staff, official, medical, paramedical personnel, parent or any other Person working with, treating or assisting an Athlete participating in or preparing for sports Competition’. In my view there is a requirement in that definition that the person who is claimed to be a ‘support person’ must be a person who ‘works with, treats or assists’ athletes who are participating in or preparing for sports competition. In other words, the definition should be interpreted with the words ‘working with, treating or assisting’ qualifying all the words before them, not just the words ‘any other person’.

33. Therefore, the considerations are the same as for the definition I have identified as the correct one.  I would reach the same conclusion as I did in relation to that definition.

    PART H – CONCLUSION

34. The Panel’s assertion that there has been a possible anti-doping rule violation by Mrs Graham is correct.  The decision under review must be affirmed.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost

...............[sgd]...................................................

Associate

Dated 14 October 2016

Dates of hearing	27 May 2016
Counsel for the Applicant	Mr R Weber SC
Solicitors for the Applicant	Colin W Love & Co
Counsel for the Respondent	Mr P Knowles
Solicitors for the Respondent	Australian Sports Anti-Doping Authority