MTYG and Australian Sports Anti-Doping Authority

[2008] AATA 448

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 448

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2461

GENERAL ADMINISTRATIVE DIVISION	)
Re	MTYG

Applicant

And AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY

Respondent

DECISION

Tribunal

Mr G L McDonald, Deputy President

Dr Kerry Breen, Member

Date30 May 2008

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s name not be entered on the register kept by the respondent. The order made by the Tribunal on 28 August 2007, under s 35(2) of the Administrative Appeals Tribunal Act 1975 continues in force.

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Deputy President

CATCHWORDS

REASONS FOR DECISION

30 May 2008	Mr G L McDonald, Deputy President
Dr Kerry Breen, Member

The Application

1.          The applicant, a male athlete, is applying for the review of a decision dated 14 March 2007 of the respondent which determined that the applicant’s name be placed on the register of findings maintained by the Australian Sports Anti-Doping Authority (the Authority) following a finding that he committed an anti doping violation in that he participated as an athlete with the presence of anabolic agents prohibited by the sports anti doping policy and the National Anti-Doping scheme (the NAD scheme).  The anabolic agents are 1-Androstenedione and 1-Testosterone.

The Hearing

2. The documents filed for the purposes of s 37 of the Administrative Appeals Tribunal Act 1975 (T document) were before the Tribunal. 

3.          At the hearing the applicant gave oral evidence and statements from Mr Brian Roe, an athletics administrator, and Ms Kirsten Agnes Farrance, who has served in various capacities including as a board and appeals Tribunal member of the Victorian Athletics League (VAL) were admitted by consent.

4.          Oral evidence was given for the respondent by Mr Ilija Djukic, a full time Doping Control officer employed by the respondent who gave evidence by telephone, Mr Mark Alexander Howard, the chief executive officer of the VAL and Mr Michael Francis Cull, a part time employee of the respondent who acted as a chaperone.  A statement of Dr Rymantas Kazlauskas, the Director of the Australian Sports Drug Testing Laboratory was admitted by consent.  A witness statement filed on behalf of Mr B Marantelli was not relied on by the respondent and does not form part of the material taken into account by the Tribunal.

5.          Other exhibits tendered during the hearing formed a part of the evidence.  The Tribunal requested the parties file the Constitutions of Athletics Australia (AA) and Athletics Victoria (AV) both of which organisations were said to be relevant to the Tribunal’s consideration of the case.

The Legislation And Regulations

6.          The Australian Sports Anti-Doping Authority Act (2006) (the Act) establishes the Australian Sports Anti-Doping Authority (the Authority or ASADA) which is to administer the NAD scheme. The NAD Scheme requires the Authority to establish and maintain a Register. The provisions of the Act and regulations are expressed to apply to “one or more specified classes of athletes”. Thus while obviously the testing is to be carried out on individual athletes it is to extend to individuals in a specified class. The terms of the NAD scheme are found in Schedule 1 of the Australian Sports Anti-Doping Authority Regulations (2006) (the Regulations).  Item 4(1) of the NAD scheme defines “athlete” for the purposes of the NAD scheme and the Tribunal will return later in these reasons to the 3 specific subsections which the respondent claims qualify the applicant as an athlete.

7.          The procedure for undertaking a urine test is directed in Item 20 of the NAD scheme to be made in compliance, or substantial compliance, with the procedures established in International Standard for Testing by the World Anti-Doping Agency (the International Standard).

The Issues

8.          The following issues were agitated before the Tribunal:

•whether or not the applicant met the definition of “athlete” contained in Item 4(1)(e), (f) and/or (i) of the NAD scheme;

•whether or not the applicant was validly able to be tested ie whether the respondent was required to and, if so, whether it did address, the prerequisites set out in the International Standard for targeted testing of athletes; and

•whether the applicant was subjected to unreasonable pressure to give a urine sample.

The Facts Including The Tribunal’s Determination Of The Testing Of The Applicant

9.          The facts, with some exceptions to which the Tribunal will return, are largely not in dispute and are as follows:

On 16 October 2006 the applicant registered with the VAL as a competing athlete; and

On 9 December 2006 the applicant competed in the 70 metre, 100 metre and 400 metre events at a meet called the “Run for the Willow” athletics carnival at Shepherds Flat Victoria.

No challenge was made to the method of taking the sample or to the findings arising from the analysis which was carried out by Dr Kazlauakas.

10.        After competing in the 400 metre race the applicant was approached by Mr Cull at the race track requested to undergo a urine test.  The applicant consented to undergo the test.  Before being taken to the testing room the applicant provided identification confirmation to Mr Cull and the ‘Doping Control Notification’ form (the Notification form) was completed and the applicant was given a copy of the departmental publication entitled ‘Doping Control Guide’.  The Notification form had been partially completed by Mr Djukic, the senior officer from the authority who had overall supervision of the testing.  The balance of the Notification form was completed on the sports ground and signed by the applicant and witnessed by Mr Cull.  The applicant and Mr Cull then proceeded to the room where the sample was to be taken.

11.        There is a dispute as to the timing of when the applicant raised his concerns about participating in an event described on the Notification form by Mr Djukic as being under the auspices of ‘Athletics Australia’.  Mr Djukic maintained that the applicant complained of this upon, or soon after, he came into the room where the testing was to occur.  The applicant maintained it occurred later.  The Tribunal does not see that anything material arises in the differing recall of the timing.  What is important is that at some time, in the presence of the applicant and probably before the applicant gave a urine sample, as the result of a query raised by the applicant, Mr Djukic rang his superior officer in Canberra who instructed him that the race was to be described as being associated with ‘Athletics Australia’.  The applicant gave evidence that he requested or suggested to Mr Djukic to ask the steward, who was present at the meet, to verify the authorising body responsible for the event.  Mr Djukic did not do this and had no recall of the applicant making this request or suggestion.

12.        The Tribunal accepts that the applicant was upset at either, or both, of being asked to sign the Notification form when he felt it contained incorrect detail or at the fact of being tested.  Mr Cull described the applicant, when in the room set aside for testing, as “ranting and raving”.  Mr Djukic, more restrainedly, described the applicant as pacing up and down.  Mr Djukic stated that the applicant was cooperative during the time it took to take the sample.

13.        There was concern expressed on behalf of the applicant that the Notification form describes the applicant being selected for a random test.  Mr Djukic told the Tribunal that he completed this part of the form.  Mr Djukic also said that he described it as being a “random selection” because that was what he was in the habit of doing when he attended meets to undertake testing of athletes, and that it had never been queried by his superiors.  He therefore assumed it was a correct description.  In any event Mr Djukic stated that he had no information that the test was other than one conducted on a random selection basis.  However, the Tribunal was informed that it was conceded by the respondent on the Friday before the commencement of the hearing that the applicant was not the subject of a random selection, but was targeted for testing.

14.        The Tribunal is satisfied that the decision to target test the applicant had been taken by Mr Djukic’s superiors in Canberra but not notified to Mr Djukic.  Accordingly when Mr Djukic filled out the Notification form he recorded the test as resulting from a “random selection”.  There is no evidence to suggest that the applicant queried this on 9 December 2006 as he would not have known of the circumstances which led to him being tested.  The Tribunal will return to this aspect later in these reasons.

15.        The International Standard for testing requires that the athlete “shall proceed to an area of privacy to collect the sample”. The test was conducted in the only change room at the meet.  People were constantly trying to gain access, despite a notification posted by Mr Djukic on the front door, that the premises were being used for drug testing.  The change room consisted of a front room where a desk and chair were located and, in a separate room at the rear consisting of 2 shower cubicles.  From the time the applicant entered the change room, Mr Djukic said he (Mr Djukic) sat or stood at the desk in the front room.  A door separated the front room from the room containing the 2 shower cubicles.  The shower cubicles were able to be seen by anyone entering the front room if the door to the cubicles was also open.  The applicant was tested in one of the shower cubicles.  The protocol is for the athlete to be accompanied by a chaperone who is to observe the urine sample being supplied into a beaker.  No one else is permitted to be present.  To give the sample a male athlete must raise his top and lower his trousers so that it is evident to the chaperone that there is no interference in the giving of the sample.

16.        Both Mr Cull and Mr Djukic, in their oral evidence, maintained that the door separating the shower cubicle and the front room was shut when the sample was being taken and that, accordingly, the applicant and the Mr Cull were the only 2 people who observed the giving of the sample.  On the other hand the applicant maintained that the door to the shower cubicle was left open and that Mr Cull stood in the doorway in front of the applicant when the sample was being given.  The applicant states that he could recall the front door being opened and he believed that he was observed by a woman who wanted to access the change room.  It was Mr Djukic’s evidence that while the applicant was in the change room he was constantly “warning off” others who wanted to use the change room.

17.        The Tribunal experienced some difficulty with both the evidence of Mr Djukic and Mr Cull on this issue.  Mr Djukic maintained he had a memory of the circumstances surrounding what occurred.  He maintained that this was so even although since December 2006 he has supervised approximately 600 anti-dope testing exercises.  However when giving his oral evidence he persistently described “what would have occurred”.  While he subsequently stated that what would have occurred did in fact occur, his mode of expression suggested that he was more looking to what the protocol required than he was recalling the actual circumstances.

18.        Mr Cull’s evidence was even more curious.  In his statement he records the following.

29.I do not recall whether [MTYG] provided a sample in a shower cubicle or a toilet cubicle.  I am aware that it was a cubicle of some kind.

30.I am certain that the athlete provided a sample without being observed by any other person.  I am certain that the athlete was not seen half-naked by any other person.

31.I remember standing in the doorway of the cubicle while [MTYG] provided his sample.

32.I stand in the doorway and block the view into the cubicle for all athletes that I chaperone.  I do this because I can see anyone who is attempting to walk past or into the room.

19.        The above extract from Mr Cull’s statement strongly suggests that the door between the shower cubicles and front room was open and that he was standing blocking the view between that area and the front room.  However in his oral evidence Mr Cull claimed that he recalled that the door between the cubicles and the front room was closed when the sample was being taken.  When questioned on the apparent discrepancy Mr Cull claimed that there was perhaps some problem with his use of English in the statement.

20.        The issue is not resolved by reference to Mr Cull’s use of English.  Rather it is the accuracy of what is contained in his statement at to what occurred that is of concern.  In this case what is in his statement and the interpretation sought to be given to it in his oral evidence reveal a discrepancy which, without being pedantic, the Tribunal is unable to attribute to his use of English.  The Tribunal is satisfied that when giving his oral evidence Mr Cull sought to present a gloss on what is contained in his written statement.  The gloss, if accepted by the Tribunal, has the effect of rendering inconsistent what he recorded in his statement.

21.        The Tribunal is unable to accept the evidence given by Mr Djukic that the door between the front room and the shower cubicle room was closed.  The Tribunal is satisfied that Mr Djukic recited the steps required to be taken as set out in the protocol rather than he recalled an accurate memory of the events.  Mr Cull, because of the inconsistency noted, was also unconvincing.  The Tribunal does not accept that the door to the shower cubicles was closed during the period in which the applicant was involved in giving his sample. 

22.        The International Standard requires the privacy of the athlete to be respected.  The fact that the door to the shower cubicles was not closed does not automatically lead to a conclusion that the athlete’s privacy has not been respected.  The Tribunal is satisfied that Mr Cull was standing in the doorway between the shower cubicles and the front room.  The Tribunal had the advantage of seeing Mr Cull.  He is a tall and well built man.  While it may have been possible for the applicant, looking over Mr Cull’s shoulder, to see the upper body of a person who opened the front door, it is improbable that the person could see the applicant’s state of undress from the upper chest down.  Mr Cull standing in the doorway to the cubicles would have blocked any such view.  It follows from this finding that the Tribunal is satisfied that the privacy of the applicant was respected.

23.        Initially it was claimed on behalf of the applicant that there was bad faith or unreasonableness involved in subjecting him to the test.  This ground was abandoned upon the respondent’s late admission that the applicant was targeted to undertake the test.

Is The Applicant An Athlete?

24.        The Tribunal will deal seriatim with the 3 sub-items of Item 4(1) of the NAD scheme which the respondent claims qualifies the applicant to be categorised as an athlete.  Not any of the other sub-items have any relevance.

25.        Item 4(1)(e) of the NAD scheme defines an athlete as:

a person who competes in international, national or state sporting competition held, or to be held in Australia

26.        Section 4 of the Act defines “sporting competition” to mean:

...a sporting event or series of sporting events

and “sporting event” is defined to include “any sporting activity”.

27.        The Act, the Regulations or the NAD scheme do not define what is meant by “international, national or state”.

28.        The Shepherd’s Flat event clearly does not constitute an international or national sporting competition.  The issue is, does it constitute “a state sporting competition”?

29.        The VAL provides services to athletic events but with 2 exceptions it does not organise events.  Ms Farrance stated that the VAL supervised meetings by providing officials, handicappers and trainers and administered the registration of athletes wishing to compete at the meetings.  It was Ms Farrance’s evidence that the VAL was not affiliated with AA and that the affiliation with AV was as a specialist group.  Ms Farrance also stated that while it was previously required that the VAL obtain permits from AA this had been abandoned by December 2006.  Mr Howard stated that the VAL also promoted the meets organised by local groups and, while it has changed since, the 2006/7 season there were, in addition to the Victorian members, 200-300 interstate members some being interstate athletic clubs.  The Shepherd’s Flat race was notified to all VAL members, including those interstate.

30.        There is no object clause contained in the VAL Rules but it is evident from a reading of them that the rules provide a code pursuant to which clubs can register with it can undertake competitions.  The VAL Rules require clubs or unincorporated groups to register proposed meetings and the dates of those meetings.  Once registered the meeting is to be conducted under the VAL Rules. The clubs which organise meetings pay a fee to the VAL and the VAL provides the officials to supervise the events in accordance with the by-laws.  The By-laws of AV provide various categories of membership all of which are constituted by individuals.  AV has the stated object in the Rules, among other things, to “control athletics in Victoria” and the Tribunal notes that there is no such claim made on behalf of the VAL.  AA is a limited company.  Clause 3 of the AA Constitution sets out its objects as including “the management, control, regulation and promotion of … the sport of athletics in Australia” and associates itself with Olympic, Commonwealth and International representation of Australian Athletics.  It is clear from the differing roles of the 3 bodies that they fulfil differing functions, and that the VAL is geared towards providing a service to local clubs rather than towards managing or controlling athletics or organising sporting competitions. 

31.        It was submitted on behalf of the applicant that:

•state events were organised by either AA or AV, and not by the VAL.  Not any of AA, AV or the VAL had anything to do with organising the Shepherd’s Flat event which was organised by a local club.  The VAL did not, with the minor exceptions of the Cranbourne meet and 1 or 2 races in the Zatopek meet, organise and conduct meets;

•the VAL events involved only foot racing, whereas AA and AV events include other aspects of athletic sport, eg shot putting;

•state events involved teams of athletes, prize money was not paid, athletes do not compete under handicaps, and the races were not the subject of any wagering.  It was claimed that local events, such as the Shepherds Flat meet, were competitions between individuals and not team events, prize money was paid, handicaps applied and that wages could be taken; and

•athletes who want to compete in interstate or national events register with AA or AV and it is their performance at events organised by either which determines whether an athlete will be selected to participate at an interstate or national level.  VAL registered athletes do not qualify for interstate or international selection.

32.        It was claimed on behalf of the applicant that the differences between the functions undertaken by AA and AV compared to more restricted role of the VAL distinguished the latter, such that meets in which it was involved could not be described as state or national sporting competitions. 

33.        The respondent submitted that the Tribunal should not read down the Act  in order to make it (them) subject to any specifically existing structures in place at the time the legislation came into effect.  It claimed that the Shepherd’s Flat meet was a “sporting competition” as defined.  It was a state sporting competition in the sense that it occurred in the State of Victoria.  Therefore it was covered by the NAD scheme and participating athletes were subject to anti-doping testing by the respondent.

34.        The NAD scheme does not specify that the responsibility for organising a meet defines what is to be categorised as “a sporting competition”.  Clearly however a local athletic sporting competition is to be distinguished from a state competition, otherwise there would be no point in Item 4(1)(e) of the NAD scheme distinguishing between “international, national or state” sporting competitions.  The evidence is that while the VAL provides technical services to, and promotion for, local athletic competitions, it is the local clubs which determine to hold the meetings.  In that sense it is a local meet and does not have the character of a state or national competition.  All local meets must be held in a state or territory.  That latter point cannot be the distinguishing point between what is characterised as a local and what as a state athletic competition.  Otherwise every athletic competition would be a state sporting competition and that does not seem to be contemplated by the Act.

35.        The Tribunal notes that s 13(1)(a) of the Act provides that the NAD scheme is to provide that “one or more specified classes of athletes” are subject to the scheme.  The classes of athletes nominated in Item 4(1) of the NAD scheme demonstrate a desire to cover what may loosely be described as elite athletic sporting competitions rather than local events.  Further reference to Items 4(1)(f) and (i) (discussed later in these reasons) would also seem to confirm that the NAD scheme is aimed more towards the elite end of athletic competitors.  The Tribunal also notes s 17 of the respondent’s publication “Doping Control Guide” states,

A policy of strict liability exists in elite sport, whereby an athlete is responsible for any prohibited substance found in his/her body.

This too suggests that the aim is to ensure that elite sporting events are to be covered.  When considered in context and for the reasons expressed above the Tribunal is satisfied that the applicant is not an athlete under the provisions of Item 4(1)(e) of the NAD scheme.

36.        Item 4(1)(f) of the NAD scheme also needs to be considered.  Sub-item (1)(f) defines as an athlete someone “who competes in sporting competition at a level at which people representing Australia could be expected to compete”.

37.        It is uncontested that Mr D Batman, an athlete who represents Australia, competed at the Shepherd’s Flat meet on 9/10 November 2006.  Mr Howard maintained that there were “… at least four or five athletes who were in the top ten runners in Australia for their particular distance at this event”.  However in his oral evidence Mr Howard conceded that some of the athletes he named, including Messrs Nathan Allen, Adrian Nott, Sani Bao, did not qualify in the Australian rankings list compiled by Paul Jenes.  In the absence of objection the Tribunal accepts Mr Jenes’ list as being authoritative as to which athletes represent Australia.

38.        It was Mr Roe’s evidence that those athletes representing Australia do not often compete at professional athletic meetings, particularly at the lower profile meets.  It was also the evidence of Mr Roe that athletes who represent Australia tend not to attend those meets occurring early in the season as they structure their training and competition schedules to maximise their performance for the state and national championships which occur later in the season.  It was the evidence of Mr Howard, that in any event, the more important local meets in which the VAL had involvement were Stawell, Bendigo, Ballarat and Maryborough.  From the above the Tribunal is satisfied that the Shepherd’s Flat meet cannot be described as a high profile meet which would be likely to attract athletes who represent Australia.

39.        While some high standard athletes may participate, as evidenced by Mr Batman’s participation, that does not necessarily mean it is an event in which such high calibre athletes “could be expected” to participate.  That one or more athletes representing Australia may, on occasion, compete does not raise the profile of the meet to one that such participation “could be expected”.  The Tribunal accepts that the applicant does not qualify as an athlete under Item 4(1)(f) of the NAD scheme.

40.        It is also necessary to consider Item 4(1)(i) which defines as an athlete “a person in respect of whom ASADA, under an anti doping arrangement, is required or permitted to obtain a sample for testing”.  It is submitted on behalf of the applicant that the VAL did not require or authorise the test as there was no “agreement, arrangement or understanding” between VAL and the respondent requiring or permitting the test to be taken.

41.        Clause 17 of the VAL Rules reads:

All athletes registered with the VAL or any affiliated body shall be required to submit to all drug testing procedures as required & conducted by Australian Sports Drug Agency (ASDA) under IAAF rules.  Any results of a test or procedure under these provisions shall be reported to the VAL and the athlete shall be subject to any penalties or procedures as per ASDA and the IAAF rules.

42.        The reference to the ‘Australian Sports Drug Agency’ in clause 17 of the rules is a reference to the predecessor body of the respondent.  In interpreting clause 17 the reference should be taken to extend to the respondent.  The International Athletics Association Federation (IAAF), the relevant rules of which are set out at T document pages 73-110.  The applicant signed a statutory declaration dated 17 October 2006 when he joined the VAL at T document page 268. In the document the applicant undertook to abide by the rules of the VAL and by the drug regulations of the IAAF and AA.

43.        On 15 April 2007, ie well after the meet at Shepherds Flat, the VAL signed a document entitled ”Referral of Doping Authority to Australian Sports Anti Doping Authority”.  There was no formal document in existence prior to this which evidenced a relationship between the 2 bodies.  The applicant submitted, that being the situation, there was no evidence to support the existence of any “arrangement” permitting or allowing the respondent to undertake the testing as at December 2006.  While the Tribunal recognises the force of the argument on behalf of the applicant, there is no cause to limit “arrangement” to extend only to an arrangement made in writing. 

44.        It was Mr Howard’s evidence that the VAL had always acknowledged the authority of the respondent to undertake testing of VAL athletes.  It was Mr Howard’s evidence that he received a telephone conversation from the chief steward at the Shepherd’s Flat meet on the Monday following the meet.  In that conversation, which occurred before the test results were known or the VAL knowing that there would be any challenge to the testing, Mr Howard said he confirmed that the VAL accepted the respondent as being able to test the VAL athletes.  This evidences, to the satisfaction of the Tribunal, that an “arrangement” was taken to be in place between the VAL and the respondent which permitted the respondent to undertake anti doping testing of VAL athletes. 

45.        In any event the VAL is permitted to incorporate by reference other rules, as it has done in clause 17 of its constitution.  Rule 35(4) of the IAAF rules permits athletes participating in competitions to be tested by IAAF or “…by any organisation or body which has competent authority to conduct testing at the competition.”.  There can be no doubt that the respondent is a body with competent authority to undertake testing, and the extended authority given in clause 34(5) of the IAAF rules authorises testing to be carried out by the respondent.

46.        Neither counsel mentioned the reference to AA contained in the statutory declaration signed by the applicant.  While AA is not mentioned in the rule 17 of the VAL Rules there is clear acknowledgement by the applicant in his signing of the declaration that he will “abide by the drug testing regulations of AA”.  Without finding it to be the case it may have been that Mr Djukic’s superior in Canberra was aware of this and it was this knowledge which caused him to advise Mr Dujkic to describe the “testing session client“ on the Notification form as ‘Athletics Australia’.  Regardless of this the statutory declaration form simply strengthens the conclusion that the applicant, upon joining the VAL, agreed to subject himself to anti doping testing.

47.        For the reasons stated the Tribunal is satisfied that the applicant is correctly categorised as an athlete pursuant to Item 4(1)(i) of the NAD scheme.

The International Standard – The Applicant and Target Testing

48.        The International Standard which is to be compiled with when requesting a sample permits testing to be either from random selection or be targeted to an individual athlete.  Clause 4.6.2 of the International Standard sets out the minimum requirements which would lead to an athlete being target tested.  Of the 10 matters listed for consideration the respondent suggests subclause (d), which cites “behaviour indicating doping”, is relevant.  In this respect the respondent refers to an interview conducted by officers of the respondent and the applicant as recorded in the applicant’s witness statement.  The applicant refers to being interviewed on the 14 November 2006 but only records that the officers asked to interview his grandparents and his mother.  It appears no interview was undertaken with the mother or the grandparents.  The applicant attached a copy of an email from his mother to the respondent in which his mother refers to seeing a “green liquid spray and a gel in a black tube” which the applicant had given to his grandparents.  No further information was given in the statement and the applicant was not cross examined on this aspect of the statement.

49.        The evidence, while it permits a conclusion as to what the officers may be investigating, is not such that it is capable of supporting “behaviour indicating doping”.  In the absence of the grounds upon which the investigation was being undertaken and/or some evidence as to what was, or at least may have been, in the spray and gel given by the applicant to his grandparents, there is insufficient evidence to allow such a conclusion to be safely drawn.  Not any of the other clauses in the International Standard have any relevance to this case.

50.        The respondent claims that whether or not the testing was targeted is ultimately irrelevant as the International Standard, in clause 4.6.5, sets out procedures to ensure that the athlete is not notified in advance that a test is to be undertaken.  The respondent is, in effect, submitting that whether a test is targeted or arises from random selection is, in the end, irrelevant because either way the athlete is not informed of the likelihood of a test being carried out.  The respondent submitted that the applicant was not apparently aware and did not draw to attention at the time of his being tested that the Notification form described the test as arising from a random selection.  The applicant consented to undertaking the test.  This being the case the respondent submitted that there was no resulting procedural unfairness or any possible case that the applicant had been misled.  The respondent submitted that a request having been made in the terms required in clause 20 of the NAD scheme, the correct procedures for the taking of the sample and its analysis having been followed, it could not be said that there has not been at least “substantial compliance” with the International Standard requirements.

51.        The Tribunal is unable to accept the respondent’s submission on this point. The point has nothing to do with ”substantial compliance”.  The International Standard establishes minimum considerations which anti-doping testing authorities must address before a targeted test is undertaken.  It is a prerequisite that that consideration be given.  Otherwise testing must be way of random selection.  There is no sufficient evidence to support that the respondent gave any consideration to the minimum requirements required for a targeted testing of the applicant to be undertaken.

52.        The respondent drew to the Tribunal’s attention Article 5 of the World Anti-Doping Code which deals with testing.  Article 5 states that testing shall be in conformity with the International Standard for Testing. Article 5.1.2 makes “no advance notice testing” a priority and Article 5.1.3 specifically permits target testing.  A comment to Article 5.1.3 states

Target Testing is specified because random Testing, or even weighted random Testing, does not ensure that all of the appropriate Athletes will be tested.  (For example: world class Athletes.  Athletes whose performances have dramatically improved over a short period of time.  Athletes whose coaches have had other Athletes test positive. etc.).

Obviously, Target Testing must not be used for any purpose other than legitimate Doping Control.  The Code makes it clear that Athletes have no right to expect that they will be tested only on a random basis.  Similarly, it does not impose any reasonable suspicion or probable cause requirement for Target Testing.

53.        There is nothing contained in the above comment which absolves those undertaking targeted anti-doping testing from having to comply with the prerequisites otherwise provided as being the minimum requirements in the International Standard Item 4.6.2. 

54.        The Tribunal then considered whether or not the respondent should be given the opportunity to reopen the case so that any evidence on this issue may be given.  It is clear that the applicant’s barrister raised this issue in an undated letter to the respondent.  Even although the letter was undated it is apparent from its terms, and the respondent admitted, that it must have been sent in September 2007.  Additionally the respondent has had access to the applicant’s statement which at least states that an interview occurred.  Whether the statement extends to giving a complete description of what was said is unknown.  Finally, while in a different context, clause 14(f) of the applicant’s statement of facts and contentions submission raised the question of the applicant’s previous contact by stating that the test was conducted on the suspicions concerning the applicant raised in an interview with him on 14 November 2006.  There was, in the opinion of the Tribunal, sufficient correspondence and material to put the respondent on notice well before the hearing that a concern existed as to whether the test was randomly undertaken or targeted. 

55.        As stated earlier the respondent only conceded that the applicant was not randomly tested on the Friday before the commencement of the hearing, which was on the following Tuesday.  When an issue is raised with a respondent then that should be addressed in a timely manner so as not to put an applicant to the time and expense of having to unnecessarily prepare to address the point.  In this case the Tribunal is informed that the applicant enjoys a professional standing but not one which is well renumerated.  He would be put to further expense on top of the 2 days it has already taken to hear the case.  This would be at least unfair to him and perhaps even oppressive.  The Tribunal also takes into account that it is 16 months since the test was undertaken and that the respondent has known all along that the applicant was the subject of target testing but failed to acknowledge that fact until the last minute.

56.        Against these factors the Tribunal must weigh the seriousness of the alleged breach and the fact that the applicant does not dispute the outcome of the test, which revealed him as having ingested a prohibited substance.  This is a serious accusation and there is a public interest in the identification of such behaviour among athletes.

57.        However bearing in mind the factors outlined above, the Tribunal, in all the circumstances, has decided that the case should be determined as quickly as is consistent with justice being done.  That aim will, in the Tribunal’s opinion, be achieved by it not calling for the case to be reopened.  The Tribunal notes that the VAL has procedures which it can invoke in respect of the applicant.

58.        In view of the conclusions already reached by the Tribunal it is not necessary for it to address the issue of whether the applicant was pressured to undertake the test, and if so whether that is a factor which can be considered in determining the case.  The point which the applicant relies upon in making this submission, that his concerns as to the inaccuracies contained in the Notification form were ignored, have been sufficiently addressed, in any event, earlier in these reasons.

59. From the above it follows that while the Tribunal is satisfied that the applicant is an athlete as defined in Item 4(1) of the NAD scheme, that his privacy was not infringed in the testing process and that he returned a positive result to the sample taken, it is not satisfied that the minimum prerequisites required in the International Standard Item 4.6.2 for undertaking a targeted test were complied with as required under International Standard. The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s name not be entered on the register kept by the respondent. The order made by the Tribunal on 28 August 2007, under s 35(2) of the Administrative Appeals Tribunal Act 1975 continues in force.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President
Dr Kerry Breen, Member

Signed:         .....................................................................................
                Diane De Andrade            Personal Assistant

Date/s of Hearing  15 and 16 April 2008
Date of Decision  30 May 2008
Counsel for the Applicant          Mr M Purvis
Counsel for the Respondent     Ms E Brimer

Solicitor for the Respondent     Mr D Mullaly

Australian Sports Anti-Doping Authority