PETERS and ANTI-DOPING RULE VIOLATION PANEL
[2011] AATA 333
•19 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 333
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5075
GENERAL ADMINISTRATIVE DIVISION ) Re RYAN PETERS Applicant
And
ANTI-DOPING RULE VIOLATION PANEL
Respondent
DECISION
Tribunal Deputy President P E Hack SC
Senior Member Bernard J McCabe
Date 19 May 2011
Place Brisbane
Decision The Tribunal affirms the decision under review.
................................................
Deputy President
CATCHWORDS
DRUG TESTING — whether applicant was denied procedural fairness during test process — whether the decision to impose a ban was reviewable by the Tribunal — whether applicant was bound by anti-doping rules —decision under review affirmed.
Australian Sports Anti-Doping Authority Act 2006
Australian Sports Anti-Doping Authority Regulations 2006
REASONS FOR DECISION
19 May 2011 Deputy President P E Hack SC
Senior Member Bernard J McCabe
1. Ryan Peters is a talented rugby league player. His club participates in a competition organised by the Queensland Rugby League (“QRL”). On 12 June 2010, following a match, he provided urine samples as a part of a random drug testing process conducted by the Australian Sports Anti-Doping Authority (“the Authority”). Testing confirmed the samples contained traces of a banned substance. After further analysis, the Anti-Doping Rule Violation Panel (“the Panel”) decided to formally register its findings. Technically, it decided to make two entries on the Register it maintains: an entry recording that a banned substance had been detected, and an entry recording its finding that the athlete had used the banned substance in question.[1] The Panel also recommended that Mr Peters be banned from the sport for two years. The QRL subsequently accepted the recommendation, and the applicant is now ineligible to play the sport he loves.
[1] The statement of reasons provided by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 referred to one decision to make two entries on the Register, although it is possible to argue the respondent actually made two decisions – one in respect of each entry. The legislative scheme could be interpreted either way. We are satisfied there is no difference in substance between the two views for present purposes. We have proceeded on the basis that there was one decision to make two entries.
2. It is clear Mr Peters did consume a supplement prior to the game that he now knows to contain the banned agent. He says the Panel’s decision ought to be set aside in any event. He argues the Panel’s recommendation that he be banned was improper, and set the stage for an erroneous decision by the QRL that should now be challenged. He also says he was denied procedural fairness in the testing process. Lastly, he argues he is not subject to the drug testing rules that have been applied to him.
3. We have decided to affirm the decision under review, for reasons we will explain.
THE BACKGROUND TO THE TESTING PROCESS
4. Mr Peters was registered as a player with the Easts’ Rugby Club in Brisbane. He had signed a players’ agreement with his club. The agreement was in a standard form provided by the QRL. A copy of the agreement has been reproduced at p 17ff of exhibit one. The agreement included clauses acknowledging the player would “observe and be subject to all rules, regulations, by-laws and directions of the QRL…”. The agreement specifically referred to the QRL’s drug-testing rules and included an acknowledgement that the club might impose additional drug testing requirements.
5. Clauses 93-95 of the QRL rules are reproduced in exhibit one at p 849. They provide that players are subject to the Australian Rugby League (“ARL”) Anti-Doping Rules. Those rules are said to be based on the World Anti-Doping Agency (“WADA”) Policy. (We were provided with copies of both the ARL/National Rugby League (“NRL”) rule’s and the WADA Code.) The QRL rules go on to provide (at clause 95) that players were required to submit to all testing required under the Anti-Doping Rules, and noted that players in breach of the rules would be subject to disciplinary action before a “Drug Judiciary Tribunal”.
6.
The ARL and its sister organisation, the NRL, participate in the National
Anti-Doping Scheme (“NADS”). The text of the Scheme is found in Schedule One to the Australian Sports Anti-Doping Authority Regulations 2006. The Regulations are made pursuant to the Australian Sports Anti-Doping Authority Act 2006. NADS explicitly adopts the principles of the World Anti-Doping Code. The Authority administers the scheme and conducts the testing but the Panel decides whether or not to enter the name and other details of an individual on a Register of Findings maintained under the NADS arrangements.
THE TESTING OF THE APPLICANT BY THE AUTHORITY, THE DECISION OF THE PANEL AND THE IMPOSITION OF SANCTIONS BY THE QRL
7. Mr Peters played on the Easts’ team at a match in Brisbane on 12 June 2010. Prior to the game, at his girlfriend’s suggestion, he consumed a product known by the trade name “Jack3d”. The packaging disclosed the product included something known as geranium root. If the applicant had made more searching inquiries, he would have realised that 1,3-dimethylpentylamine is extracted from geranium plants. That substance is on the list of banned substances for the purposes of NADS because it is a stimulant. (The WADA list of banned substances is found at p 19ff of exhibit one.)
8.
At the conclusion of the game, Mr Peters was told he would be required to provide a urine sample to the Authority’s officials who were in attendance at the ground. He completed a declaration in connection with the test in which he disclosed he had taken “Jack3d” and some Voltaren. After the sample was collected, it was distributed into two containers: an “A” container and a smaller “B” container. The
A sample was subsequently tested. Not surprisingly, the sample tested positive for
1,3-dimethylpentylamine. Mr Peters was notified of the result by letter dated
6 July 2010. The letter, reproduced at pp69-70 of exhibit one, noted the presence of the banned substance in the sample suggested there was a violation of the WADA Code and the ARL/NRL Anti-Doping Policy. He was also told that the B sample would be tested to confirm the presence of the banned substance unless he waived the requirement for further testing. A time was set for the opening and analysis of the sample. The letter went on to inform him:
You or a representative, or both, are entitled to attend the identification, opening and analysis of Part B of your Sample. Please advise if you wish to be present or have a representative attend. If you do not wish to attend, the [Australian Sports Drug Testing Laboratory] will appoint an independent witness on your behalf to be present during the Part B sample analysis.
9. The letter went on to observe:
I note that in a conversation with Michael Hope [a lawyer to the Authority] on 5 July 2010, you indicated that you wished to appoint an independent witness. Please confirm if this is the case.
10. This last entry appears to have generated some confusion. The rules provide for the individual or a representative to be present. In the absence of the individual or his representative, the Authority - not the individual - appoints an independent witness. Strictly speaking, there is no provision for the individual to appoint an independent witness. Mr Peters responded to the invitation by email on 8 July 2010. He asked “to have the Part B sample witnessed by an independent witness”. A chain of email communications reproduced in exhibit record that an independent witness was required. One was duly appointed: a Mr Heagney. Mr Heagney is a justice of the peace. He is not a scientist. It is not clear why the Authority selected him to act as an independent witness, but we do not infer anything sinister from their choice. As it happens, Mr Heagney was present for the opening of the sample on 13 July 2010 but he did not stay for the analysis. It is unclear why he did not stay for the balance of the process, but there is no evidence that he was excluded or that the Authority or the laboratory personnel did any thing to frustrate his involvement in the process.
11.
There is no evidence that anything untoward happened in the course of the analysis. The report of the analysis at p 77 of exhibit one says the sample was opened in the presence of Mr Heagney (who is identified erroneously as the “Athlete’s representative”) and subsequently loaded into a gas chromatography-mass spectrometry device. The device confirmed the presence of
1,3-dimethylpentylamine. That conclusion was hardly a surprise given Mr Peter’s admission at the time of testing that he had consumed a product that contains the banned substance in question. The laboratory’s quality manager subsequently certified that the analysis had proceeded in accordance with the WADA International Standard for Laboratories.
12. Mr Peters was informed of the results of the Part B sample analysis by letter dated 16 July 2010 (exhibit one at p 83ff). The letter foreshadowed the possibility that the Panel would decide to make entries on the Register that would be drawn to the attention of the sporting organisations of which he was a member. It also noted the Panel might elect to recommend an appropriate sanction. Mr Peters was invited to make submissions to the Panel. In effect, he was invited to show cause why the Panel should decide against making entries on the Register.
13. After receiving Mr Peters’s submissions, members of the Panel voted to (a) make entries on the Register recording the violation and (b) recommend to the QRL that a two-year ban be imposed on Mr Peters in light of the anti-doping rule violations.
14. The letter of notification is dated 26 October 2010. It is found at p 260ff of exhibit one. The letter sets out the Panel’s findings in relation to the presence and use of the banned substance. It informs the applicant of the decision to make entries on the Register, and advises him of his appeal rights in relation to that decision. It goes on to advise of the recommendation regarding the ban under the heading “Next Steps” which foreshadows the QRL disciplinary process. The letter clearly proceeds on the basis that the decision to make entries on the Register is reviewable by the Tribunal, but there is an implicit assumption that the review rights do not extend to the recommendation as to sanction.
15. A representative of Mr Peters sought clarification of some of the matters referred to in the letter of 26 October 2010. The Authority responded by letter on 16 November 2010. It asserted the Panel was not required to give reasons for its decision but proceeded to refer to a number of matters that purported to inform that decision.
16.
The QRL subsequently considered what action to take in response to the Panel’s findings, and in light of its recommendation about a two-year ban. The QRL’s Drug Judiciary Tribunal had already imposed a provisional suspension following a hearing on 30 July 2010 pending the outcome of the testing process. On
21 December 2010, the Tribunal followed the Panel’s recommendation and imposed a two-year ban on Mr Peters effective from 9 July 2010. The Tribunal’s reasons for decision are reproduced at p 874ff of exhibit one.
THE REVIEWABLE DECISION BEFORE THE ADMINISTRATIVE APPEALS TRIBUNAL
17. Mr Peters is upset by the decision to make entries in the Register. He says he has been labelled as a drug cheat. That may have adverse consequences for him – not the least of which is the ban from playing in the Rugby League for two years. But his counsel also made it clear that Mr Peters is concerned about the decision to impose a two-year ban, even if it was open to the Panel to make entries in the Register.
18. For the purpose of this appeal, the Panel has at least three functions under the NADS arrangements. Firstly, it maintains a Register of Findings pursuant to clause 4.08. Secondly, it makes a decision whether to make an entry in the Register after considering the test results, notifying the athlete and hearing any submissions from the athlete. The power to make entries in the Register is found in clause 4.09 of the NADS rules. The third function is set out in clause 4.11(2)(a). That sub-clause (with our annotations in square brackets) provides:
(2) A notice [that is, a notice pursuant to clause 4.11(1) informing the athlete in question that a finding in relation to him has been entered in the Register] may also state:
(a)details of any recommendation that [the Panel] has made, or proposes to make, to relevant sporting organisations about the consequences of the adverse analytical finding or other possible anti-doping rule violation subject to the finding; and
(b)any other details relevant to the finding.
19. Clause 4.12 establishes a right to apply to the Administrative Appeals Tribunal. The clause that founds this Tribunal’s jurisdiction must be read carefully. It says:
An athlete or support person to whom an entry on the Register relates may, within 28 days of receipt of the notice mentioned in clause 4.11, apply to the Administrative Appeals Tribunal for review of the ADVRP’s decision make the entry [sic].
20. The NADS arrangements contemplate the Tribunal reviewing the decision to make an entry in the Register pursuant to clause 4.09 but not the decision to make a recommendation as to consequences pursuant to clause 4.11(2). It follows the Tribunal does not have jurisdiction to consider whether the Panel’s recommendation of a two-year ban was appropriate.
21. The Tribunal’s review is limited to the question of whether the Panel’s decision to make an entry in the Register pursuant to clause 4.09 was the correct or preferable one.
REVIEW OF THE DECISION TO MAKE AN ENTRY IN THE REGISTER OF FINDINGS
22.
Mr Peters did not present any evidence disputing that
1,3-dimethylpentylamine was found in his system. It would be difficult for him to do so given his admission that he took “Jack3d” in advance of the game, and the un-contradicted evidence that “Jack3d” contains 1,3-dimethylpentylamine. His principal criticism of the Panel’s decision arises out of the fact that the analysis of the B sample on 13 July 2010 proceeded in the absence of Mr Heagney, the independent witness. Mr Howe, counsel for Mr Peters, said clause 4.05(3) gave
Mr Peters the right to have a representative present for the opening and analysis of the sample. The failure to comply with that rule (and honour that right), it was argued, meant the testing process was defective and could not therefore form the basis of a valid decision by the Panel.
23. On one view of the matter, Mr Peters did not have the right to nominate an independent witness under clause 4.05(3). Mr Peters was invited to attend in person or send a representative. He elected to do neither. He asked for an independent witness to be present, but that is not what the rules provide for: as we have pointed out, the rules provide that the Authority will nominate an independent witness. We accept the letter from the Authority dated 6 July 2010 from which we have already quoted might have caused some confusion, but Mr Peters arguably did not exercise the right that he says has been disregarded.
24. As it happens, we do not think the absence of an independent witness during the analysis phase of the testing process is a fatal flaw in the circumstances of this case.
25. The NADS rules do not expressly require that an independent witness be present throughout the process in the absence of the athlete’s representative. Apart from the requirement that the athlete be permitted to attend in person or through a representative, the NADS rules regarding the testing process incorporate the provisions of the WADA Code and relevant International Standards. Clause 3.24 of the NADS rules expressly provides that the testing process “comply, or substantially comply”, with those procedures. If there was substantial compliance, that is enough. Are we satisfied that there was compliance, or substantial compliance?
26.
Clause 5.2.4.3.2.6 of the International Standard for Laboratories under the WADA Code (reproduced at p 308 of exhibit one) provides that an independent witness should be present for the opening of the sample in the absence of the athlete or his representative. That occurred here. The fact that the witness did not remain for the balance of the testing process is not a violation of those rules. But even if it were a requirement that the witness remain, we are satisfied there has been substantial compliance with the rules in this case. We are certainly not aware of any evidence that would enable us to be satisfied that the failure – if that is what it was - to have an independent witness present throughout the testing process “could reasonably have caused the Adverse Analytical Finding” as required under
clause 3.2.1 of the International Standard (reproduced at p 275 of exhibit one).
27. It follows that we are satisfied the results of the analysis of the Part B sample are available for consideration to the decision-maker. We were not given any other reason to question the outcome of the testing process.
28. Mr Howe pointed out on behalf of Mr Peters that the power to make entries in the Register is a discretionary one. He argued the discretion was unfettered. He said the decision-maker (and on review, the Tribunal) should have regard to a number of factors, including the fact that Mr Peters’s contravention of the rules was the product of an inadvertent breach. We do not agree that the discretion is that wide. We accept the power in clause 4.09(2) of the NADS rules to make an entry on the Register is not expressly limited by reference to any matter, but limits on the discretion are implicit in the legislative scheme. Clause 4.07 requires that the Panel invite submissions from the athlete before making a recommendation. We accept those submissions may relate to any matter, but many of those matters are relevant to the separate power in clause 4.10(2) to make a recommendation as to consequences that should flow from the decision to make an entry on the Register. It is likely that the only matters relevant to the exercise of the discretion to make an entry on the Register will be matters that reflect on the accuracy or integrity of the testing process. We do not wish to express a concluded view on that point: it may be that in a particular case other matters might be relevant to the exercise of the discretion. Suffice to say, however, that we are not aware of any other matters in this case that would cause us to exercise the discretion in Mr Peters’s favour.
IS MR PETERS BOUND BY THE ANTI-DOPING RULES?
29. Mr Peters argues he is not bound by the drug-testing process that has led to his suspension from the sport. He claims the anti-doping rules are not binding on him because his contractual arrangements with his club do not effectively incorporate the anti-doping rules to which the ARL and the NRL are a party.
30. We disagree. Mr Peters’s agreement with his club expressly requires that he observe the QRL’s rules, including the drug testing rules. We have already noted that the QRL rules expressly refer to and incorporate the ARL’s anti-doping policy. That policy in turn conforms to and incorporates the NADS arrangements.
31. We do not think there is any substance to the argument that the applicant is not covered by the NADS arrangements because he is not an elite athlete. The argument proceeds on the basis that clause 1.06 of the NADS arrangements says the testing processes apply relevantly to:
…(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…
32. The Panel says Mr Peters does compete in a national event because players in the NRL’s national competition regularly participate in club matches like the one in which Mr Peters participated on 12 June 2010. We were provided with evidence to show that a number of NRL players - who certainly compete in a national competition - competed in the same match as Mr Peters. We think there is much to be said for that view but we are persuaded in any event that Mr Peters is covered because the QRL has a contract with the Authority that envisages players like the applicant being tested. A copy of the contract is reproduced in exhibit one at p 28ff.
CONCLUSION
33. The decision to make entries in respect of the applicant on the Register of Findings pursuant to clause 4.09 of the National Anti-Doping Scheme is affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Senior Member Bernard J McCabe
Signed: ....................................................................................
Kerri SmithDate of Hearing 20 April 2011
Date of Decision 19 May 2011
Counsel for the Applicant Mr K S Howe
Solicitors for the Applicant Anne Murray & Co
Counsel for the Respondent Mr J Marshall SC
Ms N KidsonSolicitors for the Respondent Mr M Hope, Australian Sports Anti-Doping Authority
0
0