Smith and Anti-Doping Rule Violation Panel - [2019] AATA 5489

Smith and Anti-Doping Rule Violation Panel [2019] AATA 5489 (19 December 2019)
Division:GENERAL DIVISION
File Number: 2019/0027
Re:Gregory Smith
APPLICANT

AndAnti-Doping Rule Violation Panel
RESPONDENT

AndChief Executive Officer, Australian Sports Anti-Doping Authority
JOINED PARTY

DECISION
Tribunal:Deputy President J W Constance
Mr Rob Reitano, Member
Date:19 December 2019
Place:Sydney

The Tribunal decides that:
1)
a)the decision made by the Respondent on 11 October 2018, to make an assertion in relation to the possible presence of prohibited substances in the Applicant’s sample obtained 16 May 2018, is set aside;
b)in substitution, it is decided not to make an assertion in relation to the Applicant in accordance with subclause 4.09(7) of Schedule 1 of the Australian Sports Ant-Doping Authority Regulations 2006 (Cth);

2)
a)the decision made by the Respondent on 11 October 2018, to make an assertion in relation to the possible use of a prohibited substance by the Applicant on and/or before 16 May 2018, is set aside;
b)in substitution, it is decided not to make an assertion in relation to the Applicant in accordance with subclause 4.09(7) of Schedule 1 of the Australian Sports Ant-Doping Authority Regulations 2006 (Cth).

.............................[sgd]...........................................
Deputy President J W Constance
CATCHWORDS
SPORT — anti-doping — review of decisions of the Anti-Doping Rule Violation Panel to make assertions of possible use of a prohibited substance and possible presence of prohibited substances in relation to the Applicant — LGD-4033 and its metabolite Di‑hydroxy LGD-4033 — consideration of the application of the NAD Scheme to the Applicant — whether the Applicant was, at the relevant time, "a person who competes in sport" — where athletics is a sport having an anti-doping policy — where Applicant had not competed in any event for approximately eighteen months prior to March 2018 — where Applicant retired from the sport of athletics immediately after event in March 2018 — where urine sample collected from Applicant in May 2018 — Applicant not a person to whom the NAD Scheme, at the relevant time, applied — consideration of legality of sample collection — decisions under review set aside and substituted for decisions not to make any assertion in relation to the Applicant
LEGISLATION
Australian Sports Anti-Doping Authority Act 2006 (Cth)
Australian Sports Anti-Doping Authority Regulations 2006 (Cth)
CASES
Anti-Doping Rule Violation Panel v XZTT (2013) 214 FCR 40
Kennedy and Anti-Doping Rule Violation Panel [2014] AATA 967
SECONDARY MATERIALS
Explanatory Statement, Australian Sports Anti‑Doping Authority Amendment (World Anti‑Doping Code and Other Measures) Regulation 2014
Oxford English Dictionary Online
REASONS FOR DECISION
Deputy President J W Constance
Mr Rob Reitano, Member
19 December 2019
A: INTRODUCTION

This case is about the complex web of legislative and regulatory prescription that applies to people who compete in sport. That web has as its object the eradication of doping in sport whilst at the same time preserving the fundamental rights of those who choose to compete. The regulatory regime is underpinned by the axiom that “[d]oping is fundamentally contrary to the spirit of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 5489
Decision Date: 19 December 2019

CaseChat Overview and Summary

This matter concerned an application by Mr Smith to review decisions made by the Anti-Doping Rule Violation Panel (the Panel) to assert possible anti-doping rule violations against him. The alleged violations related to the possible use of a prohibited substance, LGD-4033, and the possible presence of that substance and its metabolite in a urine sample collected from Mr Smith in May 2018. The court was required to determine whether the National Anti-Doping (NAD) Scheme applied to Mr Smith at the time the sample was collected.

The central legal issue was whether Mr Smith was "a person who competes in sport" for the purposes of the NAD Scheme at the relevant time. The NAD Scheme applies to persons who compete in sport if that sport has an anti-doping policy. Athletics, the sport in question, has such a policy. The court had to consider Mr Smith's competitive history, his registration status, and his intention regarding future competition.

The court reasoned that Mr Smith had ceased competing in athletics events in approximately September 2016 and had retired from the sport immediately after an event in March 2018. He had not registered as an athlete for the 2017/2018 season, and the court accepted his evidence that he had not competed for approximately eighteen months prior to March 2018 due to injury and had not authorised any registration on his behalf. Therefore, at the time his urine sample was collected in May 2018, Mr Smith was not considered "a person who competes in sport" to whom the NAD Scheme applied.

Consequently, the court set aside both assertions made by the Panel and, in substitution, decided not to make any assertion in relation to Mr Smith.

Orders

Orders of the court

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Background

Background to the litigation

We have decided to set aside both assertions made by the Panel. In substitution, we have decided not to make any assertion in relation to Mr Smith. Our reasons for doing so follow.C: BACKGROUND For some time until 1996, Mr Smith competed in athletics in the United States as an elite level sprinter in the National Collegiate Athletic Association (the NCAA) Division 1 for Western State College (now known as Western Colorado University). NCAA Division 1 is the highest level of intercollege competition in the United States. Mr Smith also competed in the National Indoor Track and Field Championships. At that time he was fairly described as an elite athlete. In 1999, Mr Smith moved to Australia. In 2007, he became an accredited athletics coach. He began his coaching career coaching children in what is popularly known in Australia as Little Athletics. In around 2011-2012, he obtained a Level 3 coaching qualification which permitted him to coach athletes “up to the level of making an Australian team”.[26] Until his suspension as a coach by Athletics Australia, he was coaching between 60 and 70 athletes. He worked with two other junior coaches. He operated a business called “Sprint Master”.[26] Exhibit R1 at 203-204. Since arriving in Australia, Mr Smith has competed in Masters events held for athletes over 35 years of age. From about 2012 to about 2015, Mr Smith was a member of the Mounties Athletics Club and competed in 60-, 100- and 200-metre sprint events. In 2016, he was a member of the Campbelltown Collegians Athletics Club. He ceased competing in athletics events after about September 2016. Mr Smith was registered as an athlete with Athletics New South Wales for the 2015/2016 and 2016/2017 seasons. Athletics seasons run from 1 October to 30 September in the following year. Mr Smith said he did not register as an athlete for the 2017/2018 season and had not authorised anyone to do so on his behalf. He was adamant in his evidence that he had not done so even though he had seen the record that indicated that someone had registered him online and paid the relevant fee of $190. He was again shown these in his evidence and denied that he had anything to do with the registration that was recorded in his name. Mr Smith said that he had not registered as an athlete for the 2017/2018 season because he had not competed in any events for about a year when his registration would have been due for renewal in around October 2017. Even though it was not stated to be the reason for his not competing since September 2016, Mr Smith’s evidence was that he had been diagnosed with Achilles tendonitis some time before then. In those circumstances, it is not surprising that he would not have renewed his registration in late 2017. We accept Mr Smith’s evidence that he did not register or cause himself to be registered as an athlete for the 2017/18 season. We are satisfied that Mr Smith was a witness of truth, and that he had not raced at all in 2017. His evidence was not subject to any serious challenge and the makers of the records, which on their face suggested otherwise, were not called.New South Wales Masters Athletics Championships, 3-4 March 2018

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The making of an assertion is the first step for domestic sporting bodies having anti‑doping policies to proceed to deal with doping offences by athletes.B: THE REVIEWABLE DECISION On 11 October 2018, the Panel remained satisfied that there had been a possible anti-doping rule violation in relation to Mr Smith’s use of a prohibited substance, and a possible anti-doping rule violation in relation to the presence of a prohibited substance in Mr Smith’s sample. So satisfied, the Panel decided to make an assertion in respect of each of the two possible violations. The Act provides for the right to have the decision to make an assertion reviewed by the Tribunal.[25] Mr Smith has exercised that right in respect of both assertions. [25] Subsection 14(4) of the Act and clause 4.12 of the NAD Scheme. We have decided to set aside both assertions made by the Panel. In substitution, we have decided not to make any assertion in relation to Mr Smith. Our reasons for doing so follow.C: BACKGROUND For some time until 1996, Mr Smith competed in athletics in the United States as an elite level sprinter in the National Collegiate Athletic Association (the NCAA) Division 1 for Western State College (now known as Western Colorado University). NCAA Division 1 is the highest level of intercollege competition in the United States. Mr Smith also competed in the National Indoor Track and Field Championships. At that time he was fairly described as an elite athlete. In 1999, Mr Smith moved to Australia. In 2007, he became an accredited athletics coach. He began his coaching career coaching children in what is popularly known in Australia as Little Athletics. In around 2011-2012, he obtained a Level 3 coaching qualification which permitted him to coach athletes “up to the level of making an Australian team”.[26] Until his suspension as a coach by Athletics Australia, he was coaching between 60 and 70 athletes. He worked with two other junior coaches. He operated a business called “Sprint Master”.[26] Exhibit R1 at 203-204. Since arriving in Australia, Mr Smith has competed in Masters events held for athletes over 35 years of age. From about 2012 to about 2015, Mr Smith was a member of the Mounties Athletics Club and competed in 60-, 100- and 200-metre sprint events. In 2016, he was a member of the Campbelltown Collegians Athletics Club. He ceased competing in athletics events after about September 2016. Mr Smith was registered as an athlete with Athletics New South Wales for the 2015/2016 and 2016/2017 seasons. Athletics seasons run from 1 October to 30 September in the following year. Mr Smith said he did not register as an athlete for the 2017/2018 season and had not authorised anyone to do so on his behalf. He was adamant in his evidence that he had not done so even though he had seen the record that indicated that someone had registered him online and paid the relevant fee of $190. He was again shown these in his evidence and denied that he had anything to do with the registration that was recorded in his name. Mr Smith said that he had not registered as an athlete for the 2017/2018 season because he had not competed in any events for about a year when his registration would have been due for renewal in around October 2017. Even though it was not stated to be the reason for his not competing since September 2016, Mr Smith’s evidence was that he had been diagnosed with Achilles tendonitis some time before then. In those circumstances, it is not surprising that he would not have renewed his registration in late 2017.

Ratio Decidendi

Legal Principle Established

On 9 August 2018, Mr Smith made a submission about the matters contained in the notice given to him on 6 July 2018.[43][43] Exhibit R1 at 288.Consideration by the Panel On 13 September 2018, the Panel was satisfied that there were two possible anti-doping rule violations and requested the CEO to give notice to Mr Smith under subclause 4.09(1) of the NAD Scheme.[44] On 26 September 2018, as requested by the Panel, the CEO gave notice to Mr Smith under subclause 4.09(1).[45] On 5 October 2018, Mr Smith made a further submission in accordance with paragraph 4.09(1)(d).[46][44] Exhibit R1 at 299-300.[45] Exhibit R1 at 304.[46] Exhibit R1 at 308. On 11 October 2018, the Panel met to consider making assertions in relation to Mr Smith’s two possible anti-doping rule violations. The Panel remained satisfied that there had been two possible anti-doping rule violations, and so made an assertion in relation to each.[47] [47] Exhibit R1 at 384-385. On 6 December 2018, Mr Smith was notified of the making of the assertions.[48][48] Exhibit R1 at 7.Consequential action taken by Athletics Australia Although it is strictly irrelevant to the review of the decisions to make each of the assertions, it is necessary to record what followed in order to appreciate that the decisions were not without consequence. On 6 December 2018, ASADA sent to Mr Smith an Infraction Notice by which it was proposed to recommend to Athletics Australia that a period of four years ineligibility be imposed upon him.[49][49] Exhibit R3. On 6 January 2019, as Mr Smith had not responded to the infraction notice, as was his right, Athletics Australia wrote to Mr Smith and advised him that he would be ineligible to compete or coach in the sport of athletics for a period of four years.[50][50] Exhibit R4.D: DID THE NAD SCHEME APPLY TO MR SMITH? The first issue is whether the NAD Scheme applied to Mr Smith. If it did not apply to him then there was no basis at all for any of the action taken against him by the Panel and the CEO, from when the ASADA officers first turned up at his home on 16 May 2018 to the time at which he was given notice of the assertions against him on 6 December 2018. Paragraph 13(1)(a) of the Act requires that the NAD Scheme must provide that one or more specified classes of athletes and support persons are subject to the NAD Scheme. It was not suggested that the NAD Scheme applied to Mr Smith in his capacity as a support person. Support persons are not subject to the regime of testing in the NAD Scheme. The issue is confined to whether Mr Smith was in the class of athletes who were subject to the NAD Scheme. Subclause 1.06(1) of the NAD Scheme provides that: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). The sport of athletics has an anti-doping policy, which has been in effect since 1 January 2015.[51] The issue then is whether Mr Smith, when the NAD Scheme was purportedly applied to him, was “a person who competes in sport”. [51] Exhibit R1 at 15.