Smith and Anti-Doping Rule Violation Panel
[2019] AATA 5489
•19 December 2019
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, MemberDate: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, Member19 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 sport”.[1]
[1] World Anti-Doping Code 2015 (the WADA Code) at 14.
Australia’s Anti-Doping Framework
In March 2006, the Australian Parliament enacted the Australian Sports Anti-Doping Authority Act 2006 (Cth) (the Act) in order to implement Australia’s obligations under the General Anti-Doping Convention[2] and the UNESCO Anti-Doping Convention.[3]
[2] Done at Strasbourg on 16 November 1989, [1994] ATS 33.
[3] Adopted by the UNESCO General Conference at Paris on 19 October 2005.
The Act establishes the Anti-Doping Rule Violation Panel (the Panel),[4] the Australian Sports Anti-Doping Authority (ASADA),[5] and the office of ASADA’s Chief Executive Officer (the CEO),[6] who is joined to these proceedings.
[4] Section 40 of the Act.
[5] Section 20 of the Act.
[6] Section 20D of the Act.
The Act also provides for the establishment of the National Anti-Doping Scheme (the NAD Scheme), as prescribed by the Australian Sports Ant-Doping Authority Regulations 2006 (Cth) (the Regulations).[7] The NAD Scheme is expressed to apply only to persons who compete in a sport that has an anti-doping policy.[8] The application of the NAD Scheme is central to the resolution of this matter.
[7] Regulation 3 and Schedule 1 of the Regulations.
[8] Subclause 1.06(1) of the NAD Scheme.
The NAD Scheme deals with the investigative process and the carrying out, under delegation, of the CEO’s doping control functions, including the collection and testing of samples from athletes, and the making of requests of athletes to attend interviews and provide information.
The CEO has the powers and functions conferred on him under the Act and the Regulations. Chief among them is the implementation and enforcement of Australia’s anti-doping rules, which comprise Part 2 of the NAD Scheme. Relevantly, for the present application, the presence of a prohibited substance or its metabolite in an athlete’s sample,[9] and the use or attempted use by an athlete of a prohibited substance,[10] both constitute a violation of the anti-doping rules.
[9] Clause 2.01A of the NAD Scheme.
[10] Clause 2.01B of the NAD Scheme.
Part 4 of the NAD Scheme provides for a tiered process of sample analysis to be undertaken by the CEO, which is triggered upon the CEO’s receipt of an “atypical finding” or an “adverse analytical finding” (AAF) in relation to an athlete’s A sample. If, after reviewing the A sample for irregularity in relation to relevant international standards, the CEO: does not declare the result of testing void;[11] determines that a “therapeutic use exemption” (TUE) does not cover the athlete in relation to the finding;[12] and determines, in the case of an atypical finding, that it amounts to an AAF,[13] the CEO must notify an athlete of the A sample AAF in accordance with clause 4.04 of the NAD Scheme.
[11] Clause 4.01 of the NAD Scheme.
[12] Clause 4.02 of the NAD Scheme.
[13] Clause 4.03 of the NAD Scheme.
If, as occurred in this case, an athlete elects, as is his or her right, to have their B sample analysed, and the CEO determines that the B sample analysis confirms the A sample analysis, the CEO must then notify the athlete of the confirmed AAF and advise the athlete that he or she may give the CEO “a written submission setting out information or evidence that may affect the validity of the results of the testing”.[14] The CEO must also notify the athlete that, after considering any submission made by the athlete, the Panel may make an assertion in relation to the AAF.[15]
[14] Paragraph 4.06(2)(b) of the NAD Scheme.
[15] Paragraph 4.06(2)(d) of the NAD Scheme.
The Panel’s sole function under the NAD Scheme consists of considering whether there has been a possible anti-doping violation (or violations), and of making an assertion (or assertions) in relation to such.[16] Division 4.3 of the NAD Scheme governs the role of the Panel in making assertions about possible anti-doping rule violations. It is important to emphasise that the Panel’s finding is only in relation to whether there has been a possible violation.
[16] Clause 1.03A of the NAD Scheme, referring to clauses 4.08, 4.09, 4.09A and 4.10.
The Panel must give initial consideration to whether there has been a possible anti-doping rule violation by an athlete. To enable it to do so, the CEO must provide it with a copy of the notice given to the athlete under clause 4.06, a copy of the material relied upon by the CEO in giving the notice, and any submission received from the athlete in response to the notice.[17] The CEO may give to the Panel a submission in relation to the possible violation.[18] The Panel also has the power to make a request of the CEO for further information, with which the CEO may comply.[19]
[17] Subclause 4.08(1) of the NAD Scheme.
[18] Subclause 4.08(2) of the NAD Scheme.
[19] Subclause 4.08(3) of the NAD Scheme.
If the Panel is satisfied that there has been a possible anti-doping rule violation by the athlete, the Panel must request the CEO to give to the athlete a notice under subclause 4.09(1).[20] That notice must include, among other things, a statement that the Panel is satisfied of a possible anti-doping rule violation,[21] a summary of the material forming the basis of the Panel’s satisfaction and any submission given to the Panel by the CEO,[22] and a statement that the athlete may give to the CEO a written submission addressing the material relied upon by the Panel and supplementing any submission made in response to the notification of the result of the B sample analysis.[23]
[20] Subclause 4.08(5) of the NAD Scheme.
[21] Paragraph 4.09(1)(a) of the NAD Scheme.
[22] Paragraphs 4.09(1)(b) and (c) of the NAD Scheme.
[23] Paragraph 4.09(1)(d) and subclause 4.09(2) of the NAD Scheme.
Taking into account any submission provided by the athlete, the Panel must then consider whether it remains satisfied that there has been a possible anti-doping rule violation by the athlete. If so, the Panel must make an assertion, in writing, that there has been a possible anti-doping rule violation by the athlete.[24]
[24] Subclauses 4.09(5) and (6) of the NAD Scheme.
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.
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
Over the weekend of 3-4 March 2018, Mr Smith competed at the NSW Masters Athletics Championships at Blacktown International Sports Centre. He competed in the 60-metre sprint in the 45-49 years age group. The NSW Masters Championships was conducted under the auspices of Athletics NSW. Mr Smith won the event in a time of 7.54 seconds. The event results page recorded Mr Smith as running for the Campbelltown Collegians Athletics Club.[27] Mr Smith ran wearing a Campbelltown Collegians Athletics Club singlet. It was a condition of running that participants wear a Club singlet or the NSW Masters singlet. He ran wearing a number which was the product of being registered for the event. The facility at Blacktown is a high-level athletics facility with synthetic tracks. The event was officially timed. There was a medal awarded to the winner.
[27] Exhibit R1 at 128.
There was some controversy about when exactly Mr Smith entered the event. The screenshot of Mr Smith’s entry showed that he had apparently entered the event online on 26 February 2018.[28] Mr Smith said he entered the event on the day he ran by submitting a form and paying $20. Again, Mr Smith was adamant about this. We prefer the direct evidence of Mr Smith concerning his entry being submitted on the day. This is because of our conclusion that he was an honest witness. We would not reject his evidence without good reason to do so.
[28] Exhibit R1 at 125.
The condition of entry for the Masters event required that athletes be registered with an Athletics NSW club or with the NSW Masters Association.[29] Be that as it may, Mr Smith appears to have been permitted to run even though he had not himself registered with such a club or association. This was probably because, as the records demonstrated, someone without his knowledge had registered him with the Campbelltown Collegians Athletics Club. In like fashion, the handbook for entering the event recorded that entries with payment were to be submitted by 9:00am on Thursday, 22 February 2018.[30] Again, Mr Smith appears to have been permitted to run either because he entered on the day or because someone without his knowledge had entered him in the race some time earlier as the records suggested. If Mr Smith did enter on the day of the vent, it is relevant that the handbook indicates that late entries are not guaranteed, which would at least suggest that they might be permitted.
[29] Exhibit R1 at 381.
[30] Exhibit R1 at 381.
After the Masters event, Mr Smith immediately said that he was giving up running because of the pain it caused to his Achilles tendon.[31] Mr Smith said in his oral evidence that he expressed that intention to his partner, Ms Parkinson, after the race. His evidence about this was not challenged.
[31] Exhibit A2 at [8].
Mr Smith had not competed in any athletics event for some 18 months before the NSW Masters Championships at Blacktown. He did not compete in events after that weekend.
ASADA Doping Control “Mission”, 16 May 2018
At around 7:45am on 16 May 2018, at about the time Mr Smith Ms Parkinson were to have breakfast, three ASADA investigators, David Johnston, Karen Smith and another officer whose name Mr Smith does not remember, but who may have been, according to Ms Parkinson, Darrell Jeffrey,[32] knocked on the door of their home. They were greeted by Ms Parkinson, and asked to see Mr Smith. They told Mr Smith who they were and two of them produced their badges. They told Mr Smith they were investigating “recent events that have happened”.[33] They gave him three documents. They told him they needed to record the conversation. One of the investigators produced two tape recorders. The batteries in one of them were dead. One of the investigators went outside to get some new batteries. When she returned there was a conversation between the other investigators and Mr Smith which was recorded. Mr Smith was “cautioned” about offences relating to obstruction, hindrance, resisting or intimidating Commonwealth officers and about giving false or misleading evidence.[34] Mr Smith was invited to look at the documents that were given to him. They were a Notice to produce documents or things,[35] a Notice to give information,[36] and a Notice to attend an interview and answer questions.[37] All three notices were dated 11 May 2018 and signed by David Sharpe, the CEO. They were issued under clause 3.26B of the NAD Scheme. The notices were explained to Mr Smith. The contents of his mobile phone were copied while the investigators were present. His laptop and tablet were taken away. Mr Smith was then told he was required to submit to a drug test.[38]
[32] Exhibit A1 at 1.
[33] Exhibit A2 at [17].
[34] Exhibit R1 at 131.
[35] Exhibit A3.
[36] Exhibit A4.
[37] Exhibit A5.
[38] Exhibit A2 at [19].
At around 8:00am, two more officers of ASADA entered Mr Smith’s house. They had been waiting outside in a car whilst the three investigators were inside. They were the officers instructed to facilitate the drug test by collecting a urine sample. They were Robert Ingall, Doping Control Officer, and Ken MacLennan, Mr Ingall’s chaperone. Mr Smith was told by Mr Johnston that he was “required to” take a urine test as part of the investigation.
Mr Smith completed a Doping Control Collection Sample Form with the officers. Other than his email address, phone number and his signatures, Mr Smith’s handwriting does not appear on the form.[39] Mr Smith signed the form at two points, one of which was directly underneath the words “Athlete’s signature”, the other being directly alongside the word “Athlete”. The first signature purported to represent Mr Smith’s acknowledgement of having received information about aspects of ASADA’s sample collection procedures, ASADA’s Athlete Privacy Information Notice and an acknowledgment of the disciplinary consequences of failing to comply with a request to give a sample. Mr Smith said that he did not read those statements. The second signature was a declaration that the sample collection was conducted in accordance with the relevant procedures, that the information in the form was correct and not false or misleading, and Mr Smith’s consent as to its disclosure. Mr Smith said he read those declarations. The size of the writing next to the two signatures is considerably less prominent than all the other printed text on the form and is barely readable. In passing we observe that given the circumstances in which a person will generally be requested to sign such a form, it is highly inappropriate that the words are not more prominent and readily readable. It is inconsistent with sound administrative practice to use “fine print” in relation to such matters.
[39] Exhibit R7 at RMI-2.
The form contains at least eight printed references that use the word “athlete” in one way or another: one of them is “Athletes name”, and Mr Smith’s name is printed alongside it. In a box with the printed word “Sport” the word “ATHLETICS” is written, and alongside the printed word “Discipline” the word “SPRINT” is written. That writing is not Mr Smith’s. Mr Smith provided a urine sample to the drug testers, the details of which are recorded on the form.
The Panel and the CEO sought to make something of Mr Smith’s “acknowledgment” by signing near where the word “Athlete” appeared. Given the circumstances in which Mr Smith signed the form, not least of which was the sudden and completely unexpected intrusion by five ASADA officers into his family home in the early morning during which he was told he was required to submit to the collection of a urine sample, it is highly unlikely that he turned his mind to the formality of what he was being asked to sign and the oblique question of whether, in doing so, he was declaring that he was an “athlete”. It was unlikely to have been at the forefront of his mind.
For the same reasons, we reject the Panel’s and the CEO’s reliance on the declarations on the Doping Control Collection Sample Form as evidencing Mr Smith’s awareness that what he was doing was entirely voluntary and responsive to a request. Apart from the fact that Mr Smith said he did not read the information about ASADA’s doping procedures, even if he had read it, given the circumstance he found himself in, it is highly improbable that he would have appreciated the difference between what the investigators and doping control officers told him was “required”, and the choice he was entitled to make to decline to provide a urine sample under the NAD Scheme.
Sample analysis and further investigation
On 29 May 2018, Mr Smith’s A-sample returned an AAF for LGD-4033 and its metabolite Di-hydroxy LGD-4033. LGD-4033 and its metabolite Di-hydroxy LGD-4033 are prohibited substances under the World Anti-Doping Code - International Standard - Prohibited List 2018.[40]
[40] Exhibit R1 at 725.
On 31 May 2018, Mr Smith participated in a recorded interview with Ms Smith and Mr Johnston, the ASADA investigators. Counsel for Mr Smith, Mr Howard, who also represented Mr Smith in these proceedings, was present. When invited to identify the subject matter of the investigation, Ms Smith said that ASADA was investigating “the presence and use of prohibited substances by athletes under the coaching of Mr Smith”.[41]
[41] Exhibit R1 at 200.
On 6 July 2018, Mr Smith was advised that analysis of his B sample confirmed the presence of LGD-4033 and its metabolite Di-hydroxy LGD-4033 in his urine.
On 6 July 2018, Mr Smith was given notice under clauses 4.06 and 4.07A of the NAD Scheme that the CEO had determined that Mr Smith may have committed two anti-doping rule violations; one relating to the presence of prohibited substances and the other to the use of a prohibited substance.[42]
[42] Exhibit R1 at 184.
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.
The phrase “person who competes in sport” and the word “sport” are not defined in the Act or the Regulations. The Act defines and refers to other phrases that involve the word “sport”, but the word itself is left undefined. The word must at least initially be given its ordinary English meaning: “an activity involving physical exertion and skill, esp. … one regulated by set rules or customs in which an individual or team competes against another or others”.[52] Few people would have difficulty in Australia in 2019 identifying what is and is not sport. There is nothing in the Act or the Regulations that contextually would dictate any departure from the ordinary English meaning of the word “sport”.
[52] “Sport, n.1,” Oxford English Dictionary Online. Oxford University Press, December 2019.
The word “compete” too has a clear, ordinary English meaning: “to enter into or be put in rivalry with, to vie with another in any respect”.[53] Again, there is nothing in the context of the Act or the Regulations that would necessitate any departure from the ordinary English meaning of the word.
[53] “Compete, v.2,” Oxford English Dictionary Online. Oxford University Press, December 2019.
Further, it is significant that the phrase is expressed in the present tense, so that people who once competed in sport or people who intend in the future to compete in sport are not relevantly “persons who compete in sport”. This does not preclude the fact that a person might be “a person who competes in sport” in circumstances where they are not, on any given day, engaged in competition. A person will be a person who competes in sport if, for example, they are engaged in weekly sporting activity over the course of a season in a sporting competition or if they usually are over a period of years. To use the jargon with which sporting people are familiar, and which is found elsewhere in the NAD Scheme,[54] a person is no less “a person who competes in sport” when they are “out-of-competition” if they are regularly or routinely participating in sport. It is important to distinguish whether a person is competing in sport at a particular point in time from the duration in which an anti-doping policy might be said to continue to apply to the person and from the time limit for pursuing violations under the Act (a period of ten years[55]). Neither of those considerations will inform the question whether a person is competing in sport at a point in time.
[54] See, for example, clauses 2.01F and 2.01H of the NAD Scheme, being anti-doping rules which expressly contemplate that athletes will remain as such despite being “out-of-competition”.
[55] Subsection 13(3) of the Act and clause 4.23 of the NAD Scheme.
It was argued that one element of the notion of “competing in sport” was the need for the contest to have some formality to it and for it to be organised, and that this question was one of “fact and degree”. The need for organisation and formality arises not only from the words “sport” and “competes”, but also from the likely object of the legislation. The word “sport” when used in the phrase “if the sport has an anti-doping policy” in clause 1.06(1) of the NAD Scheme suggests that the words are directed to sporting bodies that formally organise and administer a sport or sports. It is hardly likely that the legislature or the regulation-maker was directing its attention to an impromptu game of beach volleyball organised amongst friends at Bondi Beach on a hot summer’s day, no matter how enthusiastically the participants compete for victory. Equally is it unlikely that the concern was directed to a weekly game of rugby league organised at the local park amongst a group of mates or with an egg-and-spoon race at the local primary school fun day. The fact of a sports body or of its affiliate having formally organised the activity will be one of the hallmarks of competing in sport.
A person will be “a person who competes in sport” when that person routinely or regularly engages in a physical activity involving the application of physical skill or ability in contest with others, which is engaged in in accordance with a set of laws, and where that activity is organised or formally conducted by a sporting body. The expression does not restrict the application of the NAD Scheme to elite athletes or to national or state level athletes and we reject the suggestion that it is so restricted.
It follows that we accept that whether a person is or is not a person who competes in sport will be an evaluative judgment determined on a case by case basis involving a question of fact and degree and its temporal connection to the present.
Mr Smith was a person who competed in sport on 3 and 4 March 2018. This is because Mr Smith was competing in sport over that weekend. He was trying, like everyone else, to win an event in the sport of athletics. The NSW Masters Athletics Championship was a sporting competition organised by Athletics NSW, a member organisation of Athletics Australia. It was conducted at a high-level facility where events were timed, medals were presented and it was obvious to all that participants were vying for victory. On those days, competitors like Mr Smith were required to be registered with an Athletics NSW Club or with the NSW Masters Association. Although it is not clear how Mr Smith came to be registered at that time, other than it was not something brought about by anything he did, that requirement was satisfied. On 3 and 4 March 2018, Mr Smith was a person to whom the NAD Scheme applied.
However, those were not the days on which ASADA’s officers sought to apply the NAD Scheme to him: that happened on 16 May 2018. It is that day to which the present tense in the phrase “person who competes in sport” directs our attention. In our assessment, on 16 May 2018 Mr Smith was not a person who competed in sport for several reasons.
First, he was not, in fact, competing in any sporting event that day. Secondly, he had not competed in any event for about 10 weeks. There is nothing at all that temporally connects what happened on 3 and 4 March 2018 to 16 May 2018. Thirdly, before the weekend of 3-4 March 2018 he had not competed in any event for about 18 months. Fourthly, there was no regularity or constancy in his pattern of competing at that time such that would permit a conclusion that suggested he was likely to compete again in the near or distant future. In this regard, he was not in the position of a competitor who could be seen to compete week in and week out in an annual competition such as a season of rugby league or Australian rules football. Nor was he someone who could fairly be described as a “regular” at organised athletics competitions, whether on a weekly, monthly or even annual basis. The ad hoc nature of competition in events over the previous 20 or so months causes us to conclude that Mr Smith did not intend to compete in such a way as may have rendered him a person who competes in sport on 16 May 2018. Mr Smith was not, as at that day, a regular on any competitive circuit. In this regard, Mr Smith’s subjective intention that he did not intend to compete again after the NSW Masters Athletics Championships in March 2018 serves only to confirm the view we take. Fifthly, the fact that Mr Smith did not take any steps to become registered with an athletics club, nor to have anyone register him with such a club indicates that Mr Smith was not holding himself out as a person who competes in athletics.
For the reasons stated, we are satisfied that Mr Smith was not “a person who competes in sport” on 16 May 2018 and, at all relevant times, was not a person to whom the NAD Scheme applied. In those circumstances, he could not be the subject of an assertion made by the Panel under the NAD Scheme and the decisions to make the assertions will be set aside.
The conclusion we have reached is determinative of Mr Smith’s application. However, in view of the arguments presented by the parties it is appropriate to deal with the other issues raised.
E: COULD MR SMITH BE TESTED UNDER THE NAD SCHEME?
Assuming Mr Smith was a person who competes in sport, the second issue is whether he was liable to be tested by the CEO.
Subclause 1.06(2) of the NAD Scheme provides:
(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.
The Panel submitted that Mr Smith was liable to testing because of paragraph 1.06(2)(h), namely that on 16 May 2018 he was present in Australia. Mr Smith submitted that the words of paragraph 1.06(2)(h) should not be read literally because to do so would render all other paragraphs of the subclause inutile.
The starting point for consideration of the meaning to be given to paragraph 1.06(2)(h) is its ordinary English meaning. That meaning is obvious – people competing in sports that have an anti-doping policy who are present in Australia may be tested. It is necessary to emphasise that the authority to test is not imperative, but rather facultative. The use of the word “may” is important.
Next, it is necessary to consider the context in which paragraph 1.06(2)(h) is found in order to discern whether its ordinary meaning is for any reason displaced.
The Act under which the Regulations were made is expressed to have extraterritorial effect.[56] This follows from the international nature of sport and given that the Act and Regulations are intended to give effect to both the General Anti-Doping Convention and the UNESCO Anti-Doping Convention, and, in turn, the WADA Code. The classes of athletes referred to in paragraphs 1.06(2)(a) to (e) and (g) would, generally speaking, fall into the class of elite athletes who could be expected to compete both nationally within Australia and internationally outside Australia. Paragraph 1.06(2)(f) is less telling in that it does not obviously refer to athletes competing internationally, but there is no reason why the contract or arrangement referred to could not cover athletes competing nationally and internationally. All those paragraphs have as the object or target of testing a class of athletes generally defined by their character as elite athletes who might be competing in Australia or overseas. The CEO has discretion whether to test those athletes.
[56] Section 8 of the Act.
Paragraph 1.06(2)(h) has a different object or target. It is directed to a wider class of athletes, at least insofar as expected athletic prowess might be concerned. It is concerned with all athletes present in Australia at the time of testing. It is true that athletes in the other classes referred to might be in Australia at the time of testing, but they might not be. There is nothing inutile about any of the other paragraphs of subclause 1.06(2) when it is recognised that they are directed towards the object of discretionary testing of athletes by the CEO whether they are in Australia or elsewhere. Paragraphs 1.06(2)(h) extends the class of people who may be tested in Australia beyond so-called elite athletes to all athletes to whom the NAD Scheme applies.
Finally, paragraphs 1.06(2)(h) and (i) were introduced into the NAD Scheme by regulatory amendment in 2014. The purpose of the amendment was to give effect to changes to the WADA Code “to allow for the testing of athletes who are present in Australia at the time of testing”.[57] That statement of purpose does not assist greatly in determining the intent behind the amendment. However, it is significant that when paragraph 1.06(2)(h) was introduced, the subclause prescribed athletes who ordinarily would be expected to be elite athletes competing nationally and internationally as those who would be liable to testing. The focus of those provisions was not directed to where those athletes might be found, but rather the class of athlete within which they fell. The amendment was sharply focussed upon where athletes might be found – in Australia – irrespective of their class. To that end, the regulation-maker was unconcerned about the other parts of subclause 1.06(2) when the NAD Scheme was amended.
[57] Explanatory Statement, Australian Sports Anti‑Doping Authority Amendment (World Anti‑Doping Code and Other Measures) Regulation 2014.
We consider paragraph 1.06(2)(h) should be given its ordinary English meaning and that contextually and purposively there is no sound reason to depart from that meaning. It should not be read as being confined to athletes from overseas who are competing in Australia.
If we had found that Mr Smith was a person to whom the NAD Scheme applied, we would have considered him to have been liable to testing under paragraph 1.06(2)(h).
F: WAS THE TEST UNLAWFUL OR INVALID?
The third issue arises by reason of the way in which the urine sample was obtained from Mr Smith.
It is not necessary to set out here in detail the matters, to which we have referred earlier, concerning the way in which Mr Smith came to be tested on 16 May 2018. In terms of sound administrative practice, the sample collection was conducted in a way that was undesirable and heavy-handed. On the evidence before us it is not apparent why it was necessary for three ASADA investigators to enter Mr Smith’s home at around 7:45am with the three notices referred to earlier in these reasons, while Mr Ingall and his chaperone sat in wait in their car “around the corner from the house in a col (sic) de sac”.[58] Having had his laptop and tablet taken and his phone copied, Mr Smith was then told he would “need to” or was “required to” submit to a drug test.
[58] Exhibit R7 at [9].
The NAD Scheme does not require an athlete to provide a urine sample. As we noted earlier, the power of the CEO in clause 1.06(2) is facultative. In exercising that power, other clauses of the NAD Scheme are relevant. Division 3.3 of the NAD Scheme deals with “Requests for samples”. The chapeau to subclause 3.12(1) provides:
For this Part, a sample may be requested, collected and tested for 1 or more of the following purposes (anti-doping purposes):
…
(First emphasis added.)
Clause 3.14 of the NAD Scheme provides:
(1)The CEO may ask an athlete to give the CEO a sample for an anti-doping purpose.
(2)The CEO may collect a sample from an athlete for an anti-doping purpose at any time.
Nothing in the NAD scheme prevents the CEO from asking an athlete to give, on the same day, one or more urine samples and one or more blood samples.
The CEO may ask an athlete, a TUE committee such as the Australian Sports Drug Medical Advisory Committee, or a sporting administration body to provide information about a sample.[59]
[59] Subclause 3.14(4) of the NAD Scheme.
Clause 3.16 of the NAD Scheme confirms that the request for a sample, to which clause 3.14 refers, can be made in writing or orally and must include various kinds of information.
These clauses confirm that a deliberate decision was made by the draftsperson to use the words “ask” and “request”. The avoidance of words like “require” or “shall” suggest that the draftsperson was careful to provide for a prescription that was not compulsory in nature. This, it might be observed, was probably the outcome of the balance that the regulation-maker thought appropriate between the public interest in conducting doping control and the private interest of the individual against such intrusive processes. It is true that consequences flow from not complying with a request, namely that without compelling justification it is itself a violation of the anti-doping rules.[60] That does not, and should not, however, make submission to sample collection mandatory or required.
[60] Clause 2.01C NAD Scheme.
The urine sample obtained by the doping control officer was not obtained in accordance with the requirements of the NAD Scheme. There was no asking for a sample from Mr Smith. Mr Smith was told he was required to provide a sample. That statement was misleading as he was not required to provide any sample: he had a choice available to him to decline to provide a sample.
The issue then is whether the evidence wrongfully obtained should be considered. This issue was dealt with by Deputy President Frost in Kennedy and Anti-Doping Rule Violation Panel.[61]
[61] [2014] AATA 967 at [72]-[82].
In Kennedy, DP Frost considered the hypothetical situation in which the Panel and the CEO was in receipt of information from another government agency obtained in breach of the relevant statutory framework. He considered it relevant, in such a situation, that both the Panel and the CEO would have been “passive recipients” of the information and would have had no control over compliance with mandated procedures. DP Frost said:
There is considerable public interest in ensuring that all government agencies follow proper procedures and comply with all statutory requirements, particularly those that are designed to protect the rights of citizens in relation to their private affairs. But there is also a considerable public interest in ensuring that the CEO of ASADA can fulfil his or her functions under the ASADA Act and the NAD scheme, including by acting on information of which he or she becomes aware and making recommendations to the Panel about that information. It seems to me that it would hardly be serving the public interest to require the CEO to divert ASADA’s finite resources away from its core functions and into examining whether other government agencies are complying with the law they are charged with administering.[62]
(Emphasis added.)
[62] Kennedy at [81].
The latter factor, diverting resources away from core functions to investigate compliance by other agencies with statutory obligations, is not present here. The CEO had the ability to ensure the doping control officer and chaperone complied with the mandatory requirements of the NAD Scheme. There is no countervailing factor here that would justify departure from the public interest in ensuring government agencies comply with statutory requirements that are designed to protect the rights of individuals.
In our view it does not necessarily follow that the result for Mr Smith would have been the same had he not complied with a request to provide a sample. Apart from anything else, the two assertions made against him could not have been made in the absence of a urine sample. It may be that under a different part of the NAD Scheme a different assertion could be made for a different offence, but our task is to review the decisions to make the assertions that were made against Mr Smith. Had Mr Smith been properly asked for a sample and declined to provide one, the assertions made against him could not have been made. It is not appropriate that, at the point of making an assertion, possible defences to an ultimate offence be explored. The question here is whether there were possible violations. If the samples were unlawfully obtained there could be no possible violations.
In our opinion, the overwhelming public interest in this case requires government agencies to comply with prescribed procedures designed to protect and balance the interests and rights of private citizens. In the event that we had found Mr Smith was an athlete for the purpose of the NAD Scheme, we would have excluded from our consideration the results of the testing because the sample was unlawfully obtained.
G: THE EFFECT OF CLAUSE 4.09A OF THE NAD SCHEME
The fourth issue concerned the material and submissions that the Tribunal was able to consider in the review and whether clause 4.09A restricted the material to that which was before the Panel.
Clause 4.09A of the NAD Scheme restricts the information that the Panel can have regard to in deciding whether there has been a possible anti-doping rule violation. The issue arises as to whether the Tribunal, standing in the shoes of the Panel, is so restricted.
Subclauses 4.09A(1) and (2) provide:
(1)In considering whether there has been a possible anti-doping rule violation by a participant, the ADRVP must have regard only to the following material:
(a)the material given to the ADRVP under subclause 4.08(1);
(b)any submission by the CEO given to the ADRVP under subclause 4.08(2);
(c)any additional information given to the ADRVP under subclause 4.08(3);
(d)any submission given by or on behalf of the participant under paragraph 4.09(1)(d).
(2)However, the ADRVP must only have regard to a submission made by the participant to the following extent:
(a)if the submission was given in response to a notice under clause 4.06–to the extent that the submission deals with a matter mentioned in paragraph 4.06(2)(b);
(b)if the submission was given in response to a notice under clause 4.07A–to the extent that the submission deals with a matter mentioned in paragraph 4.07A(3)(b);
(c) if the submission was given in response to a notice under subclause 4.09(1)–to the extent that the submission complies with subclause 4.09(2).
The effect of subclauses 4.09A(1) and (2) is to restrict the Panel’s consideration of the question whether there has been a possible anti-doping rule violation to the evidence and submissions before it. By section 14 of the Act and clause 4.12 of the NAD Scheme, the Tribunal is required to review the decision to make an assertion resulting from that consideration. The review of such a decision by the Tribunal proceeds on the principle of determining whether the decision is the correct or preferable one. The Tribunal makes its decision afresh. The Tribunal is not restricted to dealing with the evidence and submissions before the original decision-maker. There is nothing in clause 4.09A that limits the Tribunal to considering the same material that was before the Panel.
The Panel is required to make its decision based on the evidence or information put before it by the CEO,[63] as supplemented by any further information that is requested by the Panel.[64] The Tribunal’s review is conducted on the basis of the evidence placed before it by the CEO and the Panel. All the material so far referred to comes before the Panel because of paragraphs 4.09(1)(a), (b) and (c). The same kind of material, but not necessarily the same material, comes before the Tribunal on review. It is the same kind of material because merits review carries with it the notion that the parties are entitled to rely on such material as is available to them at the time of any hearing. Nothing in clause 4.09A alters that position.
[63] Paragraph 4.08(1)(b) of the NAD Scheme.
[64] Subclause 4.08(3) of the NAD Scheme.
In like fashion, the Panel receives from an athlete evidence or information addressing the CEO’s submission about the possible anti-doping rule violation. This too must be considered by the Panel in making its decision because of paragraph 4.09(1)(d). Again, the same kind of material may come before the Tribunal on review.
In this way, the Tribunal’s review of the decision is subject to the same constraints that are imposed by clause 4.09A but is not confined to a consideration of the same evidence and submissions. The circumstances that clause 4.09A creates is not the same as that which existed in Re Issa and Australian Community Pharmacy Authority and Anor.[65] Clause 4.09A does not restrict the information which may be considered by the Tribunal to the information that was given at the time of the application or at the time the matter was dealt with by the Panel. Clause 4.09A simply restricts the kind of information that can be considered and regulates how it needs to be dealt with procedurally.
[65] (2012) 128 ALD 631; [2012] AATA 374.
In this case, all the material relied on by both parties fell within the categories identified in clause 4.08 so far as the CEO was concerned and subclause 4.09(2) so far as Mr Smith was concerned. Invariably, that is likely to be the case because it is difficult to envisage a situation in which considerations such as the application of the NAD Scheme, the liability of a person to testing, the legality of testing and the making of an assertion would not be matters relevant to any submission about whether a possible anti-doping rule violation had occurred.
The Tribunal is not constrained in conducting a review of the Panel’s decision to the evidence and information before the Panel. The Tribunal’s review is based upon the evidence and submissions before it, which is restricted to the same categories of evidence and information as the Panel was required to consider when making its decision.
H: A POSSIBLE USE VIOLATION AND A POSSIBLE PRESENCE VIOLATION?
The fifth issue concerned whether it was open to the Panel to make the two assertions in the circumstances. This issue may be dealt with fairly briefly.
The first assertion related to the possible presence of LGD-4033 and its metabolite in Mr Smith’s urine collected on 16 May 2018. The second related to his possible use of LGD-4033 on and/or before 16 May 2018. The two possible violations are in our opinion separate and relate to two different offences under the NAD Scheme; one arises under clause 2.01A and involves the presence of prohibited substances in a sample, and the other under clause 2.01B involving the use of prohibited substances. It is true, in this case, that the evidence relied upon by the Panel in making the assertion of the possible use violation was the same evidence relied upon to make the assertion in relation to the possible presence violation. That does not make them the same possible offence. The elements of each offence are completely separate.
Had we considered Mr Smith to have been an athlete for the purpose of the NAD Scheme, and had we considered his samples to have been validly obtained, we would have concluded that the Panel was entitled to make assertions in respect of both possible violations.
I: THE TERMS OF THE ASSERTIONS
Finally, it was urged on us that should we affirm the decision under review we should, in our discretion, include in the assertions a statement “indicating what the substance was and the now-known fact that it, from time to time, is present in dietary supplements in circumstances where it is not listed as an ingredient”.
Clause 4.11(4) provides that notice of a decision to make an assertion may include “any other details that the CEO considers relevant”. Had we decided against Mr Smith we would not have included an observation to the effect sought by him for two reasons. First, we do not think the evidence before us was sufficient to justify the making of such a statement. Secondly, we do not consider it appropriate to include in an assertion under the NAD Scheme such a statement, primarily because the making of an assertion is not a “mini trial” or even a “trial”. It concerns whether there has been a possible anti-doping rule violation. It is for others, namely the Court of Arbitration for Sport,[66] to determine whether the asserted possibility can be made good, and whether there are considerations that are exculpatory or mitigatory. It is not appropriate that the Tribunal (or for that matter the Panel) enter into the steps that follow the making of an assertion.
[66] Anti-Doping Rule Violation Panel v XZTT (2013) 214 FCR 40 at [97]-[99].
J: CONCLUSION
The decision made by the Panel on 11 October 2018, to make an assertion in relation to the possible presence of prohibited substances in Mr Smith’s sample obtained 16 May 2018, will be set aside. In substitution, it will be decided not to make an assertion in relation to Mr Smith in accordance with subclause 4.09(7) of the NAD Scheme.
The decision made by the Panel on 11 October 2018, to make an assertion in relation to the possible use of a prohibited substance by Mr Smith on and/or before 16 May 2018, will be set aside. In substitution, it will be decided not to make an assertion in relation to Mr Smith in accordance with subclause 4.09(7) of the NAD Scheme.
I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance, Mr Rob Reitano, Member
..............................[sgd]..........................................
Associate
Dated: 19 December 2019
Dates of hearing: 11, 12 and 13 September 2019 Counsel for the Applicant: Mr T Howard SC Counsel for the Respondent and Joined Party: Mr P Knowles
Solicitors for the Respondent and Joined Party: Australian Government Solicitor
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