Tommy Toskas and Anti-Doping Rule Violation Panel
[2012] AATA 662
•1 October 2012
[2012] AATA 662
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0981
Re
Tommy Toskas
APPLICANT
And
Anti-Doping Rule Violation Panel
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 1 October 2012 Place Melbourne The Tribunal affirms the decision under review.
(sgd) John Handley
Senior Member
ANTI-DOPING – applicant registered with Victorian Athletic League – Australian Sports Anti-Doping Authority authorised to test athletes under anti-doping arrangement ‑ whether applicant refused or failed without compelling justification to submit to sample collection or otherwise evaded sample collection – breach of anti-doping rules – whether applicant's particulars and details of the adverse finding correctly entered on the Register of Findings – decision affirmed.
LEGISLATION
Australian Sports Anti-Doping Authority Act 2006 ss 13, 40, 41
Australian Anti-Doping Authority Regulations 2006 reg 1.06(2)(f), 2.01(2)(c), 4.10, 4.11
REASONS FOR DECISION
Mr John Handley, Senior Member
The Anti-Doping Rule Violation Panel, the respondent in this review, was created under s 40 of the Australian Sports Anti-Doping Authority Act 2006 (the Act).
Section 41 of the Act provides that the functions of the respondent are set out in the National Anti-Doping Scheme (the NAD Scheme) which is found in Schedule 1 of the Australian Anti-Doping Authority Regulations 2006 (the Regulations). Consistent with Australia’s international obligations as a signatory to the UNESCO Anti-Doping Convention and the General Anti-Doping Convention, the NAD Scheme prescribes anti‑doping rules that apply to certain athletes and support persons.
The Australian Sports Anti-Doping Authority (ASADA) is responsible for investigating violations of the anti-doping rules and the respondent is authorised to make findings about those investigations, make recommendations about consequences of violations and to establish and maintain a Register of Findings (the Register) (s 13(1)(i) of the Act).
The respondent decided that the applicant committed an anti-doping rule violation because he refused or failed without compelling justification to submit to sample collection after notification as authorised in applicable anti-doping rules, or otherwise evading sample collection (regulation 2.01(2)(c)).
Specifically, the respondent contended that the applicant refused to submit a blood and urine sample on 21 February 2011 at Olympic Park in Melbourne after he was requested to do so by a person authorised by ASADA. Alternatively, he evaded sample collection.
ASADA notified the applicant that it believed he had contravened regulation 2.01(2)(c) and invited him to make a submission. A submission was received. ASADA referred the matter to the respondent to make a finding and decide whether to enter the applicant’s details on the Register in accordance with regulation 4.10. In its referral to the respondent, ASADA provided a copy of a notification of a possible anti-doping rule violation given to the applicant and his submission in response. It also provided other relevant documents.
As a consequence of the referral, on 20 February 2012, the respondent made a finding that the applicant had violated the anti-doping rule in regulation 2.01(2)(c) and decided to enter his name on the Register (regulation 4.10).
When a person’s name and relevant particulars are entered on the Register, the person must be notified and advised of the right to seek review of that decision by the Administrative Appeals Tribunal (regulation 4.11). The applicant was given that notification. This review is an application made by the applicant for review of the decision to enter his particulars on the Register.
Athletes subject to the NAD Scheme
Regulation 1.06(2)(f) permits ASADA under the NAD scheme to test athletes under an anti-doping arrangement.
The applicant was registered with the Victorian Athletic League (VAL) on 29 September 2010 (T221). The chief executive officer of the VAL, Mr Mark Howard (who was also the applicant’s coach), recorded on 12 February 2009 that the VAL is a member of an anti-doping arrangement with ASADA for the purposes of regulation 1.06(2)(f) of the NAD scheme (T222). The anti-doping arrangement provides that the VAL agrees that ASADA is permitted to test or conduct doping control from any athlete/competitor of the VAL (T222).
Testing of athletes at Olympic Park Melbourne
On 21 February 2011, Ms Fiona Johnson a Doping Control Officer and Mr Trevor Ashman a chaperone, both engaged by ASADA, attended Olympic Park in Swan Street Melbourne at about 5pm to test athletes who were members of the VAL.
In evidence Ms Johnson said she observed a number of athletes on the Olympic Park track and she approached them. She introduced herself to a person who identified himself as Mark Howard. She asked him to give her the names of the 2 athletes he was training and he identified those persons as Tommy Toskas and Eric Sapac.
Ms Johnson then checked and became satisfied they were VAL members and decided that the applicant should be the subject of a doping test. She instructed Mr Ashman to observe the applicant and approach him when he completed his training. Mr Ashman was then required to notify the applicant that he had been selected pursuant to a Doping Control Notification issued by her and the applicant was expected to provide a urine and blood sample (T225).
Mr Ashman said that he approached the applicant and identified himself as a chaperone engaged and authorised by ASADA to have him provide a sample (s 13(1)(d) of the Act). He said he asked the applicant for his first name and was told that it was Tommy. He said he then asked the applicant for his surname and was told that it was Toskas. He then told the applicant that he had been selected to complete a blood and urine test and the applicant said words to the effect no way – you can't do that.
Mr Ashman said that the applicant then called his coach, Mark Howard, who was standing nearby and told him of the request that had been made. He said the applicant walked with Mark Howard to his office in the grandstand at Olympic Park where he observed Mr Howard looking at a computer monitor. He later learned that Mr Howard was looking at the ASADA website. Mr Ashman said that whilst he was in the office, he attempted to settle the applicant and encourage him to attend a drug control station which had been set up at Olympic Park the purpose of taking the samples.
Mr Ashman said that the applicant said he had to go to his car which was parked nearby in order to move it and obtain his driver's licence as proof of identity. He said he followed the applicant out of the building and as he approached his car, the applicant said words to the effect I'm not Tommy Toskas, that's my brother. He said the applicant then took his driver's licence out of his wallet which was located in a bag in the car but would not give it to Mr Ashman. He said part of the name on the licence was obscured by the applicant’s thumb but he was able to observe the word or letters constituting part of a word, being Anastos. The applicant then entered the car and drove away.
On 12 June 2012 Mr Ashman prepared a statement (ST347) to which he exhibited a handwritten Field Incident Report Form that he completed on 21 February 2011 (T226).
At the conclusion of his evidence, Mr Ashman said that he could not remember whether the person sitting at the bar table during the hearing (who later identified himself in evidence as Tommy Toskas) was the person he approached at Olympic Park on 21 February 2011 and who he subsequently followed to his car. He said it was almost 18 months since that event.
Ms Johnson who also gave evidence, said that the person sitting at the bar table had the same appearance as the person selected for testing on 21 February 2011.
Mark Howard was the former chief executive officer of the VAL and the coach of the applicant. He recalled an occasion in early 2011 where he was approached by a person who identified herself as an ASADA officer who told him that the person he had identified as Tommy Toskas, had been selected for testing which would be undertaken at the completion of the training session.
When the training concluded, Mr Howard recalled that a male person approached the applicant, identified himself as an ASADA representative and told him that he was required to give samples. He recalled that the applicant at that stage did not object but when he was informed that it was intended to take a blood sample from him, the applicant refused. He said the applicant was content to provide a urine sample but he objected to a needle.
Mr Howard said he left the training track and went to his office where he attempted to contact an ASADA officer by telephone. He was unable to do so and looked on the ASADA website to clarify the rules for taking samples. He recalled that the applicant and the chaperone were also in his office. He said he told the applicant that he should take the tests. He also recalled that the chaperone gave a card to the applicant which recorded the implications of refusing the drug testing.
Mr Howard said he recalled that the applicant indicated that he wanted to leave the office to move his car. He said the applicant did leave and the chaperone followed.
In about September or October 2011, Mr Howard said that the applicant attended his office at Olympic Park with the intention of registering as an athlete in the 2011/2012 season. He said the applicant told him that he had received a notice from ASADA. Mr Howard told the applicant that he had also been contacted by ASADA about the attempts to take samples in February 2011. Mr Howard said that he advised the applicant that he should tell the truth.
In a statement prepared by Mr Howard on 7 June 2012 (Exhibit R4), he recorded that on the occasion the applicant visited in September or October 2012, Tommy asked me if I would lie to ASADA in order for him to keep competing. When this issue was clarified during cross-examination, Mr Howard said that the applicant then said words to the effect please do me a favour and go with me on this one – tell them I wasn't there that night. That request was the lie Mr Howard recorded in his statement.
Mr Howard said that he had been coaching the applicant for 4 or 5 years at February 2011. He said he knew the applicant’s brother and on 21 February 2011 Rick Toskas was not present at Olympic Park. He said it was the applicant who was then present and it was for that reason that he identified him to the ASADA official.
Eric Sapac is an athlete who was also trained by Mark Howard and who was present at Olympic Park on 21 February 2011. He said he had known the applicant at that stage for about 2 1/2 years. He recalled that he was approached by an ASADA official and was asked to identify himself. He then recalled that official left the training track and walked towards the grandstand. He recalled that after training had concluded, another official was seen to be talking with the applicant and Mark Howard.
Mr Sapac said he had known Rick Toskas for about one month at February 2011 and he also met him subsequently. He said he is able to distinguish the applicant from his brother, Rick. He said Rick was not at Olympic Park on 21 February 2011. He said the person seated at the bar table during the hearing is Tommy Toskas and was the person present at Olympic Park on the occasion of the visit by the ASADA officials.
The applicant identified himself at the hearing as Tommy Toskas. He said in evidence that he was not at Olympic Park on 21 February 2011. He said the first time that he had ever heard of ASADA was on 7 November 2011 when he received a letter alleging that he had refused to supply blood and urine samples (T229).
The applicant said that he noted that the chaperone, Mr Ashman, could not identify him. Additionally, he said his brother was not at Olympic Park on 21 February 2011 and if Rick had been then present, he would have told him.
The applicant said that he was shocked to receive the letter of 7 November 2011 and sent an e-mail on 9 November 2011 (T232) denying the allegations and regarding them as false.
When cross-examined, the applicant said that athletes and coaches at Olympic Park compete and argue with each other. He said he used to hang out with all the squads and when he trained with others they [Mark Howard and Eric Sapac] didn't like me.
The applicant disputed the allegation of Mr Howard that he had approached him in September or October 2011 and asked him to lie. He said he had not received any notification from ASADA until 7 November 2011 and therefore, he could not have asked him to lie on his behalf one or two months earlier. He also said that it was not true that Mr Howard had informed him (when he attended his office to register for the upcoming season) that he had been contacted by ASADA about his failure to give samples in February 2011.
Conclusions and Reasons for Decision
I am satisfied that the four persons called on behalf of the respondent are witnesses of truth. Having read their respective statements and observed and listened to them in evidence, I regard the decision made by the respondent as compelling and it should be affirmed.
I am satisfied and find as a fact that the applicant was present at the Olympic Park training facility on 21 February 2011. The evidence of Mr Howard and Mr Sapac who confirmed his presence is to be preferred over the denial of the applicant. I also accept the evidence that the applicant’s brother Rick was not then present. I make that finding because Mr Howard and Mr Sapac have met Rick and they are able to distinguish him from the applicant.
Although Mr Ashman was unable to identify the applicant on the day of the hearing, he did ask the applicant for his name when he approached him at Olympic Park and the applicant told him that his name was Tommy Toskas. Later, when the applicant left the Olympic Park precinct and was approaching his car, he said that he was not Tommy Toskas but he was his brother.
Ms Johnson said that the applicant was identified to her by the name Tommy Toskas by his coach, Mr Howard. In evidence she said that based on her memory the applicant, who I am also satisfied is Tommy Toskas, had the same appearance as the person tested.
In his response to the letter from ASADA of 7 November 2011, the applicant recorded (T232):
The allegations made About (sic) me (Tommy Toskas) On (sic) 21 February 2011 are false. it's the first time i've heard about this incident.
In all my years in Athletics i have never been approached by ASADA or any member of it’s (sic) organization in or out of competition.
I should of (sic) been notified of this incident straight away so the matter could of (sic) been dealt with straight to avoid incidents like this.
If not evident from the above, I find that the contents of that e-mail are almost entirely untrue. The applicant first heard about an approach by ASADA on 21 February 2011 and again in September/October 2011 when he attended Mr Howard’s office to register for the upcoming season. As a fact, I am satisfied that Mr Howard did know of ASADA’s interest in the applicant and informed the applicant that he had been contacted. The applicant knew of his obligations, the consequences of failing to comply with a request for samples and Mr Howard did tell him to tell the truth.
I do not accept the applicant’s evidence that Mr Howard and Mr Sapac colluded against him out of spite because i) he did not agree with their training methods, ii) he did not train exclusively with them and iii) because he used to hang out with all squads and since [he] trained with others, they didn't like [him]. This evidence is implausible. No rational explanation was given –nor could be given – as to why Mr Howard and Mr Sapac would perjure themselves. The evidence of Mr Howard and Mr Sapac was consistent with that of Mr Ashman and Ms Johnson which further reinforces my view that the applicant is not a witness of truth.
Having regard to the totality of the evidence, I am satisfied that the conduct of the applicant at Olympic Park on 21 February 2011 constituted a refusal by him to submit to sample collection; that his refusal was without any compelling justification; that appropriate notification of the request to submit to sample collection was given to him by authorised persons and his leaving the Olympic Park precinct, walking to his car, entering it and driving away constituted an evasion of sample collection.
Having made those findings, I am satisfied that the applicant did breach the anti-doping rule in regulation 2.01(2)(c) and his particulars were properly entered on the Register in accordance with regulation 4.10.
Decision
The decision under review is affirmed.
I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member.............................[sgd]..................................
Associate
Dated 1 October 2012
Date(s) of hearing 20 September 2012 Applicant In person Counsel for the Respondent Ms E. Brimer Advocate for the Respondent Mr D. Mullaly
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