XZTT and ANTI-DOPING RULE VIOLATION PANEL

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[2012] AATA 728 

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/4197

Re

XZTT

APPLICANT

And

ANTI-DOPING RULE VIOLATION PANEL

RESPONDENT

DECISION

Tribunal

Justice Kerr, President 
Dr T Nicoletti, Member
Date 23 October 2012
Place Melbourne

The decisions under review are set aside and the Tribunal remits the matters to the Anti-Doping Rule Violation Panel with a direction that an entry be made in the Register of Findings for the presence of a prohibited substance in the terms of [227] and that the question of what, if any, recommendation is to be made as to the consequences be determined by the ADRVP.

..........[Sgd]..............................................................

Justice Kerr, President

CATCHWORDS

SPORT – anti-doping – decision to make entries in the Register of Findings – adverse analytical finding – presence of metabolite of cocaine detected – In-Competition test conducted when athlete was competing outside Australia – role of sporting administration body and CEO of ASADA – interrelationship between the National Anti-Doping Scheme, the anti-doping rules of the national and international sporting organisations and the World Anti-Doping Code – allegation of conflict of interest of member of Panel considered – implications of breaches of procedural requirements imposed by the World Anti-Doping Code – nature of finding required to be made – whether the Anti-Doping Rule Violation Panel may make ‘possible’ findings – whether “use” In-Competition finding justified in light of amount detected – decisions set aside – entry to be made in Register in terms directed by Tribunal – consequences for contingent recommendations as to penalty

PRACTICE AND PROCEDURE – jurisdiction – adequacy of identification of decision(s) for which review sought – scope of power to remit a matter for reconsideration in accordance with directions

LEGISLATION

Administrative Appeals Tribunal Act 1975 ss 35, 43

Australian Sports Anti-Doping Authority Act 2006 ss 13, 21, 49, 50

Australian Sports Anti-Doping Regulations 2006 Sch 1, cll 1.01, 1.02, 1.03, 1.04, 1.05, 1.06, 2.01, 2.04, 4.03, 4.04, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14

CASES

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1

International Tennis Federation v Richard Gasquet CAS 2009/A/1926; WADA v ITF and Richard Gasquet CAS 2009/A/1930
Pirrie v McFarlane (1925) 36 CLR 170
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Turner: ex parte Marine Board of Hobart; Tasmania v Commonwealth (1927) 39 CLR 411
Re Peters and Anti-Doping Rule Violation Panel [2011] AATA 333
Re Reference under section 11 of Ombudsman Act 1976 for an Advisory Opinion; ex parte Director-General of Social Service (1979) 2 ALD 86
TVW Enterprises Ltd v Duffy and ABT (No 2) (1985) 7 FCR 172
Union Cycliste Internationale (UCI) and Federazione Ciclista Italiana (FCI) and S CAS 2002/A/378
USA Shooting & Q/UIT CAS 94/129

Wen Tong v International Judo Federation CAS 2010/A/2161

SECONDARY MATERIALS

International Convention Against Doping in Sport, Paris, 19 October 2005

UCI Anti-Doping Rules Arts 21.1, 21.2, 29, 200, 206, 213, 249, 251, 280, 315, 368

World Anti-Doping Code 2009 Arts 2.1, 2.2, 3.1, 3.2.2, 6.5, 7,…

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Details
Case
[2012] AATA 728
Decision Date

CaseChat Overview and Summary

In this case, the applicant, XZTT, a cyclist, sought judicial review of decisions made by the Anti-Doping Rule Violation Panel (ADRVP) concerning an adverse analytical finding of the presence of a metabolite of cocaine in a urine sample taken during a competition in China. The key issues before the court included whether the ADRVP had jurisdiction over the case, the appropriate standard for making findings under the National Anti-Doping Scheme (NADS), and the implications of procedural delays on the admissibility of evidence. The court determined that the ADRVP did have jurisdiction as the case was properly brought under the NADS. It further held that the ADRVP did not have the authority to make findings of "possible" violations but was required to make definitive findings. The court also found that while procedural delays can impact the weight given to evidence, they do not render the evidence inadmissible if it is otherwise credible. Consequently, the court set aside the ADRVP's decisions and directed that a proper entry be made in the Register of Findings, leaving the determination of any penalties to the ADRVP.

The court emphasised that the ADRVP must make clear and specific findings in line with the NADS, rejecting the notion that it could make findings of a "possible" violation. It was established that a finding under the NADS must be definitive, meaning the ADRVP erred in its decision-making process. The court also found that the ADRVP had to consider the World Anti-Doping Code and relevant decisions from the Court of Arbitration for Sport, given its authoritative role in interpreting anti-doping rules. The court concluded that the evidence did not justify a finding of "use" of cocaine In-Competition due to the negligible amount detected. The court's decision to set aside the ADRVP's findings and remit the matter for reconsideration was based on the requirement for definitive findings under the NADS and the misapplication of the concept of "possible" violations. The court's final orders directed the ADRVP to make an appropriate entry in the Register of Findings, consistent with its determination, and to consider any recommendations for penalties afresh.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

What, if any, recommendation the ADRVP may now choose to make as to consequences arising from the entry directed to be made in the Register is remitted to the ADRVP for it to determine.THE FACTS In October 2010 XZTT, a cyclist registered at the elite level with Cycling Australia (“CA”), travelled to China to take part in a number of international events subject to the jurisdiction of the International Cycling Union (“UCI”). To obtain his International Licence, XZTT had previously acknowledged that he was bound by “the UCI Anti-Doping Regulations, the World Anti-Doping Code and its international standards to which the UCI Anti-Doping Regulations refer.” He had agreed to submit himself to drug testing[2].[2] T51-52. On 23 October 2010, XZTT participated in a one-day UCI Class 1.2 race in Wuxi, China. He was asked to supply a urine sample and did so that afternoon. Two samples, an A and a B sample, were sent to the National Anti-Doping Laboratory in Beijing, which received the samples two days later. The National Anti-Doping Laboratory tested XZTT’s A Sample on 26-27 October 2010. The result of the test was positive for the presence of a very small amount (42 ng/mL) of benzoylecgonine, which is the principal metabolite of cocaine. The World Anti-Doping Code 2009 (“WADC”) and the UCI Cycling Regulations, which incorporates in Part 14 the UCI Anti-Doping Rules (“UCI Anti-Doping Rules”), of the UCI distinguish between different categories of prohibited drugs. Some drugs are prohibited for use only In-Competition. The use by athletes of other drugs, particularly masking agents, is prohibited at all times. Cocaine falls into the first class of drugs. While the use of cocaine is prohibited only In-Competition, the WADC and the UCI Anti-Doping Rules also establish a separate and distinct offence for the “presence” of any prohibited substance or its metabolites in a sample taken from an athlete In-Competition. A comment under Article 29 of the UCI Anti-Doping Rules accurately explains the position as follows:This means that Out-of-Competition Use of a substance which is authorized Out-of-Competition leads to an anti-doping violation when the substance still is found in a Sample that is taken during a subsequent Competition. Riders must be aware that it takes time for a substance to clear their body. On 2 November 2010, the National Anti-Doping Laboratory distributed its results to the UCI and on 4 November 2010, the laboratory formally reported its A Sample Analysis to the UCI confirming the presence of the metabolite of cocaine[3].[3] T66 and T134. The amount identified was lower than the threshold (100 ng/mL or more benzoylecgonine) which is normally used in most assays as the cut-off for establishing a positive finding for cocaine use. Whatever XZTT might have thought at the time had he known of such a small amount having been detected must remain purely speculative because, notwithstanding the UCI’s obligation under Article 7.2 of the WADC to promptly notify him, for some 4½ months XZTT was told nothing about these test results.

Evidence

Evidence Before The Court

This conclusion is reinforced by the provisions of the UCI Anti-Doping Rules Article 315 which addresses delays not attributable to a cyclist. Delay is there referred to as a matter to be taken into account at the point of imposition of penalty, not as a matter entitling otherwise credible evidence to be disregarded.EVIDENCE AND FINDINGS REGARDING ‘PRESENCE’ AND ‘USE’ XZTT’s written submissions to the ADRVP referred to the amount of metabolite of cocaine detected in his A Sample as “miniscule”. The thrust of his submissions was that it was improbable to a degree lacking all credence that he could be reasonably suspected of using, let alone be found to have “used”, cocaine In-Competition (that is, consumed it within eight hours of the commencement of an event) on the basis of what had been identified in his sample. In its advice to the ADRVP, ASADA made no evaluation of whether the amount was miniscule and did not assess the weight to be given to the athlete’s proposition. The ADRVP made no relevant findings in respect of those contentions. On 13 August 2012 the Tribunal directed that, in the event evidence was to be given on the issue of the use of cocaine, the Respondent was to file and serve an expert’s report by Monday 20 August 2012, and the Applicant would have leave to file and serve an answering report. Subsequently, the Tribunal was advised by the Respondent that it did not propose calling any expert evidence. It took the position that, if the Tribunal was to find that the NAD Scheme, properly understood, required the ADRVP to make a ‘finding’ as opposed to a “possible finding” the Respondent would continue to press for a finding of a violation of clause 2.01(2)(a) of the NAD Scheme (presence of a prohibited substance or its metabolites in XZTT’s sample), but would not press for, given the required standard of proof, a finding of a violation of clause 2.01(2)(b) (use by XZTT of a prohibited substance). The Tribunal hearing this matter was constituted to include a member, Dr Nicoletti, possessing expertise in pharmacology. In the course of the hearing Dr Nicoletti, complying with the Tribunal’s obligations to accord procedural fairness, advised the parties of the nature of the conclusions she thought it would be appropriate for the Tribunal to draw from the facts known to it. The Tribunal invited submissions on those observations. Nothing was put to the Tribunal by way of response to the considerations Dr Nicoletti advanced. The following findings made by the Tribunal take into account Dr Nicoletti’s specialist knowledge as applied to the facts. There is no disputing the presence of benzoylecgonine in the Applicant’s A and B Samples. However, based on the negligible amount (42 ng/mL) detected, it would be difficult to support a proposition that the presence of such a minute quantity establishes that the Applicant “used” cocaine In-Competition. Bearing in mind that “use” In-Competition means use within eight hours of an event, it is relevant to note that the scientific literature reports concentrations more than 200 times higher than the concentration detected in the Applicant’s sample, and these concentrations were measured in urine samples taken 4-8 hours after administration of single doses of cocaine. Based on the concentration of benzoylecgonine in the Applicant’s urine samples and the time it takes for benzoylecgonine to clear from the body (generally 2-4 days), it is unlikely that the use of cocaine occurred In-Competition and implausible that the presence of the prohibited substance could have affected the athlete’s performance In-Competition. The Tribunal therefore concludes that the Respondent was correct in not pressing the Tribunal to make a finding adverse to XZTT for ‘use’.

Decision

Reasons for decision

Those are the same tasks, save in respect of making recommendations as to penalty, which the Tribunal, exercising its powers of review, is required to undertake standing in the shoes of the ADRVP.THE TRIBUNAL’S CONCLUSIONS SUMMARISED The Tribunal believes it is convenient to state its conclusions in summary form before proceeding to a longer account of the reasons for it having reached those conclusions. The Tribunal has concluded that the ADRVP had jurisdiction under the NAD Scheme. However, the Tribunal’s reasons for that conclusion differ from those adopted by the ADRVP on the advice of ASADA. The Tribunal has concluded that XZTT’s case came before the ADRVP following a request from CA to the CEO of ASADA to exercise her powers under the NAD Scheme by CA as authorised by clause 1.03(1). That process brought XZTT’s alleged conduct within the NAD Scheme, and subject to the jurisdiction of the ADRVP. The Tribunal has concluded that the delay suffered by XZTT in the procedural management of his case by the UCI and CA did not deprive the ADRVP, and does not deprive the Tribunal, of jurisdiction. The Tribunal has concluded that those gross and unexplained delays were not of such fundamental importance to XZTT’s rights under the WADC as to have required the ADRVP, or to permit the Tribunal, to disregard the otherwise incontrovertible evidence that the metabolite of cocaine was present in the sample taken from XZTT In-Competition in Wuxi on 23 October 2010. The Tribunal has rejected the proposition that the ADRVP must always condone breaches of procedural rules. Wen Tong v International Judo Federation CAS 2010/A/2161, a case recently decided by the Court of Arbitration for Sport (CAS) and discussed in more detail later in these reasons, is authority that some procedural rules are so fundamental to the WADC that their breach requires a sporting tribunal to disregard otherwise firmly established violations of the anti-doping rules. However, the Tribunal has concluded that delay, even gross delay occasioning actual or potential prejudice to an athlete as it appears to have done in XZTT’s case, does not come into that category. The Tribunal has decided, pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 to set aside each of the ADRVP’s decisions to make entries in the Register of Findings. The findings upon which those entries were based were not available to be made as a matter of law. Both were findings of a “possible” violation. The Tribunal has concluded that for a finding to be made and an entry to be placed on the Register of Findings, the ADRVP must make a ‘finding’ as defined under clause 1.05 of the NAD Scheme. For the purposes of the NAD Scheme, a finding means “a finding by the ADRVP that an athlete or support person has committed an anti-doping rule violation”. The Tribunal has rejected submissions put to it that the ADRVP’s role is analogous to that of a magistrate in a committal proceeding. The approach adopted by the ADRVP on the advice of ASADA fundamentally misconceived the legal task given to the ADRVP.

Ratio Decidendi

Legal Principle Established

Accordingly, the Tribunal must consider whether the evidence before it justifies finding that XZTT violated one or more of the anti-doping rules prescribed by clause 2.01 of the NAD Scheme and, if so, whether an entry should be made on the Register.RELEVANT LAW: THE COURT OF ARBITRATION FOR SPORT If, as the Tribunal has held, the ADRVP was, and is, obliged to have regard to the WADC, what regard should be had to decisions of other courts and tribunals as to its correct interpretation and application? The Tribunal has not been made aware of any Australian case law that has addressed this question. However, analysis from first principles suggests that the decisions of the Court of Arbitration for Sport (“CAS”) must be highly persuasive. The CAS is referred to in the NAD Scheme as a “sporting tribunal” having power, inter-alia, to hear ‘appeals’[37]. Clause 2.04(m) of the NAD Scheme provides that a sporting administration body must:accept findings by the ADRVP … and enforce penalties imposed in accordance with the ADRVP’s recommendation unless otherwise determined by a sporting tribunal. (emphasis added)Clause 4.14(2) also authorises the ADRVP to remove a name from its Register of Findings having regard to a decision of the CAS.[37] Clause 1.05. The NAD Scheme thus confers authority on the CAS to over-rule any finding made, or penalty imposed, by an Australian sporting administration body even in the discharge of their obligation to implement the findings and recommendations of the ADRVP. Given the place of CAS in the hierarchy of Australia’s anti-doping sporting laws, the Tribunal accepts that, unless an explicit or necessarily implied term of the Act or the NAD Scheme requires something specific to the contrary, the Tribunal may regard as authoritative the interpretations CAS has given to the provisions of the WADC. Submissions from both parties proceeded on that assumption. The Tribunal addresses the remaining issues on that basis.“POSSIBLE” VIOLATIONS By adopting the advice of ASADA, the ADRVP made findings of a “Possible ADRV” for “Presence (Adverse Analytical Finding)”[38] and of a “Possible ADRV” for “Use”[39] against XZTT, and approved certain entries in that regard being made on the Register under clauses 4.09 and 4.10 of the NAD Scheme.[38] T47, ST902, ST905, ST908, ST911.[39] T48, ST903, ST906, ST909, ST912. Inexplicably, the entries that were actually made on the Register of Findings did not correctly record the actual decisions of the ADRVP. Instead, they recorded an altered “Finding re Adverse Analytical Finding” and “Finding re Possible Use”[40]. Such differences may have been thought inconsequential by whoever made those changes, but there is no authority under the NAD Scheme to make an entry on the Register which is different from that approved by the ADRVP.[40] T33, T34. The Tribunal conducts this review upon the basis that the decisions it is tasked with reviewing are those made and determined by the ADRVP, both of which were premised on the ADRVP having authority to make findings of “possible” violations of the relevant anti-doping rules.