XZTT and ANTI-DOPING RULE VIOLATION PANEL
[2012] AATA 728
•23 October 2012
[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, MemberDate 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 94/129Wen 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, 7.2, 8, 17, 23.2
REASONS FOR DECISION
Justice Kerr, President
Dr T Nicoletti, Member23 October 2012
INTRODUCTION
This case concerns allegations of anti-doping rule violations made against an elite Australian cyclist (“XZTT”) following his testing In-Competition in China.
The Tribunal has concluded that it must set aside two decisions by the Anti-Doping Rule Violation Panel (“ADRVP”) to make an entry in the Register of Findings under the National Anti-Doping Scheme (“NAD Scheme”).
The Australian Sports Anti-Doping Authority (“ASADA”) and the ADRVP each misconceived their respective responsibilities under the Australian Sports Anti-Doping Authority Act 2006 (“ASADA Act”) and the NAD Scheme, which is established by Schedule 1 of the Australian Sports Anti-Doping Authority Regulations 2006 (“ASADA Regulations”)[1].
[1] ASADA (Operation of laws and references) Determination 2009 has the effect that certain references to ASADA in the NAD Scheme are taken to be references to the ADRVP.
The decisions upon which those entries were based were findings of a “possible” violation. As a matter of law, the Tribunal has found that such a finding was not open to the ADRVP. The Tribunal has concluded that for an entry placed on the Register of Findings, the ADRVP must first 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”.
In respect of the two decisions set aside, the Tribunal has made a decision to remit the matters to the ADRVP 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].
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.
In ignorance of the cloud hanging over his head, XZTT continued to participate as an athlete In-Competition and seek sponsors. In January 2011, he signed a contract. It included a provision to the effect that if he were to be found to have breached anti-doping rules his contract would be terminated. His advocate submitted that such a finding would result in XZTT becoming liable to compensate his sponsor’s team for up to two years income: an amount he stated to be €145,000[4].
[4] T12: The contract was written in Dutch and was not translated for the Tribunal. The Applicant’s statement of the effect of the contract was not challenged but the Respondent disputed the relevance.
It was not until 25 March 2011 that the UCI finally wrote to XZTT, then competing in Belgium, to advise him that the UCI had received the notification from the National Anti-Doping Laboratory of an adverse analytical finding from his A Sample.
The long delay in notifying XZTT of his initial test results meant that the UCI was in gross breach of its own Anti-Doping Rules and the WADC provisions governing results management.
Both the WADC (Article 7) and the UCI Anti-Doping Rules (Chapter VII) provide for a scheme of results management that treats the outcome of an analysis of a first sample (the A Sample) as requiring verification at the athlete’s election. That process involves the opening and testing of a B Sample collected at the same time as the A Sample. An athlete is entitled to be present either in person or by representative during the opening and analysis of the B Sample.
Subject to certain exceptions not presently relevant, the UCI Anti-Doping Rules (Article 213) required that the analysis of XZTT’s B Sample take place within a period of seven working days starting on the first working day following notification by the laboratory of the A Sample. That period had expired on 11 November 2010.
Notwithstanding, the UCI advised XZTT that, following its initial investigation, the UCI believed that he might have violated Articles 21.1 and 21.2 of the UCI Anti-Doping Rules.
XZTT was told he had been provisionally suspended from the date of that notice (25 March 2011) and that the suspension would remain in force until “a hearing panel has determined whether you have committed an anti-doping rule violation.” He was informed that he had the right to request the opening and analysis of his B Sample and that he or his representative had the right to attend its testing by the National Anti-Doping Laboratory in Beijing[5].
[5] T128-131.
Six days later XZTT, while still in Europe, advised the UCI that he wanted his B Sample to be analysed and waived his right to be present.
On 4 April 2011, the UCI wrote to the National Anti-Doping Laboratory to request that the B Sample analysis proceed.
The laboratory duly undertook the testing of XZTT’s B Sample in XZTT’s absence. On 21 April 2011 the laboratory reported to the UCI advising:
the presence of cocaine metabolite and hydrocodone in the sample … were confirmed. The result of this B sample is consistent with the corresponding A sample.
Two weeks later, on 4 May 2011, the UCI wrote to XZTT to tell him that his B Sample had confirmed the presence of cocaine and that the UCI would be writing to CA to request CA to open disciplinary proceedings[6]. Subject to the materiality of the issue of procedural breaches and the delay referred to above and its consequences, that was what was required of the UCI under the WADC and UCI Anti-Doping Rules Article 249 which provides:
When, following the results management process… the UCI makes an assertion that a License-Holder committed an anti-doping rule violation, it shall notify the License-Holder’s National Federation and request it to instigate disciplinary proceeding...
[6] AT123.
Cycling Australia was XZTT’s “National Federation” for the purposes of the UCI Cycling Regulations. The UCI wrote to CA on the same day. The critical terms of that letter were as follows:
Please find attached an analytical report from the WADA [World Anti-Doping Authority] accredited laboratory in Bejing [sic] confirming the presence of cocaine metabolite in the urine sample B1932918 provided by [XZTT]. We are also transmitting you the complete documentation package of the A – Sample 1932918.
The Australian Cycling Federation is now required to initiate disciplinary proceedings in accordance with Articles 249 to 348 of the UCI Anti-Doping Rules. An extract containing these articles is enclosed in a registered letter to your ease of reference.
We draw your attention particularly to the requirements relating to a timely hearing and resolution of this case:
·Article 251 requires you to send a summons to the riders [sic] within two working days of receipt of this letter;
·Article 253 requires that the summons must be sent at least 10 days before the hearing to which the rider has been summonsed;
·Article 280 requires that the proceedings before the hearing panel must be completed within one month from the time limit set for the dispatch of the summons;
·Article 277 requires that one full copy of the decision of the hearing panel is sent to the UCI within three working days of the decision.
However, instead of receiving a prompt summons from CA to initiate that process, nearly a whole month passed before XZTT heard anything further. When he finally received news of what was proposed in respect of disciplinary proceedings, it was not CA which wrote to him on 30 May 2011 but rather the General Manager, Anti-Doping Programs and Legal Services, ASADA.
The General Manager’s letter referred to “recent correspondence” between the UCI and XZTT concerning XZTT’s possible violation and advised him that the UCI had “now referred your matter to Cycling Australia and ASADA.” The strict accuracy of each of those statements is contestable but nothing turns on that.
XZTT was advised that the presence of cocaine in his sample was “a potential violation of clause 2.01 of the National Anti-Doping Scheme (NAD Scheme) as established under the Australian Sports Anti-Doping Authority Act 2006” and “a potential violation of Articles 2.1 and 2.2 of the [WADC] and Part 14, Articles 21(1) and 21(2) of the UCI Cycling Regulations”[7]. He was told he would be sent another letter shortly to provide him with the opportunity to make a submission “in relation to the Sample if you so choose”.
[7] T206-207.
Later the same day, the General Manager, Anti-Doping Programs and Legal Services wrote to XZTT to advise him “ASADA will now refer this matter to the Anti-Doping Rule Violation Panel (ADRVP) for consideration”. He was informed that the ADRVP “may propose to make” two findings, each of which the letter went on to detail, in relation to the adverse analytical finding and XZTT’s possible use of cocaine In-Competition. He was advised that, if such findings were made, the ADRVP could enter those findings on the Register of Findings maintained by the ADRVP. XZTT was advised that he had 10 days in which he could provide a written submission in response to the findings that the ADRVP might propose to make[8].
[8] T208-210.
On 6 July 2011, XZTT filed extensive written submissions in reply[9]. He denied using any prohibited substance. He submitted that the prior breaches by the UCI of its own rules precluded the ADRVP exercising jurisdiction. He submitted, in the alternative, that delay occasioned by those breaches had created circumstances so unfair as to preclude any adverse finding being made:
… as a result of that delay the Athlete has suffered irrevocable disadvantage…
a. The lapse of time between the positive finding and the notification to the Athlete has resulted in it being impossible for the Athlete to investigate alternative causes for the analytical findings consistent with evidence…[10]
[9] T211-233.
[10] T212.
XZTT further submitted that the miniscule amount of the prohibited substance that had been detected in the A Sample when it was analysed was inconsistent with his use of a prohibited substance In-Competition. He referred to the relevant burden of proof (correctly identified as that of “comfortable satisfaction”[11]) and to the decisions of the Court of Arbitration for Sport (“CAS”) in International Tennis Federation v Richard Gasquet CAS 2009/A/1926; WADA v ITF and Richard Gasquet CAS 2009/A/1930[12].
[11] Clause 1.03 of the NAD Scheme requires the ADRVP to have regard to the WADC. Article 3.1 of the WADC prescribes the relevant Burdens and Standards of Proof required. It provides that an “Anti-Doping Organization” carries the burden of establishing that an anti-doping rule violation has occurred. The standard of proof is stated to be “the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made.”
[12] T215.
After more than two months’ further unexplained delay the ADRVP convened to consider, inter-alia, XZTT’s case. It had before it at Agenda Item 3.1 a document relating to XZTT marked “Privileged & Confidential ADRVP Report” and its annexures as listed 1-22[13].
[13] T39-490.
Contrary to what might be implied by the title, that report was not a document prepared by an agent or staff of the independent ADRVP under arrangements pursuant to subsection 21(1)(kb) of the ASADA Act. Instead it was a submission to the ADRVP by ASADA which argued for particular conclusions[14]. It would not be unfair to characterise the Report as a prosecution brief against XZTT. In noting this, the Tribunal should not be understood to be critical of ASADA presenting its case against XZTT to the ADRVP. It is simply to note that there was no independent advice available to assist the ADRVP to perform its functions.
[14] See, for example, the statement near the foot of T45 which makes it unambiguous that the writer is submitting the document on behalf of ASADA.
The Report set out ASADA’s position that the ADRVP had jurisdiction to consider XZTT’s case. It summarised the facts as they were understood by ASADA and stated ASADA’s view of the law as ASADA understood it to apply to those facts.
In respect of the adverse analytical finding, ASADA acknowledged that there had been a delay of some 4½ months between the Beijing laboratory reporting the results of XZTT’s A Sample and the UCI notifying XZTT of that outcome. The ADRVP was advised that while Article 206 of the UCI Anti-Doping Rules required an athlete to be “promptly” notified of any A Sample findings, it was for the athlete to show that the failure to give that notice had “caused” the adverse analytical finding. The advice noted that XZTT had failed to make any attempt to do so.
As to the B Sample testing, ASADA emphasised by underlined text in the original that the Beijing laboratory had been unable to perform that analysis until the UCI notified it that the athlete intended to have his B Sample analysed. Accordingly, the laboratory had been unable to perform the B Sample analysis within the required timeframe because of ‘logistical reasons’, ASADA referred the ADRVP to the statement in the International Standard for Laboratories clause 5.2.4.3.2.1 that,
[i]f the Laboratory is unable to perform the “B” analysis within this time frame for technical or logistical reason(s), this shall not be considered as a deviation from the ISL susceptible to invalidate the analytical procedure and analytical results.[15]
[15] T43.
It is now agreed by all parties that ASADA’s advice that the delay was referable to logistical reasons was unsupportable.
As to possible use, ASADA noted that the athlete had denied using cocaine. Its advice to the panel was as follows:
… Use is defined under the in NAD Scheme as:
“the utilisation, application, ingestion, injection or consumption by any means of a prohibited substance or prohibited method”.
Further, under clause 2.01(2)(b) of the NAD Scheme, it is evident that an athlete has “used” a prohibited substance when it has entered his or her body, irrespective of whether he or she was aware that it had entered his or her body. In this case, the athlete’s “use” of cocaine is strongly indicated by the adverse analytical finding. What is ultimately at issue is whether the athlete possibly “used” cocaine “in-competition” as it is a substance prohibited in-competition only.
Under the NAD Scheme’s definition of “in-competition”, regard must be had to the UCI’s Rules, which defines “in-competition” to start 8 hours before the start of a Race in regards to the Presence or Use of a prohibited stimulant (which cocaine is)…
The amount of the cocaine metabolite detected in the athlete’s sample was 42 ng/mL. The athlete asserts that this is a minuscule amount, having regard to the ITF and CAS decisions of Gasquet…
Whilst it is not clear whether or not 42 ng/mL is a “minuscule” amount of cocaine metabolite to be detected, the evidence could still suggest that the athlete has possibly used cocaine in competition. For instance, if the Panel did consider that 42 ng\mL was a “minuscule” amount, it is possible that the athlete consumed a minuscule amount of cocaine immediately prior to the competition. This cannot be readily discarded without the benefit of other evidence known only to the athlete and which is not disclosed (such as corroborative evidence of how cocaine entered his system and the timing of its entry, or metabolic information specific to the athlete). The weight of evidence currently available to ASADA suggests that the athlete has possibly used cocaine in-competition. The only evidence from the mouth of the athlete is a denial of use, which is not surprising. Of course, should the athlete’s name be placed onto the Register in relation to the possible use of cocaine, and it is later determined at a sporting tribunal (where these matters are fully ventilated with the benefit of the totality of the evidence) that the athlete did not use cocaine in-competition, that specific entry can be removed under clause 4.14(2) of the NAD scheme.
Accordingly, ASADA considers there is currently enough evidence for the ADRVP to be prima facie satisfied that the athlete has possibly used cocaine in-competition.
(emphasis in original)
ASADA also put forward suggestions as to what recommendations the ADRVP might make regarding the appropriate penalty to be imposed on XZTT should the Panel accept ASADA’s view as to the findings that should be entered in the Register. It proposed XZTT be subject to a period of two years ineligibility from competitive cycling to commence from 4 November 2010 and that he be disqualified and stripped of any medals, points and prizes awarded to him on 23 October 2010.
The only record of the ADRVP’s deliberations when it met on 8 September 2011 is that a box marked “agree” was ticked for each of the findings proposed by ASADA and a similar box marked “agree” was ticked for ASADA’s recommendations as to penalty.
The signature of each member of the ADRVP was then individually appended under each recommendation to evidence the making of their ‘tick a box’ decisions[16].
[16] ST902-913.
The text of each of the ADRVP members’ individual decisions regarding entries in the Register was as follows:
Finding (Adverse Analytical Finding) – clause 4.09 of the NAD scheme
After reviewing the material relating to matter #2011/290, I am satisfied that:
a.the athlete was provided with an opportunity to make a submission under clause 4.06 of the NAD scheme;
b.the submission period has now passed; and
c.the athlete made a submission.
I have considered the athlete’s submission and in my view the ADRVP should make the following entries on the Register under clauses 4.09 and 4.10 of the NAD scheme.
Athlete Name: XZTT
Sport: Cycling
DOB: dd/mm/yyyy
Date of possible ADRV: 30 April 2011
Possible ADRV: Presence (Adverse Analytical Finding)
Prohibited Substances: Benzoylecgonine (a metabolite of cocaine)
In accordance with clause 4.10 of the NAD scheme this entry should be placed on the Register as soon as practicable.
Finding (Possible Use) – clause 4.09 of the NAD scheme
After reviewing the material relating to matter #2010/290, I am satisfied:
a.the athlete was provided with an opportunity to make a submission under clause 4.07 of the NAD scheme;
b.the submission period has now passed; and
c.the athlete made a submission.
I have considered the athlete’s submission and in my view the ADRVP should make the following entry on the Register under clauses 4.09 and 4.10 of the NAD scheme.
Athlete Name: XZTT
Sport: Cycling
DOB: dd/mm/yyyyy
Date of possible ADRV: 23 October 2010
Possible ADRV: Use
Substance: Cocaine
In accordance with clause 4.10 of the NAD scheme this entry should be placed on the Register as soon as practicable.
The Tribunal is satisfied that while these were expressed as individual decisions, given their identical form and their unanimous adoption, they can be taken to represent a collective decision of the ADRVP to make an entry on the Register in those terms.
XZTT was notified subsequently on 14 September 2011 of the decisions of the ADRVP to make the two entries on the Register[17].
[17] T7-9.
However the entries notified to XZTT[18] differed from those directed to be placed on the Register by the ADRVP. They were as follows:
[18] T7-8.
Finding re Adverse Analytical Finding
Athlete’s name:
XZTT
Date of birth:
dd/mm/yyyy
In-comp / Out of comp:
In-competition
Athlete’s sport:
Cycling
Sample number
1932918
Date Athlete Provided Sample:
23 October 2010
Sample when analysed was an adverse analytical
Benzoylecgonine (a metabolite of cocaine, a stimulant)
Other matters
Note: The ADRVP Register may be amended later to include further relevant information that may become available.
Finding re Possible Use
Athlete’s name:
XZTT
Date of birth:
dd/mm/yyyy
Athlete’s sport:
Cycling
Date of alleged Use
23 October 2010
Drug or Doping method alleged to have been Used:
Cocaine
Other matters:
Note: The ADRVP Register may be amended later to include further relevant information that may become available.
The notice advised XZTT that he had the right to apply to the Administrative Appeals Tribunal (“AAT”) for a review of the ADRVP’s decisions within 28 days. He did so on 30 September 2011[19].
[19] T5-6.
These facts and events stated above (in contrast to what might be their legal consequences) are non-contentious. There is an agreed documentary record of most of the events. Both the Applicant and the Respondent advised the Tribunal that there was nothing in dispute between them as to the factual circumstances giving rise to this application for review, save for the most critical contention that XZTT denies having ever used cocaine.
There is no dispute regarding the detection and quantitation methods used in the testing undertaken by the National Anti-Doping Laboratory and of the scientific accuracy of those methods.
THE ISSUES
The task facing the ADRVP when it convened to consider XZTT’s case was complex.
First, the ADRVP had to satisfy itself that it had jurisdiction to consider a matter involving an athlete who had been tested while competing outside of Australia given that the athlete’s testing and results management had been performed by the UCI rather than by ASADA.
If it concluded it had such jurisdiction it then had to consider the athlete’s submissions that the failure of the UCI and CA to follow their own rules in relation to the testing and results management deprived the ADRVP of that jurisdiction or, alternatively, should lead the ADRVP to disregard otherwise relevant evidence.
Consideration of those issues required the ADRVP to grapple with not only the NAD Scheme but also the complex interplay of overlapping regimes of international sporting governance. Some of the issues raised by that complexity were of a generic nature but a number were narrowly specific to the particular circumstances of the case.
If the ADRVP concluded that it had jurisdiction and XZTT’s sample results were not to be disregarded, it had to consider XZTT’s submissions and then consider what findings to make. If it made a finding or findings of violations of the anti-doping rules it then had to decide whether to make an entry or entries on its Register of Findings.
Depending on whether it decided to make an entry or entries on the Register the ADRVP could also make recommendations to CA as to the appropriate penalty to be imposed on XZTT based on those findings.
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.
A “possible” finding is not a finding for the purposes of the NAD Scheme. Nor is a finding of an ‘adverse analytical finding’ strictly an anti-doping rule violation. The term ‘adverse analytical finding’ is defined in clause 1.05 of the NAD Scheme as a reference to the report from an accredited laboratory that identifies in a sample the presence of a prohibited substance. It is thus evidence of a violation. The relevant anti-doping rule violation is set out in clause 2.01(2)(a) of the NAD Scheme “presence of a prohibited substance or its metabolites or markers in an athlete’s sample”.[20]
[20] NAD Scheme clause 2.01(2)(a).
In respect of the two decisions which the Tribunal has set aside, the Tribunal has made a direction in relation to the entry to be made in the Register of Findings.
In respect of ‘presence’; defined as a breach of the anti-doping rules under NAD Scheme clause 2.01(2)(a), the Tribunal is satisfied to the requisite degree, “comfortable satisfaction”, that such a violation occurred. It will exercise the power under the NAD Scheme conferred on the ADRVP to make an appropriate entry on the Register of Findings.
In contrast, in respect of the alleged ‘use’ of a prohibited substance as defined under NAD Scheme clause 2.01(2)(b) the Tribunal has concluded that the evidence before it does not justify the making of such a finding. Pursuant to clause 4.14 of the NAD Scheme, that entry will be removed from the Register. The Tribunal has also concluded that the recommendations of the ADRVP regarding penalty made consequential on the findings set aside by the Tribunal must fall with the Tribunal’s overturning of the premises on which they were based. However, recommendations as to penalty can only be made by the ADRVP. For that reason that aspect of this matter must now return to the ADRVP.
JURISDICTION OF THE AAT: THE PETERS PRINCIPLE
The Tribunal’s powers on review are as provided for in the Administrative Appeals Tribunal Act 1975. They are engaged if an enactment provides for applications to be made to the AAT. Clause 4.12 of the NAD Scheme (relevantly within the definition of an enactment) provides that an athlete may apply to the AAT for review of the ADRVP’s decision to make an entry in the Register.
The scope of the Tribunal’s powers when reviewing a decision to make an entry in the Register was considered in Re Peters and Anti-Doping Rule Violation Panel [2011] AATA 333 in which Deputy President Hack and Senior Member McCabe concluded that the Tribunal’s powers under clause 4.12 of the NAD Scheme are limited to that specific task, and therefore the Tribunal does not have jurisdiction to review recommendations by the ADRVP as to appropriate penalties.
Neither the Applicant nor the Respondent challenged the reasoning in Peters. However, in this matter the Tribunal is faced with very different circumstances to those considered in Peters given that it has decided that one of the entries made by the ADRVP in the Register must be set aside and the other remade.
Once a necessary legal foundation or precondition for an action is removed the authority to take that step is forfeited. In the Tribunal’s view the necessary legal foundation or precondition for the making of a valid recommendation as to penalty is a valid entry on the Register. When an entry is set aside by the AAT, or remade on different premises, any consequential recommendation as to penalty based on different findings cannot stand independently.
Peters should be distinguished to that extent. The principle stated in Peters is correct but it does not require perverse outcomes. It would be inconsistent with basic legal principles if a recommendation by the ADRVP retained legal force in circumstances where the AAT had set aside the premise on which it was based. Accordingly the Tribunal will direct that the question of what, if any, recommendation to make as to the consequences is to be remitted to the ADRVP for its determination.
JURISDICTION OF THE AAT: ALLEGED CONFLICT OF INTEREST OF MEMBER OF THE ADRVP
One further point in respect of the Tribunal’s jurisdiction should be addressed. In the Applicant’s Further Amended Statement of Facts, Issues and Contentions, XZTT asserted (paragraphs 159-161) that the ADRVP had been improperly constituted to determine his matter because one of its members had failed to disclose a relevant conflict of interest (their membership, and their being a board member/director of CA) and had participated in the decision-making notwithstanding[21]. Underlying that submission was the assumption that a procedural error of that kind would invalidate the original decision such that the AAT could simply quash it.
[21] See s 49 ASADA Act.
In oral submissions that contention was not pressed. XZTT’s representative and counsel for the Respondent both acknowledged that the AAT’s merits review jurisdiction is not ousted even if the original decision maker makes an error that could have resulted in the decision being declared a nullity if challenged before a court. That correctly reflects the law[22].
[22] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1.
It is therefore not necessary for this Tribunal to determine whether or not a member of the ADRVP failed to disclose a relevant conflict of interest, and if so, whether, had judicial review been sought, a court would have held the ADRVP’s decision to be a nullity.
That is because this Tribunal does not exercise judicial review powers. The AAT is a merits review body. If it has jurisdiction it stands in lieu of the decision maker, charged with the responsibility of making the correct or preferable decision. That jurisdiction is exercisable whatever procedural errors may have been committed by the original decision maker.
In any case, insofar as it is relevant, the Tribunal doubts that any relevant conflict of interest was involved. The provisions of the NAD Scheme called in aid by XZTT address quite different issues. In addition, the NAD Scheme is subject to the ASADA Act, and the terms of section 50 of the ASADA Act suggest that there is no bar to a member of a sporting administration body sitting as member of the ADRVP. What that provision precludes is a member of the ADRVP (who may have been appointed by the Minister because of their knowledge of sports law or medicine) later playing a role within a sporting administration body with respect to any issue they earlier participated in as a member of the ADRVP. XZTT’s contentions reversed that prohibition.
SCHEME OF THE ACT AND REGULATIONS
When introducing legislation to establish ASADA, the then Minister for Employment and Workplace Relations and Minister Assisting the Prime Minister for the Public Service, the Hon Kevin Andrews MP, described the legislation as enhancing Australia’s compliance with the WADC and intended to ‘strategically implement’ the UNESCO International Convention against Doping in Sport to be ratified by Australia.
The Minister observed:
The ASADA Bill sets out the broad requirements under which ASADA will exercise its functions. Detailed protocols and procedures for the exercise of ASADA’s functions will be contained in a National Anti-Doping Scheme, which will be a legislative instrument developed alongside the ASADA Bill, to be tabled in Parliament.[23]
[23] Australia, House of Representatives, Hansard, Wednesday 7 December 2005 p 8.
The ASADA Act established an institutional framework for ASADA and the ADRVP, but left much of the detail of their functions to be determined. Those details were to be supplied by the NAD Scheme which the ASADA Act authorised to be prescribed by subsequent regulation.
However the ASADA Act did not give the Executive complete freedom to make whatever regulations it wished. Section 13 of the ASADA Act specified a number of provisions required to be included in the NAD Scheme.
Of greatest relevance to the present proceedings, section 13(1) of the ASADA Act states that:
[t]he NAD Scheme must:
…
(f)authorise the CEO to investigate possible violations of the anti-doping rules; and, …
(h) authorise the ADRVP to make findings relating to such investigations;
…
The NAD Scheme was subsequently established as Schedule 1 of the ASADA Regulations.
The ASADA Regulations state that the anti-doping rules provided for in the NAD Scheme:
apply to all persons who are involved as athletes in a sport with an anti-doping policy and such persons are subject to the NAD scheme.[24]
[24] Clause 1.06(1).
Cycling is a sport with an anti-doping policy at both national and international levels[25]. At all relevant times, XZTT held a 2010 International Licence issued by CA in the elite category. When applying for that licence XZTT had agreed to “comply with and to be bound by the UCI Anti-Doping Regulations, the World Anti-Doping Code and its international standards to which the UCI Anti-Doping Regulations refer”[26].
[25] Cycling Australia Anti-Doping Policy (Applicant’s Authorities Tab 6) and UCI Anti-Doping Rules.
[26] T51-52.
The Applicant’s representative did not dispute that the NAD Scheme’s anti-doping rules applied to XZTT and the Tribunal so finds.
JURISDICTION OF THE PANEL
That is not the end of threshold matters. On a first reading, the NAD Scheme appears to apply only to the obligations and conduct of athletes in Australia participating in Australian competition.
However, both the Applicant and the Respondent submitted that the NAD Scheme was intended to apply[27], and was capable of applying, to Australian athletes such as XZTT in respect of their participation in international competitions. The issue between them was how the NAD Scheme operated so as to apply to XZTT in the present circumstances, and to the consequences of that operation.
[27] Such an intention appears in statements made by the Minister for Sport in her second reading speech introducing the Australian Sports Anti-Doping Authority Amendment Bill 2009. The Minister referred to protecting Australia’s reputation on the world stage. However such statements are too general for the Tribunal to place any weight upon as an aid in interpreting the detailed provisions of the Act and the NAD Scheme.
The Tribunal must satisfy itself that the ADRVP had the power to make the decisions the Tribunal is charged with reviewing. The true position must be determined. As a former President of the Tribunal, Brennan J, as he then was, illustratively stated, albeit in a somewhat different context:
An act done in purported exercise of a statutory power is valid if the act falls within the statutory provision which confers a power. Prima facie an act will not fall within the statute unless it be done by the person in whom the statute reposes the power… Validity is thus dependent upon the identity of the authority and the doer of the act.[28]
[28] Re Reference under section 11 of Ombudsman Act 1976 for an Advisory Opinion; ex parte Director-General of Social Service (1979) 2 ALD 86 at 93.
The basis upon which the ADRVP regarded itself empowered under the NAD Scheme to make decisions in respect of XZTT’s conduct was that:
[w]hilst ASADA did not conduct the relevant doping control test, clause 1.02(1)(e) of the NAD scheme authorises ASADA to “undertake results management for a sporting administration body regardless of whether or not ASADA has conducted the sample collection.[29]
[29] ADRVP Report “Jurisdiction for the purposes of the NAD Scheme” at T40. Counsel for the Respondent submitted that the Tribunal was entitled to accept that the ADRVP had adopted that Report as the basis for its conclusions.
Counsel for the Respondent, Ms Brimer, submitted, but in the end only faintly, that the Tribunal should accept that statement as correct.
The Applicant’s representative, Mr Hardie, disputed the proposition. He submitted that clause 1.02(1)(e) could have no relevance because the UCI, not ASADA, had undertaken results management of XZTT’s doping control test.
The Tribunal agrees with Mr Hardie’s submission.
‘Results management’ is not a defined term in the NAD Scheme. Its meaning must be discerned from the language used when read in context of the NAD Scheme as a whole.
Clause 1.01 states the NAD Scheme is about implementing, inter-alia, the UNESCO International Convention Against Doping in Sport and:
in particular Article 3(a) which obliges States Parties to adopt appropriate measures consistent with the principles of the World Anti-Doping Code.
The language of the NAD Scheme adopts terminology and concepts used in the WADC. The WADC in turn clearly distinguishes between what is referred to as Results Management provided for in Article 7 and the Right to a Fair Hearing provided for in Article 8. Results management under the WADC refers to a prescribed system for the pre-hearing administration of potential anti-doping rule violations. Article 8 Right to a Fair Hearing then applies. Under the WADC a function of the kind conferred on the ADRVP to make findings falls within Article 8 rather than Article 7.
In the relevant circumstances of this matter, when the UCI referred XZTT’s matter to CA for its attention and action, it was after the UCI itself had completed the pre-hearing administration of the matter as relevant to Article 7 of the WADC and Chapter VII Results Management of the UCI Anti-Doping Rules.
The UCI’s letter of 4 May 2011 required CA to “initiate disciplinary proceedings in accordance with Articles 249 to 348 of the UCI Anti-Doping Rules”[30].
[30] Letter from UCI to Cycling Australia 4 May 2011 (T202).
Those Articles are relevant only to the ‘Fair Hearing’ provisions of the UCI Anti-Doping Rules and the WADC. They have nothing to do with results management.
ASADA did not take any steps that could be described either as an investigation under Part 3 of the NAD Scheme or as results management. The evidence of what occurred is simply that “CA referred the matter to ASADA, which initiated its Register of Findings process under the NAD scheme.”[31]
[31] T40.
The Tribunal therefore concludes that clause 1.02(1)(e) of the NAD Scheme was not, and could not have been, a lawful basis for the CEO to have referred this matter to the ADRVP. It may be objected to this analysis that Part 4 of the NAD Scheme headed “Results Management” includes not only matters that would be regarded as results management under the WADC but also matters relevant to the conduct of hearings and appeals—as if both were intended to be understood as falling within the meaning of ‘results management’ for the purposes of the NAD Scheme. In the Tribunal’s view that objection would place too great a weight on the assistance a heading can provide for the interpretation of an Act or Regulation. The situation appears to the Tribunal to be analogous to that considered by Toohey J in TVW Enterprises Ltd v Duffy and ABT (No 2) (1985) 7 FCR 172 at 177 in that while most of the provisions of Part 4 clearly relate to results management equally some have a specific unrelated function. Their grouping does not, in the opinion of the Tribunal, govern the meaning to be applied to a term with a clearly understood meaning in sporting law and more particularly the WADC when used in regulations intending to implement its principles.
The Applicant, for his part, submitted that the authority that the CEO, ASADA and the ADRVP lawfully exercised under the NAD Scheme in respect of XZTT was that conferred by clause 1.03(1) of the NAD Scheme.
Clause 1.03(1) provides:
The CEO is authorised to exercise powers under the NAD scheme in order to cooperate with a request from a sporting administration body if the request is reasonably necessary to enforce or give effect to the World Anti-Doping Code and other relevant international anti-doping instruments.
Ms Brimer accepted that if the AAT was to find that clause 1.02(1)(e) was not a lawful basis for the CEO to have referred this matter to the ADRVP, no other source of power existed than clause 1.03(1) as contended for by the Applicant.
Ms Brimer correctly placed no reliance on clause 1.03(2) of the NAD Scheme, which applies in circumstances where the CEO has requested a sporting administration body to provide, or obtain and provide, information. In XZTT’s instance, if any relevant request was made, it was CA that made that request to the CEO; not the CEO who made a request to CA.
Accordingly, in the alternative to her submissions advanced in respect of clause 1.02(1)(e), Ms Brimer adopted the Applicant’s submissions that the ADRVP was entitled to exercise powers under the NAD Scheme in relation to a matter referred to it under clause 1.03(1).
Does that provision apply?
The documents submitted to the Tribunal do not include a letter or e-mail from CA to the CEO asking her to exercise those powers. However, the Tribunal has already noted that the UCI referred the outcome of its results management responsibilities to CA and requested CA to commence disciplinary proceedings against XZTT. CA is a ‘sporting administration body’ within the meaning of the NAD Scheme.
On 12 May 2011, the UCI transmitted to ASADA the complete documentation for XZTT’s A and B samples, and advised ASADA of the list of races in which XZTT had participated from the date of his sample collection until the date on which he had been provisionally suspended.
The ADRVP was informed by ASADA that “CA referred the matter to ASADA, which initiated its Register of Findings process under the NAD scheme.”[32] No reason has been advanced, or submission made, that the Tribunal should be sceptical of the truth of that assertion. The Tribunal infers from that statement and the above circumstances that CA, supported by the UCI, did request the CEO to exercise her powers under the NAD Scheme “in order to cooperate with a request from a sporting administration body”.
[32] T40.
The Tribunal is also satisfied that the request made to the CEO by CA was “reasonably necessary to enforce or give effect to the World Anti-Doping Code”.
In 2006, CA entered into an arrangement with ASADA to refer its relevant anti-doping functions, powers and responsibilities to the Authority[33]. CA therefore had no capacity to respond to the UCI’s request for it to initiate disciplinary hearings in respect of XZTT unless XZTT’s case could be dealt with by the CEO and the ADRVP under the NAD Scheme.
[33] Clause 1 Cycling Australia Anti-Doping Policy (Applicant’s Authorities Tab 6).
That arrangement might be argued to be authorised implicitly by the terms of clauses 2.04(a), (b), (h), (i) and (j) of the NAD Scheme. Otherwise the arrangement would not appear to be authorised by either section 21 of the ASADA Act or clause 1.02 of the NAD Scheme; at least other than in respect of matters concerning “results management” specifically provided for (but not relevant in XZTT’s instance) under clause 1.02(1)(e). However, neither party made submissions on this issue and it is unnecessary for the Tribunal to determine it.
In the Tribunal’s opinion, for the purposes of clause 1.03(1) of the NAD Scheme, whether or not ASADA had the authority to enter into that arrangement is immaterial. The Tribunal finds, as a matter of fact, that from 26 July 2006 CA had either as a result of its legal obligations or by choice divested itself of all of the capacity it had previously possessed to conduct disciplinary hearings.
However, the WADC still obliged the UCI as an Anti-Doping Organisation to conduct disciplinary hearings. The UCI Anti-Doping Rules still directly imposed that obligation on its national affiliate, CA. It was thus necessary for CA to discharge that obligation if effect was to be given to the WADC within the sport of cycling. Lacking capacity to fulfil those obligations itself, the Tribunal accepts that it was ‘reasonably necessary’, indeed essential, for CA to request the CEO of ASADA to exercise her powers under clause 1.03(1) of the NAD Scheme so that effect could be given to the WADC.
THE INTERRELATIONSHIP BETWEEN THE NAD SCHEME AND THE UCI AND CA RULES
That conclusion, however, does not address the question of the status of the CEO when she receives such a request. Does the CEO then act effectively as a delegate of CA or, upon such a request being made, is her role to exercise independent statutory powers under the NAD Scheme?
For XZTT the significance of that question is obvious. Under the UCI Anti-Doping Rules a disciplinary proceeding was meant to have been convened quickly.
CA was bound to issue a summons to XZTT within two working days of receiving UCI’s request of 4 May 2011 that it begin disciplinary proceedings.[34] That obligation was not complied with. The UCI Anti-Doping Rules binding on CA also required that CA’s disciplinary proceedings be completed within one month of the dispatch of the summons[35]. Given that nearly a full month had passed before XZTT was even notified by ASADA that the ADRVP might make findings against him, such requirements, making the necessary alterations, if they applied to conduct of the CEO and the ADRVP were not complied with.
[34] UCI Anti-Doping Rules Article 251.
[35] UCI Anti-Doping Rules Article 280.
From the athlete’s point of view, the timeliness of the process was an important matter. XZTT was already subject to a provisional suspension that had taken away his right to compete as a professional cyclist pending the resolution of the disciplinary proceeding.
Unsurprisingly, therefore, XZTT submitted that the delay that followed CA asking the CEO to step in and exercise her powers, and the earlier delays of the UCI in notifying XZTT of his A and B sample results, each involved significant breaches of the UCI Anti-Doping Rules. They constituted jurisdictional errors such that, in consequence, the ADRVP lacked power to exercise authority over XZTT under the NAD Scheme.
The Tribunal does not accept those submissions.
The faults and delays that Mr Hardie identified were egregious. Why they occurred has never been explained. However, whilst XZTT has every reason to feel let down by those who administered his sport, the faults and delays were not errors made by the CEO or the ADRVP.
The CEO had authority under clauses 1.03(1) and 4.07 of the NAD Scheme to refer XZTT’s matter to the ADRVP under the NAD Scheme. The Tribunal is satisfied that that power, as a matter of law, flowed exclusively from the authority committed to the CEO under Australian domestic legislation, viz the ASADA Act and the NAD Scheme. The power was not granted to the CEO and in turn the ADRVP merely to exercise as a delegate.
Article 23.2 of the WADC requires its signatories to implement a number of its provisions without substantive change. As a matter of international law Australia committed to the principles of the WADC when it ratified the UNESCO International Convention Against Doping in Sport. The ASADA Act was enacted in anticipation of Australia’s ratification of that Convention. However, to the extent of any unambiguous divergence between the provisions of the WADC and the ASADA Act and the NAD Scheme the CEO, the ADRVP and the Tribunal must apply Australian domestic law. That is assumed by text in the WADC itself. The possibility of divergent national approaches explains why the WADC restricts mutual recognition only to hearing results made consistently with its provisions.
THE STATUS OF PROCEDURAL BREACHES OF UCI RULES UNDER AUSTRALIAN LAW
However, and importantly, the conclusion that the Tribunal must apply only Australia’s domestic law does not mean that the earlier procedural breaches of the UCI Anti-Doping Rules or the WADC are irrelevant to these proceedings.
In the exercise of its powers under the NAD Scheme, the ADRVP was required to have regard to the WADC[36]. In turn, so too is this Tribunal. The WADC places specific responsibilities not only on International Federations such as the UCI but also National Anti-Doping Organisations such as ASADA. Accordingly, the Tribunal must have regard to the WADC in exercising its respective adjudicative and review powers. It must apply the relevant burden of proof under the WADC and be satisfied that any analytical testing complies with the standards of the WADC.
[36] NAD Scheme clause 1.03(3).
What the UCI and CA did or failed to do at an earlier stage by way of non-compliance with the WADC remains potentially relevant to the conclusions this Tribunal should draw; including whether or not to set aside a particular decision. That is not because such failures are jurisdictional errors under the NAD Scheme. It is because, under Australian domestic law, as enacted by the NAD Scheme, once a matter comes within the jurisdiction of either the ADRVP or the Tribunal on review, each is required to have regard to the WADC.
RESOLUTION OF SOME PRELIMINARY ISSUES OF STATUTORY INTERPRETATION
What are the consequences of these conclusions?
The first flows from the Tribunal’s conclusion that clause 1.03(1) of the NAD Scheme was the only provision relevantly engaged when CA requested the CEO of ASADA to exercise powers under the NAD Scheme.
Because XZTT’s results management was undertaken and completed exclusively by the UCI, the provisions of Part 3 were not engaged and Division 4.1 of the NAD Scheme did not apply. It was not possible for the CEO to comply with the mandatory obligations in 4.03 and 4.04 which are preconditions for any further action under Division 4.1.
Further the CEO had no authority to use the information about XZTT that was given to her by CA and the UCI “as if it were information that was obtained by an investigation by the CEO under the NAD scheme”, as she would have been entitled to do had the provisions of clause 1.03(2) been engaged.
A second consequence follows logically. Because none of the provisions of Part 3 or Division 4.1 of the NAD Scheme were relevant, the power given to the CEO under clause 1.03(1) of the NAD Scheme to cooperate with the request from CA to enforce or give effect to the WADC was that provided for in Division 4.2 clause 4.07. Clause 4.07(1) provides:
This clause applies if:
(a)The CEO receives evidence or information showing a possible anti-doping rule violation other than an adverse analytical finding; and
(b)following a review of the evidence or information, the CEO determines there is a possible anti-doping rule violation that warrants action by the CEO.
(emphasis added)
If the CEO determines that there has been a possible anti-doping rule violation that warrants her action she must then invite submissions from the athlete in respect of that possible anti-doping rule violation.
Clause 4.09 then provides:
(1) This clause applies if:
(a) a participant has received notification under clauses 4.06 or 4.07; and
(b) the response period for the notification has ended.
(2)The ADRVP must, as soon as practicable, consider any submissions made by the participant and decide whether or not to make an entry on the Register.
Mr Hardie did not dispute that the CEO had received ‘evidence or information’ from CA that suggested a possible anti-doping rule violation by XZTT during competition in China. The Tribunal is satisfied that the materials before the Tribunal also sufficiently demonstrate that the CEO must have reviewed that evidence and determined that there was a possible anti-doping rule violation warranting her to act by taking the steps open to her under clause 4.07.
Moreover, neither party submitted that the use of the expression “adverse analytical finding” in clause 4.07(1) was, or should be read as, an interchangeable expression for the anti-doping rule violation defined in clause 2.01(2)(a), that is, the presence of a prohibited substance or its metabolites in an athlete’s sample.
That was so, notwithstanding that the expression was potentially capable of that interpretation. There is no ‘other’ anti-doping rule violation under the NAD Scheme fitting that description. However, such a reading would prohibit the CEO referring possible “presence” offences to the ADRVP, despite her being specifically authorised under clause 1.03(1) to exercise powers under the NAD Scheme in order to cooperate with a reasonably necessary request from a sporting administration body to give effect to the WADC. Given that many anti-doping offences relate exclusively to “presence”, giving that meaning to the words “other than an adverse analytical finding” would result in what the Tribunal considers, having regard to the purposes of the NAD Scheme, an internally contradictory, and almost certainly unintended, outcome. Unless no other construction is reasonably open, the Tribunal considers that such a construction should be rejected.
The Tribunal is satisfied that the words can bear an alternative construction, that is, they can be read as referring back to the provisions of clauses 4.01-4.06 of the NAD Scheme (the provisions governing results management of adverse analytical findings), so as to reinforce that those provisions have no application. The Tribunal has concluded that this construction is to be preferred, notwithstanding, on the view the Tribunal has taken, that the words ‘other than an adverse analytical finding’ are then effectively otiose in the circumstances of the present matter because clauses 4.01-4.06 of the NAD Scheme in any case would not apply.
Mr Hardie, on behalf of XZTT, submitted that the possible anti-doping rule violations referred to in clause 4.07 that the evidence received by the CEO could be relevant to were those prescribed by clause 2.01 of the NAD Scheme. They included ‘presence’ as defined by clause 2.01(2)(a) of the Scheme.
Ms Brimer supported that conclusion as a correct statement of the law were the Tribunal to find, as it has, that clause 1.02(1)(e) was not a lawful basis for the CEO to have referred XZTT’s suspected anti-doping rule violations to the ADRVP.
The Tribunal agrees with what ultimately became the parties’ common position.
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.
However, for completeness, the Tribunal should first dispose of the question of whether an “Adverse Analytical Finding” (as entered without the ADRVP’s authorisation on the Register) could ever constitute a violation of a relevant anti-doping rule. For the reasons set out in paragraphs 66 and 136-138 above, it cannot.
Counsel for the Respondent, Ms Brimer, submitted that the task of the ADRVP could be viewed as analogous to that of a magistrate conducting a committal hearing.
The ADRVP’s task was not to make findings that a violation had been committed; rather it was to make findings that a “possible” violation had been committed. What the ADRVP needed to be satisfied of to make such a finding was that there was sufficient evidence to justify XZTT being required to answer the allegations in a sporting tribunal, which, in XZTT’s case, if he was to contest those ‘possible’ findings, would be by way of a hearing conducted by the CAS.
Ms Brimer referred the Tribunal to the language of clause 4.07(2)(d) of the NAD Scheme which she submitted stated that:
… after considering any submission made by the participant … the ADRVP may make an entry on the Register relating to the possible anti-doping rule violation,
and to clause 4.07(2)(e) which she submitted stated that the ADRVP may make:
recommendations to relevant sporting organisations about the consequences of the possible anti-doping rule violation.
By reference to that language, Ms Brimer sought to justify ASADA’s advice to ADRVP’s as to XZTT’s “possible” use of cocaine (that is, the ingestion or administration of a prohibited substance within the eight hours immediately preceding competition, per the UCI Anti-Doping Rules) upon which advice the ADRVP acted, that:
whilst it is not clear whether or not 42ng/mL is a “miniscule” amount of cocaine metabolite to be detected, the evidence could still suggest the athlete has possibly used cocaine in competition,
and its conclusion that:
there is currently enough evidence for the ADRVP to be prima facie satisfied that the athlete has possibly used cocaine in-competition.[41]
[41] T45.
The Tribunal rejects the underlying legal hypothesis.
The Respondent’s submissions misunderstand the relevant powers and responsibilities of the CEO and the ADRVP respectively.
What was referred to by Ms Brimer as a power of the ADRVP under clause 4.07(2)(d) of the NAD Scheme is no such thing. This submission overlooked the significant operative words in the Scheme that precede the language she relied upon.
Without omissions, the relevant provisions of clauses 4.07(2)(d) and (e) of the NAD Scheme read:
The CEO must notify the participant in writing of the possible anti-doping rule violation. The notice must include:
…
(d)that, after considering any submission by the participant … the ADRVP may make an entry on the Register relating to the possible anti-doping rule violation; and
(e)that the ADRVP may make recommendations to relevant sporting organisations about the consequences of the possible anti-doping rule violation.
Read in context, those sub-clauses simply define the content of the notice that the CEO must send an athlete to warn him or her of the consequences that might flow from the CEO’s determination under clause 4.07(1)(b) that there has been a possible anti-doping rule violation.
If Ms Brimer’s analogy to a committal proceeding has any utility, it is the CEO, not the ADRVP, upon whom clause 4.07(1) of the NAD Scheme casts the duty of reviewing the evidence and information and determining whether or not a possible anti-doping rule violation has occurred.
By contrast, the relevant duty of the ADRVP, upon having been notified of the CEO’s determination of a possible anti-doping rule violation, is to be found in clause 4.09(2):
The ADRVP must, as soon as practicable, consider any submissions made by the participant and decide whether or not to make an entry on the Register.
That Register is the Register of Findings maintained for the purpose of recording findings of the ADRVP[42].
[42] Clause 4.08.
The NAD Scheme defines a “finding” as “a finding by the ADRVP that an athlete or support person has committed an anti-doping rule violation” (emphasis added). For an entry to be placed on the Register of Findings, the ADRVP must make a ‘finding’ as authorised by the ASADA Act and as defined under clause 1.05 of the NAD Scheme.
Clause 2.04(m) of the NAD Scheme compels the same conclusion. It states that a sporting administration body must:
accept findings by the ADRVP, ensure an infraction notice is issued in accordance with the ADRVP’s recommendations in the case of an adverse finding, and enforce penalties imposed in accordance with the ADRVP’s recommendation unless otherwise determined by a sporting tribunal.
Applying those obligations to ‘possible’ findings makes nonsense of the statutory language. The obligation to issue an infraction notice logically must follow, not precede, the establishment of an infraction and, similarly, there is no power under the NAD Scheme or within the intendment of the WADC for penalties to be imposed in respect of “possible” findings.
Finally, as noted previously, s 13(1)(h) of the ASADA Act states that “[t]he NAD Scheme must … (f) authorise the CEO to investigate possible violations of the anti-doping rules … and (h) authorise the ADRVP to make findings relating to such investigations” (emphasis added). Nothing could be clearer. Under the Act, the CEO must be authorised to investigate possible anti-doping rule violations and the ADRVP must be authorised to make findings in relation to those investigations.
The Tribunal therefore concludes that Mr Hardie’s submission on behalf of XZTT, that a “possible” finding cannot be a finding for the purposes of the NAD Scheme, is correct.
DELAY
On 12 May 2011, after it had directed CA to institute disciplinary proceedings against him, the UCI transmitted the complete documentation for XZTT’s A and B samples to ASADA. The Tribunal infers that the UCI transmitted that documentation to ASADA as a result of it having been advised by either or both of ASADA and CA that CA would not be conducting a disciplinary hearing and had requested the CEO of ASADA to invoke her powers under the NAD Scheme.
The UCI’s letter sent with those materials acknowledged that XZTT had not been responsible for the delays.
The submissions made on behalf of XZTT to the Tribunal understandably gave great attention to the failure of the UCI to comply with its own rules. Mr Hardie referred the Tribunal to Article 206 of the UCI Anti-Doping Rules, which required the UCI to notify the athlete “promptly” of the A sample findings, and Article 213 which required that the analysis of XZTT’s B Sample take place within a period of seven working days, starting on the first working day following notification by the laboratory of the A Sample Adverse Analytical Finding.
Mr Hardie submitted, and the Tribunal finds it to be the fact, that the UCI had flagrantly breached both of those rules.
He then pointed to the strictness of the UCI’s Anti-Doping Rules as they applied to the athlete, particularly the provisions of Article 213 which deny any right of adjournment for the testing of the B Sample. He submitted that strict compliance must be mandatory, not only for the athlete but also by those responsible for implementing the WADC.
Mr Hardie submitted that the failure of the UCI to comply with its own rules required its testing results to be disregarded. As support for that proposition, Mr Hardie pointed to the statement of the CAS in USA Shooting & Q/UIT CAS 94/129 that “the fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule-appliers must begin by being strict with themselves.”
Mr Hardie drew the Tribunal’s attention to a series of decisions by the CAS that had followed the decision in USA Shooting and had given primacy to the principle that sporting bodies must strictly adhere to their own procedural rules. He submitted that when important procedural rules were breached, otherwise reliable evidence tainted by those breaches must be disregarded in disciplinary proceedings against an athlete. He urged the Tribunal to accept what had been said by the CAS in Wen Tong v International Judo Federation CAS 2010/A/2161 at [9.8]-[9.9] as expressing the principles that the Tribunal was bound to apply:
9.8Moreover, it is now established CAS jurisprudence that the athlete’s right to attend the opening and analysis of her B sample is fundamental and, if not respected, the B-sample results must be disregarded. See Tchachina, ¶¶ 22-34 (disregarding B-sample results where the neither the athlete nor her federation was given notice of the B-sample analysis). This is so even if denial of that right “is unlikely to affect the result of a B-sample analysis”. Id., ¶ 26. This is because an “athlete’s right to be given a reasonable opportunity to observe the opening and testing of a ‘B’ sample is of sufficient importance that it needs to be enforced even in situations where all of the other evidence available indicates that the Appellant committed an anti-doping rule violation.” Varis, ¶ 123 (disregarding B-sample results where the federation failed to make reasonable efforts to accommodate the athlete’s request to have her B sample opened and analyzed in the presence of her representative); see also Tchachina, ¶ 29 (explaining that to do otherwise would be to treat the athlete “as the object of the doping test procedure not its subject”).
9.9This right is “completely taken away from the athlete when the analysis of the B-sample is conducted without the athlete ... being given due notification of the relevant date and time.” Tchachina, ¶ 29. Moreover, it is not possible to remedy such a procedural error through the course of the arbitral process. In contrast to violations of the athlete’s right to be heard, the “arbitration cannot substitute the presence (in its widest definition) of a representative of the athlete at the opening of the B-sample.” Tchachina, ¶ 33. And where – as here – the rules establish a strict liability regime with respect to doping, “[i]t is of fundamental importance ... that the rules have been clearly followed.” (CAS 2003/A/477 Beaton & Scholes v Equestrian Federation of Australian Limited, ¶ 29, citing CAS 94/129 USA Shooting & Q. v International Shooting Union).
Mr Hardie submitted that the grave breach of Article 213 of the UCI Anti-Doping Rules, which required that the analysis of XZTT’s B Sample take place within a period of seven working days starting on the first working day following notification by the laboratory of the A Sample, must result in the Tribunal disregarding the otherwise credible laboratory results.
Mr Hardie also asked the Tribunal to accept that if the correct B Sample procedures had been followed XZTT would have had to be invited to be present. He would therefore have learnt of the suspicion hanging over him shortly after giving his sample rather than some 4½ months later.
The Tribunal accepts those two propositions.
The Applicant then submitted that as a consequence, the delay had cost XZTT the chance, while his memory was still fresh, to reflect on and gather evidence as to possible sources of innocent contamination (the No Fault or Negligence provisions of the UCI Anti-Doping Rules and the WADC) for which he carried the burden of proof.
Mr Hardie acknowledged that XZTT’s later statements about his having been bought a drink by an unknown Chinese man in a bar, and having received medical attention following a fall in a previous race[43] fell well short of the kind of evidence XZTT would have needed to produce to meet that burden, but submitted nothing should be made of that deficiency. What was critical, Mr Hardie submitted, was that if XZTT had been notified in a timely way he may well have been able to remember something that he had since completely forgotten. The delay had therefore irrevocably compromised XZTT’s rights by preventing him properly gathering evidence that might have assisted him. It had tainted the results such that evidence of what had been detected in his samples must be disregarded.
[43] The timeline of relevant circumstances was set out in XZTT’s written submissions.
Mr Hardie submitted that the Tribunal could decide to not enter a finding on the Register of Findings even if it doubted XZTT’s denial of having taken cocaine. He referred to paragraph 9.25 of Wen Tong in which the CAS stated it:
wishes to emphasize that the present decision in favor of the Appellant should not be interpreted as an exoneration of her. In particular, the Panel is not declaring that the Appellant did or did not, voluntarily or not, ingest clenbuterol. The Panel is merely concluding that the Respondent has not been able to prove, to the comfortable satisfaction of the Panel, diligent adherence to the rules set out in the applicable anti-doping regulations.
By contrast, Ms Brimer submitted that the only irregularities the Tribunal should have regard to under the WADC, regarding an adverse analytical finding, were any that might cast doubt on the reliability of the tests conducted by the National Anti-Doping Laboratory on the samples supplied by XZTT. Ms Brimer referred to Article 3.2.2 of the WADC that states:
Departures from any other International Standard or other anti-doping rule or policy which did not cause an Adverse Analytical Finding or other anti-doping rule violation shall not invalidate such results.
Ms Brimer observed, correctly, that XZTT had never disputed the National Anti-Doping Laboratory’s compliance with the International Standards or the accuracy of the reports it had provided.
Ms Brimer then took the Tribunal to the concluding paragraph of the UCI Anti-Doping Rules Article 213, which Mr Hardie had stressed required adherence to a strict time limit of seven days for the testing of XZTT’s B Sample. That paragraph reads:
If the B analysis is not performed within this time frame this shall not be considered as a deviation from the International Standard for Laboratories susceptible to invalidate the analytical procedure and analytical results.
With regard to the other procedural errors, such as the failure of the UCI to notify XZTT ‘promptly’ of the result of his A Sample, as required by UCI Anti-Doping Code Article 206, Ms Brimer submitted that such errors could have no relevance to the task committed to the ADRVP and the Tribunal under the NAD Scheme. It was, in her submission, mandatory, at least with respect to the presence of a prohibited substance or its metabolites in the athlete’s sample, upon proof of an adverse analytical finding, unchallenged as to its technical validity, for a finding of a breach of the anti-doping rules to be made and an entry placed on the Register of Findings.
Despite those being her primary contentions, during oral argument, Ms Brimer conceded that the decisions of the CAS relied upon by XZTT compelled a somewhat modified conclusion.
Ms Brimer acknowledged that some procedural errors committed in testing or results management might be of such significance as to require or entitle the ADRVP, as a body bound to have regard to the WADC, to disregard testing results even where all of the other evidence available indicated that an athlete had committed an anti-doping rule violation.
However, Ms Brimer rejected the notion that the CAS jurisprudence had established any general principle. She put to the Tribunal that each of the CAS decisions referred to by the Applicant had involved an aspect of denial of the right of an athlete or his or her representative to be present at the testing of his or her B Sample.
Ms Brimer submitted that, properly understood, the CAS cases stood only for the narrow proposition that a class of procedural errors required or entitled a disciplinary hearing to disregard otherwise valid testing results, but that class was limited to errors which directly or indirectly had the effect of denying an athlete the fundamental right to be present at the testing of their B Sample.
Ms Brimer pointed out, correctly, that XZTT had been offered that opportunity but had declined it.
The Tribunal is unaware of any CAS authority that gives clear guidance as to which approach is to be preferred. At Mr Hardie’s request, the Tribunal gave leave to both parties to make additional short written submissions on CAS jurisprudence regarding delay and re-testing. The Tribunal considered the supplementary written submissions filed by both parties. In those submissions, Mr Hardie referred the Tribunal to Union Cycliste Internationale (UCI) and Federazione Ciclista Italiana (FCI) and S CAS 2002/A/378, but that simply leaves open that question. In Wen Tong, the athlete’s appeal raised other procedural breaches regarding delay but the CAS did not deal with those matters because:
… the Panel has decided to uphold Appellant’s appeal and annul Respondent’s decision dated 4 April 2010 on [the grounds of effective denial of her rights in respect of a B sample breach], it is not necessary for the Panel to address any of Appellant’s other grounds for appeal.[44]
[44] At [9.24].
It is not apparent to the Tribunal why the breach of other procedural rights conferred on athletes under the WADC could not be equally ‘fundamental’ as the right to be present at the opening of a B Sample. The Tribunal is not persuaded that the line of CAS authority, culminating in Wen Tong, must be read down as limited only to instances of a breach of that right.
However, in XZTT’s case, it is not necessary for the Tribunal to come to a conclusion in that regard.
That is because the Tribunal accepts Ms Brimer’s further submission that, whatever the position may be with respect to other procedural rights, it cannot be the case under the WADC that a procedural breach involving delay in the testing of either the A or B samples falls into a class of fundamental breach, such as to require an otherwise unimpeachable laboratory test to be disregarded no matter how unfortunate or unfair that rule’s application may appear to be in a particular case.
The Tribunal’s conclusion in this regard is mandated by the plain terms of Article 3.2.2 of the WADC, reinforced in this instance by the express language of the concluding paragraph of UCI Anti-Doping Code Article 213. Both demonstrate that adherence to prescribed timelines in these circumstances is not essential to validity[45].
[45] Using reasoning analogous to the interpretive principle applied by the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
It is also mandated by the structure of the anti-doping system established by the WADC.
The provisions of Article 6.5 of the WADC are critical to this conclusion. It provides that any sample may be reanalysed at any time:
exclusively at the direction of the Anti-Doping Organization that collected the Sample or WADA.
The Comment to Article 6.5 (to which regard may be had in interpreting the WADC) states:
Although this Article is new, Anti-Doping Organizations have always had the authority to reanalyze Samples.
A provision giving effect to Article 6.5 is included in the UCI Anti-Doping Rules. Article 200 states:
[a]ny Sample may be reanalyzed … at any time exclusively at the direction of UCI or WADA.
It is thus permitted, within the scheme established by the WADC (a similar provision is also included in the NAD Scheme), that for up to eight years after providing a sample[46], that sample may be reanalysed and, if on reanalysis any prohibited substance is detected, anti-doping disciplinary proceedings may be opened against the athlete who provided the sample.
[46] Article 17 Statute of Limitations WADC; UCI Anti-Doping Rules Article 368; NAD Scheme clause 1.04(2).
The Tribunal accepts Mr Hardie’s contention that under CAS jurisprudence an athlete cannot be vexed twice for the same matter, but, as Ms Brimer correctly responded, that really is beside the point.
Article 6.5 of the WADC does not authorise an athlete to be vexed twice by allowing retesting of samples in order to overcome errors in an original process. Rather, the WADC authorises an athlete to be vexed once, at any time within a period of up to eight years.
The WADC authorises re-testing of a sample years after an event, when an athlete’s memory of the circumstances of the testing could have dimmed even to a greater degree than appears to have happened in XZTT’s case; where at least he could recall some possibly associated innocent causes, such as the drink supplied by an unknown Chinese man.
If that be the nature of the scheme, a delay of 4½ months cannot be such a fundamental breach of an athlete’s rights under the WADC and the UCI Anti-Doping Rules as to require a decision maker under the NAD Scheme to disregard otherwise unassailable proof of the presence of a prohibited substance in a sample acknowledged to have been properly analysed.
The terms of Article 6.5 of the WADC make it impossible for the Tribunal to accept the proposition advanced by Mr Hardie, notwithstanding its appeal to fairness, that delay can be treated as a matter of such fundamental significance under the NAD Scheme, having regard to the WADC, as to have irrevocably compromised XZTT’s rights.
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’.
It is also relevant to note, as stated in paragraph 14 above, that in assays used for the detection of cocaine in urine samples, the cut-off point for a positive finding of cocaine use is 100 ng/mL or more of benzoylecgonine detected in the urine sample. On this basis alone, one could not therefore conclude that the 42 ng/mL of benzoylecgonine detected in the Applicant’s samples establishes a positive finding for use.
SHOULD AN ENTRY BE MADE ON THE REGISTER?
However the Tribunal has found that the metabolite of cocaine was present in the samples supplied by XZTT In-Competition.
Clause 4.09(2) of the NAD Scheme requires the Tribunal, exercising the powers and discretions of the ADRVP, to consider the submissions made by XZTT and decide whether or not to make an entry on the Register.
Are there any sound discretionary reasons for not doing so?
XZTT did not give evidence and his representative, Mr Hardie, correctly conceded that the references in the Applicant’s materials before the Tribunal to possible sources of innocent contamination (the drink supplied by an unknown Chinese man and the medical treatment XZTT received following a crash) fell well short of evidence that could satisfy the burden of proof an athlete would be required to discharge to establish innocent contamination as a basis for not making an entry on the Register. An example of what an athlete would need to establish for the Tribunal to decide in that manner is illustrated by International Tennis Federation v Richard Gasquet CAS 2009/A/1926; WADA v ITF and Richard Gasquet CAS 2009/A/1930.
As the Tribunal is not entitled to give weight to merely speculative hypotheses of innocent contamination it must proceed on the basis that, despite his denials, XZTT had at some point of time Out-of-Competition, consumed cocaine and that its metabolites had not yet cleared his body by the time he was tested In-Competition. The fact that the metabolite was present in his sample when XZTT was tested In-Competition permits that finding to be made to the requisite standard of ‘comfortable satisfaction’. The Tribunal concludes that XZTT thereby breached the anti-doping rule prescribed in clause 2.01(2)(a) of the NAD Scheme.
Is there something more in the circumstances of this case that would entitle the Tribunal, on proper discretionary grounds, to decide not to make an entry in the Register?
Use of cocaine out of competition is not a violation of the WADC, nor is it an anti-doping rule violation under the NAD Scheme. However, the presence of cocaine, or its metabolites, In-Competition is a violation of the WADC and an anti-doping rule violation under the NAD Scheme.
Elite athletes are responsible for ensuring that any residues have cleared their body before they take part in future competitions. The rules under which XZTT competed as an elite cyclist are undoubtedly severe but there was no failure to warn. The comment under Article 29 of the UCI Anti-Doping Rules had explained the position clearly:
… Out-of-Competition Use of a substance which is authorized Out-of-Competition leads to an anti-doping violation when the substance is still 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.
XZTT simply failed to ensure that the substance that had entered his body Out-of-Competition had cleared his system. The Tribunal has not identified any relevant consideration that would permit it to exercise its discretion to decide not to make an entry in the Register in XZTT’s case.
The Tribunal has already concluded that the breaches of the UCI Anti-Doping Rules and CA Anti-Doping Policy, resulting delays in the handling of the proceedings against XZTT, cannot justify disregarding the evidence against him. For the same reasons, given the nature of the NAD Scheme and the role of the ADRVP, the Tribunal has reached the view that they do not trigger a lawful discretion to decide not to make an entry on the Register.
The adverse consequences occasioned to XZTT by unjustifiable and unexplained delay are however relevant to penalty (see Article 315 of the UCI Anti-Doping Rules).
THE TRIBUNAL’S CONCLUSIONS AND DECISION
The Tribunal has concluded that ASADA and the ADRVP each misconceived their respective legal obligations under the ASADA Act and the NAD Scheme, in so far as they proceeded on the basis that it was sufficient for the ADRVP to reach conclusions based on a “possible” finding.
Section 13(1)(h) of the ASADA Act provides that the NAD Scheme must contain provisions authorising the ADRVP to make findings relating to investigations conducted by the CEO.
The NAD Scheme gives effect to the obligatory provisions of the ASADA Act but, in this instance, those provisions were not properly understood and given effect to. However, when properly understood and given effect to, a conclusion adverse to XZTT must still be reached.
The Tribunal accordingly orders that the two decisions made by the ADRVP to make entries in the Register be set aside. It remits the matter to the ADRVP with a direction that in lieu thereof a single entry be made in the Register of Findings in the following terms:
Findings re Breach of the Anti-Doping Rule under Clause 2.01(2)(a)
Presence of a prohibited substance or its metabolites
Athlete’s name:
XZTT
Date of birth:
dd/mm/yyyy
In-comp / out of comp:
In-competition
Athlete’s sport:
Cycling
Sample number: Analysed by the National Anti-Doping Laboratory Beijing, China
1932918
Date the athlete provided A and B Samples
23 October 2010
Date the athlete’s B Sample was analysed
21 April 2011
Date the athlete was requested to respond to the CEO’s investigation.
30 May 2011
Sample when analysed was found to contain
Benzoylecgonine 42 ng/mL (a metabolite of cocaine, a stimulant)
Other matters
(a) The delay between initial testing and the analysis of the athlete’s B Sample occurred without any fault on the athlete’s behalf.
(b) The amount of the metabolite detected in the athlete’s A Sample is not a positive finding for use In-competition.
(c) The presence of the prohibited substance could not have relevantly affected the athlete’s performance In-competition.
Finding as to an anti-doping rule violation
The athlete violated the anti-doping rule prescribed by clause 2.01(2)(a) of the NAD Scheme by reason of the presence in his sample, provided in-competition, of the metabolite of cocaine, a prohibited substance.
The Tribunal further directs that the ADRVP is to determine the question of what if any recommendation it would propose to make about the consequences of the anti-doping rule violation finding so entered.
The Tribunal has remitted the matter to the ADRVP with specific directions rather than simply making a decision in substitution. That is because what is required for the complete disposition of the ‘matter’ before the ADRVP in this case involves not only the two decisions that have been set aside and the making of an entry in the Register in the terms that the Tribunal has determined but also the exercise of a discretionary power of recommendation contingent on those orders. That contingent issue is not within the Tribunal’s jurisdiction. It is exclusively vested in the ADRVP.
The meaning of the word ‘matter’ is generally understood to include every issue or aspect of a controversy[47]. The Tribunal understands the term ‘matter’ in section 43(1)(c)(ii) of the AAT Act to be used in that sense rather than being confined to the specific decision or decisions the Tribunal has authority to review. The section thus confers a most convenient power on the Tribunal to ensure that those parts of the ‘matter’ that come within its jurisdiction can be dealt with in accordance with law and in compliance with its directions even if other related components of the larger controversy remain for the original decision maker to determine.
[47] See for example Isaacs J in Pirrie v McFarlane (1925) 36 CLR 170 per Isaacs J at 198 and in R v Turner: ex parte Marine Board of Hobart; Tasmania v Commonwealth (1927) 39 CLR 411 at 427.
ANCILLARY MATTERS; IDENTITY OF THE APPLICANT
In earlier interlocutory proceedings in this matter, a differently constituted Tribunal determined that the athlete who filed this application for review was to be referred to by the letters XZTT. The Tribunal’s conclusion that an entry be made in the Register will require that entry to name the athlete.
Counsel for the Respondent advised the Tribunal that, special circumstances aside, an entry in the Register does not become a public document. Continuing the effect of the interlocutory decision would not be a matter of futility.
Neither party submitted that the interlocutory order should be discharged, or that it was in the public interest that the name of the athlete be made public as a result of these proceedings.
In those circumstances, the Tribunal is satisfied that the most appropriate reconciliation of the rights of the athlete with the Tribunal’s obligations to give reasons is that the Tribunal will provide its unedited reasons to the parties, but will order that in the version to be published the name of the athlete referred to in paragraphs 44, 47 and 227 be replaced with the letters XZTT and, in compliance with the Tribunal’s identity theft and anonymisation policy, the athlete’s date of birth, wherever referred to, be replaced with the letters dd/mm/yyyy.
ISSUES FOR THE ADRVP
The ADRVP alone has the legal responsibility to consider what, if any, recommendation it should make to CA pursuant to clause 4.11(2)(a) of the NAD Scheme following the making of these decisions.
Included in the factors the ADRVP may wish to take into account in mitigation are those that: (a) from 25 March 2011 until the date of the Tribunal’s decision XZTT remained subject to a provisional suspension that has prevented him from participating in all professional cycling events; (b) that despite the requirements of the WADC and the UCI Anti-Doping Rules, XZTT experienced gross breaches of his entitlement to have the allegations against him dealt with in a timely way; (c) that XZTT did not contribute to the delays in any way; (d) that XZTT entered into a commercially disadvantageous contract, which included a provision to the effect that if he were to be found to have breached anti-doping rules his contract would be terminated and which he would not have entered into but for the delay in the UCI in notifying him of his testing results; (e) that the finding of a violation on his part for ‘use’ In-Competition of cocaine has been set aside by the Tribunal; and (f) that the amount of metabolite of cocaine detected in XZTT’s samples was below the threshold normally accepted as establishing a positive finding for use of cocaine and could not have affected his performance.
However, what, if any weight, should be placed on those factors, individually or collectively, is not for the Tribunal to decide. It is exclusively for the members of the ADRVP, having regard to the WADC, to bring their collective and independent wisdom to bear upon.
DECISIONS SUBJECT TO REVIEW
For completeness the Tribunal should mention one final matter.
In its reasons the Tribunal has referred to the two decisions made by the ADRVP to make an entry in the Register—the first of which was in respect of an Adverse Analytical Finding and the second in respect of Possible Use. The documentation before the Tribunal clearly demonstrates that the ADRVP made separate and distinct decisions in respect of each matter.
XZTT’s application for review however identified as the ‘decision’ for which review was sought as “[t]he purported decision of the Anti-Doping Rule Violation Panel (ADRVP) to place the name of the Athlete on the Register of Findings … A copy of the decision is attached as Annexure One.”
Annexure One was the letter of 14 September 2011 from ASADA to XZTT which conveyed to him the fact (at paragraph 6) that the ADRVP had made a decision in relation to a “Finding re Adverse Analytical Finding” and (at paragraph 7) a decision in relation to “Finding re Possible Use”.
While it is important that the parties precisely identify any decision for which review is sought, in this instance the Tribunal is satisfied that, despite the somewhat inelegant use of the singular instead of the plural, XZTT’s application for review, read without pedantry, identified that XZTT was seeking review of each of the decisions in Annexure One that was relevant to ‘the purported decision’ to place his name on the Register of Findings. As in Peters that technically required the Tribunal to review two decisions. That was how XZTT’s application was read, understood and responded to by the Respondent and how the matter proceeded and was argued before the Tribunal. It is also how the Tribunal read and understood the application.
The English language is often used in less than precise ways yet entirely intelligibly. In Peters, having made the point that in that case the ADRVP had also technically made two decisions (at [1]), the Tribunal, for convenience and without any possible basis for misunderstanding, itself spoke of a singular decision to place an entry on the Register (at [33]).
The law does not require an applicant to parse their application with better grammatical precision. What an applicant is required to do is to ensure that any decision or decisions for which review is sought is or are clearly identified in their application. In the Tribunal’s opinion XZTT fulfilled that obligation.
ACKNOWLEDGMENTS
The Tribunal records its appreciation for the assistance provided to it by both Mr Hardie for the Applicant and counsel for the Respondent, Ms Brimer. A number of the issues were complex and novel. Both conducted themselves professionally, with great composure and provided thoughtful and deeply researched submissions.
I certify that the preceding 244 (two hundred and forty four) paragraphs are a true copy of the reasons for the decision herein of Justice Kerr, President and Dr Nicoletti, Member
..............[Sgd]..........................................................
Associate
Dated 23 October 2012
Dates of hearing 3 and 4 September 2012 Date final submissions received 26 September 2012 Advocate for the Applicant Mr M Hardie Solicitors for the Applicant Coulter Roache Solicitors Counsel for the Respondent Ms E Brimer
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