2016-17

SPORTS LAW
CL6324

TUTORIAL THREE

ANTI-DOPING

EVEN GROUPS Week 8 Week beginning

ODD GROUPS Week 9 - Week beginning

Aims and intended outcomes

The aim of this topic is for students to understand how the justifications
for, and the regime governing, anti-doping in sport.

By the end of this topic, students should be able to:

Discuss the arguments for (and against) regulating drugs in sport;

Explain the strict liability rule, and its implications for sanctions;
Explain in outline the main doping offences;
Evaluate how it should impact on results and team sports.

Tutorial Preparation

For this tutorial, as for all other tutorials, you should ensure that you
undertake and complete all the key readings, and you are encouraged to
engage in further reading. Indeed, one of the indicators of a first class
performance is demonstration of further reading. The cases mentioned in
the lecture, but not core reading are a good place to start for further
reading.

You should prepare detailed answers for the questions below and be
prepared to discuss them in the tutorial. If anything is unclear please do
not hesitate your tutor in advance.

Core reading

Jack Anderson, Modern Sports Law (Hart 2010), Chapter 4

Simon Gardiner et al, Sports Law (4th Ed, Routledge 2012), Chapter
8.
WADA Anti-Doping Code 2015;
Johnson v Athletics Canada [1997] OJ 3201 (judgment in appendix)
J Savulescu et al Why We Should allow performance enhancing
drugs in sport (2004) 38 British J of Sports Medicine 666;
 Mitchell Report, Report to the Commissioner of Baseball of an
Independent Investigation into the Illegal Use of Steroids and other
Performance Enhancing Substances by Players in Major League
Baseball (2007), SR-1 to SR-37.

Students might consider watching the film 9.79* (2013, Dir Daniel
Gordon) which relates to the 1988 Olympics 100m final (when Ben
Johnson was stripped of his Gold medal). It provides context and
background to doping issues (it is available on iTunes and similar).

Questions

1. What reasons are put forward to prohibit athletes using

performance enhancing drugs?
The World Anti-Doping Agency code declares a drug illegal if it is
performance enhancing, if it is a health risk, or if it violates the spirit of
sport. They define this spirit as follows. The spirit of sport is the
celebration of the human spirit, body, and mind, and is characterised by
the following values:
1. ethics, fair play and honesty
2. health
3. excellence in performance
4. character and education
5. fun and joy
6. teamwork
7. dedication and commitment
8. respect for rules and laws
9. respect for self and other participants
10.courage
11.community and solidarity

Any testing of athletes should be proportionate means of achieving a

legitimate end:
a) Ensuring level playing field;

We heard from many former players who believed it was grossly unfair
that some players were using performance enhancing substances to gain
an advantage. One former player told us that one of the biggest
complaints among players was that a guy is using steroids and he is
taking my spot.
b) Protecting athletes health;

steroid users place themselves at risk for psychiatric problems, cardiovascular

and liver damage, drastic changes to their reproductive system, musculoskeletal
injury, and other problems. User of growth hormone risk cancer, harm to their
reproductive health, cardiac and thyroid problems, and overgrowth of bone and
connective tissue
Apart from the dangers posed to the major-league player himself, however, his
use of performance enhancing substances encourages young athletes to use
those substances.

Young Americans are placing themselves at risk of serious harm. Because

adolescents are already subject to significant hormonal changes, the abuse of
steroids and other performance enhancing substances can have more serious
effects on them than they have on adults. Some estimates appear to show a
recent decline in steroid use by high school students; they range from 3 to 6
percent. But even the lower figure means that hundreds of thousands of high
school-aged young people are still illegally using steroids. Its important to
devote attention to the Major League Baseball players who illegally used
performance enhancing substances. Its at least as important, perhaps even
more so, to be concerned about the reality that hundreds of thousands of our
children are using them. Every American, not just baseball fans, ought to be
shocked into action by that disturbing truth. The recent decline is welcome, but
we cannot be complacent.

c) Protecting the social and economic standing of sport;

Some of the banned substances are not clearly performance enhancing, such as
marijuana and cocaine

- Some have criticised this as imposing a moralistic

judgment dressed up as sporting concerns Hulme
- However, some people have suggested incidents and
sports when these drugs could enhance performance.

d) To provide role models.

2. What arguments do Savulescu et al put forward for allowing

such drugs to be taken?

If we made drugs legal and freely available, there would be no cheating.

By allowing everyone to take performance enhancing drugs, we level the
playing field.
There is no difference between elevating your blood count by altitude
training, by using a hypoxic air machine, or by taking EPO. But the last is
illegal.
We remove the effects of genetic inequality. Far from being unfair, allowing
performance enhancement promotes equality.
Paradoxically, permitting drugs in sport could reduce economic
discrimination
 This arguably puts legal methods for raising an athletes PCV beyond the
reach of poorer athletes. It is the illegal forms that level the playing field in
this regard.
Provided that a drug is safe, it is unfair to the honest athletes that they
have to miss out on an advantage that the cheaters enjoy.
If an archer requires beta blockers to treat heart disease, we should not be
concerned that this will give him or her an advantage over other archers.
Or if an anaemic cyclist wants to take EPO, we should be most concerned
with the treatment of the anaemia
Performance enhancement is not against the spirit of sport; it is the spirit
of sport. To choose to be better is to be human. Athletes should be the
given this choice. Their welfare should be paramount. But taking drugs is
not necessarily cheating. The legalisation of drugs in sport may be fairer
and safer.
Legalising drugs would lead to safer drugs getting released would work
towards a drug that actually works eliminate risk damage to health.
Should allow performance enhancing in the nature of sport to enhance
your ability not against the nature of sport.
If it damages athletes health, against the nature of sport.
Poorer nations to compensate for the economic disadvantage drugs
should be aloud to be used to enhance their chances during sporting
games richer nations have enough money plus prize money to allow for
better training facilities with drugs being used poorer nations will be able
to compensate for their disadvantage.
Unfairness musicians aloud to use beta blockers large musical
performance isnt any different than a large sporting event.

2. What is meant by strict liability under the WADA Anti-Doping

Code 2015? How does it affect sanctions?

if an athlete tests positive strict liability will be found

intention/negligence will not come into play not about their
knowledge knowledge/intention will only affect the length of the
ban.
An anti-doping rule violation is committed under this Article without regard
to an Athletes Fault. This rule has been referred to in various CAS
decisions as Strict Liability. An Athletes Fault is taken into
consideration in determining the Consequences of this anti-doping rule
violation under Article 10. This principle has consistently been upheld by
CAS.
2.1 - It is each Athletes personal duty to ensure that no Prohibited
Substance enters his or her body. Athletes are responsible for any
Prohibited Substance or its Metabolites or Markers found to be present in
their Samples. Accordingly, it is not necessary that intent, Fault,
 negligence or knowing Use on the Athletes part be demonstrated in order
to establish an anti-doping rule violation under Article 2.1.

Article 9: Automatic Disqualification

An anti-doping rule violation in Individual Sports in connection with
an In-Competition test automatically leads to Disqualification of the
result obtained in that Competition with all resulting Consequences,
including forfeiture of any medals, points and prizes.

Article 10: Sanctions On Individuals

10.1 Disqualification of Results in the Event during which an
Anti-Doping Rule Violation Occurs

An anti-doping rule violation occurring during or in connection with an

Event may, upon the decision of the ruling body of the Event, lead to
Disqualification of all of the Athletes individual results obtained in that
Event with all Consequences, including forfeiture of all medals, points and
prizes, except as provided in Article 10.1.1.

Factors to be included in considering whether to Disqualify other results in

an Event might include, for example, the seriousness of the Athletes anti-
doping rule violation and whether the Athlete tested negative in the other
Competitions.

10.1.1 If the Athlete establishes that he or she bears No Fault or

Negligence for the violation, the Athletes individual results in the other
Competitions shall not be Disqualified, unless the Athletes results in
Competitions other than the Competition in which the anti-doping rule
violation occurred were likely to have been affected by the Athletes anti-
doping rule violation.

Lord Coe - The rule of strict liabilityunder which athletes have to be

solely and legally responsible for what they consumemust remain
supreme. We cannot, without blinding reason and cause, move one
millimetre from strict liabilityif we do, the battle to save sport is lost.
But the doctrine of strict liability makes victims of athletes such as those
of the East German swim team, who are competing in good faith but have
been forced to take drugs.
It also seems dogmatically punitive for athletes like British skier Alain
Baxter, who accidentally inhaled a banned stimulant when he used the
American version of a Vicks decongestant inhaler, without realising that it
differed from the British model.
It seems that strict liability is unfair to athletes, but its absence is equally
unfair
 3. What is a biometric passport? Why is it now important in
anti-doping?
Can detect change biological change rather than the substance
memorizes and monitors different variables to do with biological
change.
The fundamental principle of the Athlete Biological Passport (ABP) is
to monitor selected biological variables over time that indirectly
reveal the effects of doping rather than attempting to detect the
doping substance or method itself.
The Italian Cycling Federation decided in 2000 that all juniors would be
tested to provide a baseline PCV and given a Hematologic Passport.
(Biometric Passport)
Although this strategy is in many ways preferable to the prohibition of
doping, it does nothing to correct the dangers facing an athlete who has
an unsafe baseline PCV or testosterone concentration.

5. What defences are there to anti-doping charges?

Normally 4 year ban, but can be 2 years if athlete can prove no

significant fault.
10.4 Elimination of the Period of Ineligibility where there is No Fault
or Negligence

If an Athlete or other Person establishes in an individual case that he or

she bears No Fault or Negligence, then the otherwise applicable period of
Ineligibility shall be eliminated.

Get less of a ban for whistle-blowing

Admitting the drug taking

6. How are teams affected where one member of the team takes
drugs? Has this changed following the Russian doping scandal?

11.2 Consequences for Team Sports - If more than two members of a

team in a Team Sport are found to have committed an anti-doping rule
violation during an Event Period, the ruling body of the Event shall impose
an appropriate sanction on the team (e.g., loss of points, Disqualification
from a Competition or Event, or other sanction) in addition to any
Consequences imposed upon the individual Athletes committing the anti-
doping rule violation
Eg Wales v Russia 2004 Euro Play-offs
- Its hard to prove that one player had a major effect
on the outcome of the game

WADA Issued a Report in November 2015 saying massive state

sponsored doping requiring remedial actions
 Russian national federation banned by IAAF
State are funding.

McClaren Report published July 2016:

- Moscow and Sochi Laboratory adopted

Disappearing Positive Methodology (former
Director of Laboratory a whistle-blower);
- Deputy Ministry of Sport directed the
manipulation of the sample.
- Drugs passed through mouse hole and dirty
samples swapped with clean sample from
storage
IAAF pass a rule in June 2016 banning all athletes which are
members of a suspended national federation
CAS upheld the rule on 21 July 2016.
CAS 2016/A/4745 Russian Paralympic Com v. International
Paralympic Committee Banned all Russian athletes.

7. Why are recreational drugs (cannabis and cocaine, for

example) on the prohibited list?

They are illegal drugs anyway. Against the law of the land.

Against the spirit of the sport

Damaging to the reputation of the sport doesnt set a good example.

Its bad for health.

WADA established in 1999 trying to tackle drugs.

But drugs had been around for years Ben Johnson and even back in
1904 and Eastern German athletes in the 1980s.

In 2008, WADA and Interpol work together to police drugs. It is an

international organisation to help the problem of conflicting
jurisdictions.

Definition of Doping

1. Presence of a prohibited substance or method

2. Use or attempted use of a prohibited substance/methods
3. Refusing or failing to give a sample collection
4. Whereabouts violation
5. Tampering or attempting to tamper with any part of the doping control
process
6. Possession of prohibited substances/methods
7. Trafficking or attempted trafficking or prohibited substances/methods
8. Administration or attempted administration of a prohibited substance.

There is still presumption of innocence. WADA must prove that the

athletes have taken drugs. Strict Liability

Article 10 A ban is not inevitable but will probably follow.

Defences.

- Therapeutic Use Drugs You had to admit from the start,

legitimate reason as to why you are taking it. You must get a
doctors note AND ask WADA or your sport association. (TUE)
- Chain of Custody like criminal law. Got to take certain measures,
eg signature. No tampering of evidence.
- Due Process Whoever is bringing their case, eg if the drugs
person comes at a time when you said was not possible.
- External Circumstances that may be affected. Natural
phenomena eg earthquake can cause damage and damaged the
testing.

Appendix to Tutorial 3

Johnson v. Athletics Canada [1997] O.J. No. 3201, 73 A.C.W.S. (3d) 5

(Full judgment)
Caswell J.

1 The applicant Benjamin Johnson has applied to the court for the following relief:
1. a declaration that the life-time ban issued by the respondents, Athletics Canada
(A.C.) and the International Amateur Athletics Federation (I.A.A.F.), preventing him
from participating in amateur athletic events governed by the respondents is contrary
to the common law doctrine of restraint of trade;
2. an order reinstating Mr. Johnson's eligibility to participate in all activities governed
by the respondents; and
3. costs on a solicitor and client basis.
Facts
2 A.C. is a non-profit corporation without share capital. It is the Canadian national
federation for athletics responsible for conducting athletic events, the selection and regulation
of athletes as members of Canadian national athletic teams, and for the development and
organization of athletics and athletes in Canada. The I.A.A.F. is the world governing body
regulating athletics. It is composed of 209 national governing bodies including A.C.
3 In order to become a member in A.C. an athlete is required to undertake compliance
with its bylaws, rules and regulations.
4 Pursuant to the constitution of the I.A.A.F. the rules and regulations of member
federations must conform to those of the I.A.A.F. In January 1993 the rules of membership in
A.C. provided that an athlete was deemed to be ineligible to compete under A.C. and I.A.A.F.
auspices if he had used drugs as defined in the I.A.A.F. rules and procedural guidelines. As
part of the doping control policy in 1993, A.C.'s rules provided that an athlete was prohibited
from competing in athletic events upon production of a positive urine test contrary to
Division III of the I.A.A.F. constitution.
5 In January 1993 Benjamin Johnson was bound by a national team doping control
contract stating that he was subject to the A.C. doping control program. He further confirmed
this agreement to be bound by the rules applicable to the A.C.'s national team members. He
was also obliged to comply with A.C.'s own rules, entitled "National Team Composition and
Code of Conduct", which prohibited the use of banned substances consistent with A.C.'s anti-
doping policy.

6 The I.A.A.F. rules provided that athletes were ineligible to take part in competition,
either under the I.A.A.F. rules or the domestic rules of member federations, if they
contravened Division III of the I.A.A.F. constitution.
7 I.A.A.F. Rule 55 2 provides:
The offence of doping takes place when either
(i) a prohibited substance is found to be present within an athletes body tissue or
fluids ...
8 I.A.A.F. Rule 55 3 defines prohibited substances to include those listed in Schedule 1
to the I.A.A.F. Procedural Guidelines for Doping Control. This schedule includes
testosterone.
9 I.A.A.F. Rule 55 6 provides that a prohibited substance includes any metabolite of a
prohibited substance. The identification of metabolites in a urine sample is a primary tool
used in the detection of a prohibited substance.
10 A.C.'s doping control policy provides that doping is strictly forbidden and constitutes
an offence under the rules of A.C. and the I.A.A.F. A.C.'s doping control policy further states
that any athlete found to have contravened A.C.'s and the I.A.A.F. rules on doping control is
ineligible to take part in competition and will be banned from participation, in the case of a
first offence for a minimum of two years, and in the case of a second offence for life.
11 At the Seoul Olympics in 1988, Mr. Johnson tested positive for the use of stanozolol,
a prohibited substance. He was stripped of his gold medal and ultimately was banned from
competition for two years. In 1990 he was re-instated as a member of A.C. He competed
thereafter at various events and at the 1992 Olympics in Barcelona as a member of the
Canadian team. Subsequent to his re-instatement Mr. Johnson was tested after every event in
which he participated.
12 As a result of the Commission of Inquiry into the use of Drugs and Banned Practices
Intended to Increase Athletic Performance (the Dubin Inquiry) the Government of Canada
created a central independent agency known as the Canadian Centre for Drug Free Sport
(C.C.D.S.) which later became the Canadian Centre for Ethics in Sports (C.C.E.S.). The
doping control standard operating procedures for C.C.D.S. sets out a very detailed
methodology for conducting doping control, collection procedures, responsibility for
scientific laboratories as well as an appeal and arbitration procedure to handle protests by
athletes regarding a positive test result. C.C.D.S. appointed the Institut National de la
Recherche Scientifique (INRS-Sant) as the scientific research laboratory in Canada for
conducting analysis of samples from athletes, as part of its detection program.
13 On January 17, 1993 Mr. Johnson participated in an I.A.A.F. competition held in
Montreal. At the conclusion of the race he provided a urine sample for testing. The sample
was collected and sent to INRS-Sant for analysis in accordance with the approved scientific
protocols as set out in I.A.A.F. Procedural Guidelines 4.8-4.11. The urine sample was divided
between two containers and they were labelled "A" and "B". The "A" sample was then
analyzed in accordance with I.A.A.F. Procedural Guideline 6.2 by Dr. Christiane Ayotte,
Chief of the Doping Control Laboratory. In 1993 the policy provided that the presence of
testosterone to epitestosterone in a ratio greater than 6:1 in the urine constituted an offence,
unless there was evidence that such ratio was due to a physiological or pathological
condition. The policy provided that laboratories were required to report according to the
following criteria:
1. negative, if the ratio is less than 6:1;
2. further tests to be conducted where the T.E. is greater than 6:1 but less than 10:1;
3. positive, if the ratio is greater than 10:1.
14 Sample "A" was tested between January 19 and January 25 and the results revealed a
testosterone to epitestosterone ratio of 10.3:1. In accordance with the I.A.A.F. Procedural
Guideline 7.1 the I.A.A.F. was notified of the positive result. The I.A.A.F. then notified A.C.
by letter of February 8, 1993. A.C. informed Mr. Johnson and requested an explanation. On
February 9, 1993 Mr. Johnson replied that there may have been some mix up in the testing
room and that he was unable to explain the test results, since he had tested negative only two
days previously, on January 15, 1993.
15 In accordance with I.A.A.F. Procedural Guideline 7.2 INRS-Sant arranged for a test
of the "B" sample and notified Mr. Johnson that he and/or his legal and scientific
representatives could be present for such analysis, together with a representative of A.C. and
the I.A.A.F. The results of the testing and the analysis would then be reported to the I.A.A.F.
Doping Commission along with all relevant laboratory data. The testing and analysis of
sample "B" occurred on February 15 and 16, 1993. Mr. Johnson's lawyer, Terrence
O'Sullivan, and his expert, Dr. David Black, President and Laboratory Director of Aegis
Analytical Laboratories in Nashville, Tennessee were present on both days. Mr. Johnson's
representatives examined the integrity of the "B" sample and agreed that there was no
evidence of tampering, improper sealing of the "B" sample or any difficulties as to the coding
of the sample bottles. The results of the testing that were that sample "B" had a ratio of
testosterone to epitestosterone identical to sample "A", namely 10.3:1.
16 On February 16, 1993 C.C.D.S. sent the certificate of analysis with respect to sample
"B" to the I.A.A.F. Doping Control Commission. The I.A.A.F. Doping Control Commission
met on March 5, 1993. It had the following options after considering the scientific evidence:
1. to declare the test positive;
2. to declare the test negative; or
3. to declare the test results inconclusive and order further investigation and/or
additional testing.
17 Counsel for Mr. Johnson offered to make Dr. Black available to the representatives of
the I.A.A.F. at the Doping Control Commission and/or to attend upon the I.A.A.F. to make
submissions. The Chairman of the Doping Control Commission, Dr. Arne Ljungqvist, refused
the request. As a result of the meeting of the Doping Control Commission, Mr. Paul Dupr,
President of A.C. wrote to Mr. Johnson to inform him that the I.A.A.F. Doping Commission
had ruled that the positive test contravened I.A.A.F. Rules 55 and 60 and constituted a doping
offence. Since this was a second doping offence under I.A.A.F. Rule 60 2(a)(ii), pursuant to
Rule 59 1 and 59 2, he was suspended from competition. The letter further stated as follows:
You have the right to appeal the ruling under Rule 59 3 and under the Procedural
Guidelines For Doping Control of the I.A.A.F. Part I Section 7.5 (attached).
18 Rule 59 3 provides as follows:
Every athlete shall have the right to a hearing before the relevant tribunal of his
National Federation, before any decision on eligibility is breached. When the athlete
is notified that it is believed that a doping offence has taken place, he shall also be
served with a notice informing him of his right to a hearing, together with a notice of
application. If an athlete does not return this notice of application within 28 days of
receipt, he will be deemed to have waived his right to a hearing.
19 Rule 59 4 provides as follows:
If an athlete is found to have committed a doping offence, and this is confirmed after
a hearing, or the athlete waives his right to a hearing, he shall be declared ineligible.
In addition, where testing was conducted in a competition, the athlete shall be
disqualified from that competition and the result amended accordingly. His
ineligibility shall begin from the date on which the sample was provided.
20 The I.A.A.F. Procedural Guidelines for Doping Control, Part 1, Section 7.5 sets out as
follows:
Every athlete shall have the right to a hearing before the relevant tribunal of his
National Federation before any decision on eligibility is reached. This hearing should
take place as soon as possible and under normal circumstances not later than 3
months after the final laboratory report.
21 The appeal procedure within A.C. consisted of both a standard track and an urgent
track (A.C. Rules 173 and 181 to 189). The standard track appeal procedure consisted of a
hearing before the full board of directors of A.C. The decision of the board could then have
been further appealed to a three party appeals committee consisting of three individuals
designated from A.C.'s appeals panel. The appeal panel consists of individuals who are
nominated by each of A.C.'s branch members, i.e. the provincial track and field associations.
Mr. Johnson may have chosen to proceed by the urgent appeal route which would involve a
review committee composed of three members of A.C.'s board of directors. The decision of
the review committee could then be appealed to A.C.'s appeal committee consisting of three
members of the appeals panel selected by the president on an urgent basis. The final decision
from either the standard or urgent appeal route within A.C. is subject to the right of appeal or
review before the I.A.A.F. (Rules 21 and 22).
22 On April 21, 1993 A.C. again wrote to Mr. Johnson to advise that the period had
expired within which he could launch his appeal from the finding of the I.A.A.F. Doping
Commission. The letter stated that since the deadline for return of the notice of application
for a hearing expired as of midnight April 1, 1993, Mr. Johnson was declared ineligible for
competition for life.
The Law
Restraint of Trade
23 Competition among world class "amateur" athletes provides the successful athlete
with considerable financial rewards including support from his national body as a carded
athlete and payments from companies whose products he endorses. In order to preserve the
athlete's amateur status, the monies that the athlete earns are deposited in an athlete reserve
trust fund. In the 1980's and even after the Seoul Olympics, Mr. Johnson continued to be
considered a world class athlete with lucrative endorsement contracts.
24 It is the position of the applicant that the court should find that the life-time ban from
competition is in restraint of Mr. Johnson's common law rights to carry on the trade or
business from which he earns his livelihood: running. The position of the respondents is that
the doctrine of restraint of trade does not apply. They argue that running does not constitute a
trade. The respondents do say that Mr. Johnson is free to run in any competition not under the
aegis of A.C. or I.A.A.F. and that he continues to be free to contract with any companies who
may seek his endorsement for their products.
25 There is no "bright line" test with respect to the categories to which the doctrine of
restraint of trade applies. In Esso Petroleum Co. v. Harper's Garage (Stourport) Ltd., [1967] 1
All E.R. 699 (U.K. H.L.), Lord Morris of Borth-y-Gest stated at p. 713:
A review of the authorities shows that in some groups of cases there has been no
assertion that the doctrine or principle of restraint of trade applies. It is said,
therefore, that there are classes of cases in which the doctrine does not apply, and
attempt is made to define those groups of cases in which alone the doctrine does
apply. For my part, I doubt whether it is possible or desirable to record any very rigid
classification of groups of cases. Nor do I think that any firm inference can be made
from the circumstances that in respect of certain groups of cases no one has claimed
that the doctrine applies or has sought to invoke it. That might be for the reasons that
there are some situations in which it would not be thought by anyone that the doctrine
could successfully be invoked. In some cases it matters not whether it is said that the
 doctrine does not apply or whether it is said that a restraint would so obviously pass
the test of reasonableness that no one would be disposed even to seek to invoke the
doctrine.
26 In the English case of Gasser v. Stinson, unreported, June 15, 1988 (Ch. Div.), Scott
J., Doc CH-88-G-2191 at 25, Ms. Gasser had competed in the 1987 world championships in
track and field in Rome. She took the requisite doping test which revealed a prohibited
substance in her urine. As a result, Ms. Gasser was disqualified for a period of two years from
competition held under the rules of the I.A.A.F. She was unsuccessful in her appeals to the
I.A.A.F. and then turned to the courts for relief. Scott J. on the issue of restraint of trade,
found as follows:
The policy underlying restraint of trade law is that people should be free to exploit for
their financial gain the talents and abilities that they may have. I would accept that
restraint of trade law would not be applicable to activities that were undertaken for
no financial reward at all (for example, school sport). ... But, in a sport which allows
competitors to exploit their ability in the sport for financial gain and which allows
that gain to be a direct consequence of participation in competition, a ban on
competition is, in my judgment, a restraint of trade.
27 I adopt Scott J.'s reasoning and I find that the life-time ban imposed on Mr. Johnson is
in restraint of trade.
Justification for the Restraint
28 In Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co., [1894] A.C. 535 (U.K.
H.L.) Lord Macnaghten stated at p. 565:
The public have an interest in every person's carrying on his trade freely: so has the
individual. All interference with individual liberty of action in trading, and all
restraints of trade of themselves, if there is nothing more, are contrary to public
policy, and therefore void. That is the general rule. But here are exceptions: restraints
of trade and interference with individual liberty of action may be justified by the
special circumstances of a particular case. It is a sufficient justification, and indeed it
is the only justification, if the restriction is reasonable - reasonable, that is, in
reference to the interests of the parties concerned and reasonable in reference to the
interests of the public, so framed and so guarded as to afford adequate protection to
the party in whose favour it is imposed, while at the same time it is in no way
injurious to the public. That, I think, is the fair result of all the authorities.
29 I am persuaded that this statement represents the present state of the law in Canada:
Connors Brothers Ltd. v. Connors, [1939] S.C.R. 162 (S.C.C.).
30 A.C. and the I.A.A.F. have argued that the life-time ban after a second doping offence
is reasonable for many reasons. I agree that the ban is reasonable and is not an illegal restraint
of trade. It is necessary to protect Mr. Johnson for the sake of his own health from the effects
of consistently using prohibited substances. It is necessary to protect the right of the athlete,
including Mr. Johnson, to fair competition, to know that the race involves only his own skill,
his own strength, his own spirit and not his own pharmacologist.
31 The public has an interest in the protection of the integrity of the sport. Governments
around the world subsidize their elite athletes through carding systems. The public pays to
attend the events. The elite athlete is viewed as a hero and his influence over the young
athlete cannot be underestimated. Mr. Johnson became both rich and famous during his
athletic career as a result of his athletic performances. In at least some of the races he has
admitted that he was cheating. Most major sports impose a life-time ban after an athlete has
been caught for a second time using banned substances.
32 The Dubin Inquiry recognized the problem of penalties when cheating is involved in
sport and stated as follows at p. 563:
Sport Organization Penalties
If the problem of cheating in sport is to be solved, the individuals and organizations
responsible for sport must take a serious look at the present penalties for cheating.
Briefly stated, if the rewards for a cheater even when caught are greater than for
obeying the rules, cheating will continue. When role models in sport, or in any other
endeavour, are seen to cheat and prosper, then it is natural that young people will
learn to do the same. An effective penalty should ensure that there are greater
disadvantages than advantages to cheating.
33 This court is required to extend a measure of deference to the justifications advanced
by the I.A.A.F. as the world governing body for amateur athletes when considering the
reasonableness of the ban. It is not this court's function to serve as a court of appeal on the
merits of decisions reached by tribunals exercising jurisdiction over specialized fields. The
I.A.A.F. has special expertise not only in regulating amateur athletics but also in regulating,
detecting and preventing drug abuse.
34 In McInnes v. Onslow-Fane, [1978] 1 W.L.R. 1520 (Eng. Ch. Div.), Megarry V.-C.
stated, at 1535:
I think that the courts must be slow to allow an implied obligation to be fair to be used
as a means of bringing before the courts for review honest decisions of bodies
exercising jurisdiction over sporting and other activities which those bodies are far
better fitted to judge than the courts. This is even so where those bodies are concerned
with the means of livelihood of those who take part in those activities. The concepts
of natural justice and the duty to be fair must not be allowed to discredit themselves
by making unreasonable requirements and imposing undue burdens.
Denial of Natural Justice
35 The position of Mr. Johnson is that the actions and proceedings of the I.A.A.F. and
A.C. in 1993 were inherently unfair and as a result he was denied natural justice. The
requirements of natural justice are set out by the Supreme Court of Canada in many cases
including Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165 (S.C.C.)
Gonthier J. at p. 195:
The content of the principles of natural justice is flexible and depends on the
circumstances in which the question arises. However, the most basic requirements are
that of notice, opportunity to make representations, and an unbiased tribunal.
36 The I.A.A.F. Doping Commission refused to allow Mr. Johnson's counsel and expert
to appear and make representations at the meeting held on March 5, 1993 in Paris. Mr.
Johnson now raises the issue of apprehension of bias as the reason for his failure to initiate
appeal proceedings during the 28 day period following March 5, 1993. Mr. Johnson claims
that this bias was revealed in certain statements reported in the press that were made by Dr.
Ljungqvist and by Mr. Dupr. The statements suggested the futility of any appeal by Mr.
Johnson in view of the findings of the Doping Commission. When Mr. Johnson announced
his resignation on March 7, 1993, however, he stated that he did not wish to appeal the ban
for three reasons; his age, the potential cost of an appeal, and the obligations that he felt to
spare his family any further trauma. He did not at that time mention any apprehension of bias
by A.C.'s and/or I.A.A.F.'s appellate panels.
37 Both A.C. and I.A.A.F. referred to the procedures open to Mr. Johnson, after the
Doping Commission confirmed his suspension, as being appeal procedures. The options
available to Mr. Johnson at that point included the fast track, the standard track and ultimately
a hearing before the I.A.A.F. These procedures were really in the nature of hearings "de
novo", that is new hearings. Mr. Johnson was entitled notice of the hearing(s) to be
represented by counsel, to be present personally and to present further evidence including
witnesses. The panels were required to consider existing and additional evidence and to hear
submissions from counsel. It is important to note that Mr. Johnson was represented at the
time by Terrence O'Sullivan, a very experienced and capable counsel. The pleadings in this
application contain voluminous correspondence between Mr. O'Sullivan and A.C. and the
I.A.A.F.
38 There is insufficient evidence before me that any appeal panel would have been
biased against Mr. Johnson, in order to justify Mr. Johnson's failure to enforce his rights at the
time. While I consider the remarks of Mr. Ljungqvist and Mr. Dupr to be most improper
given their positions, I have no evidence that either person would have affected the decision
of an appeal panel.
39 Even if I were to find that on March 5, 1993, the Doping Commission should have
heard from Mr. Johnson's counsel and should have considered any additional evidence, I am
faced with the fact that Mr. Johnson did not avail himself of any of the several opportunities
that were available to him for further hearings on the merits. Such hearings were capable of
curing any perceived lack of fairness at the Doping Commission hearing and it must be
assumed that they would do so: Gray v. Canadian Track & Field Assn. (July 18, 1986), Doc.
12787/86 (Ont. H.C.); Trumbley v. Saskatchewan Amateur Hockey Assn. (1986), 49 Sask. R.
296 at 300 (Sask. C.A.); and Harelkin v. University of Regina, [1979] 2 S.C.R. 561 (S.C.C.),
at 567, 592-593, 595-596.
40 Mr. Johnson failed to exhaust the remedies that were available to him without
sufficient justification. The procedures in place in 1993 complied with the requirements of
natural justice and were procedurally fair. In my view there was no violation of the rules of
natural justice.
Disposition
41 The application is therefore dismissed.
42 I may now be spoken to as to costs.
Application dismissed.