Natural justice principle, Strict liability rule and Structural arrangement in the international athletics

Sport governing body are expected to conduct the disability process according to the rules of natural justice. This involves a duty to be a fair reasonable and impartial, in all aspect of proceedings, including the conduct of those involved within outside the formal process. They are expected to, inter-alia:

• Follow the relevant rules and procedures (e.g. doping and sample testing procedures, strict liability rules and disciplinary process of the sports governing bodies);
• Provide the athletic with the opportunity to present their case and answer the charges, either by attending a hearing or having someone present their case[1].
• Systematically examine all relevant evidence. The athlete has the right to access and challenge, all relevant evidence
• Act in good faith, without apparent bias, in an impartial and thorough manner[2].
• An athlete has a right to appeal against the decision of disciplinary panel, normally on the ground that the panel acted unfairly, in appropriately or that new evidence, relevant to the case, came to light, which was not available to the original disciplinary panel.

In 1994, at the time of the alleged doping offence, I.A.A.F. “control of drug abuse” rule 55 .2 (i) stated that “the offence of doping takes place in a prohibited substance is found to be present within an athlete’s body tissue or fluids”. This is a rule of “strict liability”. Strict Labadie makes no reference to the state of mind or intent of the athlete. The doping authorities do not have to prove fault or awareness on the part of the athletic. The only have to prove, beyond reasonable doubt, that a doping offence had taken place i.e. the sample provided by the athletic contain the substance banned by the rules of the relevant authorities. Such a system, which risk “false positives” for the broader good for the sport and the integrity of the sport contest, has been subject to criticism[3].

The competition, simple and suspension

This very high-profile doping case really beginning June 1994, when a urine sample provided by Diane Modahl , a British 800m at late, at an international athletic competition, in San Antonio, Portugal on 18 June 1994, tested positive for testosterone, present at ratio of 42:I. So here was a British athletic, taking part in any European mature athletic Association ( E.A.A.A) competition, under International amateur athletic Federation (I.A.A.F.) rules organised by Portuguese athletics Federation (P.A.F.) with urine samples being tested by Lisbon laboratory, which was accredited by the International Olympic Committee (I.O.C.)[4].

The International Amateur Athletic Federation and Governs world athletics. It was not responsible for doping control at the San Antonio athletics meeting in June 1994. Under I.A.A.F. rule 58, the responsibility for doping control rested with the P.A.F under the auspices of E.A.A.A and the I.A.A.F. rules. The urine sample taken at the competition were sent to the accredited laboratory, the laboratorio de Analises de Doping e Bioquimica (the “ LADB”). However, under Para eight of the procedural guidelines, the I.A.A.F. is required to inform the athletics National Federation, who shall inform athletic as soon “as is reasonable practicable” and request an explanation.

This is then relayed to the I.A.A.F. Once the national federation has been informed, the laboratory “shall arrange a date within 21 days, for the conduct of test on the reserve ‘B’ sample, where the athlete and national federation have the right to be present or have a representative present”. If the “B” test is also positive, it is then the responsibility of the B.A.F. to conduct a disciplinary hearing, as soon as possible and under normal circumstances, not later than three months after the final laboratory report.

Disciplinary Hearing and Independent Appeal Panel (I.A.P.)

B.A.F. Disciplinary Panel

The B.A.F. disciplinary hearing took place at the Savoy Hotel in London, on 13 and 14 December 1994 (within the three-month deadline). The huge press and media interest, which continued to follow this high profile case, was very visible outside the hearing venue, as they eagerly awaited the outcome. It is important to note that any volunteer, working on the various boards and executive committees of sports governing bodies could be called upon, at any time, to be a member of a disciplinary panel. The B.A.F. panel appeared to have a very logical membership, comprising ex-athletes, police officer/coach, E.A.A. member, GP and ex-athlete, and a solicitor, with a mixture relating to gender, race and age of the panel. This is quite difficult to achieve, when one considers the voluntary nature of governing body membership, resources, as well as the availability of all the members all in one time and place, outside their jobs and the busy athletics calendar. The expert witness for Diane Modahl, Dr. Honour, put forward a theory that if a urine sample is allowed to bacterially degrade, as a result of incorrect storage, for example, it can convert a perfectly

Innocent sample of urine to one which contains high levels of testosterone, without the testosterone ever having passed through the athlete’s body. At this point in time, there was no empirical, experimental research presented, to prove this probably happened. Three expert witnesses for the B.A.F. argued that the environment of a urine sample was “too hostile” for a such a process to take place. The Modahl legal team were unable to question the director of the L.A.B.D. in Lisbon, or have access to any documentation relating to the custody and testing of Diane Modahl’s urine sample.

B.A.F. spokesperson Tony Ward, informed the press that Dr. Barbosa, the technical director of the L.A.B.D. and  Professor Lesseps Reys, the scientific director of the LABD, had been invited by the B.A.F. to attend the hearing. “As government employees they needed government permission and we understand that has not been forthcoming”[5].

  The B.A.F. deliberated and announced their decision to the world press outside the venue on 14 December. Having heard all the evidence and read all the documents, the committee was satisfied, unanimously, beyond reasonable doubt, that a doping offence had been committed by Mrs. Modahl. Accordingly, she is ineligible to compete in the UK and abroad for four years, from 18 June, 1994. (Announcement of decision to press and media, by Dr. Martyn Lucking, chair of the BAF Disciplinary Panel, 14 December, 1994).

On 15 December Diane Modahl gave notice of appeal to the B.A.F..Between January and June 1995, the I.A.A.F refused a request from the B.A.F. to have further tests done at the Lisbon laboratory. Then the I.A.A.F. announced that they would take place on 22 June. On 20 June the A.A.A.F abandoned the test, citing lack of co-operation fromLisbon.

Independent Appeal Appeal Panel (I.A.P.)

The Independent Appeal Panel was constituted under B.A.F. rules and took place on 24 and 25 July 1995, chaired by Robert Reid QC. This panel of three, considered documents which were presented to the B.A.F. disciplinary panel, as well as further documents and oral evidence[6]. Listed the key issues for the I.A.P.:

1. “Were they satisfied, as to the chain of custody relating to the sample, from the time it was given by Mrs. Modahl to its final analysis?
2. Was the laboratory at which the analysis took place properly accredited, and were its procedures acceptable and staff competent?
3. Were the ‘A’ and ‘B’ samples analysed (or tested) those given by Mrs. Modahl and, if so, should they have been analysed?
4. Were the tests properly carried out in accordance with relevant guidelines, and what ratio of testosterone to epitestosterone did they reveal?
5. Could the degradation of the sample have given rise to a false result?”

The panel found that, although there were unsatisfactory features relating to the chain of custody documents and the laboratory personnel were “less than frank” at the “B” test, they were satisfied that the sample was sealed and was that of Mrs. Modahl. On the issue of accreditation, despite the laboratory moving premises as rebuilding work took place on the original premises, the accreditation was for the institution, rather than a particular address. There were “departures from best practice”   but on the whole the procedures were acceptable and the staffs were competent[7]. However, the most significant evidence related to the storage of the sample and the new scientific evidence presented to the I.A.P.

 “The only basis for the decision at the I.A.P., in the claimant’s favour was the new material giving support to what had previously merely been an assertion as to the possibility that bacterial contamination could have affected the testosterone reading”[8].

The result of the I.A.P. was communicated to the I.A.A.F. On 12 August the I.A.A.F. were not satisfied with B.A.F. Appeal Panel decision and referred the case to the I.A.AF Arbitration Panel. On 12 January 1996, the I.A.A.F. announced that arbitrators would meet in the “near future”. On 19 January 1996, the Portuguese government declined an I.A.A.F. request for further tests on Diane Modahl’s 1994 samples. On 6 February 1996, the I.A.A.F. announce that its Doping Commission recommended that the case should be referred back to the I.A.A.F. Council, at its meeting in South Africa on 24/25 March. On 6 February, Diane Modahl served a writ against the B.A.F. Ltd., for compensation for legal and medical costs and loss of earnings. On 25 March,1996, the I.A.A.F. abandoned arbitration, stating that Lisbon laboratory analytical data were not satisfactory, and further analysis was impossible. There was serious concern regarding the way in which analysis was handled in the Lisbon laboratory. The I.A.A.F. announced in March that it would not be challenging the I.A.P.’s decision. Finally, Diane Modahl was cleared of all allegations and could compete again in athletics at international level. The I.O.C. withdrew accreditation status from L.A.B.D. in Lisbon, Portugal.

Compensation case begins: legal cases in English courts: Modahl v. BAF Ltd.

Modahl v. The British Athletics Federation Ltd. (1999) 22 July HL (Lords Irvine LC, Nicholls, Hoffman, Clyde, Clyde and Millet)

Following two unsuccessful attempts by the B.A.F. to strike out proceedings (on 28 June 1996 and 28 July 1997), the House of Lords (HL) heard strike-out proceedings on 22 July 1999. The writ for compensation for loss of earnings (over a year) alleged that her suspension and the initiation of disciplinary proceedings were in breach of contract and that two members of the B.A.F. disciplinary panel were biased and the L.A.B.D. was not officially accredited. The HL did not allow the case to proceed on the grounds that the B.A.F. should not have acted on the findings of the I.O.C. laboratory in Lisbon, since the B.A.F. could not have known that the L.A.D.B. was not an accredited laboratory. In addition, the I.A.A.F.’s procedural guidelines “required the B.A.F. to act uponnotification of a positive doping result from a foreign country” (para 3, p.5, per L Hoffman). The B.A.F. was not “making as finding” but deciding, on the evidence it had been given, that there was evidence that a doping offence had taken place”[9].

There were some interesting comments by the HL on the I.A.A.F. rules, their policy of immediate suspension, the status of the L.A.B.D.and the seeking of financial compensation.“Although the I.A.A.F.’s system for the control of drug abuse was plainly draconian, in the wider interests of sport, it was capricious to construe the Rules to mean that an athlete was entitled to financial compensation if proceedings against her were initiated on the basis of a test (which might well have been accurate) from a laboratory which had moved its premises, but not a test which was wrong on any other ground.” (para 2, p. 6 per L Hoffman).

It is worth noting the observations of Foster[10] on the issue of immediate suspension and the case, in 2000, of the British athlete Dougie Walker:

“The rules of some sporting federations provide for automatic suspension as soon as there is a positive test. This mandatory suspension clearly caused the CA some unease in the Modahl case. It appears to have been shared by the judge in Dougie Walker’s case in July 2000. Walker tested positive for nandralone and was suspended according to the I.A.A.F. regulations. He was granted an injunction by Hallet, J., allowing him to compete pending the outcome of the I.A.A.F’s Arbitration Panel’s hearing. This ruling seems to reinforce the workers’ rights discourse and, moreover, the criminal discourse standard of innocent until proven guilty.”

The HL held that the claim had no reasonable cause and was bound to fail on the grounds submitted and was struck out under Rules of the Supreme Court Order 18 and 19. However, Modahl was still able to proceed on only two grounds, those of an implied contract between Modahl and the B.A.F. and alleged bias on the part of two members of the original panel, which imposed the four-year ban[11].

Modahl v .B.A.F. Ltd. HC 14 December 2000, Mr. J. Douglas Brown

Diane Modahl proceeded to the High Court in December 2000 on these two issues, by which time B.A.F. Ltd. were “in administration”. The issues facing the High Court in December 2000 were:

1. Was there a contract between Mrs. Modahl and the B.A.F?
2. If there was a contract was there a duty to act fairly?
3. If there was a contract, with a duty to act fairly, was that duty breached?
4. If there were breaches in the implied term, did these cause loss?

The crucial issue was the contract[12]. Several cases were considered but the treatment of earlier cases was far from straightforward, as there were issues of interpretation and relevance. Judge Brown:

“pointed to the exhortations of Lord Denning MR in Nagle v Fielden[13] and Scott J. in Gasser v. Stinson[14] not to create fictitious contracts, and concluded that it was quite artificial to identify a contract between the athlete and the BAF out of either her membership of Sale Harriers, her participation in other meetings organised by the governing bodies or her submission to doping control at a different event abroad run by a different organisation”[15].

Judge Brown concluded that no contract existed. This finding:

“was sufficient to dispose of Modahl’s case. However, at the invitation of the parties the court would deal with the other issues, which had been argued. For that purpose the court was prepared to assume that the B.A.F. was under a duty to act fairly throughout the entire disciplinary process”

Conclusion 

The difficulties of establishing a contractual relationship in such circumstances and the natural justice principles of access to evidence and apparent bias, have been clearly illustrated by this case. Weaknesses in the structural arrangements and power relations between the I.A.A.F., B.A.F. and the L.A.B.D. appeared to be exposed, in relation to their impact on access to relevant evidence. This sits alongside the ongoing, unsatisfactory situation where national sport governing bodies are handed down the responsibility of dealing with the disciplinary processes resulting from positive doping results abroad, but have no power over the attendance of witnesses or the handing over of relevant documentation.

Commentaries concerning the appropriateness of a national governing body hearing disciplinaries involving their own athletes, as a result of doping tests abroad, are often only directed at the dangers of potential bias and lack of action of such national bodies. Yet, here was a national governing body, appropriately following international, procedural rules, but with no power over international or scientific bodies, relating to attendance at the hearing. At the close of the B.A.F. disciplinary hearing, on December 1994, key personnel and documents from Lisbon, on evidence central to the handling and storage of the sample were still not available for cross-examination. The B.A.F. had no power to compel witnesses to attend such a hearing.

It is observed that  the difficulties this creates in natural justice rules relating to access to all the relevant evidence. “No explanation so far appears to have surfaced about why the proceedings were not adjourned for further persuasion upon the Portuguese authorities to attend, bearing in mind that “evidence that the test was carried out properly.

Above all, the Diane Modahl case illustrates the human reality of challenging a “false positive” doping result, in a system based on a “strict liability” rule. This includes the financial costs to both plaintiff and sport governing body. Diane and Vicente Modahl, (who is also her coach and an agent), incurred £1 million costs and were forced to sell both of their homes and move in with her parents. The damage to her reputation, morale and both of their careers, not to mention the irretrievable absence from the 800m race at the 1994 Commonwealth Games, are incalculable. Although Diane Modahl was reinstated and eligible to compete after being cleared by an I.A.P…..her career and finances lay in tatters, as does the now defunct B.A.F. There must surely be a better way to deal with such problems. The Modahl case can be viewed as one involving a colossal waste of time and money (the B.A.F.s and Mrs. Modahl’s), particularly as the judge concluded that even if the bias complained of had been proved, in the light of the other evidence, he would have concluded that no loss followed

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[1]  Keighley RFC And Anor. V.  Gunningham (1960) in Grayson 1994, unreported

[2]   Revie v. FA (1979)                        

[3]   Wise, A. 1996 “Strict Liability Rules-Are they legal? Sport and LawJournal 4 (3) 70-82.

[4]   O’Leary, J. 1998 “Modahl Saga Nears Conclusion” Sports LawBulletin March/April, pp. 6-7.

[5]   Grayson, E. 1995 “Drugs in Sport-Chains of Custody” New Law Journal January 20, p.44-46.

[6]   Reid, R. 1995 “The Modahl Case” Sport and Law Journal vol. 3,issue 2, pp. 6-8.

[7]   Reid, R. 1995 “The Modahl Case” Sport and Law Journal vol. 3, issue 2, pp. 6-8.

[8]   Latham LJ Modahl v. BAF Ltd. http://www.lawreports.co.uk/civoct1.3.htm 

[9] “Drugs and Doping Modahl v BAF Ltd.” 1999 Sports Law Bulletin September/October, p.6.

[10]   Foster, K. 2001 “The Discourses of Doping: Law and Regulation in the War against Drugs” Chapter 12 in J. O’Leary (ed) Drugs and Doping: Socio-Legal Perspectives London: Cavendish Publishing, pp. 181-203.

[11]   “Drugs and Doping Modahl v BAF Ltd.” 1999 Sports Law Bulletin September/October, p.6.

[12]   Farrell, R. 2001 “Diane Modahl v The Law of Contract” Sport and Law Journal vol. 9, issue 1, pp. 111-115

[13]   [1965] 2 QBD 633 CA

[14]   15 June, 1988, unreported

[15]   Lewis, A., Taylor, J. Parkhouse, A. 2003 “Challenges in the Courts to the actions of sports governing bodies” chapter A3, in A. Lewis and J. Taylor (Eds) Sport: Law and Practice London: Butterworths, Lexis Nexis, pp. 85-229