2017 – 2018

1. 2017 – 2018 Legal review – selected decisions and developments Paul David QC Eldon Chambers paul@pauldavid.co.nz

2. OVERVIEW • Sporting cases often involve interpretation and application of rules applicable by agreement. • Rise of specialist tribunals for sporting disputes nationally and internationally hearing disputes by agreement. • Review of a selection of cases and trends in sports law in New Zealand and overseas .

3. Background - Tribunals • New Zealand Sports Tribunal – doping cases, appeals from decisions by sporting bodies on disciplinary matters, selection appeals, other sports disputes • NZR has its own tribunal NZR Judicial Committee operates to apply SADR • Other countries – sporting and external tribunals hearing same issues • Internationally Court of Arbitration for Sport CAS – first instance and appeals – appeal court under NSO/IF rules and under WADC • Sport subject to law of land in many areas but sporting issues such as breach of sports rules whether relating to integrity or competition, selection go to specialist tribunals. Review concerns those decisions.

4. New Zealand Sports Tribunal cases • Tribunal has 2 main sets of provision on cases procedural rules – anti-doping proceedings and appeal proceedings • Range of cases heard in ST in past year mix similar – anti-doping proceedings under SADR/Code, selection appeals, appeals from sporting tribunal on competition rules, • Increase in anti-doping proceedings in past year – both general and cases from NZ Clenbuterol investigation – cases both ST and NZR JC.

5. Anti-Doping Proceedings • General background is the SADR made by DFSNZ to implement Code in NZ sport since 2007. DFSNZ and IFs are obliged as Signatories to make Code compliant rules. • SADR provide set of rules for sporting competition in NZ – adopted by agreement by NSOs to apply to their members and /or by participation – • NSO will also be bound to implement Code and apply it as members by IF – Code and SADR part of agreement based system which has sought to create common system world wide. • Suggest that over time since 2004 Code and SADR have become a sporting norm for those who participate formally in NZ sport.

6. Clenbuterol investigation • Background criminal investigation in relation to Medicines Act offending • Investigation produced email “snapshot” of online purchases in 2014 – 2015 - email enquiries and orders • February 2017 Joshua Townshend was jailed for two years • First decision in NZR Judicial Committee – Adam Jowsey 10 November 2016 • Sports Tribunal April 2017 – Adam King • To date 11 decisions from NZR Judicial Committee and 6 from the Sports Tribunal

7. NZ Clenbuterol cases heard to date • 13 of 17 cases involve clenbuterol, 1 clenbuterol and other anabolic agents • Others Dianabol (Metandienone), Nandrolone, Testosterone, Tamoxifen, Anastrozole • Range of athletes – school player, club members, provincial, current and former NZ representatives • NZR Judicial Committee – 4 athletes received sanctions of 4 years. Others 2 years eiher because 2014 violations or not intentional under 2015 SADR.

8. SADR 10.2.1“Intentional” conduct • Under SADR 2015 - knowledge of breach of rules or risk of breaking rules relevant to question whether conduct was intentional. For player to establish not intentional on balance of probabilities– reduces 4 years for non – specified substance such as anabolic agents to 2 years. • Factual decisions on evidence • Range of explanations on intentional conduct • Did not know the rules applied to me • Did not know it was a prohibited substance • And more generally, athletes say - • It never arrived • I did not use it, I threw it away • I gave it to a friend

9. SADR 10.5.2 no significant fault • Can only apply if violation not intentional • Assess fault objectively against standard of all reasonable care required under Code • For cases where fault can be described as not significant – very hard/almost impossible to establish where athlete engages in this kind of purchase from an illegal website like NZ Clenbuterol – one case 3 month reduction.

10. SADR 10.11.1 and 10.11.2 Commencement date for sanction Subtantial delay not attributable to the athlete • Long and complex investigation prior to DFSNZ being given access and information. • ST and NZR JC have reached common position - 4 months backdating for delay not attributable to the athlete – SADR 10.11.1 Timely admission • 6 months backdating under SADR 10.11.2

11. Jurisdiction • Two players argued that their purchase and use of anabolic agents pre-dated registration with NZR in that season so not bound. NZR had document defining period covered by registration – as a matter of contract the players were bound for that whole period by registration. • Raimona – had registered season to season - dianabol purchased after injury when intending not to play again – thought rules did not apply to him so not intentional – 2 years • Skipwith – clenbuterol purchased in pre-season when training also attempts in 2014 and 2015 – unaware of rules prohibited substance – 2 years.

12. Cases of this nature – warning for our sport - there for some time – earlier cases going back to 2008 Strong reminder that the ease with which prohibited substances can be purchased on the internet- NZ not alone - see similar cases in UK Hard to detect for NADO particularly given limits of powers Ongoing nature of the problem is illustrated in the recent decision of DFSNZ v Keenan where Masters athlete purchased EPO using bitcoin late 2017 – 4 years agreed sanction.

13. Agreed sanctions • SADR/ Code – aim to provide a consistent set of rules –rules on sanctions and previous decsions mean possible to agree on sanction – no specified procedure in ST rules • Decision has to be for Sports Tribunal ( or NZR JC) but parties can file memorandum on agreed sanction for tribunal to consider – consistent with CAS practice in making awards approving agreement between parties provided in good faith and does not infringe rules of public policy applicable • Several recent examples of cases where ST has approved agreement in differing circumstances – supplements, non-specified substances.

14. DFSNZ v Karl Murray • Long story – 2 year ban from positive test for anabolic agents in Tour of New Caledonia late 2013–not recognised UCI AFLD April 2015 – period ended 22 April 2016. • DFSNZ received information that M coaching athletes in breach of ban – investigation led to allegations of breach of prohibition against particpation and tampering by providing false information in interviews • Sports Tribunal held December 20 that M could breach ban by coaching riders for the purpose of participating in competition or activities (current or future) organised by Cycling NZ were within prohibition under SADR 10.12.1. Important general point. Found allegation of breach of ban not proven. As a result tampering not established. • CAS agreed with ST on interpretation – not limited to directly coaching athlete in competition or directly linked to competition – no requirement to measure closeness to competition. On the evidence found that the breach of prohibition proven– on tampering held that M had told 3 lies in interview capable of being tampering but by majority – not proven that intended to subvert the process – two year ban restarted for breach of prohibition

15. DFSNZ v Murray • After ST hearing but before CAS M tested positive for clenbuterol at Tour of Northland after test 18 March 2017 – challenged process – ST hearing 2 and 9 October 2017 on this allegation - breach of SADR 2.1 established – sanction adjourned for CAS appeal result • After CAS found there had been a breach of prohibition on participation and imposed new period of 2 years – ST had to sanction for SADR 2.1 • M then argued not bound at time of clenbuterol test at Tour of Northland – held he was on terms of application for membership – also argued that the recognised NC ban was not a first violation for purposes of sanction. Held did amount to first violation by reason of recognition so for second violation – 8 years imposed • Important point ST and CAS agree on broad naturalinterpretation of 10.12.1 breach of prohibition – makes sense that banned player cannot cannot coach athletes because that is how participation and a ban is supposed to remove banned person from sporting environment.

16. Appeals from decisions of sports’ internal tribunalsST 01/17 Sloan Frost v Motorcycling New Zealand • Case concerned interpretation and application of MNZ racing rules and result – and National Superbike Championship Series – appeal from MNZ Judicial Committee. • Remarkable that on 2 occasions (May and December 2017 decisions) MNZ found to have failed to adhere to principles of a natural justice first in not giving proper hearing then in appointment of its Committee for re-hearing • MNZ racing rules complicated and unclear – ST made substantive decision interpreting rules - • Has been pointed out before by ST in an earlier case (Stroud v MNZ) but did not appear to have been addressed - common problem

17. ST 12/16 Mangere United Football Club v New Zealand Football • Coincidence of facts “unusual in extreme” innocent mistake in registering wrong player in system on transfer meant played unregistered player – ineligible under Regulations - for several games • Disciplinary Regs NZF (from FIFA) – forfeit matches – all internal soccer tribunals hearing the case AFF and NZF upheld the penalty - loss of all points in matches – team relegated and lost Chatham Cup quarter final • In Tribunal same result with sympathy for Club – held rules clear • Argument that proportionality doctrine should be applied to mitigate harshness of sanction for innocent breach– feature of sports law – in exceptional circumstances could apply to mitigate fixed sanction where it produces a result which is not proportionate – not accepted by Tribunal • Unfortunate recent development - decision to not apply forfeiture penalty in apparently similar circumstances by AFF – underlines sense of unfairness for club

18. Selection cases • Three in the period • Nam v NZF Roller Sports (failure to follow process) • Christie v Cycling NZ (appeal dismissed – road cycling team selection) • Hubbard v OWNZ (decision not to send athlete who had been invited to event reasonably available to sporting body) • For general review of law in this area see Alan Sullivan QC ‘An overview of Selection Jurisprudence’ ANZSLJ 2015.

19. Court of Arbitration for Sport – Ongoing cases from Russian Doping Scheme • Individual cases from State run doping scheme- McClaren report produced . • Appeals by 39 individual Russian athletes from IOC Disciplinary Committee findings committed violations – use of prohibited method or tampering, use of prohibited substance and complicity hearing by CAS Panels of all cases January 2018. 27 appeals upheld, 12 partially upheld. • Two 160 page awards published CAS found that the evidence of a scheme to give prohibited substances to list of athletes, have them provide clean urine and swap urine by opening samples did not prove or only partly allegations against the individuals to required standard • CAS A. Legkov v IOC: appeal upheld – name on Duchess List, scratch marks on sample bottle, no evidence took Duchess cocktail, no evidence provided clean urine, no evidence involved in swapping or tampering, No basis to infer individual involvement to the required standard • CAS A. Zubkov v IOC: partially upheld – evidence of steps to provide clean urine so with fact named on Duchess list – use could be inferred – no bass

20. Christopher Froome – Shadow Over The Tour Salbutamol – September 2017 sample – investigation closed 2 July 2018 - UCI statement • Nature of salbutamol – can be used TUE. different treatment under Prohibited List from other substances – presumption of AAF where salbutamol above particular level in urine unless athlete proves level consequent on therapeutic dose not above maximum permitted. • No easy solution if substance has particular requirements which mean that it takes time to reach an outcome – problem rider continues to ride after publicised ‘positive’ test.

21. Increase in Sporting Inquiries • Modern sport – wider range of issues – from misconduct by individuals, allegations of harassment, bullying, system failure, failure to perform in sporting terms, inquiry into scope of known problem. • Historically problems were generally dealt with by decisions by the sport- good or bad – now more likely to be a call for an inquiry by someone. • Overseas examples • British Cycling: Panel comprising athletes, coaches, those in sports governance and lawyers appointed to review the climate and culture of British Cycling. • British Equestrian Federation: Panel comprised of a lawyer and two independent investigators appointed to review bullying, elitism and corruption. • New Zealand • New Football Ferns: Employment lawyer Philippa Muir appointed to lead independent review into conduct and culture at New Zealand Football. • Cycling NZ: Michael Heron QC appointed to lead a review by High Performance Sport NZ into the culture at Cycling NZ. • Sport NZ: Stephen Cottrell appointed to examine whether national sporting bodies are failing in their duty of care to athletes.

22. Inquiries • Difficult issues can arise • Is an inquiry the best response? • What is the intended inquiry about? • Who should do it? What should the terms of reference be? • Range of legal issues relating to nature of process – privilege and confidentiality of reports and information • Employment rights of those taking part • Impact of any possible criminal process • Growing area but I think needs to be considered and handled with care.