Doping, Restraint of Trade, Denial of Natural Justice

 

Case of Johnson v Athletics Canada and IAAF (Ontario Court of Justice, Canada, 25.7.97)

Issues: Doping; lifetime ban; validity of sanction; restraint of trade; denial of natural justice

Ben Johnson, was banned for two years in 1988 at the Olympic Games in Seoul, where he ran 100m sprint in 9.79 second! He tested positive for stanozolol, the use of which his coach did not deny. He was attacked by Carl Lewis, who was given the gold medal. Linford Christie moved up to the silver medal and won gold at the next Games. All of them, including Dennis Mitchell and Desai Williams, were at some point suspected of doping.

In 1993, Ben Johnson competed in Montreal and was tested after the race. The sample tested positive and Johnson did not exercise his right of appeal under the rules of Athletics Canada (AC) and the International Amateur Athletics Federation (IAAF). He was therefore banned for life. Johnson applied to the Ontario Court of Justice for a declaration that the lifetime ban issued against him by AC and the IAAF, which barred his participation in athletics events, was contrary to the common law doctrine of restraint of trade.

In his application, Johnson claimed that he had not appealed because of apprehension regarding the partiality of the Appeal Committee. Johnson’s primary submission was that the lifetime ban constituted restraint of trade. He also claimed that he had been denied justice under Natural Law because the proceedings of the IAAF and AC in 1993 had been unfair.

Under the Restraint of Trade issue, Johnson contended that the lifetime ban constituted restraint of trade in the form of an activity from which he earned his livelihood. The Court of Justice accepted that the lifetime ban was in restraint of trade because AC and IAAF enabled Johnson to exploit his talents in order to earn a living. It was clear that the financial gain resulted from participation in competitions.

However, the ban was deemed reasonable and was not an illegal restraint of trade because it was necessary to protect Johnson from the effects of use of prohibited substances for the sake of his own health. It was also necessary to protect the right of athletes to fair competition and to know that the race involved only their own skill, strength and spirit rather than their pharmacologist. The public also had an interest in the protection of the integrity of the sport.

As to the Denial of Natural Justice, Johnson argued that the actions and proceedings of the IAAF and AC in 1993 had been unfair and that, as a result, he had been denied natural justice. The constituent elements of natural justice had been set out by the Supreme Court of Canada in the case of Lakeside Colony of Hutterian Brethren v Hoffer (1992): “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.” Johnson was at all times represented by counsel, entitled to hearings and presentation of evidence, but had failed to avail himself of any of the various opportunities available to him for further hearings on the merits. Thus, degree of fairness under the Natural Law was met.

Ben Johnson’s case is actually one of the long line of stanozolol cases – so long that Wikipedia has its own entry: List of Doping in Sport, Stanozolol Sec. 1.6. Stanozolol abuse began almost immediately after it was discovered and brought to market in 1962 under the tradenames Winstrol and Stromba. It can be legitimately used in senile post-menopausal osteoporosis, debility in elderly patients, some gastrointestinal disorders, trauma, anemia, during post-operative convalescence, and it is also used as a veterinary drug to stimulate appetite and weight gain; but even in veterinary medicine, it is used sparingly because it may cause tumors.

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Clenbuterol – Spiropent Abuse in Sport

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I have recently seen a great increase in the abuse of the drug called Clenbuterol, available on the market under the brand name Spiropent, used by prescription only. It is a bronchodilator used for asthma. It has stimulating effects and is abused for its fat burning properties. It is on the WADA Prohibited List and strict sanctions apply when abused without a validly approved Therapeutic Exception.

The earliest case I recall is that of Katrin Zimmerman Krabbe v Deutscher Leichtathletik Verband (DLV) and International Amateur Athletic Federation (IAAF) (Munich Court of Appeal, Germany, 28 March 1996).

Katrin Krabbe was a German athlete, member of the German Athletics Federation (DLV). She tested positive for Clenbuterol and admitted taking it. She had no record of asthma and bought Spiropent on the black market. At that time, Clenbuterol was used for fattening up pigs and calves in order to increase their lean muscle mass.

She received a one-year suspension at first, which the DLV deemed insufficient and decided to suspend her for three years. Katrin Krabbe appealed to the District Court (Landgericht) for a declaratory judgment which would make the suspensions imposed by the DLV and IAAF inapplicable. Her request was dismissed by the District Court. The athlete then took her case to the Munich Court of Appeal.

The Court decided that the two penalties (DLV and IAAF) were separate. The one-year suspension imposed by the DLV was legally enforceable because the appellant was a member, purchased the annual Federation membership card and was thus contractually bound by the rules of the Federation.

According to Article 116 of the German Civil Code (BGB), an implicit contract existed between the athlete and the Federation. The same contract is binding under the US laws. The athlete tried to argue that since Clenbuterol was not on the DLV’s list of prohibited substances, it was presumed to be acceptable. The Court dismissed this argument because the DLV had rightly pointed out that the list of substances also banned the use of substances that had an identical effect to that of those on the list.

In other words, Katrin Krabbe had contravened the principles of sportsmanlike conduct and fair play by taking Spiropent bought on the black market – a substance for which a medical prescription was required – and by refusing to give accurate information on drug test forms. The evidence also showed that Katrin Krabbe was aware of the issues associated with abuse of Spiropent.

However, the IAAF rules did not provide for any review of DLV sanctions, and the court therefore deemed the IAAF sanction excessive. In compliance with IAAF Rule 54, the DLV had decided, via its Legal Committee, to impose a twelve-month suspension for violation of the principles of sporting behavior. Rule 54 was the rule applicable to non-doping cases. IAAF Rule 53.2.2 applied only if the disciplinary procedure described in Rule 54 had not been correctly followed by the National Federation. This implied that Rules 54 and 53.2 could not both be applied to the same case.

Rule 53 could not be used as a legal basis for the punishment of “unsportsmanlike conduct,” which had already been considered and sanctioned by the relevant national sports federation. Furthermore, if, contrary to the above, Rule 53.2 could serve as the legal basis for an extra sanction imposed by the IAAF, the extension of the suspension breached the principle of proportionality. The suspension of 3 years 9 months was excessive. It was generally accepted that a four-year suspension usually meant the end of an athlete’s career.

The DLV Legal Committee therefore considered a two-year ban to be the maximum for a first offence against the rules on doping. The same opinion was held by the “Deutsche Sportbund” and the IOC. Since “unsportsmalike conduct” was less serious than doping itself and since this was the athlete’s first offense, the IAAF’s sanction was excessive, disproportionate and unfair.

 

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