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May a Banned Athlete Sue for Economic Damages?

The issue above was answered by the High Court in 1997 in the case of Edvards v. BAF (High Court of Justice, Chancery Division, United Kingdom, 23.6.97). Let us examine it closer.

The substance in question in the case below is not mentioned. However, we know that the most favored anabolic steroid among powerlifters is Deca (Nandrolone), also mentioned in the previous article, and Dianabol. Many athletes take Deca because it fuels the synovial fluid and helps joints recover and endure the stress of high poundage. Dianabol increases nitrogen retention and protein synthesis. It is the only steroid that was developed (by the Russians, of course) in order to enhance athletic performance.

Paul M. Edwards was an amateur athlete and member of the British Athletic Federation. On 22 October 1994, pursuant to the rules of the IAAF, the British Athletic Federation suspended Edwards for four years after he tested positive for anabolic steroids. He became a tabloid piece and was never overly hypocritical about the use. Once he claimed that the tests were wrong because “all his ampules were broken by the airport handlers,” indicating that, therefore, he was “drug-free.”

Subsequently, Edwards applied to the IAAF for reinstatement, asking for remission of the last two years of the ban. His application was refused. Hence, Edwards sued BAF, challenging the lawfulness of this refusal on the grounds that similar requests by other athletes had been granted. These “other athletes” were members of other athletic associations both within and outside the European Union (EU) whose local laws limited the length of such bans to two years (we have already mentioned in a previous post the case of Katrin Krabbe whose suspension in excess of two years was held “disproportionate to a first offence of doping” by the Munich Appeals Court).

Following Krabbe’s decision, the German Athletic Federation wrote to the IAAF Council, requesting that it reinstate two of its members, Martin Bremer and Ms. Tiedkte, who had been suspended for four years under the IAAF Rules, on the grounds of “exceptional circumstances” as defined in IAAF Rule 60.8. The IAAF did so, specifying what the “exceptional circumstances” provided for in Rule 60.8 mean: they exist when an athlete’s national law (or court ruling) prohibits a four-year ban.

Several other athletes have been reinstated as a result, hence Edwards claimed that: 1. the IAAF could not lawfully treat his application differently because the four-year ban was lawful in Great Britain; 2. the refusal of his application constituted discrimination against him which was unlawful under the Treaty of Rome (Articles 59 to 66 – on freedom to provide services within the EU). The IAAF challenged this contention, while the British Athletic Federation adopted a neutral position.

The court first had to ask whether Edwards was providing services within the EU, within the meaning of Articles 59 to 66 of the Treaty of Rome. The second issue would be if Articles 59 to 66 applied to IAAF Rule 60, i.e. would his be considered “exceptional circumstances” and, if so, did the application by the IAAF of Rule 60 constitute discrimination on grounds of nationality in the sense prohibited under Articles 59 to 66 of the Treaty of Rome?

To put it in plain English: did the shot-putter have a job and was he making money, and would this restriction be that of “services” in the EU applied unevenly (4 years instead of 2).

Edwards contended that the four-year ban constituted interference with his freedom to earn his living as an athlete within the EU. Therefore the IAAF Rule 60 should be held invalid because it contravened Articles 59 to 66 of the Treaty of Rome. The IAAF maintained that Rule 60 lay outside the scope of Articles 59-66 because it was a “sporting rule” only. For instance a rule regarding the length of matches is a sporting rule. To what extent a “banned substance” positive finding prohibition could be considered merely a sporting rule was yet to be decided.

IAAF claimed that the purpose of IAAF Rule 60 was to regulate the sporting conduct of athletes and to ban cheating by taking drugs. The sanctions were therefore essential to the sport. Arguably, the four-year ban was reasonable and justified. Any economic consequences, however serious, were incidental to the sporting rule, whose primary goal was to regulate sporting conduct.

IAAF also showed that Rule 60 did not constitute discrimination based on nationality because it applied equally to all members, even though its impact was different in different states because of their national laws. There was no discriminatory intent in the rule itself. States have the right to determine the length of sanctions. German decisions Edwards cited had no precedential value in England, thus no value in the EU.

In conclusion, a sporting rule regarding prohibited substances is of more importance than any economic impact on the athlete it may have, simply because banning drugs in sport is more important – to both the health of the athlete as well as the quality and ethics of sport – than money. Athletes should always bear this in mind before they consider that first “shortcut” dose. Economic damages is a non-issue.

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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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