What can Canadian sport organizations learn from a recent decision of the Court of Arbitration for Sport (CAS)? As it turns out, a lot, at least from one of its most recent decisions rendered on October 4, 2011 (CAS 2011/0/2422 USOC v. IOC). First, a quick discussion of the decision, then a discussion about some of the important principles sport organizations can take from it when dealing with disciplinary issues.

On June 27, 2008 the International Olympic Committee (IOC) passed what became known as the “Osaka Rule” (as it was passed at an IOC Executive meeting held in Osaka, Japan) . The rule dictated that athletes sanctioned for more than 6 months by any anti-doping organization could not participate in the next edition of the Olympic Games. The rule did not affect any athletes for the 2010 Vancouver Winter Olympic Games but it would have affected a number of athletes wishing to participate in the 2012 Summer Olympic Games in London, England. Perhaps more importantly, the rule seems to have affected anti-doping sanctioning decisions being made by a number of countries, such that penalties are being assessed with the rule, and its impact, in mind (i.e., in certain cases penalties seem to have been limited to less than 6 months presumably to avoid the impact of the rule ).

It is interesting to note that the IOC is not the only organization to have passed such a rule. The Canadian Olympic Committee  passed a similar rule stating that any athlete assessed a two year sanction shall be ineligible for inclusion in the subsequent Olympic or Pan American Games, even if the original sanction has expired (Canadian Olympic Committee Policy Statement on Doping, initially adopted April 2003 and last amended June 2004).

First, it should be understood that the IOC, like all international sport federations (and national sport federations by extension) have agreed to abide by the World Anti-Doping Code (the Code) and are, in fact, bound by it. With that said, one view of the “Osaka Rule” was that it was illegal as it violated Article 23.2.2 of the Code), which prohibits sanctions beyond those specified in the Code. This perspective further argued that the rule created a situation of ‘double jeopardy’ and lacked proportionality to the original anti-doping offense. In other words, the rule was a further disciplinary action to a single anti-doping offense and breached several principles of fairness. The other view of the rule, that taken by the IOC, was that it was not a disciplinary rule, but rather an eligibility criterion and, as such, was completely valid.

Looking at its past decisions, CAS defined eligibility rules as rules that “ensure that the athlete meets the performance ability requirement for the type of competition in question.” Such rules do not, and are not, intended to sanction undesirable behaviour by athletes. Disciplinary rules on the other hand “bar an athlete from participating and taking part in a competition due to prior undesirable behaviour…”

The length of a disciplinary sanction for an anti-doping offense is set out in the WADA Code. Based on its reading of the Code, CAS found that the IOC rule did, in fact, impose a further penalty on an athlete having already served a period of suspension under the WADA Code. CAS described the effect of the IOC rule:

… as a disciplinary measure taken because of a prior behaviour, [as opposed to] as a pure condition of eligibility to compete in the Olympic Games. Even if one accepts that the Regulation has elements of both an eligibility rule and a suspension, it nevertheless operates as, and has the effect of, a disciplinary sanction.

While CAS based its decision on a breach of a section of the WADA Code that prohibited sanctions beyond those specified in the Code, it also spoke to, and made a decision based on a violation of a fundamental principle of fairness, known in Latin as ‘ne bis in idem‘, and translated to mean ”not twice for the same”. That is, no legal action can be instituted twice for the same action. This is the essence of the ‘double jeopardy’ rule that has been featured in such great movies as  Double Jeopardy (well, I thought it was great), featuring Tommy Lee Jones and Ashley Judd.

Of course, this does not mean another, and different, action cannot be instituted for the same incident (for example in the case of a civil action suing for damages following a criminal action) or even a similar action by another party. But, it does mean in these, and similar instances, that a separate and new action must be brought in order to implement an entirely new and independent sanction from the first sanction.

Here, the IOC wanted to hang its sanction on the coat-tails of the original anti-doping hearing – and have no part in that hearing. In other words, the athlete is twice sanctioned for the single act but is not afforded a second hearing. Again, the IOC said it was not imposing another disciplinary sanction but, rather, was establishing an eligibility requirement, albeit based on the previous disciplinary action. CAS rejected this proposition. CAS found that the exclusion from the next Olympic Games was fundamentally a disciplinary sanction, even if wrapped in eligibility clothes.

A number of sport organizations have similarly tried to translate disciplinary actions into eligibility criteria: that is, an athlete is sanctioned for some misconduct and that sanction becomes cause to subsequently make the athlete  ineligible to participate in a future event. This is exactly what the IOC tried to do. If the ineligibility/additional discipline is made part of the actual sanction at the time the sanction is imposed (and is part of the permissible sanctioning protocol), the central issue of this case would not arise. One simply cannot use prior misconduct as a subsequent eligibility issue. It constitutes double jeopardy. That is, the person is being punished a second time for the same offense for which an appropriate punishment, or sanction, has already been determined and implemented. To do this is improper.

Can an organization tie a subsequent sanction onto another organization’s sanction? Yes, if it has been disclosed as part of the original sanction. But, the second organization must be very sure the first organization was procedurally correct and fair in its process. Typically, we have found no such review of the initial process occurs (and in any event, the second organization certainly cannot interfere in the process of the first organization). If the original process is flawed, appealed and the sanction struck down, then the second organization’s sanction has no foundation.

(As an  historical footnote, this was the basis of Ben Johnson’s original reinstatement application from a Canadian anti-doping penalty. Adjudicator Mew found the original IAAF penalty in 1988 to have been improperly imposed. Canada had imposed a further penalty based on the IAAF penalty. Once the IAAF process was found to have been flawed, Adjudicator Mew reinstated Johnson.)

The other issue raised in the CAS decision was that of proportionality of the sanction. This was an issue raised by the USOC (the United States Olympic Committee) and, in the final result, not addressed by CAS. But it is worth mentioning here as something sport organizations ought to consider. There is a saying, particularly in the criminal courts, that ‘the punishment must meet the crime’. In other words, the sanction must be proportionate to the degree of misconduct. We have written on this before. Our legal system’s scheme for sanctioning incidents of misconduct recognizes the principle of proportionality, and, as well, the notion of progressive discipline. The most extreme sanction, i.e., expulsion from the organization, must be kept for the most extreme cases of proven misconduct. As well, people should be given the opportunity to rectify their behaviour. This cannot occur where the most extreme of sanctions has been applied in the first instance (unless, of course, the impugned conduct is so egregious it demands dismissal – but this is an objective standard, not one’s own view of the matter). This leads to a dual requirement in sanctioning that requires it to be both proportionate and progressive.

In conclusion, this CAS decision striking down the ‘Osaka Rule’ carries a number of lessons for sport organizations.

• Firstly, organizations must follow their own rules and those of any other organization they have, in some way, contracted to follow (i.e., a provincial/territorial organization following a process dictated by a national sport organization).
• Secondly, organizations cannot simply layer a sanction on top of another organization’s sanction. An organization needs to make sure that the disciplinary process from which the original sanction arises is beyond reproach. The second organization is ‘coat-tailing’ its sanction onto the original process, i.e., it is in effect endorsing the validity of the original process. Should this occur, let”s hope it was done right! Or else the second organization is clearly open to an appeal in applying its sanction on a flawed initial process.
• Thirdly, and perhaps most importantly from the perspective of this discussion, an organization is susceptible to a claim of ‘double jeopardy’ if it uses another organization’s disciplinary sanction as a basis for its own eligibility criterion.

What we see quite often is that an organization uses its own disciplinary sanction as the basis for its own decision on eligibility. This simply is wrong. Discipline sanctions must be described in their entirety at the time they are imposed. They cannot come back to haunt the individual later as an ‘eligibility criterion’. If not being eligible for selection next year is part of the sanction, that is okay as part of the sanction, but it must be stated at the time of the sanction, not applied at the time of selection.

The best way to avoid any problems of this sort is to set out the progression of sanctioning measures for breaches of a conduct policy in the organization’s policies. As well, looking to the sanctioning practices of other like organizations will help determine if the purported sanctions are the norm for the sport. In the end, if a selection decision is conditional on some previous disciplinary process, this must be made clear as a part of, and at the time of, the disciplinary process, not as separate eligibility criteria in a subsequent selection process.

Hilary Findlay, haf@sportlaw.ca

Legal fairness involves ensuring that minimum legal standards are met in the implementation of such processes – the right to a hearing, the right to know the case to be met, and the right to an unbiased decision-maker are the most important legal standards.

There is a third and important way to think about fairness – how fair the individuals involved in the process perceive the process to be. This subjective view of fairness is known as “procedural justice”.

The situation at the University of Waterloo epitomizes why we need to focus on this third way of thinking about fairness. Perceptions of fairness, or this concept of procedural justice, have been shown to have strong effects on attitudes about institutions and the authorities representing them. High levels of perceived fairness dramatically affect factors such as the amount of trust one has in the institution and its people, the degree of citizenship embraced by members of an organization, and the extent to which people will accept and comply with decisions and processes. For example, an individual who perceives a disciplinary process to be fair and to have been carried out fairly is more likely to be compliant with any sanctions that may be imposed. In essence, the perception that a process is fair leads to increased views of institutional legitimacy.

Perception of fairness, and the degree of satisfaction with a decision, varies with the amount of control an individual has in either presenting their case or marshaling the information to be considered by a decision-maker. This is not too surprising – it is reasonable to think that the more one feels able to affect an outcome, particularly in one’s favour, the more fair the process will be seen to be. What is important, however, is that these feelings of fairness seem to persist regardless of outcome.

Being able to ‘tell one’s story’ is clearly an important factor in procedural justice. But, it turns out that an even more potent factor is having the listener give due consideration to the views and information expressed by an individual. It is not enough to simply allow the expression – the decision-maker, or institutional representative, must genuinely acknowledge and consider the expression.

In the case at the University of Waterloo, the athletes seem to have mobilized around their frustration at not having been heard before the decision to suspend the team was made (and, of course, their concern about the implications of suspending the football team for the season). The athletes raised a number of issues that were either unknown or refuted by the University Administration. They also suggested alternate solutions to the situation. The University clearly had a legitimate interest in taking immediate and decisive action against the use of performance enhancing substances. The students, while not disagreeing with the underlying message of the Administration, suggested what they felt were viable alternatives that might respond to all the parties’ concerns, including those of the Administration. The University has stated that it is not prepared to move from its position.

All of this has been playing out very publicly in the media and thus, as often happens, much gets lost in such a public airing of a matter. Nonetheless, one does have to wonder about the opportunity for a hearing before the University imposed its punishment on the rest of the team. This is not to say the University does not have the authority to mete out punishment in such situations, or that their wish to make a strong statement and take a clear stance against the use of performance enhancing substances by varsity athletes is inappropriate. Nor does it negate the fact that teams are special creatures. Every member of the team takes on a responsibility for the actions of every other team member. Team discipline for the misconduct of a few is not uncommon in sport. We have seen it within the Canadian university athletic system with hazing incidents and with drunken misconduct – the whole pays for the misdeeds of the few. Nonetheless, legal fairness would suggest there ought to have been an opportunity to for the athletes to be heard.

There may still be that opportunity in the form of an appeal. It may be possible for the athletes to appeal the decision of the Administration before an independent and unbiased panel of decision-makers and to essentially ‘tell their story’. This is not to say the University will necessarily change its course of action, but at least the athletes will be given a voice and, hopefully, be heard. The University may well benefit from the whole process too.

Even when a process is legally fair (by incorporating all the necessary objective elements of fairness previously mentioned) it does not always translate into fairness in the minds of the parties involved. However, it is a very rare situation where a situation lacking legal fairness will be perceived as procedurally just by those affected by it. Procedural justice, or the perception of fairness, can have a very powerful effect.

Originally published: Centre for Sport and Law Newsletter (2010) Vol. 6(3)

In this time there have been 18 doping decisions – all but one involving athletes. While coaches have been sanctioned in the past, athletes have always been the primary focus of anti-doping efforts. In all 17 cases involving athletes a doping infraction was found. In none of the cases was the athlete able to successfully argue a “reasonable justification” for a refusal to be tested or an “exceptional circumstance” justifying a reduction in the ultimate penalty.

In this column we will explore some of the emerging principles emanating from these decisions. The principles come from the wording of the Canadian Anti-Doping Policy (CADP) itself, Canadian anti-doping decisions and results of international decisions.

Why tackle this topic in a journal aimed at coaches? First, coaches are bound by the CADP just as are athletes. Secondly, coaches play a significant role in athlete decision-making around doping matters. It is clear from at least some of the decisions that athletes do not fully understand the implications of the CADP. For example, in one case and athlete did not realize that he was still subject to testing 18 months after retirement.  Both his parents and his legal counsel had wrongly advised him in this regard. In other cases athletes received incorrect or partial information from friends and those around them. Ultimately, the responsibility to understand and comply with the policy rests with the individual athlete – and coaches can do much to encourage such understanding.

Table 1 summarizes all doping decisions since the SDRCC started hearing such matters and since Canada adopted a policy consistent with the WADA (World Anti-Doping Agency) World Code. This does not represent all doping infractions occurring during that time period. Some offenders waive their right to a hearing, accepting the infraction and penalty as determined by CCES. For example, CCES statistics show that between July and December 2006 there were nine infractions. Only 4 of these went to SDRCC and thus are reported in Table 1 below. The other five were doping infractions involving the use of cannabis that resulted in a “reprimand and warning” to the athlete.

Table 1: Doping Cases: 2005 (May) – 2007 (August)

*2005 – cannabis; 2006 – ephedrine

Under the CADP there are three different instances where an athlete charged with a doping infraction can seek to have the penalty reduced or eliminated, or in the case of refusal to give a sample, to have the infraction voided altogether. Each instance is discussed below.

Refusal or avoidance

CADP, Section 7.24 – “Refusing or failing without compelling justification to submit to Sample collection after notification as authorized in applicable anti-doping rules or otherwise evading Sample collection is an anti-doping violation.

Under this rule, if the athlete can provide “compelling justification” for not submitting a sample, no infraction will be found. In Canada we have not yet had an example of a “compelling justification”. The decisions do, however, provide some insight as to what would be necessary to meet the threshold for a “compelling justification”. First, the actions or circumstances that result in a failure to give a sample must be unavoidable. Voluntary actions that result in a missed test will not meet this standard. For example, deciding to leave the testing area due to illness and thereby failing to give a sample, in and of itself, will not suffice.

Second, an athlete must do everything possible to comply with a request for sample collection. In cases where athletes have argued with a Doping Control Officer (DCO) or protested they were not aware of the rules regarding no notice testing or continuing testing requirements upon retirement is not justification for failing to submit to sample collection. Indeed, such actions have been viewed as evasive, possibly aggravating the athlete’s problems.

“Specified Substance” – no intention to enhance performance

The list of prohibited substances identifies a number of substances that are particularly susceptible to an anti-doping infraction because of their prevalence in medical products or they are less likely to be abused. Two such substances are cannabis and ephedrine. If an athlete can prove the use of such a substance was not intended to enhance performance, the penalty from the infraction may be reduced.

In one Canadian case, two international cases were cited where the adjudicators did not accept the athletes’ accounts of how the “specified substances” were ingested but still concluded there had been no intent to enhance and reduced the penalty. Nonetheless, Canadian adjudicators have taken the position that a lack of reasonable care and attention (such as in the selection of supplements and herbal products) should be reflected in the penalty. Indeed, an athlete’s conduct can be an “aggravating factor”, regardless of the intent to enhance performance – as was the case where an athlete ignored the instructions of the DCO and went off to smoke up with friends before giving a sample.

Doping Infraction – Exceptional Circumstances

If an athlete can show he or she bears no fault or negligence (CADP, section 7.38) or no significant fault or negligence (CADP, section 7.39) for the violation AND can establish how the substance entered the system, the penalty may be reduced or even eliminated.

The threshold to show “exceptional circumstance” is very high. As noted by one adjudicator, “[a]thletes are strictly liable for substances that are found in their systems and exceptional circumstances mitigating against the consequences of that strict responsibility will not be found to exist where the athlete has failed to exercise appropriate diligence and care.” Practically speaking, where an athlete acknowledges intentionally, or knowingly, using a prohibited substance, it is impossible to demonstrate the use of “appropriate diligence and care”. Other adjudicators have gone further calling for “extreme caution” to avoid coming in contact with a prohibited substance. This has been particularly true with the use of supplements or other additives.

Apart from this high level of vigilance is the need for athletes to be able to establish how the prohibited substance entered the system. Canadian cases have adopted the same position as other foreign doping control agencies with one adjudicator quoting, with approval, the decision in United States Doping Agency v. Sakin: “[w]e cannot allow an athlete’s lack of questioning and lack of investigation to become the standard by which athletes circumvent the anti-doping rules.”

All of this creates a conundrum for the athlete: if one knows how the substance entered the system then presumably one could have controlled the situation. If one did not know but learns after-the-fact how the prohibited substance entered the system, then the penalty can only be reduced or eliminated if the means of entry was out of the control of the athlete or if the athlete used appropriate diligence and care (or “extreme caution”). A clear circumstance of sabotage might meet this test. Mislabeling of products likely will not – particularly as the CCES now participates in the NSF Athletic Banned Substances Certification Program, under which supplements that have been stringently evaluated may bear a NSF Certified For SportTM mark. The use of any other substance might suggest a lack of diligence, care or caution.

All of the cases referred to in Table 1 above can be found on the SDRCC website. The rules of CADP are available on the CCES website. The CCES has also published an easy-to-read guide for athletes about the tribunal procedures of the CADP. Athletes bear the full responsibility for understanding anti-doping rules and also bear the full consequences when the rules are misunderstood. Coaches can, and should, be up to speed on these rules to support athletes in their decision-making.

Originally published: Coaches Plan (2007) Vol. 14(2)

This article is being written at the IAAF World Championships in Athletics in Edmonton, where the drug talk is all about the blood-boosting hormone EPO (erythropoietin). For the first time, the IAAF will introduce blood tests at this World Championships. Of the 350 doping tests being conducted here, 15 to 20 percent will test for EPO in an elaborate double positive system whereby an athlete must test positive in both urine and blood samples to incur a doping offense.

Meanwhile, controversies over the anabolic steroid nandrolone continue. In 1999, IOC-accredited labs worldwide detected 343 positive nandrolone findings, up from 259 the previous year. In the United Kingdom, nandrolone findings jumped sharply from four positives in 1998 to 17 in 1999. In Canada we have seen a growing number of nandrolone positives in the last four years, including two this summer alone. Three Canadian cases involving the steroid are presently in the process of adjudication.

On their own, these figures are not cause for grave concern. What has been alarming, however, is the sharp increase in the number of positive tests among big name athletes – the likes of Peter Korda, Merlene Ottey, Linford Christie, Doug Walker, Gary Cadogan, Dieter Baumann and Mark Richardson. The revelation during the Sydney Olympics that American shot putter C.J. Hunter, then-husband of sprinter Marion Jones, had tested positive four times in the year 2000 put the steroid nandrolone on the front page of newspapers around the world.

The recent so-called “rash” of nandrolone positive tests is odd, given that this close chemical cousin of testosterone has existed for a long time and is very easily detected. In other words, why would prominent and frequently tested athletes even consider using it? Observers point to two factors to explain this increase in positive tests: one, the steroid has recently become available in pill form and is more easily ingested and more quickly cleared from the system, thus increasing its usage by athletes; and two, the adverse findings may be the result of contaminated nutritional supplements.

This latter claim has resulted in the commissioning of at least three studies into the nandrolone situation. One of these studies was a general literature review by a panel of 35 British experts while the other two were laboratory-based studies exposing volunteer subjects to nutritional supplements to determine if these supplements could produce nandrolone metabolites.

The nandrolone review was commissioned by the U.K. Sports Council and was released in January 2000. It concluded that:

• The sample collection and laboratory analysis procedures recommended by the IOC for testing for nandrolone were satisfactory;
• Some dietary supplements may contain compounds similar to nandrolone or its metabolic precursors and these are not always included in the product labeling;
• Athletes are advised to steer clear of eating the offal of boar and horse, as these foods were known to contain low levels of nandrolone; and
• There existed no evidence to suggest that dietary substances could influence the production of nandrolone in the body.

The study properly concluded that the sports community must maintain a high level of awareness of the hazards of nutritional supplements and herbal products, and that further research should be carried out on the factors that influence the endogenous production of nandrolone in humans.

The two other studies were carried out at the University of Aberdeen under Professor Ron Maughan (a world-recognized expert on sports drinks) and at the IOC-accredited laboratory in Cologne under the supervision of Dr. Wilhelm Schänzer of the German Sports University. The first study was partially funded by the IAAF and the latter study by the IOC.

In the Aberdeen study Professor Maughan concluded that athletes taking dietary supplements that did not contain prohibited substances “could when combined with vigorous exercise, stress and dehydration, result in production of higher concentrations of nandrolone metabolites in the athlete’s bodily fluids”.

In the Cologne study, it is reported that Dr. Schänzer found that of 100 common nutritional supplements purchased in Europe and the U.K., 16 were contaminated and three led to adverse findings for nandrolone in volunteer subjects. Dr. Schänzer has said he intends to test 600 more commonly available nutritional products.

It was in part on the strength of the results of the Cologne study, released in the spring of 2001, that U.K. 400-metres runner Mark Richardson was reinstated by the IAAF in June of this year, enabling him to compete at the 2001 World Championships. On the other hand, the University of Aberdeen study was discounted by an IAAF arbitration panel for a variety of scientific reasons, including the fact that Professor Maughan was not independent as he subsequently was part of the U.K. Athletics disciplinary committee that considered favourably the cases of Christie, Walker and Cadogan.

Upon the release of the Cologne study results, David Moorcroft, CEO of U.K. Athletics stated: “in terms of guilt or innocence it doesn’t change a great deal, because the athlete is still responsible for what’s in his body. But it does put the degree of guilt in some form of context”.

Upon his reinstatement, Mark Richardson stated to fellow athletes and the public: “My advice is simple – don’t take supplements. Until the supplement industry is regulated, then it’s a lottery as to what is in the supplement”.

These are wise comments from both men. The results of the Cologne study might suggest “reasonable doubt” as to whether athletes exhibiting low concentrations of nandrolone actually cheated. However, the “strict liability” basis of the IAAF and Canadian doping control programs do not accommodate “reasonable doubt” or even “a balance of probabilities”. The presence in the body of a banned substance, or the presence in the body of a naturally occurring substance at levels deemed to be banned, is a doping offense, period. Accidental ingestion or intent to cheat are irrelevant considerations.

This notion of strict liability can be explained to the layperson in terms of commonly understood drinking and driving laws. In Canada, it is a criminal offense to operate a motor vehicle with a blood-alcohol level exceeding .08. At this level some individuals will be roaring drunk while others will be mildly impaired – the threshold does not take into account such differences from one person to the next. As well, the law doesn’t care how the alcohol entered the bloodstream – even if it was forced down the driver’s throat or introduced into the body through intravenous while the driver was asleep – its presence there above the level of .08 is against the rules.

In sport, it is against the rules to have more than 2 ng/ml (for a man) or 5 ng/ml (for a woman) of nandrolone metabolites in one’s urine. The mere presence of such metabolites above these levels is a doping offense. This is true whether the levels are low (such as they were for Canadians Robin Lyons, Theresa Brick and Carolyne Lepage) or astronomically high (such as they were for Linford Christie and C.J. Hunter, who recorded one hundred and one thousand times the legal limit, respectively).

For these reasons, the adjudicators who are presently hearing and deciding three of Canada’s nandrolone cases face a difficult task. Any one of the athletes appearing before them might present a convincing case that their nandrolone consumption was inadvertent, and it doesn’t make a bit of difference. Intent to cheat, an otherwise clean history, credibility and compassion are not part of the equation … but perhaps they should be.

In doping, as in sport, the rules are the rules. When the IAAF declined to reinstate Linford Christie, Doug Walker and Gary Cadogan it stated in its August 2000 Newsletter that the decision was not made to defend the current system, “it was made to respect and apply the current rules”.

Until those rules are changed, the nandrolone issue will remain difficult and controversial. The rules say where the blue line is on a hockey surface and if we don’t like the resulting offside call there’s not much we can do about it unless we’re prepared to move the blue line. The IOC hasn’t moved on nandrolone and until it does, the IAAF as well as domestic doping control and adjudication systems must respect the rules.

For athletes, the clear lesson in this is to heed Mark Richardson’s advice and avoid nutritional supplements. With proper sports nutrition, they aren’t necessary for athletic performance. The supplement industry is unregulated and the consumer of these products has no assurances as to what’s in the bottle or package – either because labeling is inaccurate, or because the supplement has been contaminated during the manufacturing process.

In the last 18 months, the Canadian Centre for Ethics in Sport has issued no fewer than five Advisory Notes cautioning athletes about nutritional supplements. Despite these frequent cautions, high performance athletes continue to consume nutritional products in alarming amounts and combinations. It has been suggested (but by no means scientifically proven) that such “cocktails” of legal nutritional supplements combined with vigorous exercise may produce illegal results.

As we have stated before in the pages of this magazine, athletes are responsible for what’s in their bodies and they play Russian roulette when they fail to be utterly diligent about the contents of their dietary and nutritional supplements.

Originally published: Coaches Report (2001) Vol. 8(2)

Manufacturers of these supplements are aware that just the slightest edge can make the difference between winning and losing in the competitive sport environment. Many manufacturers are marketing their products directly to the sport community, and are both promoting and selling their products on the internet. Often, such marketing is based on the personal endorsement of a well-known figure or anecdotal information, neither of which have any basis in scientific studies or accurate, reliable evidence.

Vitamins and minerals are not banned substances in sport and, in fact, may be an important part of an athlete’s dietary regime. The problem with using these vitamin, mineral, herbal, and other nutritional substances is that they are not subject to stringent regulatory inspection and licensing requirements as are medical and therapeutic substances. As a result, labeling is often inaccurate, and the contents may change from batch to batch because the production of the supplements is not carefully controlled. There are well-documented cases where nutritional supplements and herbal preparations have been found to contain prohibited substances, usually ephedrine and caffeine, even though the labeling did not indicate this. Laboratory studies have also shown that the contents of an unregulated product may vary from one batch to another.

One doping case involving mislabeling is a Canadian one. Jim Dan Corbett [1] was a member of the Canadian Team at the 1994 Commonwealth Games. Corbett had purchased a herbal vitamin supplement called “Nature’s Nutritional Formula One” which he was told was an energy booster. Corbett checked the ingredients as they appeared on the label against the list of prohibited substances. The label showed no banned substances. He even went so far as to ask the team medical staff about the supplement and was informed that the supplement was “OK”.

Corbett went on to compete in the Commonwealth Games and won three bronze medals in his weight-lifting category. After his events he was selected for drug testing. He tested positive for banned stimulants in his system — specifically, Ephedrine, Pseudoephedrine and traces of N-methyephedrine. He was disqualified, his performances nullified, and his medals returned to Games organizers.

Later analysis of the supplement used by Corbett by both an IOC-accredited laboratory and the Drugs Directorate at the Health Protection Branch of Health Canada confirmed that, although they were not listed on the package label, the product did actually contain the three banned stimulants.

Mislabeling may be the most obvious problem associated with nutritional supplements. In addition to the danger of ingesting a banned substance, there is also a danger of adverse health effects associated with the unknown, or unidentified, ingredients of such substances. A second problem is that even where the ingredients of a supplement are known, the ways in which these ingredients interact is not. As noted in a recent publication on the subject, “In the context of a herbal product [or supplement] adverse effects are invariably due not to the intended herb but rather to misidentification, contamination or adulteration [emphasis added]“[2].  In Canada, as in virtually all other countries, unless products have a clear therapeutic use there is no regulation, no standardization, no inspection of manufacturing facilities, and no guarantee of quality or effect. Caveat Emptor – Buyer Beware!!

Even where the ingredients in a nutritional product are properly listed on the packaging, this information alone might not be adequate to protect the user from a positive drug test. One Canadian athlete who didn’t look any further than the label recently found himself facing a doping infraction. The substance he used was 19-NoraFORCE Dietary Supplement. It is produced by Euthenics Sport Nutrition, a company in San Diego. A review of the label should have caused the athlete to proceed cautiously, while further research by the athlete would have made it absolutely clear that the supplement would give rise to a positive test.

A simple search of the internet would have provided this athlete with more information about the supplement and its effects. When ingested, one of the active ingredients of 19-NoraFORCE metabolizes as Nandrolone, an anabolic steroid appearing on the list of banned substances. This active ingredient is known as a precursor to Nandrolone. A precursor is a substance from which another substance is formed. In this case the precursor was metabolized in the body to form Nandrolone.

Two particular precursors (Norandrostenedione and Norandrostenediol) are expressly identified on the IOC banned-substances list. But they appear as ingredients in dozens of supplements that are sold under all sorts of different names and they may not be listed as ingredients on the label. The supplements themselves are not identified on the list of banned substances [3]. There are simply too many and they are changing constantly. It would be impossible to track them all.

There has been a recent and significant increase in the number of positive tests involving Nandrolone. Much controversy surrounds these cases; in the United Kingdom the UK Sport Council has set up a committee to investigate the body’s normal production of Nandrolone, the effect of exercise on Nandrolone production, and the whole area surrounding the external sources of Nandrolone metabolites, including precursors in nutritional supplements.

The athlete is ultimately responsible for what he or she ingests. However, it is clear that coaches have an important role to play both as role models and as educators. Athletes looking for that “extra edge” need careful guidance. A vast array of nutritional substances can be acquired with the click of a mouse—but athletes and coaches must remember that this burgeoning market is almost entirely unregulated and is fraught with danger.

———————–

[1] In the Matter of Jim Dan Corbett and the Commonwealth Games Association of Canada, Canadian Weightlifting Federation and Sport Canada, Decision of an Independent Arbitrator, November 9, 1994.

[2] Chandler, Frank (Ed.) Herbs: Everyday Reference for Health Professionals. Canadian Pharmacists Association and Canadian Medical Association at p. 25.

[3] As an aside, the athlete purchased the product over the counter in the United States. While legal in the United States, certain ingredients in the product are illegal in Canada under the Controlled Substances Act and can lead to a criminal conviction. Bringing this product into Canada is illegal. This athlete, although he or she probably did not realize it, took a very big risk in carrying this nutritional substance across the border.

Originally published: Coaches Report (2000) Vol. 7(1)

These two rulings have created a swirl of controversy.

Unfortunately, they may have undermined what is, in reality, a complex but highly regarded and effective anti-doping program.

The Canadian drug-free sport program is one of the strictest in the world. More than 75 per cent of our testing is done out of competition and on short notice, or with no notice at all — an achievement not equaled elsewhere.

In addition, our penalties are severe and in almost all cases exceed those imposed by international sport federations and testing agencies in other countries.

Furthermore, the Canadian drug-free sport program is based upon the legal principle of “strict liability,” meaning that the mere presence in the body of a banned substance is an offence, regardless of how the substance may have got there.

Under our system, the onus of proof rests with the athlete to demonstrate that doping has not occurred. In layperson’s terms, the athlete is “guilty until proven innocent.”

The decision of the independent adjudicator to reinstate Eric Lamaze after a second doping infraction for taking cocaine has been closely scrutinized.

The reality is that in making his decision, the adjudicator found himself between a rock and a very hard place. The rules governing the reinstatement that Lamaze was seeking did not leave the adjudicator a middle ground between a full reinstatement and lifetime ban.

The parties that appeared in this adjudication (the Canadian Centre for Ethics in Sport, the Canadian Equestrian Federation, the Department of Canadian Heritage and the Canadian Olympic Association) unanimously favoured some form of short-term penalty. But they were consistent in their position that Lamaze should not be banned for life from an activity that all acknowledged is his life. It is not only his sport, but also his livelihood.

Within the parameters of the policy and the rules, the adjudicator did not have room to decide such a compromise.

Left with the choice to reinstate Lamaze immediately on the basis of exceptional circumstances surrounding his infraction or to uphold a lifetime ban, the adjudicator decided to reinstate.

As it turned out, the outcome that the parties favoured and that the public has supported was achieved when the Canadian Olympic Association chose not to allow Eric Lamaze to rejoin the Canadian team at the Olympics.

In response to this complex case we offer these observations:

The Canadian Policy on Doping in Sport — a policy adopted by every sport-governing body in Canada — is not a simple one. Just as the practice of doping in sport has become more complex since the time of the Dubin inquiry, so too has the necessary legal and policy response.

Canada has a comprehensive drug-free sport policy that addresses many very subtle issues, but by and large sport organizations, athletes and the public do not appreciate these complexities. If we are to be satisfied with the outcome of athlete drug testing, then we must be better informed about the policy and rules that guide drug findings and the ensuing penalties.

Second, penalties under the Canadian policy are severe. These penalties have widespread support from athletes and the Canadian sport system. But as shown in the Lamaze case, such severe penalties may not be justified in all circumstances and may not be desired by the organizations that prescribe the penalties in the first place.

Lamaze used cocaine for recreational purposes and as a result received a penalty exceeding any penalty that would be applied in a criminal proceeding.

Third, the Canadian policy treats all athletes uniformly, regardless of their status as “amateurs.” Many have said that the policy should recognize the growing number of “commercial” athletes – - athletes like Lamaze, who is not only a successful competitor but also a teacher, trainer, coach and stable owner.

A lifetime ban on participating in any role in any sport, as was required by the Canadian policy in Lamaze’s case, precludes him from earning a livelihood now and in the future.

Lamaze is an athlete who consumed a recreational drug that did not enhance his athletic performance. Nonetheless, this drug is a substance that is banned in sport and is also an illegal narcotic.

There are many who say Lamaze should be treated more lightly than the athlete who takes steroids to enhance performance, and thus “cheats.” On the other hand, he took a substance that is banned and illegal. The feeling of most is that the rules are the rules and there must be consequences for breaking the rules.

Unfortunately, in this case, it became apparent that none of the parties who made the rules were prepared to live with the consequences that those rules imposed.

This sad episode should encourage us to undertake some thoughtful reflection on the purposes of the Canadian policy and on the nature and extent of penalties we impose on athletes.

The area is complex and there are no simple answers.

Originally published: The Standard, St. Catharines ON, Sept 23, 2000 pg. A 14



Sprinter Ben Johnson was 37 years old at the time the reinstatement decision was rendered. He represented Canada at three Olympic Games, Pan American and Commonwealth Games, and two world championships. He has held world records in the 100m as well as in indoor events including 50m, 60m, and 50 yard sprints. At the Seoul Olympics in 1988, Johnson won the 100m gold medal, breaking his own world record. He was subsequently disqualified when his urine sample tested positive for metabolites of the banned steroid Stanozolol. Johnson was charged with a first doping infraction and, in keeping with the antidoping rules at the time, he was suspended from competition for two years.

After completing his suspension, Johnson returned to competition. On January 17, 1993, he competed in an International Amateur Athletic Federation (IAAF) Grand Prix event in Montreal. Following the race, the Doping Commission of the IAAF declared that Johnson had violated antidoping rules as his urine sample showed an abnormally and unacceptably high testosterone to epitestosterone ratio (T/E ratio). On April 21, 1993, consistent with IAAF rules governing second doping offences, Johnson was banned from competition in athletics for life. On the basis of the IAAF infraction, Athletics Canada itself imposed a lifetime penalty to be served concurrently with the IAAF penalty. As well as being unable to compete, Johnson was not permitted to be involved in any role with any sport that is federally funded or otherwise subscribes to Canadian antidoping policies.

Under the Canadian Policy on Penalties for Doping in Sport and the Doping Control Standard Operating Procedures, Canadian athletes may apply for early reinstatement to sport eligibility. Johnson became the first athlete in the world to seek reinstatement from a lifetime ban when he initiated his application in the fall of 1998. On December 14, 1998, Graeme Mew, a partner in the Toronto law firm of Smith Lyons, was appointed as an independent adjudicator to hear the matter. Other parties at the hearing were Athletics Canada and Sport Canada.

Johnson’s application involved three preliminary meetings over a span of six weeks and four days of hearings in March 1999. The adjudicator heard testimony from 11 witnesses and received into evidence nearly 100 documents.

In seeking early reinstatement to sport eligibility, an athlete must show, on a balance of probabilities, that there are exceptional circumstances that justify reinstatement. Under the rules that govern such a hearing, an adjudicator is required to consider a number of criteria including age, remorse, circumstances surrounding the infraction, experience in sport, contribution to sport, prospects for rehabilitation, prior- and post-infraction conduct, cooperation with investigating bodies, and length of suspension served. The athlete may also advance other criteria for the adjudicator’s consideration.

The adjudicator must be satisfied that, on the basis of these criteria, the applicant’s penalty is excessive in the circumstances.

The Adjudicator’s Decision

In reaching his decision in this case, Mew applied the evidence given by the parties to the criteria. He found the factors of remorse, contribution to sport, experience in sport, cooperation with investigating bodies, and length of suspension to be neutral, and he put little weight on them.

Mew also did not place weight on the argument advanced by Johnson that the suspension prevented him from earning a livelihood. On this point, he stated: “[I agree] that Mr. Johnson was selling himself short in claiming not to have any other marketable qualities . Mr. Johnson has a high school education. He has travelled widely. Although he can appear, at times, to be shy, he has an engaging personality. I heard no evidence which suggested any serious attempt on the part of Mr. Johnson to find alternative employment.”

A factor weighing against Johnson’s reinstatement was the lack of support for his application from Athletics Canada. Weighing in favour of his reinstatement were his age, his prospects for rehabilitation, his prior- and post-infraction conduct and, most significantly, the circumstances surrounding his infraction.

The Adjudicator’s Reasons

Mew’s decision to reinstate Johnson to sport eligibility in Canada arises out of two circumstances surrounding the 1993 doping infraction. First, in weighing the evidence and with some reservations, he was not persuaded that Johnson knowingly and intentionally manipulated his T/E ratio to the unacceptable level at which it tested. Second, and more importantly, following the IAAF Doping Commission’s decision to impose a lifetime ban, Johnson was misinformed by his national sport governing body-Athletics Canada-as to the type of hearing to which he was entitled. Under the rules of the IAAF, the appropriate hearing procedure that should have been offered was a “hearing” before an independent arbitrator or panel. At the hearing, the onus would have been on the IAAF or Athletics Canada to prove to the criminal standard of proof (that is, beyond a reasonable doubt) that a doping infraction had occurred.

Instead, Athletics Canada offered an “appeal” wherein the onus was on Johnson to prove, on a balance of probabilities, that the IAAF Doping Commission was wrong and that a doping infraction had not occurred.

There is an obvious and significant difference between a hearing and an appeal in terms of who has the onus of proof and the level of proof necessary. In the adjudicator’s view, Johnson’s loss of opportunity to have the hearing to which he was entitled was a critical factor that weighed very heavily in favour of his reinstatement.

“In a hearing, you are presumed innocent until proven guilty. If a hearing had been held, the IAAF would have been required to prove beyond a reasonable doubt that the offence had been committed,” says Mew, who is honorary legal adviser for Rugby Canada and chairman of the board of the Toronto Nomads Rugby Club. “By contrast, in an appeal, the appeal tribunal must be persuaded that the original decision-maker is wrong. Further, most appeal tribunals will not substitute their own impressions for the view of those who had the opportunity to hear the evidence first hand; in other words, at the hearing Johnson never had.”

Mew suggests that to avoid such situations, sport organizations must read their own rules. However, he adds that quite often the rules fail to cover the precise situation confronting the organization, which is exactly what happened in the Johnson case. In order to deal with these scenarios, sport organizations should write their rules more flexibly and ensure that when implementing their rules, they act fairly and reasonably.

“Athletics Canada simply told Johnson he had the right to an appeal, and that was neither reasonable nor accurate,” he says.

In his decision Mew concluded: “Athletes are held, quite properly, to high standards of conduct . By the same token, athletes are entitled to expect from their sport governing bodies a high standard of procedural fairness . Sport governing bodies must obey their own rules, just as they expect athletes to. Here, though, through inadvertence, Athletics Canada failed to meet the appropriate standard in 1993. In my judgment, Ben Johnson was prejudiced by this failure.”

Mew takes issue with media reports that his decision has enabled Johnson to “get off on a technicality.”

“This is more than a mere technicality; this involves a lifetime ban, the ultimate sanction from an athlete’s point of view,” he says. “It was clear from the hearing I presided over that there were legitimate issues which merited further investigation.”

More particularly, there were a number of circumstances surrounding Johnson’s test results that would have been closely scrutinized had Johnson had the hearing to which he was entitled. These factors include omissions in the way the test results were reported, which might have placed the T/E ratio below the threshold of an automatic infraction; an interval of 19 hours between the time his sample left the Grand Prix event and arrived at the testing laboratory; and his otherwise normal T/E ratio profiles in the week preceding and following the positive test.

While these were not factors the adjudicator considered in the context of this reinstatement hearing, they would have been considered at the proper hearing, had it occurred in 1993. In Mew’s view, the failure to consider these issues is not a technicality, but rather a substantive error that seriously prejudiced Johnson’s right to a fair and proper hearing under the rules of the IAAF.

What The Decision Means

Graeme Mew’s decision is final and binding on the parties. However, Johnson’s reinstatement is effective in Canada only, and Johnson remains ineligible to compete under IAAF rules. As well, the IAAF has what is termed a “contamination rule” which states that any athlete who competes against a suspended athlete in an IAAF-sanctioned event will also face sanctions. In light of this rule, Johnson agreed not to compete in Canada until the IAAF had an opportunity to consider his application for international reinstatement, a condition that Mew wrote into his decision.

While not supportive of his request for Canadian reinstatement, Athletics Canada is bound by Mew’s decision and has indicated that it will support Johnson in his efforts to be reinstated internationally, currently under way.

The most significant point in Mew’s decision is that sport organizations must be held to the same strict rules that athletes are expected to comply with. Another key point he makes is that the greater the stakes in terms of an individual’s livelihood, the higher the standard of fairness to which the sport organization must be held.

As Mew points out, many of Canada’s sport organizations are run by “gifted amateurs,” often volunteers, whose focus is delivering programs and doing what’s best for the sport. They are not necessarily focused on legalities and rights or on examining the legal implications of their actions.

According to Hilary Findlay, managing director of the Centre for Sport and Law, which coordinated Johnson’s reinstatement hearing, such omissions are rarely intentional. More often than not, they arise because of the sport organization’s focus on trying to do what is best for the sport and the greatest number of athletes, and others within the organization. A case in point involved long track speed skater Patrick Kelly and the Canadian Amateur Speed Skating Association (CASSA) [Coaches Report, Summer 1996].

“CASSA decided that the weather was going to play havoc with the opportunity for the athletes to demonstrate their ability in a clean fashion for the 1995 World Sprint Speed Skating Championships, so they decided to designate as the selection event a different competition at the indoor Olympic Oval in Calgary,” says Findlay. “The decision made perfect sense in terms of providing the best forum for selection, and all the athletes but Patrick Kelly agreed. When the matter came before the court, it found that while there was no malicious intent on the part of CASSA, the organization had failed to recognize that it had a contract with each individual athlete through the Athlete’s Agreement and that it couldn’t unilaterally change such a contract. The court also noted that Kelly had structured his own personal training schedule to ensure peak performance at a particular time and that minor variations to training schedules can have huge ramifications for an elite athlete, which it did in this case.”

In Findlay’s opinion, the growing numbers of legal interventions in sport both domestically and worldwide mean that sport organizations must ensure that their policies are clear, that situations are addressed properly and effectively, and that policies are updated and communicated to the entire membership. By the same token, athletes, coaches, athlete representatives, and others within the organization have a responsibility to make sure that they, too, are fully aware of the rules, regulations, and policies, and that they address situations appropriately. The result will be greater trust and more consistency in expectations that everyone is going to be treated fairly, and she views Mew’s decision as reinforcing this point.

The adjudication procedures of the Canadian Policy on Penalties for Doping in Sport is an example of a clear mechanism and clear rules for hearing reinstatement applications.

“There is confidence that these rules will be followed and that applications will be dealt with properly,” says Findlay. “[Johnson] had the opportunity to bring forward the information he thought pertinent, all the parties had an opportunity to be heard, and the adjudication was conducted within, not outside of, the sport system.

“Everyone in sport readily accepts the notion of fair play; it has been harder for some to accept the notion of fair procedures. I think Graeme Mew’s decision is an important link to achieving that acceptance.”

Editor’s Note: Since this article was written, Athletics Canada applied to the IAAF Council, on Johnson’s behalf, seeking reinstatement. The IAAF has referred the matter to a sub-committee for additional study. Johnson is presently taking steps to advance his case for reinstatement in the event that action by the IAAF is further delayed.

Originally published: Coaches Report (1999) Vol. 6(1)

In all sports and in any role within a sport, doping-related infractions carry a lifetime ban. This is an extremely onerous penalty, particularly for a first-time infraction.

While not common, when doping-related infractions occur, they often involve coaches. Knowing what a doping-related infraction is, and how far the policy can potentially reach, is crucial.

The Russell case is a good example of the reach of the policy and its dire consequences.

In 1997, Russell applied for membership in two provincial sport associations. Concern was raised by the associations because several years before, Russell had been convicted of conspiracy to import steroids which were subsequently distributed through a gym owned by his brother. Although Russell was not involved with any sport association or affiliate at the time of his conviction, the fact that he was seeking membership in sport associations twigged doping officials.

A doping-related infraction is defined as “infractions other than the use of banned substances or practices” and includes either the condoning of or advising on the use of banned substances or practices, securing (including importing), supplying, selling, or administering banned substances or practices, possession of such substances without valid medical reason, refusal to participate in doping control, or failing to co-operate in a doping investigation-all with the intent of violating anti-doping rules.

A case review can be initiated for five different circumstances: a doping infraction (the use of a banned substance by a person) which may involve other persons potentially associated with the infraction; an admission of either an infraction or a doping-related infraction; the request of a sport organization; information received by the Canadian Centre for Ethics and Sport (CCES); or, the catch-all “other allegations of a doping infraction come to the attention of CCES”.

It is clear these circumstances are very broad; in addition, not time limit is placed upon them. Although Russell’s conviction was some two years old, a request for a review was still brought forward and acted upon. Indeed, the conviction, theoretically, could have been five, even 10 years old. In Russell’s case, there was clear, incontrovertible evidence of a conviction (although it was still necessary to show that the impugned activity was done with the intent of violating anti-doping rules), but the criteria are general enough that an allegation could be based on rumour or innuendo.

Such a situation would be grossly unfair and even abusive. For this reason, CCES has the discretion to ensure that only legitimate matters are reviewed. Once CCES has investigated an allegation, the Doping Control Review Panel, an internal CCES panel made up of three medical practitioners, reviews the results to determine whether there is “sufficient” information to send the matter to a final and determinative hearing – it is not clear what “sufficient” means but the provision assures another safety check to ensure that only serious and legitimate matters go forward.

Allegations that go forward from the Review Panel are then subject to a hearing before a three-person independent board. The job of the board is to review the materials put forward to the panel, listen to the evidence of the person, and then determine, on a balance of probabilities, whether or not a doping-related infraction has occurred. Balance of probability means that the board is satisfied that it is more probable than not (that is, 51 percent sure) that an infraction took place. This is in contrast to the much more onerous standard used in criminal law of beyond a reasonable doubt.

In Russell’s case, the board was satisfied that he had committed a doping-related infraction. The penalty was suspension from participating in any role — coach, participant, volunteer, or any other category — in any activity of any national sport federation (NSF) or provincial sport organization (PSO), or any of their affiliates. In essence, Russell has been banned from organized sport in Canada for life. This most serious case is currently under appeal.

There are other examples where a case review is possible and the consequences not anticipated by those involved. As noted, a case review can be initiated as a result of an admission under oath or simply a report of an omission. There have been several cases, for example, where an athlete has admitted steroid use at the high school level, which is not subject to the Canadian Policy on Penalties for Doping in Sport. But once an athlete enters the jurisdiction of the Policy (university or college athletics or competition in a sanctioned PSO or NSF activity) were charged a first infraction and subject to a four year suspension.

Leading up to the Nagano Olympics, a number of NHL players admitted using the restricted cold medicine Sudafed — which is substantially made up of the stimulant pseudo-ephedrine – for reasons other than medical ones. Could this have triggered a case review?

Well, certainly at least one of the criteria could be satisfied. Sudafed is a banned substance in the stimulant class, which means that it can draw anything from a warning to a full four-year penalty, if not used for medical reasons. So it is possible that the matter would at the least catch the attention of CCES. However, in the stimulant class of banned substances there is some discretion in determining an infraction, given the amount and toxicity of the substance used. Nonetheless, this scenario shows the potential reach of the policy and the importance of knowing its provisions.

Originally published: Coaches Report (1998) Vol. 4(4)

The right to earn a living is an important and closely held principle long-recognized in our law. Many athletes, coaches and others in amateur sport now make a living either directly through their athletic ability or knowledge, or indirectly through corporate, media or business opportunities that arise as a result of athletic ability and knowledge. Any restraint which destroys that ability to earn financial remuneration, either directly or indirectly is, by definition, a restraint of trade. Where that restriction is unreasonable, it is illegal.

This is not to say that any restriction on ability to earn a livelihood will be against the law. Parties may enter contracts which limit, or place conditions on, one’s ability to earn a livelihood. For example, it is not uncommon in employment contracts to limit the territory or manner in which a person may ‘work’, or to enter into exclusive agreements preventing one from working for a competitor. It is also common to see a party agreeing, by contract, not to compete with an employer for a period of time after leaving a particular business.

As long as the conditions are reasonable, such restraints of trade are quite acceptable and are common practice in commercial and business activities. And as long as the parties enter into an agreement or contract freely, and the restrictions are reasonable, the courts will not intervene. Thus, in Canada (as elsewhere) when we speak of a “restraint of trade” as being illegal we are actually referring to a restraint of trade as being “unreasonable” and thus unacceptable.

Although most restraints of trade are for the often legitimate purpose of controlling competition, such restraints can also arise as a result of other actions which have an entirely different purpose. We have seen this occur in sport where an athlete or coach is disciplined, with the result that their opportunities to participate and to earn a livelihood are restricted. In these cases the purpose of the restraint is typically deterrence or punishment. Doping infraction penalties are an example of this and have, in several instances, been challenged on the basis that the sport organizations has unreasonably restricted an athlete’s activities.

In these situations where discipline gives rise to a restraint of trade issue, it can also be argued that the athlete voluntarily entered into a contract with the sport association which authorizes that body to take extreme measures which may interfere with the athlete’s activities. It is well established that the sport organization and its members have a contractual relationship, and that this relationship has been entered into voluntarily by the athlete. By being a member of the sport association, the athlete has agreed to abide by the organization’s bylaws and policies, even where such policies may provide for severe disciplinary sanctions and may result in a serious restriction on participation. Nonetheless, such sanctions must still be reasonable, taking into account all circumstances.

How does the doctrine work?

It is easy to see that the doctrine of restraint of trade may have significant implications for amateur sport, particularly as sport becomes more commercial and as business corporations see sport, and people within sport, as increasingly marketable commodities. But how does this doctrine actually work? To show that a restraint of trade has been unreasonable, three issues must be proved:

1.  That the activity is a form of trade

Is sport a trade? No Canadian cases have addressed this issue directly, although the British doping case of Gasser v. Stinson does address the issue explicitly. In that case the International Amateur Athletic Federation (IAAF) argued that the athletes were “amateurs” and “did not and could not under IAAF rules, earn their daily bread as athletes”. Further, the IAAF argued that while the activities of athletes enabled them to earn potentially large sums of money, most of it came from contracts between the national federations and a sponsor to which the athletes themselves were not parties. This money, it said, was not available for the athletes’ immediate enjoyment (except for expenses) and their entitlement to it lay in the future. The Judge rejected this position stating:

I am unable to accept that these circumstances take the case out of reach of restraint of trade law. 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.

In the Canadian case Johnson v. Athletics Canada and the International Amateur Athletic Federation the judge adopted the thinking in Gasser, and in so doing accepted that sport can be categorized as a trade.

2.  That one’s ability to earn a livelihood from that trade is restricted

Any restriction that destroys the ability to earn financial remuneration, either directly or indirectly, is a restraint on trade. Thus, a doping penalty (two-year, four-year or lifetime ban) has been found by some courts to be a restraint on trade. However, other courts have found such penalties to be a reasonable or appropriate restriction, thus underlying the importance of the circumstances in determining reasonableness. A two-week suspension of a tennis player for misconduct pursuant to a discipline policy has been found to unreasonably interfere with the athlete’s freedom to earn a living within the European Economic Union. And in some cases, restrictions on transfer of membership in a sport organization have been found to be a restriction.

3.  That the restriction is unreasonable

The onus of proving that the provision leading to a restraint of trade is reasonable is on the party seeking to uphold the restriction. Thus, if a restriction comes as a result of a disciplinary process, the organization must be able to show that the restraint is reasonable in the circumstances.

What is reasonable is a matter of law. In other words, no one can know for certain until a court makes a ruling. In the Australian doping case of Robertson v. Australian Professional Cycling Council Incorporated the court looked at the objective of, or reason for, the restriction and whether the restriction was reasonably related to that objective. Could the objective be met through a less restrictive means? The court will also look at industry standards, the expertise of those in the area in which the restriction is imposed, and the circumstances surrounding the restriction, among other such factors.

It is important to note that courts will give significant deference to private organizations (such as sport organizations) in the way they run their affairs and the kinds of penalties they impose – provided they are within the “norm” or within an acceptable range.

Canadian applications

In addition to the Johnson case, there are a few Canadian court cases which have used the doctrine of restraint of trade. In Figure Skating Coaches of Canada v. Canadian Figure Skating Association the association enacted a by-law that required any coach wishing to coach in clubs it recognized to obtain a membership in the Figure Skating Association and pay a fee for membership. The figure skating coaches organization challenged the by-law as a restraint on trade. The matter never went to trial and thus we don’t know how the court might have ruled on the restraint of trade issue. However, the applicant coaches association was able to obtain a temporary injunction to stop the CFSA from requiring membership on the basis of a restraint of trade argument.

In Willey v McLaughlin et al. Willey was suspended from membership in the Canadian Professional Golfers Association for advertising the sale of golf equipment in a manner that violated the association’s by-laws. Willey argued that the arrangement between the major manufacturers and suppliers of golf equipment and the CPGA interfered with his right to earn a living and was an unreasonable restraint on trade. As in the Figure Skating Coaches of Canada case, the matter did not go to trial and was presumably settled by the parties. Nonetheless, Willey was able to get an interim injunction precluding the organization from suspending him.

Other relevant legislation

Restraint of trade matters in Canada are also dealt with under Federal legislation called the Competition Act. This is legislation aimed at precluding unfair or oppressive competition, and while the legislation covers professional sport in Canada, it specifically exempts amateur sport. Nonetheless, the wording of the legislation leaves certain openings for inclusion of amateur sport at elite levels, where an athlete receives significant remuneration.

While this legislation is based on similar principles to the restraint of trade doctrine, there are slight differences – for example, the Competition Act talks of “undue” restriction as opposed to “unreasonable”. As well, the legislation refers to three very specific restrictions, including that of imposing unreasonable terms or conditions on opportunities to participate or imposing unreasonable limits on player mobility (for example, oppressive eligibility or transfer rules or discipline which has an excessive result that is not clearly related to legitimate interests of the league). However, like the restraint of trade doctrine, the legislation still focuses on what is necessary to meet the objectives of the restrictions.

In conclusion, restraint of trade can be a very flexible legal tool. As sport becomes more business-like and seeks outside sponsorship, and as individual coaches and athletes pursue personal sponsorships that may conflict with team or association sponsorship arrangements, this doctrine will probably be invoked more frequently. At the elite level, sport is now very lucrative and organizations imposing disciplinary sanctions which severely restrict an athlete’s opportunities must ensure that such sanctions are reasonable and justifiable in the circumstances, or these sanctions may be challenged as an unreasonable restraint of trade.

Originally published: Coaches Report (1998) Vol. 4(3)