 |
 |
 |
 |
Ambi Sitham — Lawyer, Media and Entertainment Expert |
|
| |
Back to all articles |
Next article |
|
|
|
Articles
Contact Ambi
|
|
Are Our Sporting Bodies Abusing Human Rights?
Drug abuse is now the single largest problem in sport. A recent survey by the Professional Footballers Association to all 2,863 of its playing members into the use of recreational drugs indicated that a staggering 70% of those surveyed said that recreational drugs were used by footballers and 46% of those said that they personally knew other players who had taken them. Around 50% of players said that footballers used performance-enhancing drugs.[1]
There are three perceived categories of 'offenders' in this regard; recreational drug abusers who might smoke marijuana, take ecstasy or cocaine socially, and there are performance-enhancing users some of whom take drugs intentionally in order to enhance their performance, and some of whom consume the banned substance inadvertently by virtue of their use of another product.[2] It seems that the rules have become confused about the underlying objective of most sports governing bodies' rules which is to prevent participants obtaining an advantage in their performance over another competitor by use of performance-enhancing drugs. The drafting of the rules means that those who are using drugs in a social sense will also fall foul of the doping rules and will be found to have breached the doping regulations, leaving us in a situation where sports disciplinary bodies are effectively investigating crimes where the usual criminal safeguards do not apply.
The European Convention on Human Rights
It has now been three years since the Human Rights Act 1988 came into force, yet the rules and regulations of the UK's sports governing bodies could still be flying in the face of the European Convention Rights that the Act seeks to protect. As has been noted by sports legal commentators, "There is little or no standardisation in their constitutions"[3], which has resulted in there being no uniform approach to the adopting of the ECHR by UK sports. The implementation of the Act has brought about a spate of litigation with individuals and organisations testing the boundaries of our existing law in light of the provisions of the Act.
The Human Rights legislation has already impacted upon the world of sport to some degree; from the challenge against Fulham Football Club's bid to rebuild Craven Cottage[4] under Article 6 of the European Convention on Human Rights, to the challenge by football supporters against International banning orders imposed by the government under the Football (Disorder) Act 2000.[5] The question remains though, does the Convention apply to the "law" and regulations imposed by sporting governing bodies and associations themselves?
Sports Associations as Public Bodies
Section 6(1) of the Human Rights Act states:
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right" A public authority includes "any person certain of whose functions are functions of a public nature".
The definition of who should be a public authority and what is a public function for the purposes of Section 6 has been given generous interpretation.[6]
It has strongly been argued that "sports bodies are in substance regulators whose decisions ought to be amenable to judicial review".[7] The Home Secretary himself expressed the view during the passage of the Human Rights Bill that the Jockey Club was a functional authority under the Act.[8] It would appear that the Courts would be predisposed to this approach particularly considering Neill LJ"s comments in the pre-HRA case of R v Disciplinary Committee of the Jockey Club Ex P Massingberd-Mundy.
The precept of the Universal Declaration of Human Rights urged that "every individual and every organ of society"[10] should play its part in securing universal observance of those rights guaranteed by the ECHR. For their part, international sports organisations have attempted to recognise their athlete members' fundamental rights. Indeed, the Olympic Charter states that "the practice of sport is a human right".[11] It is accepted by those drafting the World Anti-Doping Agency Code ("WADA Code") that:
"because sports governing bodies exercise a monopolistic 'quasi-public' position in their relation with the athletes, there is an understanding among lawyers that sports governing bodies can no longer ignore fundamental issues in their activities, at least if they want to avoid governmental intervention." [12]
Sporting regulations and the Human Rights Act
The FA
Whilst it appears that sports governing bodies may be within the remit of the Human Rights legislation it is clear that a number of them have not fully considered the impact of this law in relation to their own rules and regulations, specifically those in relation to disciplinary offences and procedures.
Rule 1 (a) of the Rules states:
"The following matters will be regarded as amounting to a breach of the Doping Control Regulations and for the purposes of Rule E26" (a) the detection of a prohibited substance in a sample provided by a player.."
Rule 1 (a) constitutes an offence of strict liability, i.e. whether and when and for what purpose the player took the prohibited substance would be immaterial to guilt, although relevant to the penalty imposed upon the player. This raises considerations as to the law's aversion to unreasonable restraint of trade, elementary fairness and importantly the concept of the right to a fair trial in Article 6 of the European Convention on Human Rights. The right to continue in professional practice is a civil right, thus Article 6 is applicable when a disciplinary tribunal uses its authority to suspend a person from professional practice.[13]
The RFU
Another sporting organisation whose strict liability laws may fall foul of the ECHR is those of the Rugby Football Union. Interestingly the RFU Doping Regulations provide;
"Under these Regulations a doping offence is committed when:
- a prohibited substance or a diagnostic metabolite of a prohibited substance is found to be present in a player's body tissue or fluids; or
- a person is found to have used a prohibited substance or a prohibited method; or
- a person admits using a prohibited substance or method"
Under the last two provisions it appears that a player can fall foul of the doping regulations even if they are not found to have the prohibited substance in their body tissue or fluids. It then follows that a player can be in breach of the rules by being 'found' to have used a prohibited substance. The question then remains as to what will prove to be a breach of this particular regulation; will a photograph of a player apparently using a banned inhaler in the dressing rooms be sufficient evidence of the player being 'found to have used a prohibited substance?' Considering this is an offence of strict liability and the RFU rules, as with the FA, do not appear to allow for mitigation in terms of the player adducing evidence to the effect that it was not their fault, the RFU regulations also appear to fall foul of Article 6 and the Human Rights Act.
UK Athletics
UK Athletics Ltd is the governing body for athletic sports in the UK, and is also a member of the International Association of Athletics Federations ("IAAF"). Athletics is another sport where, unsurprisingly due to the sport's much publicised battle with doping, an offence is one of strict liability. The rules clearly state:
"For the avoidance of doubt the offence of doping is an absolute or 'strict liability' offence. Therefore it is not necessary for UKA to prove any intention (or guilty state of mind) on the part of an athlete to commit such an offence. By way of example and without limitation, it is also no defence to a charge of having committed a doping offence, if a prohibited substance is found to be present as a result of accidental or inadvertent ingestion of a prohibited substance"
In line with the WADA code (discussed below) UKA rules that the minimum ban for breach of a doping regulation is two years for a first offence and life for a second offence. However, where UKA appears to fall short of the WADA standard is their failure to allow for athletes to mitigate against the length of that ban where there has been no, or no significant, fault. Again the austerity of these rules appears to be in breach of Article 6 and also arguable an unreasonable restraint of trade. If an accused athlete cannot bring any evidence in mitigation where they are accused of an offence that if they are found guilty of, could result in them losing their livelihood, how can their disciplinary hearing be described as a fair trial in accordance with Article 6?
Strict Liability
The nature of strict liability offences are that, even where a sportsperson can produce evidence of unknowing consumption of the prohibited substance, this evidence will be treated as irrelevant by the sporting association[14] (see the Court of Arbitration for Sport's decision in Baxter[15]). However in the case of Petr Korda[16] (the tennis player who appealed to the Court of Arbitration for Sport in Lausanne over the ITF's decision to ban him over his positive nandrolone test) the CAS upheld the ITF decision, yet indicated that defences exist in UK sports to strict liability offences. Despite this it seems that in the majority of cases strict liability will apply.
Such strict liability interpretation by a sporting body's disciplinary commission (which is effectively a trial, the outcome of which, directly impacts upon the player's livelihood) could be deemed to have fallen foul of the right to a fair trial as enshrined in Article 6 of the ECHR.
Such liability in the criminal law has been held (by the European Court of Human Rights in Salabiaku v France[17]) not to be in complete contravention of Article 6, however, the Court's opaque reference that it was suitable "under certain conditions" has led to conjecture from commentators that, where an individual's Convention rights are threatened by the application of strict liability, the legislation "would be subject to scrutiny for compliance with the requirement of proportionality"[18]
Recently the Court of Appeal has exercised such discretion in its analysis of the £2,000 fixed penalty scheme for haulage firms found to be carrying illegal immigrants. It was held that it was not right to impose so high a fixed penalty without the possibility of mitigation as the penalty far exceeded what any individual should reasonable be required to sacrifice in the interests of achieving improved immigration control.
It is the authors' contention that the public policy reasons for applying strict liability to doping offences in sport, identified by Scott J in Gasser v Stinson (see below) as stopping the 'floodgates' from opening the result being that "attempts to prevent drug taking by athletes would be rendered futile" are not as persuasive as the maintenance of good immigration control. Lord Woolf stated in Re Lee Kwong-kut[19] that the "implicit flexibility allows a balance to be drawn between the interest of the person charged and the state [or for our purposes; the sporting body]". The protection of the athlete's right to have the determination of an issue, that will ultimately affect his right to a living (in a comparably short-term career), tried fairly (in line with Article 6) must surely outweigh the benefits to the sporting body in attempting to prevent drug-taking in the sport. A further consideration must be the effect on the sportsperson's professional reputation where a finding against the athlete will result in them being labelled a 'drugs cheat'.
It is within the capabilities of sporting associations to prevent endemic drug-taking in sport through adequate policing and education. The authors' accept that, without strict liability, it would be difficult to achieve a positive finding against an accused athlete, although, it is considered that a system of monitoring suspected athletes may be more equitable. Given the draconian effect on an athlete's career where he/she is suspended for a great length of time, it is useful to recall the words of Sir William Blackstone: "the law holds that it is better that ten guilty persons escape than one innocent suffer "[20]
Independence and Impartiality
Article 6 (1) provides that "everyone is entitled to a fair and public hearing..by an independent and impartial tribunal". An independent tribunal was defined in Ringeisen v Austria[21] as meaning "independent of the executive and also of the parties". Sporting bodies, particularly some of the UK's smaller associations, appear to have great difficulties in appointing panels that have no relationship with either the association's legislators or the parties involved (particularly where the parties include clubs and other associations). In Ringeisen the European Court set out a number of factors to determine whether or not a tribunal was independent, namely:
- the appointment process for tribunal members
- guarantees offered against outside pressures
- whether there is an appearance of independence
The second factor is one that, in light of the media campaigns of those championing a hard line on drugs use, must be unsustainable at present. There can be no guarantee that the recent pressure applied on sporting bodies to apply strict measure against doping will not result in tribunals lacking the requisite independence (see the comments, in particular, of Richard Caborn, the Minister for Sport,[22] and Dick Pound, the World-Anti Doping Agency's Chairman.[23]
The third factor will always be problematic as long as sports tribunals are made up of active members of the association itself. An athlete who is charged by the association may reasonably consider that there is no appearance of independence where he is tried by the association.
Impartiality was defined by the European Court in Fey v Austria[24] as:
"[A] subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect".
This test is to be applied to individual tribunals, on a case-by-case basis, and thus is beyond the scope of this article.
Case law - Gasser v Stinson
The case of Gasser v Stinson[25] considered whether the rules of sporting bodies were applicable to the English legal doctrine of restraint of trade and Scott J found that they were[26] (including those rules of international sporting bodies) and that unfair restriction of competition in this light could be found to be in restraint of trade; the test was whether the restraint of trade was unreasonable. Gasser though, fell foul of this test as Scott J held that there were reasonable considerations for IAAF in applying a strict liability test. Furthermore he found that the IAAF's decision was fair and reasonable and as such there was no need for the court to intervene.
This case was decided in 1988, many years before the Human Rights Act came into play and was the individual decision of a High Court Judge that a sporting body was fair and reasonable in its decision to apply strict liability. However, if the same facts were to be considered in the present day, in conjunction with the European Convention on Human Rights, and in particular Article 6, it is arguable that this decision is no longer good law.
Edwards v BAF and IAAF
In the case of Edwards v BAF and IAAF, E brought a claim against the BAF and IAAF for a declaration that the decision to ban him for four years was contrary to Articles 6, 59 - 66 of the Treaty of Rome. His argument was based upon the fact that athletes from other countries would only receive a two-year ban because their national legislation would not allow longer bans and accordingly that the BAF and IAAF treatment of him was contrary to various Convention rights, namely right to a fair trial and discrimination by nationality. Lightman J held that the decision of the BAF and IAAF did not come under this EC legislation because these rules merely regulated sporting conduct, and sporting rules would only be covered by EC law where the rules affect an 'economic activity'. This is a decision that is not particularly helpful though, in consideration of the applicability of the ECHR to such decisions of sporting bodies as it is concerned with the applicability of EC competition law. In the authors' opinion, given the applicability to UK Courts now of ECHR cases such as Le Compte v Belgium, this is a judgment which may well have been decided differently if it had been considered now on the basis of a Human Rights claim.
World Anti Doping Agency
Sporting associations the world over recently (in March 2003) signed up to the World Anti Doping Agency Code (WADA). Article 10 of WADA sets out a two year standard punishment for doping offences (i.e. a two-year period of ineligibility), however, this is subject to Article 10.5 of the WADA Code, which provides that this period may be reduced if the athlete may show no, or no significant, fault or negligence. In other words, whilst a breach of the WADA Code is a strict liability offence, in contrast to, say the FA doping regulations, a player can put forward arguments in mitigation as to why the prohibited substance being in their body is not their fault (including the fact that the test result was a result of the deliberate or accidental activities of a third party). This highlights the inadequacies that can be found in the disciplinary regulations of sporting bodies across the UK, which only mitigation in respect of previous conduct of the player.
Conclusion
There is an undoubted pattern across the whole of UK sport as sporting associations have struggled, in the face of media condemnation of "going soft on drugs"[27], to draft their laws to be lawful and in line with the current sporting policy of "zero tolerance".
The World Anti-Doping Agency conference in Copenhagen in March 2003 was an attempt to create a uniform set of rules across world sport. The difficulties that some of the most experienced legislators in the UK have found in drafting the legislation in line with the European Convention on Human Rights goes only to show why sporting bodies have been hard-pushed to achieve this kind of uniformity.
The difficulties that sporting bodies have experienced in drafting their regulations and the apparent problems with independence and impartiality of tribunals suggests that an ideal responsible approach would be for an organisation, such as UK Sport, to take full control of all sports doping tribunals in the UK. Such a move would create a uniform legislation and remove any perception of prejudice in the decision of tribunals. If the move were undertaken with support and control from the government (thus guaranteeing a claim under the judicial review procedure should an athlete consider that necessary) it would remove any doubt that the rights guaranteed under the ECHR would be applicable to the application of doping control in sport. Sports doping legislation must not only be drafted in line with WADA but, first and foremost, it must accommodate European Human Rights law. The European Court of Human Rights has not hesitated to intervene where an independent disciplinary panel has sought to suspend a professional person for a period of one year[28] and there is no reason why a suitable challenge by a professional sportsperson would not have the same result. As the revolutionary case of Bosman[29] sport is not a special case immune from the law. Should action not be taken then, it is the authors' opinion (and an opinion shared by those lawyers involved in drafting the WADA code[30]) that it may not be long before a sporting association is successfully challenged in the Courts of the UK or Europe.
[1] Health Newswire Consumer 21st July 2003
[2] See for example Baxter v IOC CAS 02/1/376 wherein the Appeal panel found that [Baxter] "appears to be a sincere and honest man who did not intend to obtain a competitive advantage in the race".
[3] Charles Woodhouse, "Sport and Law in Conflict: Role of Sports Governing Bodies" conference paper at Stamford Bridge, 25 November 1996
[4] R v Secretary of State for the Environment, Transport & the Regions (Defendant) ex parte William Adlard & others (Claimants) & (1) Fulham Stadium Ltd (2) Hammersmith & Fulham London Borough Council (Interested Parties) [2002] EWCA 735
[5] Gough and Smith v Chief Constable of Derbyshire: Miller v Leeds Magistrates Court: Lilley v Director of Public Prosecutions (2002) EWCA 351
[6] R v Disciplinary Committee of Jockey Club ex parte Aga Khan (1993) 1 WLR 909
[7] Clayton and Tomlinson, The Law of Human Rights Volume 1, at 5.35
[8] Hansard, HC col 1018, 20th May 1998
[9] R v Disciplinary Committee of the Jockey Club exp Massingberd-Mundy (1993) 2 ALL ER 207, at 219: "if the matter were free from authority I might have been disposed to conclude that some decisions at any rate of the Jockey Club were capable of being reviewed by the process of judicial review"
[10] Preamble of the Universal Declaration of Human Rights
[11] Olympic Charter, Fundamental Principles, No 8, p.9
[12] Rigozzi, Kaufman-Kohler and Malinverni: Doping and Fundamental Rights of Athletes: Comments in the Wake of the Adoption of the World-Anti-Doping Code (2003) ISLR 39, at p49
[13] Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1 para 48
[14] See Michael J Beloff, Drugs, Laws and Versapaks, in John O"Leary (ed) Drugs Doping in Sport: Socio-Legal Perspectives, (Cavendish, London-Sydney, 2001) p.44 wherein it is stated that a strict liability offence "disables the athlete from providing any exculpatory explanation of the circumstances in which the substance was found in the bodily fluids"
[15] Ibid 2
[16] Korda v ITV Ltd
[17] Salabiaku v France A/141-A (1988) 13 EHRR 379
[18] Starmer; European Human Rights Law at 8.47
[19] Attorney-General of Hong Kong v Lee Kwong-kut (1993) 3 All ER 939
[20] Blackstone (1753-1765) 2 Bl.Com. c.27, margin page 358, ad finem
[21] Ringeisen v Austria (No 1) (1971) 1 EHRR 455, para 95
[22] See the Times, 8th May 2003 "Caborn dismayed by FA"s leniency on drugs" (t)he minister said; "The FA has not lived up to the spirit of the [WADA] code." Caborn will now write to the FA, repeating his threat to withdraw £20 million in public money and tax breaks if it does not follow protocol adopted by other sports bodies
[23] See the Guardian, 10th November 2003, "Interview: Dick Pound" "[Dwain] Chambers was officially suspended by the Internal Association of Athletics Federations on Friday and, though a date for his disciplinary hearing has yet to be set, a minimum two year ban on the British sprinter is inevitable. Pound, one of the most influential members of the International Olympic Committee for two decades, would prefer an even more stringent sentence. Yet he has learnt the value of hard edged pragmatism. "A life ban" he says, "would be a tempting and satisfying conclusion. But the courts of the land would not stand for that judgment"
[24] Fey v Austria (1993) 16 EHRR 387, para 28
[25] Gasser v Stinson and anor ILR 20.6.88
[26] Scott J relied upon Greig v Insole where the rules of the International Cricket Committee were held to be answerable to UK restraint of trade law where they applied to English cricket.
[27] See particularly recently the widespread media coverage that has revolved around the matters involving Rio Ferdinand and Dwain Chambers
[28] Guchez v Belgium (1984) 40 DR 100; notably this was not in relation to a short sporting career
[29] Union Royale Belge des Societes de Football ASBL v Bosman, C-415/93 [1996] 1 CMLR 645
[30] Ibid 12 at p.42; "It is only a matter of time before human rights issues in the context of sports will be brought before the European Court of Human Rights or another international judicial body" see also Flint, Taylor and Lewis; Sport: Law and Practice (London, 2003) E4.1, p.908; "The Regulation of Drug Use in Sport" "adopting a strict liability approach to doping charges, with a tariff of substantial fixed or minimum sanctions, including suspensions from the sport for lengthy periods, without any ability to take into account of the relative culpability of the individual athlete - risks compromising basic fairness and respect for participants" individual rights. The regulators are challenged with resolving these conflicting imperatives in a manner that both respects the interests of the athletes and vindicates the broader public interest in the sport itself. If the regulators fail to get the balance right, their anti doping programmes will be subject to forceful challenge".
Ambi Sithamparanathan and Matthew Himsworth — SPORT AND THE LAW JOURNAL, 2003
|
| |
Back to all articles |
Next article |
|
|
|
|
|
