Drug Testing in Sport: Legal Challenges & Issues

Tony Buti* Lecturer in Law, Murdoch University; JLVI Louis St. John Johnson Memorial Trust Fellow in Aboriginal Legal Issues and Public Policy

Saul Fridrnan* senior Lecturer in Law, The University of Sydney

I. Introduction

It is clear that sport is now a large economic concern. Such is the entertainment and sponsorship value of sport that there are substantial amounts of money surrounding any game with public appeal. It is, thus, stating the obvious that, at least where professional sport is concerned, top athletes in many disciplines may potentially reap substantial financial rewards, whether on or off the athletics track, swimming pool, tennis court, golf course, basketball court, football field and boxing ring.' It follows that any ban or suspension of an athlete's ability to compete on the basis of actual or alleged drug taking has major financial and personal consequences for that athlete. Even athletes who are not in the 'superstar' class of their chosen sport will suffer significant financial hardship if they are banned from competition for testing positive to a prohibited substance? especially if competition is their source of income. Therefore, when athletes' livelihoods are at stake, and where the ability to earn vast amounts of money is jeopardized or permanently damaged by competition bans for drug code contraventions, athletes will naturally 'fight' to have the bans overturned and their livelihoods restored. This will inevitably include legal challenges.

International Amateur Athletic Federation (IAAF) President Primo Nebiolo predicted banned athletes would sue the IAAF for '20 to 30 million dollars a year' after its congress voted to retain a four-year ban for drug violation^.^ Nebiolo's concerns were based on a series of high profile, successful, civil court actions by banned athletes. For example, in

* The authors wish to acknowledge the research assistance of Andrew Berger, BA, LLB and Weeliem Seah and thank the Faculty of Law at the Australian National University for providing the necessary financial assistance. In addition, the authors are grateful to John McMillan, Rick Bigwood and Stephen Richards for their helpful comments. Finally, the authors wish to acknowledge the assistance provided by the Australian Sports Drug Agency and in particular Kerry Knowler BA, LLB in providing access to extremely useful material. All errors and omissions remain the responsibility of the authors.

1 The daily newspapers frequently report enormous sums of money being earned by athletes. For example, United States basketball player Michael Jordan earns an estimated $AUS 53 million a year from the sportswear company Nike to advertise their products: 'Post-retirement Jordan to keep the slam dunks coming' The Australian, 24 June, 1997 at 25. In the Evander Holyfield - Mike Tyson World Boxing Association heavyweight title fight, Holyfield was guaranteed $AUS 47 million and Tyson $AUS 40 million with the fight expected to gross $AUS 175 million: 'Holyfield to throw his weight around' The West Australian, 28 June, 1997 at 118. In the Australian context, it was reported that Australian Football League player James Hird was seeking around $500,000 a season for three years, for a new contract with the Essendon Football Club: Davis M, 'Corcouran's switch to Melbourne stuns Dons' The Werkeizd Australian, 28-29 June, 1997 at 34. In Rugby Union, until recently a 'strictly' amateur football code, it was reported that Australian players could earn a $20,000 bonus each for a one-off test game with Scotland, Jenkins P, 'Wallabies want $20,000 for one-off Murrayfield test' The Weekend Au.stralian, 28-29 June, 1997 at 33.

2 Spanish tennis player, Ignacio Truyol, ranked 123 in the world was suspended for a year, had to forfeit $AUS 39,985 in prize money (almost half of his career earnings) and lost any singles and doubles computer points gained after his positive test for steroids and stimulants, banned substances under the Association of Tennis Professionals drugs code: Stocks G, 'Truyol out for year in ATP's first drug ban' 7he West Austruliaiz, 16 January, 1997 at 66.

3 'Fears of legal mess if drug bans remain' The Wrekeizd A~~straliun, 5-6 August, 1995 at 36.

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May 1997 double world sprint champion Katrin Krabbe was awarded undisclosed damages against the German Athletic Federation after a German court determined her three year suspension for testing positive to a prohibited substance was an unreasonable restraint of trade.4 The Krabbe case followed that of American sprinter Hany 'Butch' Reynolds. Reynolds successfully argued in US District Court that his suspension by the IAAF on account of testing positive for steroid use was wrongfully imposed and he was awarded substantial damages ($ US 27.3 milli~n).~ However, the ruling was later overturned by a higher court.6

Aside from the purely economic interests at stake in these doping cases, there is also the matter of the proper place of morality in sport. In some instances, it appears as though the justification for banning a substance is based on moral concerns, rather than a desire to ensure the 'level playing field.' In the aftermath of a failed attempt to disqualify an athlete who tested positive to marijuana, none other than the President of the International Olympic Commission himself suggested that doping rules should only be concerned with the use of performance enhancing substances. In other words, banning a substance (and presumably testing for its use) should not be justified by a concern for guarding the image of the sport and its participants. At the time of writing, Australia was consumed by a scandal involving representative cricketers and their interaction with bookmakers. Tempted by financial inducement, Shane Warne and Mark Waugh provided information about weather and pitch conditions to bookmakers.' Those defending the embattled cricketers (and, we might add, the Australian Cricket Board, which chose to impose a small fine and keep the matter private) have argued that the information provided was essentially harmless. However, the public debate has raised the question of morality in sport.

As we write this paper, final preparations are being made for a World Conference on Doping in Sport, to be convened by the International Olympic Committee in Lausanne. It is certain that the crucial issues for discussion will include a consideration of the appropriate basis for the banning of substances as well as the harmonization of international practice and procedure.

In this paper, we will set out the legal framework within which alleged doping offences are to be adjudicated. We will examine the major legal challenges likely to be mounted by suspended athletes, focusing on arguments in respect of procedure - natural failure and testing integrity - and of restraint of trade. The latter argument, where the legitimate interests of the sporting body, suspended athlete and the public must be considered before determining whether the penalty is an unreasonable restraint of trade, allows the exploration of ethical and philosophical issues in addition to those legal in nature.

There are many who argue that the sports arena has no room for lawyers. They would argue that sporting organizations are perfectly capable of dealing with their own problems and that the intrusion of the legal community into the world of sport would only further complicate matters, while solving few problems.* To adherents of such a view, we say that sport is, now, worldwide, a substantial and important business, in every sense of the word. Not only does organized sporting activity account for substantial revenues and

4 Note 3. 5 Reytzolds v IAAF, (unreported) case c-2-92-452, United States District Court, Southern District Ohio, Eastern

Division (1992). 6 23 F.3d 11 10, 1994 WL 186594 (6th Cir. 1994), cert. cletzied, 130 L.Ed.2d 338 (1994). See also Note 3. 7 Ray M, 'Cricket's Disgrace' Sytfney Momitzg Herald, 12 December, 1998 at 31. 8 There are many reports of comments in this vein. The most recent outburst along these lines occurred as a result

of the verdict in the Reytzolds case, heard in the United States, against the International Amateur Athletics Federation. The Vice President of the International Olympic Committee, Richard Pound, himself a lawyer, decried the intrusion of jurists, particularly those based in the Untied States, into the field of amateur athletics: 'Reynolds award "worthless" ' Canberra Times, December 6, 1992 at 13. The Reyizol~fs case and its aftermath are discussed further, below.

Drug Testing in Sporf: Legal Challenges & Issues 7 55

provide a significant portion of our population with a livelihood, but it also constitutes an important part of the lives of many. While it may be similarly in vogue to criticize the influence of politics in sport, particularly at the international level, it is equally naive to suggest that this influence can be removed. Unlike the influence of politics, the influence and involvement of the legal process can provide a positive contribution to the development of sport. At the very least it is far too late for anyone to insulate the sporting community from the influence of the law. It is quite simply unrealistic to expect that athletes, who in many cases are dependent on sport for their livelihood, will refrain from making use of the legal process in order to protect their source of income and their reputations. Indeed, we think any suggestion that the law should be excluded from the arena of sports is misguided?

To the extent that the involvement of the law in sports is a result of the transformation of sport into a substantial industry, it is in any event the sporting organizations themselves rather than the legal community which must be held responsible. It seems neither consistent nor fair for the International Olympic Committee (IOC) to complain of the intrusion of the court system of the United States, for example, into amateur sport while at the same time depending on the copyright protection afforded by the law to license its Olympic spectacle for substantial gain. Furthermore, as citizens in a democracy, athletes are no less entitled than any other citizens to the protections of the law as prescribed by relevant authorities.

II. History and background of drug testing in sport 1. International developments The amphetamine-related death of Danish cyclist Knud Jensen during the 1960 Summer Olympic Games in Rome was the catalyst for the introduction of testing for stimulants in cycling events at the following Summer Olympic Games in Tokyo in 1964. The televised death of British cyclist Tommy Simpson during the Tour de France in 1967 led to drug testing for stimulants being expanded to all sports included in the 1968 Summer and Winter Olympic Games. Progressively, each Olympic Games since 1968 has seen the breadth of drug testing expanded.

Presently, the IOC Medical Commission has proscribed a list of over 100 substances for which testing is currently conducted. These fall into broad categories of stimulants (for example, amphetamines, cocaine, caffeine and sympathomimetic amines),1° narcotic analgesics (for example, diamorphine (heroine) and morphine), anabolic steroids (for example, stanazolol and testosterone)," beta-blockers, diuretics, peptide hormones and analogues (for example, human growth hormone and erythropoetin).12 As previously mentioned, blood doping is also banned, as is pharmacological chemical manipulation (i.e. 'masking drugs' such as probenecid). Alcohol and marijuana are not prohibited, but will be tested for at the request of an International Federation. The rationale for this is that these two substances do not have general performance-enhancing effects, except that they

9 Examples of sporting organizations seeking to circumvent the court system are the Court of Arbitration for Sport in Lausanne, set up by the International Olympic Committee to determine disputes relating to sport. And the International Amateur Athletic Federation (IAAF) Arbitration Panel in London, which hears disputes in relation to its drug testing program. In fact, the IAAF has gone on record as being opposed to judicial review of its own arbitral system, citing the potential disruptive effect thereof, particularly in relation to the 'Butch' Reynolds dispute.

10 The threshold level for caffeine is 12 micrograms per millilitre of urine. In all other cases, any trace of the banned stimulant will be considered a positive test.

11 Testosterone is banned only when the ratio of testosterone to epitestosterone is greater than six to one in the urine of the athlete, unless there is evidence that this ratio is due to his or her physiological or pathological make-up.

12 This is a glycoprotein produced naturally by the body which has a similar effect as blood doping. As with blood doping, there is no test currently in use to detect artificial consumption of it.

1 56 Tony Buti

may act as a relaxation agent for sports requiring a high degree of concentration, such as pistol shooting.13

2. Australian developments Before discussing the development of drug testing in Australian domestic sport we will briefly outline the organizational structure of sport in this country. Because of the importance of establishing jurisdiction over an athlete, one must understand how sporting activity is organized in order to appreciate the basis for some legal concerns. A cogent illustration of the importance of jurisdiction is provided by NRL footballer Robbie O'Davis' challenge of a drug ban. Following the player's positive drug test (for erythropoietin or EPO), O'Davis argued that the newly-constituted NRL lacked jurisdiction to impose a sanction as it had not properly bound players to abide by its rules and follow directions of its disciplinary tribunal. Likewise, AFL footballer Andrew Lynch's case illustrates how rules vary between sports. Lynch was unsuccessful in seeking permission from the AFL to use DHEA (a banned anabolic steroid). He argued that it was necessary for him to use the substance in order to combat chronic fatigue syndrome. Had he been subject to the doping policy of the Australian Sports Commission, he may well have been able to establish permitted therapeutic use. However, the AFL rules prohibit the use of anabolic steroids in all cases.14 At the time of writing, efforts were being made to harmonize the doping policies of two key Australian organizations, the Australian Olympic Committee and the Australian Sports Commission (see below). Similar efforts are in process at the international level also, with a World Conference on Doping in Sport scheduled for Lausanne in February 1999. This conference is the culmination of a five- year effort, coordinated by the IOC, to harmonize international rules on doping in sport.

In Australia, a distinction may be drawn between Olympic sports and non-Olympic sports. Olympic sports, and drug testing in respect of athletes of those sports, are regulated under the auspices of the IOC and its affiliated organizations. Non-Olympic sports are organized internationally (with peak sporting bodies such as FIFA), nationally, and locally. The testing for drug offences in Australian sport generally falls within the jurisdiction of the Department of Environment, Sport and Territories, which has set up the Australian Sports Commission (ASC)'~ and the Australian Sports Drug Agency (the Agency or ASDA). Through the Agency, the ASC is responsible for the regulation of drug testing for sports-persons and sporting bodies falling within its jurisdiction.

Drug testing programs in Australia commenced in the early 1980s, with the initial focus being the testing of national representatives and athletes associated with the Australian Institute of Sport (AIS). The testing of all potential Australian Olympic Representatives commenced in 1988 and testing of professional athletes16 began in 1986, when the New

13 To the authors' knowledge, no international federation has yet requested the testing of athletes for either alcohol or marijuana. However, marijuana is tested for by the International Ski Federation and by some sporting organizations in the United States and by the New South Wales Rugby League. See below. An attempt to disqualify gold medal-winning snowboarder, Ross Rebagliati at the 1998 Nagano Winter Olympic Games was unsuccessful as marijuana was not prohibited by the IOC. Indeed, the Drug Formulary guide distributed to athletes participating in the Nagano Games listed marijuana as 'a substance to be used cautiously:' See 'Ross Wows 'Em, Shows his Medal,' The Pmvince, 13 February, 1998 at A62. Given the fact that possession of marijuana is a criminal offence in most countries, the use of marijuana by an athlete raises issues connected with the relevance of moral concerns in cases of drug use.

14 See Davis M, Lyall K & Ramsey A, 'Lynch Cleared but May Quit,' The Au~truliurz, 26 May, 1998 at 20. 15 The ASC was established by the Commonwealth Government in the Austruliun Sports Comnzi.s.sion Act 1989

(Cth) s 5. Its functions include the formulation and implementation of Commonwealth policy in the area of sport as well as acting as the vehicle through which the Commonwealth Government funds those sporting activities it wishes to fund.

16 By which we mean those competing in professional leagues (for example the Australian Football League, National Soccer League or New South Wales Rugby League).

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South Wales Rugby League set up a drug testing program.'7 Currently, virtually all elite- level athletes in Australia, be they AIS Scholarship holders, Commonwealth-funded national representatives, national level competitors or participants in professional sporting leagues or organizations, are at risk of being tested for illegal drug use on a random basis, both in and out of competition at any time.

Each sporting organization in Australia has developed its own drug testing program, but all are greatly influenced by the policies of the ASC and ASDA, which in turn have followed the drug testing protocol of the IOC Medical Commission. The Agency has authority under the Australian Sports Drug Agenc-y Act 1990 (Cth) (ASDA Act) to test athletes who have been selected as national representatives, compete at Australian national sporting events, or receive or make use of Commonwealth funding or faci~ities.'~

Sporting organizations funded or assisted by the ASC or using ASC facilities are obliged to endorse the ASC Doping Policy as their own or establish and agree to enforce a doping policy with provisions consistent with those of the ASC.'~ An integral part of the ASC Doping Policy is that the Agency is to act as the sole official body for the conduct of drug testing in sports in A~s t ra l ia .~~ Although the ASC does not provide financial assistance to the 'professional leagues,' those bodies may be caught within the umbrella of the Agency by virtue of their use of ASC facilities. Additionally, parent organizations of the 'professional leagues' may be in receipt of financial assistance from the ASC and thus the ASC may be able to compel compliance with its doping policy.21 Further, many of the athletes who represent Australia on its national teams are employed in the 'professional leagues.' This is especially the case in soccer and basketball at the Olympic level. Thus, to varying degrees, the professional leagues are under a great deal of pressure to accept and implement drug testing programs compatible with the ASC's doping policy. The Agency has entered into a number of contractual arrangements to be the testing authority for the 'professional leagues.'

3. ASC and Agency policies and procedures The Agency conducts its drug testing in accordance with the ASDA Act and Regulations, which incorporate the IOC Medical Commission's list of banned substances and drug testing protocol. The doping policy of the ASC conforms to that of the Agency, which is the testing agent for the ASC. The Regulations contain detailed provisions regarding the selection of athletes to be tested, the collection, chain of custody and analysis of urine samples and the publication of test results.

If an athlete refuses to comply with a request to provide a urine sample and the Agency concludes that the athlete did not have reasonable cause to so refuse, his or her name will

17 For a discussion of the early developments of drug testing in professional sports in Australia, refer to Drugs in Sport: Secoiul Report of the Seriute Stunding Committee on Enviroiznzent, Recreation urul the Arts, AGPS, Canberra, 1990 at 93-132 (hereinafter referred to as Drugs in Sport Iizquiry, Part 2).

18 ASDA Act ss 2A, 3. At the time of writing, this legislation was under review. ASDA has produced an amendment bill which was expected to be introduced into the Commonwealth Parliament in early 1999.

19 See ASC, Anti- Dopitzg Policy, ASC, Canberra, 1998, cl 2 (hereinafter ASC Doping Policy). The ASC has also developed a model anti-doping policy for national sporting organizations which is consistent with its own policy.

20 If the athlete is to be tested while overseas, the ASC will accept the results of testing conducted by either an agency appointed by the ASDA or any agency, international sporting organization or testing authority that follows the methods of the 10C protocols and utilizes 10C-accredited laboratories, n 19 at cl 11.1 .

21 For example, in 1991 the Australian Rugby League received $219,000 from the ASC. The ASC threatened to remove further grants if the New South Wales Rugby League (NSWRL) ended a contract with the ASDA to test its players, which the NSWRL had suggested it might do in reaction to criticism (by the Chairperson of ASDA, Professor Peter Baume) of the NSWRL policy of including marijuana in its list of banned substances. See 'League Stands to Lose,' Illuwura Mercuty, 28 November, 1991 at 63 and 'League's too Strict,' Brisbune Suit, 4 December, 1991 at 41.

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be placed on the Register of Notifiable Events (the ~ e ~ i s t e r ) ~ ~ along with the names of those who return a positive test.23 However, an athlete may, subject to the Administrative Appeals Tribunal Act 1975 (Cth), make an application to the Administrative Appeals Tribunal (AAT) for a review of the de~ision.'~ If the athlete's application is successful that athlete's name is removed from the Register.2s Where an athlete's name is entered on the Register, or remains so entered following an unsuccessful review by the AAT, the Agency must give written notice of the contents of the entry to the athlete, any relevant sporting organization and, where the athlete is in receipt of Commonwealth support, the A S C . ~ ~

The relevant sporting organization will then conduct a hearing to determine whether a breach of its doping policy has occurred. Sporting organizations are encouraged to adopt the ASC's Doping Policy, which emphasizes informality in such hearings. Despite this emphasis, however, athletes are entitled to examine and cross-examine witnesses and are also entitled to be assisted by a legal representative.27 Where the result of the hearing is a finding that an athlete has committed a doping offence,28 the ASC Doping Policy prescribes a sanction of a minimum suspension of two years for the first breach and a life ban for any subsequent breach.29 Where the athlete is in receipt of Commonwealth funding, that funding will be terminated for the duration of any suspension.

Before discussing common legal challenges in doping cases, we should note that substantial efforts are being made to provide for methods of dispute resolution other than litigation in the civil courts. The most common alternatives are mediation and arbitration. Both of these methods are thought to be preferable to litigation as they avoid the cost and delay of having the matter dealt with in the civil courts. Although still adversarial in nature, arbitration is thought to offer the advantage of more specialised adjudicators, who are often well experienced in the technical details of the dispute in question. Mediation offers the advantage of non-adversarial dispute resolution.

Whether mediation or arbitration applies to an athlete who has been banned by a sporting organization depends on the nature of the relationship between the athlete and that sporting organization. Provisions for alternative dispute resolution are common in agreements between athletes and their teams or between athletes and the sporting federation of which they are a member. In respect of arbitration, there is no overriding arbitral body in Australia. Both national and international sporting organizations (and thus, by implication, their members) may apply by agreement to come under the jurisdiction of the

22 The name of this Register was changed from 'Register of Defaulting Competitors' by the Australiut~ Spom Drug Agency Amendment Act 1992 (Cth) s 8 to remove the perception that any legal sanction attached to the entry of an athlete's name. See Robson J, 'Drug testing by Private Sporting Organizations: A Practical Legal Guide' paper presented to the Australian and New Zealand Sports Law Association Inc. Conference Spon and the k w - Happy Partnership o r Forced Marriage? Sydney, July 1992 at 9.

23 ASDA Act s 1 l(1). 24 ASDA Act s 17V. To date no such application has been made. 25 ASDA Act s 17W( 1). 26 ASDA Act s 17W. The validity of any decision made on the basis of the drug test will not be affected by failure

of the Agency to notify an athlete in writing of the reasons for deciding that a test result is positive, or to inform the athlete concerned that he or she has the option of applying to the AAT for a review of the decision made as required under s 17N(2)(b): s 17N(3).

27 ASC Doping Policy, n 19, cl 5.2(f). 28 The ASC Doping Policy, n 19, contains a fairly complex definition of 'doping offence' in cl 3.1. This definition

refers to the presence of a prohibited substance in an athlete's body tissue or fluids (with exception allowed for therapeutic use or exceptional circumstances) as well as the use of prohibited methods and refusal to provide a sample. The definition extends to those knowingly assisting or being knowingly involved in the commission of a doping offence by another person.

29 ASC Doping Policy, n 19 cl 7.1. Individual sporting organizations sometimes deviate from the ASC Doping Policy, as, for example, is the case with the New South Wales Rugby League, which prescribes a period of suspension of up to 10 games for an initial breach and disqualification of up to 10 years for a second breach.

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Court of Arbitration for Sport (CAS) in Lausanne under Article 5 of the CAS Statute to have disputes settled.

Ill. Legal challenges

1. Procedural concerns It has been in this area that most of the recent challenges to drug testing have been made. The athletes' argument here is likely to be that a test is invalid where the procedures for the collection, security and scientific testing of samples do not conform to those established by law or practice. Problems have also arisen where the tests are conducted overseas and do not conform to Australian standard^.^ The legal challenges that ensue are likely to be protracted and expensive" and harmful to the reputation and acceptance of the Agency and its objectives. Hence, the Agency is concerned with ensuring that its procedures are consistent with international practice and that they are followed throughout A~s t ra l ia .~~

We now turn to examine issues of natural justice and concerns with testing procedures.

a. Natural justice Recent challenges have shown that a failure to adhere to the rules of natural justice will have a substantial effect of undermining any anti-doping policy. Such rules apply to drug testing procedures in Government agencies such as the ASDA because, as the High Court has laid down:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory in ten t i~n .~~

There is some doubt about the applicability of natural justice to private bodies.34 However, there is sufficient judicial and extra-judicial support for the idea that sporting tribunal disciplinary decisions that affect the liberty and financial interests of athletes attract the application of the rules of natural justice.35

Simply put, natural justice is a shorthand way of describing a legal concept consisting of two essential components, namely:

30 See Vitzizicomhe v Au.stralian Sports Drug Agency, (unreported), FCA, NSW District Registry, No. GO065 of 1992 and the mediation decision discussed further below.

3 1 For example, see Brew, Krabbe and Moller v Deutscher Luichtuthletik, IAAF Panel, London, 24 June 1992, where the identification of the competitor giving the sample was challenged. Also, in a case involving American sprinter 'Butch' Reynolds, a dispute over the labeling of the urine samples to be tested led to a US District Court awarding damages in the amount of $AUS 39 million to Reynolds. See 'Record $39 Million Damages to Reynolds, But Who Pays?' The Australian, 5-6 December, 1992 at 30. The IAAF, which was ordered to pay the damages to Reynolds, was ultimately successful in obtaining a reversal of the default judgment entered against it on grounds of lack of jurisdiction: see Reynolds v Irztenwtiotlul Anluteur Athletic Federatiotz, 23 F.3d 11 10, Fed App. 158 (6th Cir, 1994).

32 Section 8 of the Australiatz Sports Drug Agency Act 1990 (Cth), provides: The objects of the establishment of the Agency are: (a) . . . (b) . . . (c) to advocate the international adoption of consistent and effective anti-doping programs; and (d) to co-ordinate the development of a consistent and effective national response to matters relating to drugs in

sport. 33 Kioa v West (1985) 159 CLR 550 at 584 per Mason J (as he then was). 34 See Mclmes v Otzslow - Fane [I9781 1 WLR 1520 at 1535. 35 See Gary v Cunaclian Track and Field Association, (unreported), Supreme Court of Ontario, Toronto Weekly

Court, 18 July 1986, Montgomery J; Quirk v Bord Lurchleas Naheireann, (unreported), High Court of Ireland, 25 March 1988, Burr J; Xuereh v Viola (1989) 18 NSWLR 453 at 496; Kelly GM, Sports Law: An Australian Perspective, LBC, Sydney, 1987 at 73-83; Beloff MJ, 'Pitch, Pool, Rink . . . Court? Judicial Review in the Sporting World' (1989) Spring, Pub L 95 at 101-3; Forbes JRS, The Law of Domestic or Private Tribunals, LBC, Sydney, 1982 at 97-2 12.

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* Audi alteram partern: a person is entitled to know the nature of any accusation made and to have a fair opportunity to state his or her case; and

* Nemo judex in cause sun: no one should judge his own cause. Thus, any tribunal exercising authority to which the rules of natural justice apply must be free from any bias.36

For our purposes, it is essentially the audi alteram partem rule which is the more important, for it has been the more significant focus of procedural challenge.37

From a practical perspective, there are particular procedural pitfalls that can lead to successful legal challenge of a decision rendered by either ASDA or a sporting organization. The most critical issue is the matter of providing the athlete with the opportunity to make a case. The audi alteram partem rule means generally that the affected person has the right to be heard. A recent example of legal challenge based on denial of this right is the much publicized case of Andrew Saxton and Andrew Davies. Both of these men were members of the British Olympic Team who were sent home from the Barcelona Olympics following the return of positive tests to Clenbuterol. Although the responsible British sporting organization has subsequently decided that no further penalty will be imposed, an issue remains as to whether they were denied natural justice. Specifically, did the failure to notify the athletes of the commission of any known offence or the failure to provide them with an opportunity to explain the test result amount to a denial of natural justice?38 It is clear that, at the very least, prior notice that a decision adversely affecting interests is to be made is the minimum content of procedural fairness.39

A more spectacular example is that of Harry 'Butch' Reynolds, the American sprinter, who was subjected to suspension by the International Amateur Athletic Federation on account of testing positive for steroid use. Reynolds successfully argued in the United States District Court that the suspension was wrongfully imposed and was awarded substantial damages. The following was stated by the Court:

It is this court's conclusion that the IAAF hearing was not conducted in good faith, was not conducted by an unbiased decision-maker, was not in accordance with the IAAF's own rules and regulations, did not accord Reynolds a full and fair opportunity to participate and resulted in a decision that was not fair and impartial but rather was arbitrary and capricious."

There are, additionally, other more technical but difficult issues that need to be addressed. Firstly, any decision rendered must be:

. . . based upon some material that tends logically to show the existence of facts consistent with the finding and . . . the reasoning supportive of the finding, if it be disclosed, [must not be] logically self-contradi~tory.~~

36 For more detailed discussion see JRS Forbes, n 35, at 56-61. See also Riclge v Balclwirz [I9641 AC 40. 37 In any event it is not clear whether officials of the relevant sporting organization can sit on a tribunal dealing

with the rights of an affected athlete. It would obviously be more in accord with the rules of natural justice for this situation to be avoided. However, in Kraknuer v Croxji)rd, (unreported), Supreme Court of Victoria, 9 April 1985 the presence of two executive officers of the Victoria Football League (now the Australian Football League) on a disciplinary tribunal did not invalidate the decision. See also Stdlery v The Greyhouncl Rucing Control Board (1972) 128 CLR 509.

38 See Rofe S, 'Recent Developments in Drugs in Sport: Overview of Legal Cases and the Implications to Sport' paper presented to the Australian Institute of Sport, Drugs in Sport Lvgal Chullenges Briefing, Canberra, 26 November 1992. See also Grayson E, 'Drugs, Sport and the Olympics' (1992) 142 N U 1171. Martin Vinnicombe, in his challenge of a positive test result to Stanozolol, also argued that failure to provide him with an opportunity to be heard before the imposition of a penalty amounted to a breach of the rules of natural justice by ASDA, the ASC and the relevant sporting organizations.

39 See Allars M, inrrociuction to Australian Aclministrutive Luw, Buttenvorths, Sydney, 1990 and also Lloyd v Marine Coimcil ( 1987) 14 ALD 52 1.

40 Reynolds v IAAF, (unreported) case c-2-92-452, United States District Court, Southern District Ohio, Eastern Division ( 1992).

41 Mahorz v Air New Zealund [I9841 AC 808 at 82 1.

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In other words, the finding and any resulting decision must follow the evidence. As far as the evidence itself is concerned, disciplinary tribunals are not generally

required to apply the rules of evidence as strictly as trial courts.42 However, in light of the legal challenges that have already been made or threatened, it may be advisable for sporting organizations to comply as closely as possible to the strict rules of evidence developed for court proceedings.43

Another concern is whether the athlete involved has the right to counsel at any stage of the proceedings. It is by no means clear that denying an athlete legal representation at the proceedings of a sporting organization amounts to a denial of natural j ~ s t i c e .~ ' In fact, in one interesting development, Lord Denning, speaking for the English Court of Appeal, was of the view that there was a right to legal representation where a sporting tribunal was deciding a matter of serious importance to the participant in terms of his reputation and l ivel iho~d.~~ However, the relevant sporting organization in that case had no provision in its rules respecting the right to counsel. In a later case, the same judge upheld a Football Association rule prohibiting legal representation before its tribunal.46 Administrators must therefore be wary of failing to make provision for the right to counsel.

The recent amendments to the ASDA were to some extent informed by the need to pay heed to the rules of natural justice. Section 17K of the amended ASDA Act requires the Agency to notify an athlete of an initial positive test and of his or her rights in respect of a final test. Under s 17L(2), if the final test returns a positive result, the Agency is required to provide the competitor with an opportunity to present any information or evidence to invalidate the result. Section 17M(4) lists the bases on which ASDA may invalidate the test result. Section 17N obliges ASDA to provide the athlete with written reasons for deciding that a test result is valid. As if to underline the importance of adherence to the rules of natural justice, s17N(2)(b) provides that, included with the reasons aforementioned, ASDA must inform the athlete that application may be made to the Administrative Appeals Tribunal for review of the decision. These provisions in essence provide for a regime where an athlete is notified of his or her status in respect of an initial positive test, allowed representation and the right to be heard, and where notice of rights in respect of appeal are given. These are essential provisions for the key precepts of procedural fairness and natural justice. It is submitted that the ASDA procedures provide an adequate model for sporting organizations who wish to develop their own procedures in accordance with the requirements of natural justice and procedural fairness specifically and administrative law generally.

b. Testing procedures An initial observation here is that it is essential that administrators carefully observe the details of their sports' doping policies. Furthermore, attention needs to be paid to the

42 Brigirzshaw v Briginshaw (1938) 60 CLR 336 at 361-2 per Dixon J; RedfiYk v McElroy (1965) 112 CLR 517; Hardcastle v Commissioner of Police (1986) 53 ALR 593.

43 These rules would include the exclusion of hearsay, opinion evidence, evidence as to the character of witness and similar fact evidence. For a general text which explores these and other rules with greater detail, see Byrne D & Heydon .ID, Cross on Evidence, 4th Australian ed, Butterworths, Sydney, 1991.

44 See Beloff MJ, n 35, at 102-3. 45 See Pett v Greyhound Racing Association k d [I9693 1 QB 125. 46 See Enderby Towrz Football Club v Football Association Ltd., [I9711 1 Ch. 591. 47 Australian Sports Dmg Agency Amerdment Act 1996 (Cth).

7 62 Tony Buti

importance of establishing uniform procedures. The ~eynolds?* ~ r a b b e ~ ~ and Capobiancoso cases indicate that uniform testing procedures should be established to secure fairness, consistency and test integrity. Failure to establish such procedures allows serious legal questions to be raised against the validity of positive drug tests. An instructive illustration of the problems that arise from this sort of failure is the case of Martin Vinnicombe.

Vinnicombe was tested by the Canadian Anti-Doping Authority whilst competing overseas. He returned a positive result to Stanozolol. As a result, ASDA entered Vinnicombe's name on the Register of Defaulting Competitors and the relevant sporting organizations imposed a penalty of two years' suspension. Vinnicombe subsequently instituted proceedings against ASDA, the ASC, the Australian Professional Cycling Council (APCC) and the Australian Cycling Federation (ACF) challenging the validity of the test results and the penalty that followed. The parties, with the exception of ASDA, eventually agreed to submit certain questions to a referee. The referee's conclusions on the questions enabled the parties (with the exception of ASDA) to settle the dispute.

Although, subsequent to the testing, Vinnicombe admitted to having taken Stanozolol, the referee, Mr R Ellicott, QC, determined that this admission could not be the basis for entering his name on the Register of Defaulting Competitors and the subsequent imposition of the suspension by the sporting organizations. Mr Ellicott then, having accepted Vinnicombe's evidence as to the manner in which the testing was conducted as the only available evidence, concluded that the procedures used by the Canadian Anti-Doping Authority (CADO), despite conforming with Canadian Doping Control Standard Operating Procedures and international protocol, did not conform to the requirements of the ASDA Act and the ASDA Regulations. The referee concluded that the failure to comply with the statutory requirements was material. He listed nine material breaches of the ASDA Act and the ASDA Regulations. These included such matters as failure to inform Vinnicombe of his entitlement to have a representative present, failure to ask Vinnicombe to accompany the CADO officers to a drug control facility, and failure to obtain the signature of a chaperone on the Drug testing Form. In fact no Drug testing Form was even provided. These failings relate to critical matters, such as the chain of custody of the sample and the provision of proper information to Vinnicombe. As a consequence, it then followed that Vinnicombe could not be taken to have returned a positive test result within the meaning of the ASDA Act.51

The implications of this finding are substantial for drug testing in sport. As noted above, the result of the determination in the case of 'Butch' Reynolds was the award of substantial

48 Reynolds v IAAF, (unreported) case c-2-92-452, United States District Court, Southern District Ohio, Eastern Division (1 992).

49 German sprinter Katrin Krabbe's suspension for steroid use was ultimately overturned on the basis that Krabbe had been tested while training in South Africa by South African authorities. Krabbe's suspension was imposed by the German Athletics Association. Final appeal by Krabbe to the IAAF Arbitration Panel was successful on the basis that there was no provision in the rules of the relevant sporting organization for either out-of-competition testing or collection of samples by another anti-doping authority. Accordingly, the Gemlan Athletics Association had no basis for either authorizing the tests or suspending the athlete. See 'Krabbe ban cut, can run in titles' West Austruliun 31 March, 1993 at 1 17.

50 Australian sprinter Dean Capobianco was initially successful in overturning a suspension for steroid use on the argument that deficiencies in the control of the sample led to some doubt as to its integrity. Accordingly, at a hearing conducted under the rules of Athletics Australia, Capobianco's suspension was overturned: Athletics Australia Doping Control Tribunal, Reasons of R Ellicott, QC, 17 July 1996. This decision was later overturned by the lAAF Council on 17 March, 1997. British sprinter Dianne Modahl successfully overturned her suspension on similar grounds of doubts as to the integrity of her sample resulting from gaps in the chain of custody. Her story is told in some detail in Modahl D, The Diat~rze Moclahl Story: Going the Disturzce, Hodder & Stoughton, London, 1995.

51 This finding led to a settlement of the dispute between Vinnicornbe, APCC, ACF and ASC with Vinnicombe being allowed to compete without suspension as a professional cyclist.

Drug Testing in Sporf: Legal Challenges & Issues 163

damages against the IAAF, the authority under whose aegis the testing was conducted. We would be remiss if we did not also mention the possibility of actions in defamation being commenced in similar situations. While it seems generally acceptable to promote the goal of a drug-free environment in sports, care must be taken to ensure that the means of eliminating drugs in sport are consistent with the norms of a free and democratic society.52 The following extract from the referee's decision in the Vinnicombe case makes the point quite eloquently:

. . . the fact that Vinnicombe took the drug Stanozolol must not be allowed to cloud the issue so far as the role of ASDA is concerned. The ASDA Act, itself, prevents the finding of a positive test result, even if a competitor has taken drugs, if the appropriate procedures are not followed. The strict procedures are there to protect the competitor, the organisations, the government and sport generally. They have been worked out no doubt after considerable consultation to protect competitors and to prevent fraudulent practices. The procedures are strict but not difficult to follow for those involved in sport. If they are not followed the competitor who has, in fact, taken drugs may go free.53

The foregoing comment is of course premised on the view that public policy justities testing athletes for drug use. The importance of the procedural safeguards is magnified once one accepts that there may be less than unanimous acceptance of underlying policy.

The proof of security of the chain of custody of urine samples from the athlete providing the sample to the testing laboratory, has lead to legal challenges as to the validity of the drug testing. Athletes have argued that the security of the urine samples has not been maintained. The most recent highly publicized Australian athlete challenging the chain of custody procedure is Olympic sprinter Dean Capobianco, who was suspended for four years after the IAAF found him guilty of a doping offence. The IAAF's arbitration panel overturned a decision by Athletics Australia (AA) to allow Capobianco to compete because of flaws in the chain of custody of a urine sample taken from the sprinter. The IAAF was appealing a finding by the AA arbitrator, Robert Ellicott QC, that there was reasonable doubt that the positive sample (for the steroid Stanozolol) was Capobianco's. Capobianco disputed that the samples which tested positive could be proven to have come from him, alleging gaps in the chain of custody between the time the samples were taken and the time they were tested. Although Mr Ellicott ruled in Capobianco's favour on the basis of this argument, his decision was reversed by the IAAF Council. There were no written reasons for the appeal decision.54

The Vinnicombe and Capobianco cases illustrate that, not only is it important that testing procedures be followed, but it is essential that agreement be reached on standardized procedures at the national and international level. Amendments to the ASDA Act were made after the Vinnicombe incident in an attempt to overcome the problems caused by the need to test athletes overseas by providing for overseas testing of Australian athletes by 'approved' foreign anti-doping agencies.s5 It remains to be seen whether this provision will eliminate the problem evidenced in the Vinnicombe case.56

52 See Gaspar T, 'Vinnicombe - Back on the Road' (1992) 2 ANZSLA Newsletter 7. 53 Vintlicombe v ASDA, (unreported), FCA, NSW District Registry, No GO065 of 1992, Referee's Decision

(unreported), at 13. 54 Henning C, 'Evidence against Capo withdrawn' Sydney Monlirzg Herald, 17 March, 1997 at 31; 'Capobianco

cops three-year ban for steroid use' Carzberra Tirnes, 18 March, 1997 at 22; 'Capo guilty: IAAF panel' The Australian, 18 March, 1997 at 20; Henning C, 'Capobianco banned until 2000 over drugs' The Age, 18 March, 1997 at B10.

55 ASDA Act ss 66, 66D. 56 Given that the litigation between Vinnicombe and ASDA is still on foot, it also remains to be seen what effect

the amendments will have on that dispute. See De Pencier J, 'Australian Legal Challenge to Multilateral Agreement for Doping Control' (1992) 3 For The Record: The Oficial Newsletter qj' the National Sports Law irzstirute 6.

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2. Unreasonable restraint of trade a. Introduction Given the substantial rewards that attend successful competition at the international or even national level, it is not surprising to find that attempts to impose serious penalties for drug use have been challenged. To date, the most effective sanction applied against defaulting athletes has been suspension. The imposition of a suspension against an athlete invokes the response that it constitutes a restraint of trade. As Scott J stated in Gasser v Stinson and Holt:

. . . in a sport which allows competitors to exploit their ability in the sport for i-inancial 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.57

Just recently, the British shot putter Paul Edwards has gone to the High Court in London, arguing his four years, suspension is an unreasonable restraint of trade.58 In the 1988 Gasser v Stinson and Holt case,5"he same court judged that a two year suspension from competition for testing positive to drug use was reasonable in the circumstances. The basis of the decision was that the penalty was held to be reasonable in view of the interest of the IAAF in deterring athletes from taking performance-enhancing drugs and ensuring a drug-free sport.

The argument that a sanction imposed constitutes an unreasonable restraint of trade has been made in two Australian cases.60 Both of these cases concerned athletes who tested positive for banned drugs. In the case of cyclists Stephen Pate and Carey Hall, both athletes tested positive to an anabolic steroid following success in the 1991 World Championships. They were stripped of their medals and were subjected to the penalty of a fine and deferred suspension by the international cycling body, the Union Cyclists Internationale (UCI). In addition, the Australian Professional Cycling Council (APCC) imposed a two-year ban on the athletes which prevented them from competing in any professional cycling event in Australia. This had the effect of precluding the cyclists from competing in World Championships for the duration of the ban, because in order to qualify they would need to have competed at the Australian Championships at which the national team was to be chosen. Pate and Hall challenged the ban imposed by the APCC on the basis that it constituted an unreasonable restraint of trade. They explained that if they lost the opportunity to win medals at the World Championships they would miss out on opportunities to compete in Europe and Japan and also miss substantial sponsorship opportunities. They estimated that the ban could cost them as much as $AUS 200,000 per year.61 Even this substantial amount pales when compared to the $US 6.8 million awarded to 'Butch' Reynolds on account of lost earnings during the period he was banned from competing by the IAAF. The stakes here are enormous, commensurate with the increasing evidence of the magnitude of the sports industry.

The argument of Pate and Hall centered on the fact that the international body had imposed a penalty less severe than that imposed by the APCC. Their general proposition was that it would be unreasonable for a national sporting organization to impose a greater

57 (Unreported), High Court of Justice, Chancery Division, No. CH-88-G2191 of 1988, 15 June 1988, Scott J at 37. 58 'Drugs ban restraint of trade' The Weekeiul Australian, 21-22 June, 1997 at 25. 59 (Unreported), High Court of Justice, Chancery Division, No. CH-88-G2191, 15 June 1988, Scott J. There has

been a subsequent review of doping rules by an English Court where restraint of trade was argued. In Wilunder v Tohirz, The Times, 8 April 1996 (CA, 26 March 1996) an argument that rules of the International Tennis Federation were an unreasonable restraint of trade as they imposed strict liability and lacked adequate safeguards concerning chain of custody was unsuccessful.

60 Vinnicombe considered bringing civil action on the basis of restraint of trade, but did not proceed. 61 See Gaspar T, 'Pate and Hall Set the Pace' (1992) 2 ANZiA Newsletter 9.

Drug Testing in Sport: Legal Challenges & Issues 7 65

penalty than its international counterpart. The challenge instituted by Pate and Hall was eventually resolved by means of an out of court settlement.

Unfortunately for the limited legal budget of the APCC, yet another cyclist who tested positive for steroid use launched a legal challenge to the penalty imposed against him. Bill Robertson tested positive for Nandorlone on December 26, 1991 and was disqualified from holding an APCC license for two years. After exhausting his rights of appeal within the sporting organization, Robertson commenced proceedings claiming his disqualification was void as it constituted an unreasonable restraint of trade.62 Robertson's challenge was successful. There could be no doubt that a two-year suspension constituted a restraint of trade as it prevented Robertson from earning income as a professional cyclist. The APCC was thus bound to show that the restraint was reasonable in that it afforded 'no more than adequate protection to the interests of the [APCC] and of the professional cycling industries in Australia'. As the APCC did not defend the case (having already presumably exhausted its budget for legal advice and assistance) it was not surprising that the Court found that the penalty was unreasonable was that it was in excess of that provided for in the rules of the relevant international organization. It is interesting to speculate what the outcome of this case might have been had the APCC chosen to defend it. One argument that might have been made is that the APCC had an interest in continuing to receive assistance from the ASC. Any sporting organization which is in breach of the ASC's Doping Policy will be denied financial or other assistance by the A S C . ~ ~

We will now turn to examining the restraint of trade doctrine in more detail. Firstly, the relevant legal principles concerning the restraint of trade doctrine will be explored. Secondly, the issues that are likely to be raised in any restraint of trade challenge to a suspension for a doping offence will be examined.

b. Relevant restraint of trade principles The general approach of Courts since Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co. Lt# has been that contracts to restrain a person's liberty of action in carrying on his or her trade, business, occupation or profession and all restraints of trade of themselves are contrary to public policy and therefore void, unless restraint is (i) reasonably necessary to protect the interests of the person in whose favour it is imposed; (ii) not unreasonable as regards the person restrained; and (iii) not unreasonably injurious to the public. To this end, the determination of whether a sporting ban is an unreasonable restraint of trade, and therefore void, will depend upon the weighing up of several competing public interests: first, the legitimate public interest in the freedom of the sportsperson to compete in their chosen sport (i.e. individual liberty to compete in one's chosen trade); secondly, the public interest in those benefits to the particular community of sports-persons represented by the sporting body which are sought to be protected by the sporting ban; and thirdly, the legitimate public interest of the community generally in banning 'drug cheats.' We shall outline the relevant common law principles relating to the

62 Robertson also argued that the APCC had imposed a penalty that was too severe as it was in excess of the penalty which would have applied under the rules of the Fkdkration Internationale du Cyclisme Professionel (FICP) and the Union des Cyclists Internationale (UCI). The basis for this argument was that the APCC was a member of FICP, which in turn is a member of the UCI. The UCI rules would have provided for a sanction in the form of a fine and a deferred three-month suspension for a first offence. Waddell CJ held that these rules only applied to international events or to foreign riders competing in domestic events. As Robertson was a domestic rider competing in a domestic event, the UCI rules were held not to apply and therefore the APCC was free to impose its own sanction, which, in turn, was based on the ASC's Doping Policy, which it had adopted. See Roberston v Australian Professional Cycling Council, (unreported), Supreme Court of New South Wales, 10 September 1992, Waddell CJ.

63 Australian Sports Commission, Revised Doping Policy, ASC Canberra, September 1992, s 6.3. 64 [I8941 AC 535 at 565.

7 66 Tony Buti

examination of such legitimate public interests before considering each of the three legitimate interests.

The categories of restraint are not c10sed.~%e doctrine of the common law that invalidates restraints of trade is not limited to contractual provisions, and the rules as to restraint of trade apply to all restraints, however imposed, and whether voluntary or invol~ntary.~~ Restraints imposed by the rules or practices of professional or other bodies controlling particular activities fall within the d~ctrine.~' Restraints may also result from agreements between employers with a view to united action in relation to those whom they employ where each agrees not to employ persons previously employed by the other.68

Another principle is that the restraint of trade cases concerning sports-persons treat as irrelevant, for the purposes of the doctrine, that the sports-person is playing the sport only on a part-time basis and is engaged in another occupation for reward.69

Contracts in restraint of trade are prima facie void and the onus of proof is on the party supporting the contract to show that the restraint goes no further than is reasonably necessary to protect the interest of the c~venantee .~~ Further, as Adamson v New South Wales Rugby League Ltd (League's DraJ Appeal case) illustrated, the covenantee may need to prove that there does not exist any less restrictive alternati~e.~' If this onus is discharged, the onus of showing that the restraint is nevertheless injurious to the public is on the party attacking the ~ontract?~ The distinction is probably of little practical significance and will seldom arise 'since once the agreement is before the court it is open to the scrutiny of the court in all its surrounding circumstances as a question of law.'73 The Court must decide, as a matter of law, whether in the circumstances the restraint of trade is rea~onable.~~

The time at which a covenant is to be assessed for reasonableness, both as between the parties and in the public interest, is at the time it was entered into.75 Accordingly, evidence as to the mode in which the agreement has been carried out or what the parties intend to do are not relevant to its construction; rather, the crucial factor is what the restraint entitles or requires the parties to do.76 Thus, in a restraint of trade challenge to disciplinary rules, the Court's jurisdiction can be invoked on the basis of the threat to someone's ability to trade; actual disciplinary action is not needed.77 It should be added that evidence on what

Greig DW & Davis JLR, The Law of Contract, LBC, Sydney, 1987 at 1100; Seddon NC & Ellinghaus MP, Cheshire arul Fifi,ot'.s Law of Contract, 7th ed, Butterworths, Sydney, 1997 at 692. Buckley v Tiltty (1971) 125 CLR 353 at 375. Eastham v Newcu.stle Urzired Football Club Limited [I9641 Ch 413; N q l e v Feilden [I9661 2 QB 633; Pharmaceutical Sociefy of Greut Britain v Dicksorz [ I 9701 AC 403; Greig v insole 119781 3 All ER 449; Arlamson 1) New South Wales Rugby League Ltd. (1991) 103 ALR 319. Kores Murzujucturing Cornputly Limited v Kolok Manufacturi~zg Conzpurzy Linrited [I9591 Ch 108. Buckley v Tutty (1971) 125 CLR 353 at 364; Hughes v Western Austrulia Crrcket Association inc (1986) 69 ALR 660. Masorz v Proviclerzt Clothitzg and Supply Cornparzy Limited [I9131 AC 724 at 733; Herbert Morris Limited v Suxelby [I9161 1 AC 688 at 700, 707; Attn~ood v Larnorzt [I9201 3 KB 571 at 587. (1991) 103 ALR 319 at 348-50 per Wilcox J. Herbert Morris Limited v Saxelby [I9161 1 AC 688 at 700, 708. Esso Petroleum Comparzy Limited v Huper 's Garage (Stourporf) Lrd. [I 9681 AC 269 at 319. Li~lrzer v Murdock's Garage (1950) 83 CLR 628 at 645. Note 74 at 653; Amoco Austrulia Pry Limited v Rocca Bros Motor Engirzeering Company Pty Limitecl(1973) 133 CLR 288 at 3 18; Bridge Deacon.\ [1984] AC 705 at 7 18. Perfs v SmlfeM [I8921 2 Ch 149 at 151, 153; Ru.ssell v Anullgumatrd Society of Carperzters atul Joirzers [1910] 1 KB 506 at 522; and Wat.sotz v Prager [I9911 3 All ER 487 at 507-8. Greig DW & Davis JLR, n 65, at 204.

Drug Testing in Sport: Legal Challenges & Issues 167

the covenantee or other persons think is reasonably necessary is not relevant to the validity of the ~ovenant?~ nor are subsequent events.79

In deciding on the reasonableness of a restraint, the length of the period of restraint is an important considerati~n.~~ When the restraint stems from disciplinary measures, the Courts appear concerned to deny excessive or draconian penalties as valid restraints of trade.81 Any penalty which would effectively end an athlete's career, or rules which are imposed retrospectively, have been viewed negatively by the Courts.82 Concern has also been directed at rules which are rigid and provide for arbitrary exercise of control over players.83 Furthermore, rules which allow a player a right to be heard or a right of appeal may not satisfy the Courts. The relevant appeals committees may not necessarily make decisions which a Court would find acceptable in determining whether the restraint was rea~onable.~" In any case, the Court cannot review the merits of the case except in an extreme situation of unreasonablene~s.~~

In deciding whether a restraint is unreasonable, the enquiry into the effects on the covenantor or even third parties is not restricted to economic effects. Non-economic effects, such as effects on personal lives, should be discu~sed.~~ In the League's Draft Appeal case, Wilcox J considered the effect of the restrictive covenant on personal autonomy. He stated that:

[Tlhe internal draft is contrary to the common law principle that people are entitled to practise their trade as and where they wish, exercising and developing their skills as they see best and making their own decisions as to their employment and lifestyle. Instead, the draft imposes upon a player a regime which limits his freedom to select his employer, his coach and his team mates. . . . The more fundamental question is, how, in a free society, can anyone justify a regime which requires a player to submit such intensely personal decisions to determination by others?s7

Thus the effect of a drug-testing program on the civil liberties of an athlete need to be considered.

The Court must consider whether the restraint acts against the public intere~t.'~ The factor of public interest, and thus notions of public policy, has received less attention by the Courts, as it is intimately connected with the determination of what is reasonable between the parties. However, the Courts in the sport cases have emphasized various considerations of public interest or policy in assessing player restraints. In Bucklev v Tutty, the High Court explained that the law treats unreasonable restraints as unenforceable:

[Blecause it is contrary to the public welfare that a man should unreasonably be prevented from earning his living in whatever lawful way he chooses and that the public should unreasonably be deprived of the services of a man prepared to engage in empl~yrnent.~"

Hayrzes v Doman [I8991 2 Ch 13 at 24; Sir WC krzg and Co. Limited v Andrews [I9091 1 Ch 763 at 772; Easthum v Newcastle Ur~ited Football Club Ltd [I9641 Ch 413 at 438; League's Draji Appeal case (1991) 103 ALR 319 at 356; Halsbury's Laws of England, vol. 47, Whish R, TEST TO BE APPLIED [26]. Townserul v Jarrnan [I9001 2 Ch 698 at 703; Dowden arzd Pook Limited v Pook [I9041 1 KB 45 at 55. Halsbury's Laws of England, vol. 47, Whish R, RESTRAINT AS TO TIME IN GENERAL [35] and cases cited therein. Greig v Iizsole [I9781 3 All ER 449 at 502-3; Hughes v Western Australia Cricket Association Inc 69 ALR 660 at 703. Greig v Insole, n 81 at 504; Hughes v Westenz Australia Cricket Associatiorz lac, n 81 at 703. Also see Owen- Conway S & L, 'Sports and Restraint of Trade' (1989) 5 Aust Bur Rev 208 at 223. Hall v VFL and Clarke [I9821 VR 64; Foschini v VFL und South Melbourne Club Ltd., (unreported), Supreme Court of Victoria, No. 968 of 1982, 15 March 1983. Buckley v Tutty (1971) 125 CLR 353 at 379; Foschiizi I) VFL and South Melbourne Club Ltd., n 83 at 21. kague's Draji Appeal case (1991) 103 ALR 319 at 353-4 per Wilcox J . Leugue's Draji Appeal case, n 85 at 341 per Wilcox J; cf. at 323 per Sheppard J. kague's Drajt Appeal case, n 85 at 355. Beetson v Humphries, (unreported), Supreme Court of NSW, No. 10950 of 1980, 30 May 1980. Buckley v Tutty (1971) 125 CLR 353 at 380.

Tony Buti

In Greig v In~ole,"~ public interest factors weighed most strongly with Slade J in his consideration of the Test and County Cricket Board's proposed competition ban on players who had signed to play in cricket competitions organized by a private promoter. These factors included the likelihood that the bans would effectively end the careers of two of the cricketers concerned and that, if talented players were driven out of first class cricket, temporarily or permanently, the cricket going public would be deprived of a great deal of pleasure. These cases support the conclusion by Owen-Conway and Owen-conway9' that, 'the public interest in being able to observe talented players is of major importance.'

c. Drug testing for athletes - the restraint of trade argument further explored One of the relevant factors to which reference must be made in the determination of whether a sporting ban can properly be considered as an unreasonable restraint of trade is the legitimate public interest in the freedom of individual athletes. This necessarily raises the question of whether the consequences of a sporting ban are offensive to notions of civil liberty. Such considerations must then be considered within the context of the legitimate public interests being protected by sporting bans. These public interests are those in respect of sporting bodies and of the public or community generally.

( i ) Implications of a drug testing regime for civil liberties Generally Although citizens of Australia are not currently afforded protection of their civil liberties by means of a constitutionally entrenched Bill of Rights, the common law has a long tradition of concern for the protection of civil liberties, rooted in the philosophies of liberalism and individualism which underpin our political system." Included in the notions of individualism and liberalism is the principle of individual autonomy: that individuals should be allowed to determine their own course of action in accordance with their own morality and preference. This underlying respect for individual autonomy is closely linked to the right of privacy: the right to be free from, amongst other things, bodily intrusion or unwanted access by others to personal information and attentioneg3

Even though the law does not recognize any general right of privacy in A~s t r a l i a ,~~ Kirby P, in Carrol v Mijovi~h?~ stated that our common law has 'vigilantly defended the privacy of the individual.' Furthermore, privacy protection is recognized under Article 17

90 Greig v bzsole [I9781 3 All ER 449 at 503. 91 Owen-Conway S & L, n 82 at 223. 92 See Gaze B & Jones M, Law, Liberty arzcl A~i,stralia~z Democracy, LBC, Sydney, 1991 at 3-7, 26-7. In recent

cases such as Au.straliarz Capital Televisiorz Pty Ltd. arzcl Ors v Cornmotzwealth (No 2) (1992) 177 CLR 106, Nutiorzwirle News Pty Lrd. v Wills (1 992) 177 CLR 1, Theophrzous v Herall & Weekly Times Ltd. (1 994) 1 24 ALR 1 and Stepherzs v WA Newspapers Ltd. (1994) 124 ALR 80 there is demonstrably a growing willingness by the High Court of Australia to protect individual freedoms by means of implying certain guarantees of rights into the Constitution. It is, however, unclear at this stage, to what extent this trend will translate into the protection of individual rights and freedoms. The cases that have been decided to date suggest that these implications will only be made on the basis of the rights concerned being fundamental to the existence of representative democracy. The recent High Court decision in McGirzty arzd Ors v State of Western Au.stmlia, (unreported), HC of A, FC 961001, 20 February 1996 would indicate that the High Court may now be taking a narrower approach to the implication of unspecified 'rights' in the constitution.

93 This much was recognized by the High Court in Cocv I* R (1994) 120 ALR 415 in the context of a challenge to the admissibility of wiretap evidence. The High Court judgments all contain language expressing the view that there needs to be clear and unambiguous statutory language to justify interference with a fundamental right or freedom. Although the High Court did not need to articulate a general right of privacy it is clear that the various judgments contain, both explicitly and implicitly, recognition of the fundamental importance of individual privacy. In this case, the individual's common law right to be free from trespass was secured by judicial insistence on clear statutory language authorizing the entry by police officers onto his premises for the purpose of installing a listening device. See also Lo B, 'Ethical Issues in Drug testing' in Coombs RH & West LJ (eds) Drug Testing: Issues arzd Options, Oxford University Press, New York, 199 1 at 190.

94 See Victoria Park Racing Co. v Taylor (1937) 58 CLR 479. 95 (199 1) 25 NSWLR 44 1 at 446.

Drug Testing in Sport: Legal Challenges & Issues 7 69

of the International Covenant of Civil and Political Rights (the Covenant), to which Australia is a party, but has given only limited effect in the form of the Privacy Act 1988 (Cth). The Covenant was ratified by Australia on 12 August 1980. The Commonwealth declared that Article 17 reserved the right to compromise the privacy rights of individuals 'in the interests of national security, public safety, the economic well-being of the country, the protection of public health or morals, or the protection of the rights and freedoms of others.'96 The Information Privacy Principles contained in the Privacy Act 1988 (Cth) s 14 reflect the recommendations of the Australian Law Reform Commission's report on privacy, published in 1983, which in turn were drawn primarily from guidelines emanating from the Organization for Economic Co-operation and Development. The Information Privacy Principles of the Privacy Act will apply to the ASC and ASDA (as they are both agencies created by the Commonwealth government), but not to any other sporting organizations administering sport in Australia.

The various drug testing programs in Australia, and for that matter overseas, can be regarded as an infringement of individual autonomy because they violate the privacy of the athlete being subjected to testing. Such persons are required to urinate in the presence of the designated drug officer. As, in our society, the act of urination has traditionally been regarded as private, its observation by another, especially under the dictate of law or policy, must be regarded, prima facie, as an invasion of privacy.97

Therefore, the frrst privacy concern relevant to mandatory drug testing is that it requires the subject to urinate in front of a designated person. In a Canadian case dealing with a challenge to the mandatory drug testing of prison inmates, Galipeau J of the Quebec Superior Court, held that the program in question deprived inmates of their constitutional rights to both liberty and security of the person.98 Although this case involved a challenge under the Canadian Charter of Rights and Freedoms (the Charter),g9 the Court's observations concerning the provision of a urine sample are worth quoting:

The word 'liberty' encompasses . . . the right not to be subject to an obligation to provide a urine sample to whomever it is that wants to detect [drugs]. . . .loo

To require that the inmate provide a sample of his urine causes him humiliation and constitutes an intrusion into the security, the tranquillity and the intimacy of his person.'"

In the Dion case the Court was of the view that the mandatory testing could be justified if it was based on reasonable and probable grounds. The fact that testing was not so based enabled the Court to distinguish it, for the purpose of the challenge under the Charter, from the breathalyser provisions of the Canadian Criminal Code.

Ultimately, in Canada, such questions generally fall to be resolved on the basis of whether the limitation on the rights of the subject is reasonable.lo2 There is a voluminous body of Canadian jurisprudence on this question, a review of which is neither directly relevant, nor possible within the constraints of this article. For present purposes, suffice to say that any defence of mandatory drug testing may ultimately depend on some balancing of the legitimate need to reduce risks consequent to drug use with the intrusion into individual liberty caused by the procedure. While roadside breathalyser testing, for example, can be justified on the basis that impaired drivers present a significant risk to public safety, mandatory testing of athletes for performance enhancing drugs must surely

96 International Coveimrzt on Civil and Politicul Rights 1966, Australian Treaty Series, 1980, No. 23, annex. 97 Kaplan E & Williams LC, 'Will Employees' Rights be the First Casualty of the War on Drugs' (1988) 36 U

Kun LR 755 at 76 1 . 98 Re Dioil and the Queen (1986) 30 CCC (3d) 108. 99 Part 1 of the Constitutio~z Act 1982, being Schedule B of the C u d a Act 1982, cl 1 1 (the Charter). 100 Re Dion and the Queeit (1986) 30 CCC (3d) 108 at 115. 101 Note 100 at 117. 102 This is so because of the terms of s 1 of the Charter.

7 70 Tony Bufi

be different. Not only is the risk to public safety minimal in the case of the doped athlete, the intrusion in the case of a supervised urine test is far greater than is the case with breath analysis. It may well be arguable that, in the case of mandatory testing of athletes, the detriment caused by such testing is greater than the harm it is designed to eradicate.

In any event, in Australia, these questions fall to be resolved by Parliament. It may well be the case that, on consideration, Australian legislators regard it as a reasonable intrusion into the individual's 'right' to privacy to require athletes to submit to mandatory drug testing by urine sample. However, given the serious concerns we have raised relating to the justitications advanced for such testing, it is our view that this is a matter requiring much further consideration. At the very least, the athlete's concerns for his or her liberty and privacy cannot simply be dismissed. In addition to the problem presented by the testing procedure, there is the question of the potential use of any information collected during the testing process. It is possible that the urine analysis of the athlete's urine sample may reveal personal medical information that normally would be protected by the confidentiality of the doctor-patient relati~nship.'~~ Ordinarily, it is for the patient to decide to whom access to such information is to be given. Thus, the intrusion of an agency empowered to collect such information must be viewed as a potential threat to its confidentiality and thus the very privacy of the individual that is defended by law.

In addition, the potential for abuse of the individual's right to control access to personal medical information is threatened by a potentially overboard collection of data. Principle 1 of the Information Privacy Principles contained in the Privacy Act 1988 (Cth) states that:

Personal information shall not be collected by a collector for inclusion in a record or in a generally available publication unless: (a) the information is collected for a purpose that is a lawful purpose directly related to a function

or activity of the collector; and (b) the collection of the information is necessary for or directly related to that pu rp~se . ' ~

It is clear that the only information that ASDA can justifiably collect is that related to the objects of ASDA. Those objectives are outlined above and generally relate to the goal of a drug-free sporting community. Testing for performance-enhancing drugs is seen as a primary means of achieving that objective. However, given that ASDA's strategy includes out of competition testing, it is conceivable that some of the information collected will relate to behaviour of the athlete that is not related to his or her performance in sport. There must clearly be privacy concerns about such information being collected by ASDA, even though the process by which the information is collected is an integral part of ASDA's strategy.lo5 The response to this point in favour of drug testing is the assertion that such testing relates only to on duty performance. However, much of the information collected by drug testers may relate to off duty behaviour of athletes. There is therefore a justifiable concern about collecting such information against the wishes of the athlete being tested. A good example of the potential difficulty inherent in this justitication is testing for marijuana use.Io6 A positive test result for marijuana may be recorded weeks or even months after consumption, but any intoxication resulting from marijuana use typically lasts

103 It is generally accepted that the doctor-patient relationship is one that the law treats as a relationship of confidence. Thus the law protects the patient from the unauthorized disclosure of confidential medical information. See generally, Laster DJ, 'Breaches of Confidence and of Privacy by Misuse of Personal Information' (1989) 7 Otugo LR 31 at 38.

104 Privacy Acr 1988 (Cth) s 14. 105 It is frequently argued that if testing were limited to competitions it would be relatively easy for athletes to beat

the drug bans by timing their ingestion of performance-enhancing drugs appropriately. 106 The Australian Rugby League drug-testing program includes standard testing for marijuana use.

Drug Testing in Sport: Legal Challenges & Issues 171

only a few hours following ingestion.Io7 Even if we were to assume that marijuana consumption posed a threat to the stated goals of ASDA (which, as we indicated above, is doubtful), we cannot be sure that a positive test result to marijuana is related to athletic performance. Given that use of this substance is unlikely to be related to a desire to enhance performance, and also given the fact that a positive test result might not indicate deliberate ingestion of the substance, continued testing for marijuana only reinforces the privacy concerns by in mandatory drug testing of athletes.

Criminal dimetzsions Testing for some banned substances, such as cocaine and heroin (and in the case of the Australian Rugby League, marijuana), exposes athletes not only to economic penalties (including loss of funding, forfeiture of prize money and potential loss of endorsement opportunities) but also to criminal sanction. Thus, for athletes, provision of a urine sample may lead to a criminal conviction. Any such risk is exacerbated by the fact that urine samples do not fall within the scope of the rule which provides for a privilege against self- incrimination. This privilege essentially provides a person with the option of not providing information where to provide it would tend to expose the person to the imposition of a civil penalty or to conviction for an offence. In Australia, the rule extends only to oral and documentary dis~losure. '~~ As Gibbs CJ stated in Sorby v ~ornrnonwealth:~~~

The privilege [against self-incrimination] prohibits the compulsion of the witness to give testimony, but it does not prohibit the giving of evidence, against the will of a witness, as to the condition of his body. For example, the witness may be required to provide a fingerprint, or to show his face or some other part of his body so that he may be identified . . . (emphasis added).

Thus, presumably, the privilege against self-incrimination will not apply to the collection of a urine sample for the purpose of analyzing the level of prohibited substances in an athlete's body.

Given the potential application of the criminal law to some of the activities that may be revealed by drug testing, there are further concerns relating to the civil liberties of athletes. To some extent, mandatory drug testing erodes the presumption of innocence, because no reasonable basis is required before the athlete is required to submit to testing."O Randomly selected athletes are forced to undergo testing in a manner normally reserved for those reasonably suspected of having committed an offence. Failure to submit to the test will result in a determination that the athlete has committed a doping offence and the athlete will be subject to sanction^.^^' The absence of any prerequisite for testing that there be a reasonable suspicion that an athlete has engaged in prohibited drug-taking conduct is

107 Lock E & Jennings M, 'The Constitutionality of Mandatory Student-Athlete Drug testing Programs: The Bounds of Privacy' 38 U Fla L Rev 596 at 601-2. It should be added that urinalysis can detect only past consumption of drugs, not levels of intoxication, and it does not measure past or present impairments or improvements. See Hanson FA, 'Some Social Implications of Drug testing' (1988) 36 U Kan LR 899 at 904; Morgan JP, 'The "Scientific" Justification for Urine Drug testing' (1988) 36 U Kan LR 683 at 692-4; Greenblatt DJ, 'Urine Drug testing: What Does it Test?' (1988-89) 23 New Etzg L Rev 651 at 660, 664.

108 Kiizg v McLxllatz [I9741 VR 773, Sorhy v Commonwealth (1983) 152 CLR 28 1 at 292-3; see generally, n 43 at 677-687.

109 (1983) 152 CLR 281 at 292. 1 10 Recall that this is what led the Quebec Superior Court to declare that mandatory testing of prison inmates violates

the provisions of the Canadian Charter in Diorz v The Qireeiz (1986) 30 CCC (3d) 108. 1 11 Note that this will be the case even where the substance detected is not one for which use or possession canies

criminal penalties.

7 72 Tony Buti

disturbing when one considers that the urinalysis test is in itself highly invasive of the expectations individuals in our society have regarding their pri~acy."~

Given that doping offences do not appear to require any related mental element, there is further concern about mandatory testing. Generally, a doping offence occurs where a urinalysis records a positive test result for a banned substance. It is not relevant how or why the substance was ingested.lI3 It is therefore possible that if a banned substance enters an athlete's body without his or her knowledge, that athlete may bc subjected to the same sanctions as one who voluntarily or deliberately ingests a banned substance with the specific intention of improving performance. Case examples where an athlete has unknowingly taken banned substances include where a beverage was 'spiked' by another,ll' or, in the case of marijuana, by means of passive inhaling of the d r ~ g . " ~

The practice of imposing sanctions on the basis of strict or absolute liability for doping offences is, we submit, wrong in policy and possibly also in law.'I6 As a doping offence is not a criminal offence, the common law defence of honest and reasonable mistake will not automatically apply.H7 In He Kaw Teh v The Queen, Gibbs CJ remarked:

. . . if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent.llx

The judgment of Dawson J contains similar language:

In this country it is well established by authority that whatever the presumption, if any, that mens rea, to be proved by the prosecution, is an ingredient of a statutory offence, there does exist a presumption that honest and reasonable mistake is to be treated as a ground of exculpation.""

While a doping offence is not, strictly speaking, a statutory offence, the general principles laid down by the High Court in He Kaw Teh would, we submit, apply, as the

112 It is difficult to predict what probative value would be assigned to evidence of a positive drug test in the context of a criminal trial for possession or use of a controlled substance. Also, it should be noted that despite frequent, highly publicized incidents in the United States involving star athletes and the use of controlled substances, criminal prosecution ordinarily does not follow. This fact might lead some to observe that there is one law for the famous and another for those unfortunate enough not to belong to that category.

113 For example, under the IAAF Drug testing Programme, rule 55 (2) states: The offence of doping takes place when either ( i ) a prohibited substance is found to be present within an athlete's body tissue or fluids . . . .

Likewise, HNA (International Swimming Federation) Rules also impose strict liability for doping. MED 4.3 states:

The identification of a banned substance and/or any of its metabolites in a competitor's urine . . . will constitute an offence, and the offender shall be sanctioned.

114 Alex Watson, a modern pentathlete, was disqualified from the Seoul Olympics for the reason that test results showed a level of caffeine in his urine in excess of the allowable level. He argued that his drinks had been tampered with. See Carter R 'Team manager disowns spiking claim' The Age, 26 September, 1988 at 1. In 1994, weightlifter Ron Lacycock, at a hearing convened to determine what penalty should attach to his alleged steroid use, argued that his drink had been tampered with.

115 The chron~atography testing done by all IOC approved laboratories, including the Australian Government Analytical Laboratories (who perform such analysis for ASDA) can trace elements of marijuana metabolites passively inhaled. See Uzych L, 'Drug testing of Athletes' (1991) 86 British Jo~~nzal of Ad(11rtio)l 25 at 29. Snowboarder Ross Rebagliatti, whose gold medal at the Nagano Winter Olympic Games was initially stripped from him after he tested positive for marijuana, argued that the presence of the drug in his body was due to passive smoking. The medal was restored ultimately on the basis that marijuana use was not then proscribed by IOC rules.

116 See McCutcheon P, 'Sports Discipline, Natural Justice and Strict Liability' (1999) 28 (1) Atzglo-Am LR 37. 1 17 See Muyrzarcl v Racirzg Perlalties Appeal Triburzal o$ Westerrz Austrulia arul Ors ( 1994) 1 1 WAR I . See cornment

by Buti T & Opie H, 'Drug testing in Horse Racing: Honest and Reasonable Mistake as a Defence' (1994) 4 (3) ANZSLA Newsletter 6.

118 (1985) 157 CLR 523 at 533. 119 He Kaw Teh v The Queetz (1985) 157 CLR 523 at 591.

Drug Testing in Sport: Legal Cha/lenges & Issues 7 73

rules that prescribe the elements of a doping offence affect an athlete's right to work. In this respect, the actions of sporting organizations in promulgating rules prescribing doping offences would be subject to the application of a general principle elucidated by Denning LJ (as he then was) in Abbott v Sullivan:

[Bodies] which exercise a monopoly in an important sphere of human activity, with the power of depriving a man of his livelihood, must act in accordance with the elementary rules of justice.120

The Supreme Court of Western Australia, in Maynard v Racing Penalties Appeal Tribunal of Western A ~ s t r a l i a ' ~ ~ held that these 'elementary rules of justice' implicitly make available a defence of honest and reasonable mistake. The Court also applied principles set out in He Kaw Teh122 so as to read into the rules of the sporting organization concerned a 'defence' of honest and reasonable mistake.

In the Maynard case, the Court was concerned with a doping offence described in Rule 175 of the Rules of Racing (the Rules), which provided that racing stewards were authorized to punish:

(h) Any person who at any time administers, or causes to be administered, any prohibited substance as defined . . . (ii) which is detected in any pre- or post-race sample on the day of any race.

Maynard was convicted of causing a prohibited substance to be administered to a horse contrary to Rule 175(h)(ii) of the Rules and was disqualified from training for three years by the stewards of the Western Australian Turf Club. Maynard contended that the prohibited substance had been administered for a legitimate medical purpose three weeks prior to the race day on which the horse's urine sample was extracted. He gave evidence that the opinion of the veterinary surgeon who administered the drug was that the horse would be ready to race in 14 days. Further evidence was adduced that the Australian Equine Veterinary Association recommended that this particular substance, depro-medol (a cortico-steroid used to treat inflammation), would pass through the horse's system by excretion within 21 days. Maynard accordingly argued that he had not intentionally committed a breach of the Rules and was acting under an honest and reasonable mistake. Following an unsuccessful appeal against his exclusion, Maynard applied to the Supreme Court of Western Australia seeking the Court's declaration as to the proper construction of Rule 175 (h)(ii). The Full Court held by a majority that the proper interpretation of Rule 175 (h)(ii) included an implied 'defence' of honest and reasonable mistake that a horse is drug free on race day. The following passage is taken from the reasons for judgment of Ipp J:

In my opinion, a presumption applies to the Rules of Racing that honest and reasonable mistake will be a defence to offences created thereby, unless an intention to exclude that defence plainly appears from the rule in question. In my view there is nothing in the words of r 175(h)(ii) . . . that can be said plainly to lead to the exclusion of that defence. It would have been possible for the Rules of Racing to provide for such an exclusion, but they do not do so.

The declaration sought by the applicant is that r 175(h)(ii) requires the negation of an honest and reasonable but mistaken belief that any prohibited substance administered or caused to be administered had been excreted by the race day and therefore would not be present in the blood or urine. I consider that the implication of such a provision (subject to the qualification that the person charged must first properly raise the issue) is in accordance with the elementary rules of justice. In the same way as the rules of natural justice have been held to be a necessary implication,

120 [1952] 1 KB 189 at 198. 121 (1994) I 1 WAR 1 . 122 (1985) 157 CLR 523. The High Court judgments can be read as requiring that, in the case of statutory offences,

the 'defence' of honest and reasonable mistake will apply unless 'displaced either by the words of the statute creating the offence or by the subject matter with which it deals' (per Gibbs CJ at 528 and per Brennan J at 566).

Tony Buti

by operation of law. to the Rules of Racing, so do I consider that the elementary rules of justice are so necessary. It could hardly be unnecessary for the Rules of Racing not to conform with elementary rules of justice.

I would therefore grant a declaration that it is implicit under r 175(h)(ii) that, provided there is evidence which raises the question (cf He Kaw Teh v The Queen (at 535)), there can be no finding that an infringement has been committed unless there has been a negation of an honest and reasonable but mistaken belief that any prohibited substance administered or caused to be administered to a horse had been excreted by the race day and therefore would not be present in the blood or urine.12"

In a subsequent case heard by the Full Court of Western ~ustralia'~' the Maynard decision was overruled. Harper was a licensed trainer under the Rules of Trotting, which are similar to the Rules considered by the Court in Maynard. Harper was convicted by the stewards of the Western Australia Trotting Association and a sanction of two concurrent eight month disqualifications was imposed pursuant to Rule 346 of the Rules of Trotting. Rule 364 provides:

Where a . . . sample taken from a horse is shown to contain a drug . . . and the stewards have not given permission for the administration of a drug . . . (a) the trainer or other person in whose custody or under whose control the horse was at the time

shall be deemed guilty of an offence . . . .I2"

However, under Rule 346A, a trainer or other person:

. . . shall not be guilty of an offence if he shall satisfy the Stewards that he took all reasonable and proper precautions to prevent the administration of a drug to the horse therein referred to.126

Harper was found guilty by the Stewards because two of his horses returned blood samples on race day which recorded total carbon dioxide levels in excess of the permitted 35 millimoles per litre. Harper argued that the level of carbon dioxide was caused by a feed supplement which had been administered to the horses and that he had acted in good faith and did not believe he was infringing any rule. The Stewards rejected Harper's argument and his appeal to the Racing Penalties Appeal Tribunal was dismissed. Harper appealed to the Supreme Court of Western Australia.

As in Maynard, the Court in Harper concluded that the Rules of Trotting were not part of the statute law of Western Australia and that s 24 of the Criminal Code (WA) did not apply to the Rules of Trotting. However, the Court went on to hold that there was no need for the Stewards to negate a claim of honest and reasonable mistake on the part of the person charged with the offence. The following passages are extracted from the judgment of Anderson and Owen JJ:

With all respect to the majority in Maynard's case, we do not subscribe to the view that policy requires the implication of a term that would require the stewards positively to negate honest and reasonable mistake on the part of a licensed person before proceeding to disqualify that person for non-compliance with the Rules. There are a number of reasons for this . . .

123 Mayrzard v Racittg Petzalties Appeal Tribunal of Western Alf~trafiu (1994) 1 l WAR 1 at 18. 124 Harper v Racitzg Peturlties Appeul Tribunal oj' Western Australia and Another (1995) 12 WAR 337. 125 Rule 365B contains a deeming provision: [flor the purposes of these Rules, where a sample from a horse is found

to have contained a substance described in this Rule in excess of the maximum quantity appearing opposite the substance then the horse shall be deemed to have had administered to it a drug or a drug capable of reducing that substance.

126 Under the Rules, Rule 128 states: [wlhen any horse which has been brought to a race-course for the purpose of engaging in a race is found by the Committee of the Club or the Stewards to have had administered to it any prohibited substance . . . the trainer and any other person who was in charge of such horse at any relevant time, may be punished, unless he is satisfied that he had taken all proper precautions to prevent the administration of the prohibited substance.

Drug Testing in Sport: Legal Challenges & Issues 7 75

. . . the very survival of the industry as well as substantial government revenue would seem to depend on encouraging the public to bet on horse racing, that is, to bet on the outcome of each race.

It may well be anticipated that unless racing is perceived to be fair and honest, people may be discouraged from betting. This might be thought to justify stringent controls in respect to the administration of drugs to horses and the enforcement of those controls by peremptory means.127

That an application of the Rules may seriously affect the rights and privileges of the licensed person is every reason to ensure that the licensed person should be accorded natural justice within the framework of the Rules. But it does not follow that the content of the obligation to accord natural justice includes an obligation not to impose a penalty for breach of the Rules of Trotting unless honest and reasonable mistake is first negatived. Nor does it follow that, in the circumstances of this industry, a rule of the type under consideration is necessarily repugnant to the rules of natural justice.

It may well be the case that those familiar with every aspect of the industry and with long experience in it have come to the conclusion that to ensure the integrity of racing and to maintain public confidence in its integrity, there is need to impose very stringent controls and that those who wish to participate in racing for rich rewards will have to accept that the privilege of doing so may well be taken from them if for any reason, even without actual fault on their part, they present a doped horse for racing.128

However, the result of Harper is not that a defence of honest and reasonable mistake is inapplicable. The case does not maintain that the offence in question is one of strict liability. Rather, the licensed person will still have the opportunity to satisfy the Stewards that he or she 'took all reasonable and proper precaution to prevent the administration of the Harper's case places the onus of proving the presence of an honest and reasonable mistake on the alleged offender. In Maynard the Court had placed the onus of disproving such a mistake on the Stewards. The result in Harper is therefore still entirely consistent with the idea that such offences are not to be construed as offences of strict liability.

Further, even if Harper's case is followed, it remains to be seen whether the reasoning in the case will be applied in the context of other sports. The substantial justification for the interpretation of the relevant rules in Harper was the need to protect public confidence in the integrity of results of races due to the heavy reliance of the sport on gambling revenue. This is clearly not the case in Olympic sports. Furthermore, the financial support for the Olympic movement is based on more than revenue from spectators. Thus, even if it were provable that spectators might stay away from Olympic or other sporting events if they suspected that some of the competitors were using illegal drugs, it is hard to see how that would affect the very survival of the sport. In any event, it is likely the case that spectators' attendance would be unaffected, as presently spectators attend notwithstanding the knowledge that there is a chance that some athletes might beat the system by using performance enhancing drugs that are undetected or undetectable.

Therefore, it is submitted that on any reasonable interpretation of Harper it would be inappropriate to apply any sanction where an athlete tests positive to a banned substance on the basis of an honest and reasonable mistake.'30 As a practical matter, it may be that making available a defence of honest and reasonable mistake will make proof of the commission of a doping offence difficult. However, such difficulty is not sufficient to

127 Harper v Racing Penalties Appeal Trihunul of Western Australia (1995) 12 WAR 337 at 347. 128 Haper v Racing Penalties Appeal Tribunal of Westen? Ausrrulia (1995) 12 WAR 337 at 349. 129 Harper v Racing Penalties Appeal Tribu~ml of' Western Australia (1995) 12 WAR 337 at 350. 130 This may, implicitly, have been the basis on which Australian swimmer Samantha Riley was permitted to continue

to compete notwithstanding that she tested positive to a banned substance in competition.

7 76 Tony Buti

exclude the defence. As Brennan J remarked in He Kaw Teh: '[a] pragmatic concern about unmeritorious acquittals does not warrant the imposition of strict liabilit~."~'

If doping offences are interpreted as either requiring a certain mental element or attracting the defence of honest and reasonable mistake, there may be a significant problem in cases of inadvertent consumption of certain banned substances, particularly those used in medication for coughs, hay fever and in the treatment of asthma. While it may be argued that it is the athlete's responsibility to ensure that any medication ingested does not contain a banned substance, this is made significantly difficult, as the broad categories of banned substances list a number of drugs and 'related compounds.' Furthermore, athletes with a genuine desire to comply with doping rules must depend on the availability of up-to-date information on what substances and compounds are on the banned list. Without this it may be practically impossible for the athlete to be aware of the potential breach. The experience of the British weightlifters, Andrew Saxton and Andrew Davies, illustrates this problem. Both were banned from the 1992 Barcelona Olympics after having tested positive for the steroid Clenbuterol, which was treated by the IOC Medical Commission as a banned substance on the basis of it being in the 'related compound' category. Both athletes appeared to be completely unaware of the listing of their medication by the IOC Medical Commission and had not, prior to the Olympics, been informed of that fact by their athletic and medical advisers.'" Following their exclusion from the Barcelona Olympics, further proceedings against both athletes were discontinued.

Regulators should thus be aware that a mandatory drug testing regime poses a number of problems from the standpoint of the civil liberties of the athletes affected. Whilst noting the potentially deleterious effects of such a regime on those civil liberties, it needs to be said that any such intrusion can be balanced by the need for such regulation. That need is something that can be particular to the sport concerned as well as commensurate with the values to which we in Australia subscribe.

Consent to drug testing Where an individual has expressly or implicitly consented to the imposition of the drug test, it can no longer be said that a justifiable privacy expectation is violated. Likewise, it does not lie in the mouth of one who has consented to a procedure to complain later that the same procedure involved a violation of his or her civil liberties. The very intrusive nature of the drug test and the range of sanctions that apply to offenders are such that the prospect of being subjected to urinalysis is one which creates fear in the athlete. It is therefore vitally important that the athlete be informed in advance of the nature of drug testing procedures in order to obtain his or her consent. This is necessary to allay any fears the athlete may have about the drug testing procedure and thus to protect the tester from allegations of committing the crime of assault. Assault is any act which intentionally or recklessly causes another person to fear immediate and unlawful personal vi01ence.l~~ At common law, assault is seen as the threat or attempt to apply force, with actual force to the person of another being referred to as battery.'34

If the tester actually engages in physical contact with the athlete without consent, there is additionally the possibility of commission of the tort of trespass to the person. This may lead to a claim for damages against the drug tester, the authority responsible for the conduct of the test andlor any relevant sporting organization. It follows from what has been said

131 (1985) 157 CLR 523 at 580. Note, however, that if an athlete has not taken effective precautions 'to avoid the possibility of the occurrence of the external elements of the offence' the defence of honest and reasonable mistake may not be successful: at 567 per Brennan J.

132 Grayson E, 'Drugs, Sport and the Olympics' (1992) 142 NLJ 1171. 133 Fagun v Metropolitan Police Commissioner [I9681 3 All ER 442; Vullattce v The Queen (1961) 108 CLR 56. 134 In Criminal Code jurisdictions such as Queensland, Tasmania and Western Australia, no distinction is made

between assault and battery. Assault includes both actual force and the threat or attempt to use it.

Drug Testing in Sport: Legal Challenges & Issues 7 77

that an athlete's consent cannot be procured by threat or promise and that any consent given is subject to the possibility that it may later be withdrawn.

In order for any consent to be valid it must be genuine; that is to say, it must be given voluntarily on an informed basis.135 It therefore is the responsibility of sporting organizations to inform the athletes within their jurisdiction of the existence and the nature of their drug testing program. The most convenient and obvious manner of disseminating such information is to append it to the rules and regulations of the sporting organizations or to include it in any written contract entered into between that organization and an athlete. In the typical situation confronting athletes (where adherence to a drug testing program is a prerequisite to sanctioned competition), the genuineness of any consent procured will be an issue. In addition, any athlete receiving financial assistance from the ASC will, as a matter of course, be required to submit to that organization's rules and regulations, which of course include the agreement of the athlete to submit to testing by ASDA on demand.

In so far as an athlete may claim, after being asked to submit to a drug test, that any consent procured was invalid, there are some legal limitations. In the first place, the criminal law will only vitiate consent that is extracted by force or threat of force.'" This is hardly likely in the context of sports drug testing.

Outside the context of the criminal law, however, the choice offered to the athlete bears all the hallmarks of duress.'" The athlete is effectively provided with two alternatives: submit to testing and compete or fail to submit and be excluded. From a legal perspective, the submission by the athlete to the testing will not be considered to have been procured by duress so long as the condition imposed on the athlete is reasonable and justifiable on grounds of public p01icy.l~~

Notwithstanding the fact that, from a technical perspective, the testing of an athlete is permitted only where the athlete consents, we refer to the current regime in Australia as one involving mandatory drug tests, for, in reality, submission to drug testing is the only practical alternative open to the athlete. This 'practical compulsion' may vitiate consent and render any contractual arrangement between the athlete and the sporting organization voidable. However, it is arguable whether the athlete has been induced to enter the contract which includes an obligation to submit to drug testing by 'illegitimate' pressure from the sporting organization. 139 While athletes might prefer not to be subject to any obligation to

135 Chattemz v Gerson [I9811 QB 432 at 443; F v R (1983) 33 SASR 189. 136 This often arises in sexual assault cases: see R v C1uretzc.e (1888) 22 QBD 23. 137 We are aware that the meaning of duress in the criminal law context is much more restrictive than in the

commercial law context. For purposes of the criminal law, duress is essentially limited to situations where the accused is acting '. . . under the influence of a genuine fear aroused by the threat of imminent death or grave physical violence . . . :' R v Hurley and Murray [1967] V R 526 at 529. The threat does not need to be made to the accused; it must relate to a human being: R v Brown (1986) 43 SASR 33; R v Puluzofl(1986) 43 SASR 99. Given that the means by which consent is procured is often contractual, we think it appropriate to apply commercial law norms in this context. We are, however, mindful of the fact that this application would be inappropriate in the context of a prosecution of a drug testing authority for criminal assault.

138 A commonly encountered legal analogue is that of the settlement of an outstanding legal claim. Thus, where a party claims money damages for the commission of a tort and the potential defendant offers a lesser sum than the amount claimed, which is accepted in exchange for the promise not to pursue the claim, the compromise will be indefeasible. This notwithstanding that the compromise was secured in the shadow of considerable pressure introduced by the claimant. Courts are loathe to upset such compromises, notwithstanding the existence of a threat of litigation, for the simple reason of promoting the settlement of disputes, the benefits of which to society at large are obvious.

139 See Universe Tatzkships cf Monrovia v Itztematioruzl Trunsport worker^ Federation [I9831 1 AC 366 and Crescendo Matzugemetit Piy Ltd. v Westpac Bmkirzg Corp. (1988) 19 NSWLR 40 at 46 where McHugh JA said (speaking of the elements of duress): '[tlhe proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed.'

7 78 Tony Buti

submit to drug testing, it is more the desire to compete than any other pressure which has induced the athlete to agree to the rules of the sporting organization.

Where the athlete's consent is procured by means of a contract with the sporting organization, there is additionally the possibility that any consent given may be vitiated by the claim, on the part of the athlete, that the contract was tainted by unconscionability. The essence of this claim lies in the superior bargaining position enjoyed by the sporting organization and the athlete's reliance on the organization for his or her livelihood. Where the actions of the sporting organization can be characterized as the taking advantage of its superior bargaining position relative to the weakness of the athlete, the risk of consent being considered by the law to be invalid is increased.I4O

It may well be the case, therefore, that the consent of the athlete provides little justification for the imposition of drug testing, given the manner by which that consent is proved. Certainly, from the perspective of the athlete's civil liberties, we must at the very least express grave doubts as to the validity of any consent based on the athlete's need to submit to organizational rules in order to compete.

(ii) Legitimate interest of the sporting bodies: the aims of mandatory drug testing Protection from arguments of unreasonable restraint of trade and the legitimization of drug testing is dependent on an understanding and acceptance of the underlying goal of eradicating use of the banned substances. The decision to ban certain substances generally infringes on the individual's freedom of choice. Furthermore, as has been established, mandating a regime of drug testing subjects the individual to a serious erosion of his or her individual autonomy. In a free and democratic society, it is thus essential that a justifiable consensus be reached on the question of what substances ought to be banned prior to any introduction of a testing regime. Inherent in this process is the acceptance of policy goals necessary for such consensus to be reached. Only then can the introduction of testing be justified and even then, care must be taken to ensure that any proscription is not overly broad. Even after this stage has been reached, it is still essential that regard be had to the rights of the individual that underpin our democracy. The testing itself must be fair, impartial and subject to proper scrutiny. Finally, we must consider the form of sanction used to support any ban. The sanction must also be fair, uniformly applied, justifiable and effective. All of these criteria must be satisfied before we can justify and regime of drug regulation.

It is worth quoting the objects given in the Australian Sports Drug Agency Act 1990 (Cth). Section 8 provides as follows:

The objects of the establishment of the Agency are: (a) to deter the use of scheduled drugs or doping methods in sport; and (b) to encourage the development of programs to educate the sporting community about matters

relating to drugs in sport; and (c) to advocate the international adoption of consistent and effective anti-doping programs; and (d) to co-ordinate the development of a consistent and effective national response to matters

relating to drugs in sport.

These objects have been substantially redrafted as a result of amendments to the legislation in 1996. Originally, the ASDA Act provided, among the objects of the

140 For a thorough discussion of the nature of unconscionability in Australia see Commercial Bank of Au.stralia Limited v Amadio (1983) 151 CLR 447. See also the 11uf~t.strial Relations Act 1996 (NSW) s 106. The Fair Trading Act 1987 (NSW), the Corztracts Review Act 1980 (NSW) and the Track Practices Act 1974 (Cth) will also apply if any contract challenged is one for service not of service. A complete discussion of the Australian doctrine of unconscionability is contained in Greig DW & Davis JLR, n 65 at 973-80. See also Ward BD, 'The Player Contract - A Con~parative Analysis: In Search of Equity and Fairness,' paper presented to The Law qj' Projkssiorul Team Sports, Australiarz New Zealad Sports Lrrw As.sociaric~~z Confererzce, University of Melbourne, 1991.

Drug Testing in Sport: Legal Challenges & Issues 7 79

establishment of the Agency, the encouragement of the practice of sport free from the use of drugs with the further objective of protecting:

(i) the health of competitors; and (ii) the values of fair play and competition; and (iii) the rights of those who take part in sporti41

As is apparent, the legislation now refers only to the objective of deterring the practice of doping in sport. Still, this begs the question of why this is a legitimate objective. Presumably, doping is banned for reasons having to do with a desire to protect the health and safety of athletes as well as a desire to protect values of fair play. For purposes of justifying a suspension for drug use that is challenged on restraint of trade grounds, the requirement of demonstrating reasonableness of the restraint on grounds of public policy must surely necessitate examination of the substantive basis of the restraint. A simple statement that the objective is to deter drug use or doping methods cannot stand without further scrutiny. Accordingly, one must examine the underlying reasons for the decision to support a doping ban by mandatory testing. In any event, the substantive basis for doping rules must be considered to be highly relevant to the eventual acceptance and success of the legislation.

Various justifications have been advanced for the drug testing of athletes. In the sphere of Olympic athletes, the emphasis has been on the need to curtail cheating and the need to protect the health of competitors. Both of these goals were specifically referred to in s 8(a) of the original ASDA Act. With the possible exception of drugs such as cocaine, heroin and amphetamines, which are psychomotor stimulants and thus may be performance enhancing, the IOC has not been interested in so-called 'recreational drugs.' Therefore, drugs such as LSD and marijuana are not prohibited by the IOC Medical Commission and those international federations and national bodies incorporating its list of prohibited substances.142 This issue came to the attention of the world when Canadian snowboarder Ross Rebagliatti was disqualified after testing positive to marijuana following his gold medal-winning performance at the 1998 Winter Olympic Games in Nagano. Although Rebagliatti's medal was ultimately restored on the ground that marijuana use was not prohibited by IOC Rules, subsequent debate centred on the appropriateness of including marijuana on the list of banned substances. Even IOC President Samaranch suggested, in the aftermath, that the IOC had no business banning drugs that were not in any sense performance enhancing.143 By contrast, professional and collegiate sporting organizations in the United States are concerned primarily with abuse of 'recreational drugs.' This may be a reflection of the preoccupation of those bodies with the public image of, and public confidence in, the sport they regulate14" arising out of the intense media coverage often given to drug problems in American sports, particularly those at the professional 1 e ~ e l . l ~ ~ The extent of the problem in the United States was dramatically illustrated by the cocaine- related deaths of college basketball star Len Bias and professional football player Don

141 Australiutt Sports Drug Agency Act 1991 (Cth) s 8(a). 142 The IOC Medical Commission does list marijuana as a restricted drug but does not mandate its inclusion in

testing. The authors are informed that some international organizations wish to commence testing for marijuana. 143 See 'Games Drugs Row Boils Over' Sydney Mornirzg Herald, 29 July, 1998 at 20. 144 This concern is mirrored by such organizations' approach to the question of gambling. The following is extracted

from Berry RC & Wong GM, Law and Business of the Projkssionul Sports Itldustries, Volume 11: Common lss~res in Amateur attd Prr,f.ssional Sports, Auburn House, Dover, Massachusetts, 1986 at 477: '[tlhe problems associated with illegal gambling and the influence it may exert on professional and intercollegiate sports are of special concern to athletic administrators and others since gambling affects the integrity of the games, the games themselves, and the public confidence in athletes and sports.'

145 Lock E, 'The Legality Under the National Labor Relations Act of Attempts by the National Football League Owners to Unilaterally Implement Drug testing Programs' (1987) 39 U Flu L Rev 1 at 3; Zemper ED, 'Drug testing in Athletes' in Coombs RH & West W (eds), n 93 at 117-1 18.

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Rogers within the same week in 1986. '~ In Australia, the only sporting organizations to demonstrate concern for 'recreational drugs' as well as those with proven performance- enhancing qualities is the Australian Rugby League and the Australian Jockey Club, which conduct tests for marijuana use. Positive test results lead to the imposition of penal tie^."^

(iii) The legitimate interests of the sporting bodies and the general public There are various justifications advanced to support drug testing in sports. What follows is an examination of the more commonly advanced justifications that have particular relevance to both sporting bodies and the general public.

Sports Ethics Many would justify mandatory testing for the simple reason that drug use is cheating. In turn, the rules banning use of certain substances are there, as the argument goes, to ensure that athletes compete on the basis of their natural abilities. This desire was reflected in the original version of s 8(a)(ii) of the ASDA Act which referred to the objective of protecting 'the values of fair play and competition.' This objective stems from the historical belief that the essence of sport is competition between athletes based on their individually developed natural abilities, not on the most effective pharmacological agents. Rather than accept this justification as an a priori assumption, we must consider a number of evidentiary and philosophical issues.

The assumption underpinning the 'fair competition' justification is that performance- enhancing drugs do in fact improve performance. However, while there may be wide support for this view, there is far from unanimous acceptance of it as a proven fact.'" There is also no empirical evidence available to support the conclusion that those who use drugs actually improve their perf~rmance. '~~ We do not deny that there may in fact be substances capable of improving the performance of athletes. We do, however, submit that those who seek to ban a particular substance and support that ban with a program of mandatory testing must face a strong onus of proving the alleged effects of the drug.

Even were one to accept that performance-enhancing drugs at least have the potential to improve performance, or that athletes who take such drugs to improve performance should be penalised regardless of any actual results, other questions are raised. For instance, it has been argued that: '[slince our genes decide our body chemistry why shouldn't we if we choose modify that chemistry in order to increase our athletic perf~rmance?"~~ The countervailing argument is that while our body chemistry is a natural synthesis of compounds, doping is not 'natural' as it involves the consumption of synthetic substances. However, the practice of blood-doping, which is banned, does not fit this rationale, for it does not involve the introduction of foreign substances. Therefore, for this practice to fall within any definition of a prohibited practice, the legal definition of doping must be broadened so as to include any physiological substance taken in abnormal quantity or taken by an abnormal route of entry into the body.151

Were this definition to be adopted, one may then rightly ask why the consumption of amino acids, which purportedly increase the body's production of growth hormone, or the practice of carbohydrate loading, which purportedly improves endurance, are not similarly

146 'Drug Use Tied to Rogers' Death' New York Tims, 29 June, 1986; Trossman J, 'Mandatory Drug testing in Sports: The Law in Canada' (1988) 47 U Tororzto Fuc L Rev 191 at 193.

147 The Australian Football League did, however, at one stage propose bans for marijuana: Duffield M, 'Eagles boss wary of marijuana tests' The West Ausrrulicm, 7 December, 1995 at 100.

148 In relation to anabolic steroids, see Zemper ED, n 145 at 124-5. 149 In fact in the American case of Hill Nutiotwl Collegiufe Athletic Assoriation utzcl Stunforcl Uttiversir). 7 Cal.

App. 4th 1738, 273 Cal. Rptr. 402 (6th Dist. 1990) at 413-9, the evidence presented suggested that performance- enhancing drugs actually were ineffective.

150 Sumner J, cited in Donald K, The Dopifzg Game, Booralong Publications, Brisbane, 1983 at 81. 15 1 Zemper ED, n 145 at 137.

Drug Testing in Sport: Legal Challenges & Issues 78 7

penalized. Thus, the simple proposition that drug bans, supported by mandatory testing, are an integral part of the effort to make sports more 'natural' loses much of its force when any attempt is made to draw a line dividing fair and unfair practices.

If 'sports ethics' refers to the creation of a 'level playing field' that allows for fair competition, then why stop at regulating drug use? It is no doubt true that athletes from developed nations with their Ministries of Sport and substantial public funding for sport have a significant competitive edge. One need only look at the medal tally from any Olympic Games to see that there is a definite correlation between national wealth and Olympic success. Resources permit many nations to offer their athletes the finest facilities and coaches, and subsidies enable the athlete to dedicate himself or herself to the task of athletic success on a more or less full-time basis. What chance do athletes without these benefits have of competing on an equal basis? It is therefore ultimately self-deceiving to argue that banning drugs from sport will make competition fairer. Drugs, unlike the other acceptable means of enhancing performance, are at least equally fair.Is2

There is little doubt that the main reason athletes use performance-enhancing drugs is in order to obtain or maintain a competitive edge. Many have argued that our society, by placing such a high premium on winning, is guilty of introducing the pressure that is ultimately persuasive. Certainly the much publicized medal tallies at international competitions (particularly the Olympic Games) reflect the preoccupation of most of us with results. For many of us, to quote Vince Lombardi, the famous American football coach: 'winning isn't everything; it's the only thing.' It is only the winners in competition who attract the adulation of the media and through it, the general public, which in turn leads to lucrative endorsements and government grants. It is not surprising that some athletes succumb to the pressure to succeed that leads them to take performance-enhancing drugs. If we are serious about our desire to eradicate drug taking in sport, then we cannot simply ban the drugs without reflecting on our society's preoccupation with winning.lS3

Any attempt to justify drug regulation, in short, necessarily involves an adjudication of complex issues. What at first appears an attractive argument, that drug use destroys fair competition, loses some attractiveness when subjected to close scrutiny. In the first place, it is not entirely clear that drug use does destroy fair competition. Secondly, banning the use of drugs will in no way guarantee the fair competition we allegedly seek. Thirdly, there are other, far less intrusive, means by which we could ensure that our athletic contests are fairer.

There is another aspect of sports ethics that needs to be raised, if only to dismiss quickly. That is the question of 'cheating'. Some argue that it is enough that the rules exist. If it is decided that athletes should not take steroids, then that in itself is sufficient reason for athletes not to do so. For the athlete to flout the rules is behaviour which is deserving of

152 Others have made this point: '[blecause only some athletes abide by the rules, the drug ban in effect creates monopoly benefits for drug users. The ban thus results in unfair contests between drug users and non-users. . . . It is a perverse and ironic outcome that a drug ban instituted to create fair competition should promote unfair competition. Competition would be made fairer by removing the ban on drug usage, allowing all athletes to achieve their full potential. The ban deprives the majority of the benefits of drugs, leaving the minority who continue to use drugs with an unfair advantage.' See 'Unmask the Unfairness by Dropping Ban' The Australian, 17 August, 1993 at 30.

153 In Canada, this was in fact part of the agenda of the Commission of Inquiry into the Use of Drugs and Banned Practices Intended to Increase Athletic Performance, Charles L Dubin, Commissioner, 1990 (the Dubin Commission), appointed to examine the use of drugs in sport in Canada following the expulsion of Ben Johnson from the 1988 Olympic Games in Seoul. The Dubin Commission's recommendations have caused reflection, in Canada at least, into the preoccupation with winning that led to Johnson's disgrace. In Australia, Drugs in Sport: An lnterim Report of the Senate Sturulir~g Committee on Environmertt, Recreation and the Arts, AGPS, Canberra, 1989 (Drugs in Sport Inquiry) at 28-35 contains a summary of the reasons often advanced for taking performance- enhancing drugs. It is interesting to note that the same enquiry believed the argument based on fairness of competition to be unsound because of the fact that enormous disparities exist between competitors at all levels (at 48).

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punishment. There is some force to this argument. Punishing an athlete who tests positive to steroids is only consistent with ensuring respect for the law. Yet, if, despite the law, we know that athletes continue to use steroids, are we not missing a vital point? Many have argued the same with respect to criminalization of marijuana use, and yet annual surveys continue to reveal that substantial numbers of our citizens continue to engage in this illegal beha~i0ur . l~~ When we are aware of this level of disobedience, we must examine the law closely. Just as the United States government chose to repeal legislation banning the distribution and consumption of alcohol after the attempt to prohibit alcohol consumption failed, we might similarly opt to end the prohibition of substances if we can no longer justify it and the law is routinely ignored. Putting more teeth into the law will not, if the law's underlying premises are flawed, make it a better law.

Health and safety of the athlete and the public Fairness in sport is not the only justification advanced. It may well be that the need to protect the health and safety of participating athletes justifies the present rules and the testing regime that supports them. This objective was referred to in the 1996 ASDA Act s 8(a)(i). In contrast to the alleged effects on performance of performance-enhancing drugs, there is sufficient empirical .evidence to support the claim that such drugs may produce harmful physical and behavioural side effects, although the magnitude of harm varies between the different banned drugs. The potential side effects are numer~us, '~bnd in the worst cases can lead to death.156 It has been argued by some that the belief that use of such drugs is widespread leads some athletes to use drugs they believe to be performance- enhancing in order to remain competitive, thereby putting their own health at risk.I5'

In addition to the health risks posed to users of drugs, there are potential risks to others. It has been argued that anabolic steroid or stimulant use in competition (especially in team sports) produces unduly aggressive behavioural side effects that may put competitors at risk.Is8

The psychological effects of performance enhancing drug abuse may expose sporting organizations (who employ the athletes concerned) to vicarious liability for the wrongful acts of the athletes who injure other competitors or third parties.i59 Employer liability may also be argued based on the employer's duty under statute and at common law to take reasonable precautions to provide a safe and healthy work envir~nrnent, '~~ which may justify penalizing drug taking.

This paternalistic concern for the health of our athletes seems curiously limited to health risks presented by ingestion of performance enhancing drugs. It is acceptable common practice to inject painkillers to mask the pain of previous injuries, even though this may induce the athlete to continue to compete, at risk of causing irreparable damage to his or

154 See Fox R & Matthews I, Drugs Policy: Fact, Fiction and the Future, Federation Press, Sydney, 1992 at 18-35. 155 See Donald K, n 150 at 78-80; Opie H, 'Legal Regimes for the Control of Performance-Enhancing Drugs in

Sport' (1990) 12 ~ c l e l LR 332. 156 For example, 'Two Footballers Died After Horse Steroid Use' Mercury, 20 June, 1991 at 32, cites the instance

of steroid abuse leading to death of two young NSW country level rugby league players. 157 Here, the work of the Agency may be important in two respects. Firstly, test results compiled by ASDA may

provide more reliable information as to the extent of drug use. Secondly, research into the side effects of performance enhancing drugs may provide much needed information on the risks associated with their use.

158 The behavioural side effects of anabolic steroid abuse have been the basis of some judicial support for drug testing in sport: see R v Natharz Brendurz Jones, (unreported), Supreme Court of Queensland, 21 April 1989.

159 See Bugge v Browrz (1919) 26 CLR 110; Rodgers v Brtgderz a d Canterbury Burzhtou~rl Rugby League Football Club Limited, (unreported), Supreme Court of NSW, 14 December 1990, appeal pending; Kelly GM, 'Negligence Actions Between Sports Participants: The Measure of Liability' (1992) 66 AW 329.

160 See Cotter v Huddan Parker Lrcl. (1941) 42 SR (NSW) 33 at 37-8; Johnstone R, 'Pre-employment Health Screening: The Legal Framework' (1988) 1 AJLL 115.

Drug Testing in Sporf: Legal Challenges & Issues 7 83

her body.16' Further, the events themselves might be said to pose far greater risk to the athlete than the use of drugs to enhance performance. Every year in the United States competitors are killed or seriously injured in gridiron contests and, in 1994, a worldwide audience was witness to the horrible death of an Austrian alpine skier. Anyone who has witnessed a luge race must have serious doubts about the insurability of a competitor!

It is unlikely that, prima facie at least, the safety of the public will be affected by athletes consuming performance-enhancing drugs. However, there may be some argument that sporting stars are role models for the public, especially the young, and thus there is a need to ensure that they set the right example. This rationale has some merit but is somewhat hard to reconcile with the sponsorship of sport by companies responsible for the production of tobacco and alcoholic products.162 We will deal with the matter of public image below.

The foregoing all relates to the testing for performance-enhancing drugs. What about testing for recreational drugs which have no proven performance-enhancing qualities? Presumably, the argument that use of such substances is to be discouraged on account of heath and safety concerns has more merit. However, at least in the case of marijuana, currently available evidence is inconclusive as regards any harmful medical conse- quence~ . ' ~~ There is in fact a significant body of opinion that marijuana consumption is less harmful than either tobacco or alcohol usage.164 Thus, even from the standpoint of health and safety, a policy of testing for use of all recreational drugs supported by sanctions for detected usage may not in fact be ~upportab1e.l~~

As questionable as current anti-doping policy may be, there is a body of opinion which asserts that, from the perspective of health, it makes more sense to deregulate drug use in sport. Adherents of this view argue that, especially in the case of steroids, the problem is not use itself, but use in unsafe doses. This view is consistent with the published views of the IOC Medical Commission, who have said that 'anabolic steroids can have long term effects by causing many health problems."66 The reason for the IOC's uncertainty is lack of information concerning dosage quantities. The point is that the danger arises only when the quantity consumed exceeds a certain level. If this is true, then the proper course to take in order to reduce health risks is to develop knowledge of the safe level of usage and to monitor the athletes to ensure that none ingests unsafe quantities of the drugs. Banning drugs is therefore not necessary in order to protect the health of competitors.

Public image and confidence Obviously the public and sponsors are interested in protecting the integrity of sport and the individuals who participate in it. The argument in support of drug testing here is that the fans and sponsors who support sport would lose interest if either believed that the

161 In 1976, the US football team, the Chicago Bears, settled a lawsuit brought by a player alleging that extensive injections of cortisone and other drugs caused irreparable damage to his knee: see 'Bears Will Pay Butkus $600,000 in Damage Suit' New York Times, 14 September, 1976 at 50.

162 This may become a thing of the past if present Federal Government policy is implemented. It should also be noted that if this justification is ultimately the most powerful, then there would be an equally strong argument for testing stars of the entertainment world generally for drug use, considering their influence on the young and vulnerable members of our society.

163 Australian Capital Territory Legislative Assembly, Marijuarza atzd Other Illegal Drugs, Third Interim Report of the Select Committee ora HN, Illegal Drugs arul Prostitution, ACTLA, Canberra, 1991 at 20-8. A fairly typical conclusion is the following, taken from the Report ofthe Expert Group on the Eflects r,fCarznahis Use, HMSO, U K , 1981: '. . . much of the research undertaken so far has failed to demonstrate positive and significant harmful effects in man attributable solely to the use of cannabis.'

164 ACTLA, n 163 at 28. 165 Such as the policy of the New South Wales Rugby League. 166 Drugs in Sport Inquiry, n 153 at 49.

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players were cheating or not performing at their best on account of substance abuse.I6' This concern has been most predominant in the United States, especially in sports that attract the interest of the gambling community. Here another concern is important, and that is the protection of confidence in any re~u1t . l~~

The importance of maintaining public confidence in sport and protecting the image of sport must be balanced against the right of athletes to individual autonomy and privacy. If this is to be advanced as a justification, just where do we draw the line? One might well argue that sporting organizations have an interest in ensuring that their competitors do not engage in what might generally be though to be 'immoral' behaviour. Does that justify, for example, maintaining surveillance over athletes to ensure that none are engaged in an extra-marital affair?'69 This very issue has provoked great controversy in various democracies when it has involved elected public officials. Certainly if the American experience is instructive, then we can conclude that there is great diversity of opinion on the matter. If there is such a range of opinion on the question of the morality of public officials, surely we cannot advance this as a serious justification for the mandatory drug testing of our athletes.

Thus, while sporting organizations might justifiably be concerned with maintaining the confidence of the public in the integrity of the sports they administer, such concern must be managed with care, lest it develop into sinister and intrusive regulation of those who participate in sport.

Discouraging illegal activity generally Pursuant to the Customs (Prohibited Imports) ~ e g u l n t i o n s ' ~ ~ and the various States and Territories Acts,l7] the importation, cultivation, sale and possession of many of the drugs for which testing is conducted carry criminal penalties. Thus, sporting organizations have legitimate concerns aimed at preventing their most important assets, the athletes, from the prospect of criminal prosecution. Furthermore, sporting organizations must be careful to protect their officials from being placed at risk of criminal liability for aiding, abetting, counseling or procuring the commission of an offence or acting with a common purpose in the commission of a crime.I7*

167 All drugs are relevant to this discussion, but probably this argument is mostly directed at the recreational drugs, which have the greatest potential to impair performance.

168 See Shoemaker v Hanclel795 F . 2d. 1136 (3d Cir. 1986) at 1 142. 169 In a related matter, there has been significant concern expressed by officials of the National Basketball Association

in the US about the prevalence of paternity suits lodged against NBA players. To date, the authors are not aware of any suspension of a basketball player for failure to pay child support or failure to acknowledge paternity. Quite simply, while the League is concerned about its image, there has never been any suggestion that athletes should suffer suspension for reasons connected with this behaviour.

170 Promulgated under the Customs Act 1901 (Cth). 171 For example, the Drug Misirse and Trc~flckiizg Act 1985 (NSW) and Dn4g.s rf Dependence Act 1989 (ACn. 172 Although the potential scope of liability may seem wide, that scope has been somewhat limited by Giorgiuizni v

The Queen (1985) 156 CLR 473 where the High Court (per Wilson, Deane and Dawson JJ) held at 506-7 that: '[flor the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counseling and procuring are others. Those offences require intentional participation . . . [which] must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realises it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts.'

Drug Testing in Sport: Legal Challenges & Issues 7 85

IV. Conclusions

In this paper we have attempted to describe the legal framework within which drug testing must operate and explored the major legal challenges to the imposition of penalties for contravention of drug testing regimes. It is anticipated that we may have raised more questions than we have answered, especially in regards to the issue of drug testing and unreasonable restraint of trade. There is no definitive answer. Whether any suspension or ban on an athlete for testing positive to a banned substance will run foul of a unreasonable restraint of trade action will depend on the specific facts of the case. Serious attention must be given to the questions of the appropriate penalty and the manner in which it is imposed, plus the justification or legitimate interests of the sporting body which are sought to be protected by the drug testing program.

To a great extent, drug regulation generally has not been subjected to intensive scrutiny in terms of forcing those who promulgate restrictive laws to justify their existence. Many of us in Australia, as well as overseas, simply assume that the use of drugs is an evil that justifies intrusive legislation and administrative practice. We seem to accept this as undeniable truth. We hope that, at least in so far as drugs in sport are concerned, we have provided a framework within which to assess the validity of the rules and practices which support them.

Only 'genuine' legitimate interests of sporting bodies and the public interest can justify the banning of and testing for demonstrated performance-enhancing drugs. In addition, given the dubious nature of the 'fair competition' rationalisation, it may be necessary to require that such drugs also have demonstrated adverse health consequences before being added to the banned list. Perhaps most important of all functions of ASDA is its continued research into drugs in sport and efforts to provide documented medical evidence to justify any drug ban.173 This work will only enhance the substantive justifications necessary to support what can only be described as intrusive social regulation.

It is definitely the case that, in Australia, the Commonwealth Government exercises a great degree of control over sports policy. The ASC and ASDA are important federal agencies with substantial powers in their field. Perhaps the most important aspect of a national drug testing agency is the promotion of uniform and acceptable standards for doping and drug testing policy and practice both within Australia and internationally. This process, in addition to ensuring that test results are reliable, will ensure that the athletes whose professional lives are seriously affected are afforded adequate protection.

173 See Recommendation 1 of the Minority Report in the Senate Standing Committee on Environment, Recreation and the Arts, The Circ.urnstance Surroutuliizg the Positive Drug Test otz Mr. Alex Watson at xvii: '[gliven the lack of conclusive scientific evidence and knowledge about Caffeine blood and urine levels reached by drinking coffee, the individual variations in Caffeine readings, even with uniform consumption by athletes and the reliability of urine analysis to determine levels of ingestion, we support the initiative of the Australian Sports Drug Agency (ASDA) in comlnissioning research into these and related matters.'