Republic of Ireland: The work of the Sport Anti-Doping Disciplinary Panel Part 1

by David Barniville[2]

 

General summary

In this article, I describe the work performed by the Irish Sport Anti-Doping Disciplinary Panel, which is the body established by the Irish Sports Council, under the Irish Sports Council’s Anti-Doping Rules, to adjudicate on cases of alleged violations of the Anti-Doping Rules and to impose sanctions on athletes or other persons found to have committed a violation of those Rules. I also outline some of the recent cases which have come before the Panel.

 

The establishment of the Panel

The Irish Sport Anti-Doping Disciplinary Panel (the “Panel”) was established under the Irish Sports Council Anti-Doping Rules 2004. Under the 2004 Rules provision was made for the establishment of an independent disciplinary panel comprised of lawyers, doctors and sports administrators and athletes. The main function of the Panel was to hear cases of alleged violations of the Irish Anti-Doping Rules. In addition to establishing a Panel to hear cases concerning alleged violations at first instance, the 2004 Rules also provided for the establishment of an Appeals Panel to hear appeals from the Panel. In 2009, the Panel and the Appeals Panel were merged so that members were selected from the Panel to hear cases at first instance and other members from the same panel (who had not been involved at first instance) were selected to hear appeals.

 

The Rules

The first Anti-Doping Rules were amended from time to time since 2004, most recently in 2015. The 2015 Irish Anti-Doping Rules were introduced following the adoption of the revised 2015 World Anti-Doping Code (the “Code”) which took effect as of 1 January 2015. The 2015 Rules essentially dovetail with, and are intended to compliment, the 2015 World Anti-Doping Code. As the 2015 Rules note in their introductory remark, the Code is “the fundamental and universal document upon which the World Anti-Doping Programme in sport is based”. The Rules continue: “The purpose of the Code is to advance the anti-doping effort through universal harmonisation of core anti-doping elements.” The World Anti-Doping Programme encompasses a number of different elements required to ensure optimal harmonisation and best practice in international and national anti-doping programmes. The main elements of the Programme are the Code, international standards and models of best practice and guidelines.

The Irish Anti-Doping Rules first adopted in 2004 were adopted and implemented by the Irish Sports Council (now known as Sport Ireland) in discharge of its statutory functions under the Irish Sports Council Act, 1999. The Council was established under that Act to perform certain functions which include action, to combat doping in sport. The Council established and implemented the Irish Sport Anti-Doping Programme in performance of that function. The Rules, now found in the 2015 Rules, are the fundamental document on which the Irish Sport Anti-Doping Programme is based.

The 2015 Rules are, therefore, essentially, the rules of sport which govern the conditions under which sport is played. Athletes or other persons involved in sport (such as coaches and trainers) accept the Rules as a condition of participation in sport and agree to be bound by them. Proceedings under the Rules are different in nature from criminal and civil proceedings. They are, nonetheless, intended to be applied in a manner which is stated to respect the principles of proportionality and to protect the human rights of those involved. Courts, hearing panels and other adjudicating bodies dealing with the 2015 Rules, are urged (by the introductory provisions of the Rules themselves), when reviewing the facts and the law in a given case, to be aware of and to respect the distinct nature of the anti-doping rules set out in the Code and in the 2015 Rules themselves and to respect the fact that these rules “represent the consensus of a broad spectrum of stakeholders around the World with an interest in fair sport”.[3]

 

The Panel

The 2015 Rules make provision at art. 8.1 for the appointment by the Council of the Irish Sport Anti-Doping Disciplinary Panel in accordance with the “Panel Rules”. Under art. 8.1, it is provided that the Panel Rules may be amended from time to time by the Chair of the Panel following agreement with the Council, in order to reflect any changes made to the Code and otherwise as necessary to ensure that they remain “fit for purpose”. Any amendments to the Panel Rules are required to be published by the Council which must confirm the date upon which such amendments come into effect, as well as any transitional arrangements.[4] The relevant Panel Rules in place at present are the Irish Sport Anti-Doping Disciplinary Panel Rules made in 2015 (the “Panel Rules”). The Panel Rules flesh out the provisions of the 2015 Rules themselves in relation to the Panel and are intended to be consistent with those Rules and with the Code.

The jurisdiction of the Panel is outlined in art. 8.2 of the 2015 Rules. It provides that when it is alleged that an athlete or other person has committed a violation of the Rules, save in certain cases, the Council shall refer the matter to the Panel for adjudication as to whether the athlete or other person has committed a violation and, if so, what consequences (or sanctions) should be imposed for that violation. The Panel has the power to hear and determine all issues arising from any matter which is referred to it pursuant to the 2015 Rules. In particular, the Panel has the power to hear and determine a case (by a hearing panel) or an appeal (by an appeal panel) arising under the Rules and to determine whether an anti-doping rule violation has been committed and/or the consequences or sanctions to be imposed pursuant to the Rules for a violation found to have been committed. In that context, the Panel is given all powers necessary for, and incidental to, the exercise of its functions.[5]

The Panel Rules elaborate somewhat on (but cannot, of course, expand) the jurisdiction of the Panel. Under art. 2 of the Panel Rules, it is provided that the Panel has the power to hear and determine all issues arising from any matter which is referred to it pursuant to the Rules and, in particular, the Panel has the power to hear and determine:

1  a case referred to it under the Rules by the Council as to whether an anti-doping rule violation has been committed and/or the consequences to be imposed pursuant to the Rules;

2  an appeal by an athlete or other person of a provisional suspension imposed upon him or her pursuant to the Rules (with such appeal being heard by the Chair of the Panel or a Vice-Chair appointed by the Chair for that purpose under art. 13.2.4 of the 2015 Rules);

3  an appeal brought from a decision made by a hearing panel of the Panel at first instance); and

4  an appeal by an athlete of a decision by the Council denying a therapeutic use exemption (TUE) application made under art. 4.1.3 of the 2015 Rules.

Article 2.2 of the Panel Rules notes that the 2015 Rules constitute an agreement to arbitrate and that proceedings under the Panel Rules constitute arbitration proceedings with a seat or legal place in Ireland to which the (Irish) Arbitration Act, 2010 applies.

Under art. 2.3 of the Panel Rules, it is provided that where the 2015 Rules confer jurisdiction over a matter on the Panel, the persons who are parties to the matter in accordance with those Rules shall be taken to have agreed that such matter shall be heard and resolved in accordance with the Panel Rules, as amended from time to time.

As noted earlier, the Panel Rules may be amended. They have not yet been amended. Art. 2.4 of the Panel Rules replicates what is said in art. 8.1 of the Rules in relation to the making of such amendments.

 

Composition of the Panel

The composition of the Panel is not dealt with in the 2015 Rules (or in its predecessor Rules) but rather in art. 3 of the Panel Rules. Under art. 3.1, it is provided that the Panel shall comprise of the following:

1  a chair and up to nine vice-chairs, each of whom is a solicitor or barrister not less than five years qualified or a retired judge;

2  up to ten members each of whom is a medical practitioner not less than five years qualified; and

3  up to ten members each of whom is or was a sports administrator or an athlete.

 

The Panel currently consists of 21 members. The chair is Michael Collins SC.

Each member is appointed for a term of four years and a member may be reappointed to the Panel by the Council. Under art. 3.4 of the Panel Rules, it is provided that each member is appointed to the Panel on the basis that he or she is in a position to hear cases under art. 8 of the 2015 Rules and appeals under art. 13 of those Rules “fairly and impartially”. Art. 3.5 of the Panel Rules provides that the Council pays the remuneration costs of the Panel and its members incurred in the exercise of its functions.

Most of the cases heard to date by the Panel are cases in which it is alleged that anti-doping rule violation has occurred and the Panel’s role is to determine whether that violation did occur and, if so, what consequences or sanctions should be imposed in respect of that violation.

 

How does the procedure work?

When it is alleged that an athlete or other person has committed an anti-doping rule violation, the Council is required to refer the matter to the Panel for adjudication on the issue.[6] When a case comes in, the Chair of the Panel appoints three members from the Panel to hear and determine each case (or appeal as the case may be). Each hearing panel and appeal panel will comprise a chair or a vice-chair, as chair of the hearing panel or appeal panel, one medical practitioner member and one sports administrator or athlete member.[7]

The members appointed to the hearing panel or the appeal panel (as the case may be) must have had no prior involvement with the case (or appeal) save that the chair of the hearing panel may have heard an appeal from a decision to impose a provisional suspension pursuant to art. 13.2.4 of the 2015 Rules. Each member, on being appointed to a hearing panel or appeal panel as the case may be, must disclose to the chair of the Panel any circumstances likely to affect his or her independence or impartiality with respect to any of the parties to the case or appeal.[8]

The secretary to the Panel will then advise the parties of the identity of the members of the hearing panel or appeal panel appointed to hear and determine the case or appeal. Any party having an objection to any member of the hearing panel or appeal panel must communicate their objection to the chair who then rules on the legitimacy of such objection.[9]

 

Provisional suspension

As noted earlier, under art. 13.2 of the 2015 Rules, an athlete or other person on whom a provisional suspension is imposed may appeal against the imposition of that suspension to the chair of the Panel or a vice-chair appointed by the chair for that purpose.[10] Art. 5.2 of the Panel Rules provides that the only three grounds upon which the imposition of a provisional suspension may be lifted on appeal are where the athlete or other person establishes that:

1  the provisional suspension was imposed in violation of the 2015 Rules;

2  he or she is likely to establish no fault or negligence for the alleged violation under art. 10.3 of the 2015 Rules so that any period of ineligibility that might otherwise be imposed for such violation is likely to be completed eliminated; or

3  the violation is likely to have involved a contaminated product.

Such an appeal may be in writing or, if the chair orders, made orally whether in person or by telephone or video conference. There is no right as such to a personal hearing on such an appeal. The Council or national governing body (as applicable), must be given an opportunity to comment on the submission of the athlete or other person prior to a decision being taken on the appeal. The appeal must be determined on an expedited basis.[11]

 

Powers of the Panel

The Panel has very wide powers. Under art. 4.7 of the Panel Rules, it is provided that the hearing panel or appeal panel as the case may be has the power to regulate its procedures. Certain of the procedures are set out in art. 8 of the 2015 Rules but are fleshed out considerably by the Panel Rules. Among the powers which the Panel has include the power, whether on the application of a party or of its own motion:

1  to appoint an expert to assist or advise the hearing panel or appeal panel on a specific issue or issues (such expert being required to be and to remain impartial and independent of the parties);

2  to expedite or to adjourn, postpone or suspend its proceedings, on such terms as it determines where fairness so requires;

3  to extend or abbreviate any time limit imposed by the 2015 Rules, by the Panel Rules or by the hearing panel or appeal panel’s own orders;

4  to conduct such enquiries as appear necessary or expedient in order to ascertain the facts;

5  to direct one or more parties to supply it and/or the other party or parties with further particulars of the case of that party, including details of all witnesses that the party intends to call at any hearing together with details of the evidence to be given by those witnesses and that party is required to comply with such a direction;

6  to direct one or more of the parties to disclose relevant documents or materials in its possession or control provided that, save in limited circumstances, no documents or other material can be ordered to be disclosed in relation to the laboratory analysis resulting an adverse analytical finding beyond the documents that the International Standards[12] for laboratories require to be in the laboratory documentation package;

7  to order that preliminary questions be heard and determined in advance of other issues in the case or appeal;

8  subject to the consent of the parties, to consolidate the proceedings with other substantially similar or related proceedings and/or to order that concurrent hearings be held in relation to such proceedings; and

9  to rule on its own jurisdiction.

 

The procedure: hearings

The Panel Rules go on to outline what is to happen after the hearing panel or appeal panel as the case may be has been appointed. Under rule 6.3 of the Panel Rules, as soon as practicable after formation, the chair of the hearing panel or appeal panel must issue directions to the parties on the procedure and timetable to be followed. Where the chair deems it appropriate, the chair will hold a directions hearing prior to the issuing of such directions. This hearing may be held in person or by telephone or video conference call. Among the directions which the chair may issue at this stage are the following:

1  to fix the date, time and venue of the hearing;

2  to establish a schedule for the exchange of written submissions and evidence in advance of the hearing, including confirmation by the Council and/or the relevant national governing body of the details of its prima facie case, confirmation by the athlete or other person of the details of his or her defence and/or mitigation and provision for the Council and/or national governing body to reply to the defence and/or mitigation case; and

3  to make such order as the chair deems appropriate in relation to the manner and form in which any witness or expert evidence should be produced, providing that:

a  a party intending to rely upon the evidence of a witness or expert shall serve a statement or report setting out the proposed evidence of such witness or expert at a date in advance of the hearing that is specified by the chair, unless the chair expressly dispenses with the requirement for a written report; and

b  the hearing panel or appeal panel shall have the power to allow, refuse or limit the evidence or appearance at the hearing of any witness or expert.

Art. 7.1 of the Panel Rules provides that a preliminary or procedural ruling by a hearing panel or appeal panel shall not itself be subject to appeal unless the ruling amounts to a final resolution of the case or appeal or the ruling is subsequently incorporated into a final decision in which case the ruling may be appealed in accordance with the 2015 Rules.

Art. 8 of the 2015 Rules describes in general terms the procedure for hearings before the Panel. However, the Panel Rules flesh out in much greater detail the procedural rules which the Panel applies. Art. 8.3 of the 2015 Rules provide that in general the Council presents the case against the athlete or other person the subject of the alleged violation. However, the relevant national governing body may present the case against the athlete or other person where it agrees this with the Council. In such case the Council has the right to join the proceedings and attend hearings of the hearing panel as a party. Under art. 8.3.3 of the 2015 Rules, if the Council is not a party to the proceedings then it has the right to attend the hearings as an observer as does the relevant international federation of the sport concerned and WADA.

Art. 8 of the Panel Rules expand on the procedure for hearings and appeals. Art. 8.1 makes it clear that each party has the right to be legally represented at the hearing and to present evidence, make submissions, call witnesses and cross examine the witnesses of other parties. The hearing panel or appeal panel, as the case may be, has a discretion as to whether to receive evidence from witnesses in person, by telephone, by video conference or in writing and has the right to question witnesses and to control the questioning of witnesses by a party. In practice, in the cases heard to date by the Panel, the presenting party (generally the Council or the relevant national governing body) is typically represented by a solicitor (sometimes with counsel). The athlete is sometimes represented by a solicitor (sometimes with counsel) but often not so (presumably due to financial constraints). The cases heard by the Panel have involved evidence taken from witnesses in person and by telephone and by video conference and as well as evidence in writing. However, the Panel would be cautious about accepting evidence in writing in circumstances where the other party made it clear that it wished to challenge that evidence.

Under art. 8.2 of the Panel Rules, the hearing panel has the power to decide on the admissibility, relevance and weight of any evidence (including the testimony of any fact or expert witness) and it is expressly provided that the Panel “shall not be bound by any legal rules in relation to such matters”. Art. 8.2 goes on to say that facts related to anti-doping rule violations may be established by “any reliable means, including admissions”.[13] It is fair to say, however, that the hearing panels have been astute to ensure that the procedures followed are fair to all parties and particularly to the athlete or other person the subject of the allegations.

Under art. 8.3 of the Panel Rules, any failure by a party to comply with any requirement or direction of the hearing panel including any requirements or directions to be complied with within a truncated time schedule shall not prevent the hearing panel from proceeding and such failure may be taken into account by the hearing panel when making its decision. Similarly, under art. 8.4 of the Panel Rules, a failure by a party or his or her representative to attend a hearing after notification shall not prevent the hearing panel from proceedings with the hearing in their absence whether or not written submissions have been made by or on behalf of the party.

Hearings and appeals are required to be conducted on a private and confidential basis and are attended only by the parties and their representatives, the national governing body of the athlete alleged to have committed the violation (if not a party) and any person permitted to observe under the Code or the 2015 Rules, such as WADA.[14]

The Panel Rules contain important provisions governing the timelines within which cases should be heard by the Panel and within which a decision must be provided to the parties. These issues are addressed in art. 9 of the Panel Rules. Art. 9.1 provides that an athlete or other person who is provisionally suspended has the right to an expedited hearing and that such hearing should take place as soon as possible and, in any event, no later than 30 days from the date the matter is referred to the Panel unless that is impractical or unless fairness requires or the parties agree otherwise. Subject to that, art. 9.2 provides that the hearing should take place no later than 90 days from the date the matter is referred to the Panel (again unless that is impractical or fairness requires or the parties agree otherwise). Under art. 9.3 of the Panel Rules the hearing panel or appeal panel is required to announce its decision to the parties in writing in a document, dated and signed by at least the chair of that panel within 15 working days of the end of the hearing of the case or of the appeal. This can be extended with the permission of the Chair of the Panel which must be notified to the parties in writing.

Cases before the Panel are generally presented by the Council through a solicitor (sometimes with counsel). However, as noted earlier, it is open to the relevant national governing body for the sport involved to present the case. The athlete or other person the subject of the alleged violation is entitled to be represented by a lawyer or by any other person. The Panel often facilitates representation by a family member, friend or other person, at the request of the athlete. As noted earlier, however, experience has shown that in most cases the athlete or other person the subject of the alleged violation is not legally represented.

The proceedings before a hearing panel proceed somewhat like a court case in that the case is opened on behalf of the presenting body (whether the Council or national governing body concerned), evidence is called (whether in person or via conference call or video conference link), the relevant witnesses are examined and then cross examined by or on behalf of the athlete. The athlete is then entitled to give evidence on his or her own behalf and to call witnesses in support of his or her defence to the case.

The 2015 Rules deal with the burdens and standards of proof involved in establishing facts in a case before the Panel. These are addressed in art. 8.4 of the 2015 Rules. Art. 8.4.1 provides that the council (or national governing body) has the burden of proving the alleged anti-doping rule violation. As required by art. 3.1 of the Code, the standard of proof under art. 8.4.1 of the 2015 Rules is whether the presenting body has established the violation to the “comfortable satisfaction” of the hearing panel bearing in mind the seriousness of the allegation made and that standard of proof is greater than a mere balance of probability but less than proof beyond a reasonable doubt. This concept is well known in sport law and in doping cases and is in contrast to the standard of proof which applies where the rules place the burden of proof on the athlete or other person concerned to rebut a presumption or to establish specified facts or circumstances. In such a case, the standard of proof is the civil standard of proof on the balance of probabilities.

Art. 8.4.3. of the 2015 Rules provides that the hearing panel shall have the power to decide on the admissibility, relevance and weight of any evidence (including the testimony of any fact or expert witness) and is not bound by any legal rules in relation to such matters. It further provides that facts related to an anti-doping rule violation may be established by “any reliable means” including admissions. Presumptions are addressed in art. 8.4.4 of the 2015 Rules. Mirroring art. 3.2 of the Code, it provides that analytical methods or decision limits approved by WADA after consultation “within the relevant scientific community” and which have been the subject of peer review are presumed to be scientifically valid. It further provides that an athlete or person concerned seeking to rebut the presumption of scientific validity is, as a condition precedent to any such challenge, required first to notify WADA of the challenge and of the basis for the challenge. There is a potential role here also for the Court of Arbitration in Sport (CAS). At WADA’s request, the CAS Panel shall appoint an appropriate scientific expert to assist the hearing panel in its evaluation of the challenge. WADA also has the right to intervene as a party, to appear as amicus curiae or otherwise to provide evidence in such proceedings.

Furthermore, under art. 8.4.5 of the 2015 Rules, WADA-accredited laboratories and other laboratories approved by WADA are presumed to have conducted sample analysis and custodial procedures in accordance with the applicable international standard for laboratories (as adopted by WADA in support of the Code). Again, the athlete or other person the subject of the alleged violation may rebut the presumption by establishing that a departure from the international standard for laboratories occurred which could reasonably have caused the adverse analytical finding at issue. If the presumption is rebutted by showing such a departure, then the Council has the burden of establishing that the departure did not cause the adverse analytical finding.

Art. 8.4.6 provides that departures from any other international standard or other anti-doping rule or policy set forth in the Code or in the 2015 Rules which did not cause an adverse analytical finding or other anti-doping rule violation, shall not invalidate such evidence or results. If the athlete or other person concerned establishes that a departure from another international standard or other anti-doping rule or policy which would reasonably have caused an anti-doping rule violation based on an adverse analytical finding or other anti-doping rule violation, then the Council has the burden of establishing that such departure did not cause the adverse analytical finding or the factual basis for the anti-doping rule violation. These provisions are all consistent with art. 3.2 of the Code.

Under art. 8.4.7 of the 2015 Rules, the facts established by a decision of a court or professional disciplinary tribunal of competent jurisdiction which is not the subject of a pending appeal shall be irrebuttable evidence against the athlete or other person to whom the decision related of those facts unless the athlete or other person establishes that the decision violated principles of natural justice.

There are also certain presumptions applicable in respect of certificates, notices, forms and other documents.[15]

Under art. 8.4.9 of the 2015 Rules, the hearing panel where it is hearing a case of an alleged anti-doping rule violation is entitled to draw an inference that is adverse to the athlete or other person concerned based on the person’s refusal, after a request which has been made within a reasonable time in advance of the hearing, to appear at the hearing (either in person or otherwise) and to answer questions from the hearing panel or from another party to the case.

Finally, in this context, art. 8.4.10 of the 2015 Rules provides that any other deviation from the Rules or the procedures referred to in the Rules shall not invalidate any finding, procedure, decision or result under the 2015 Rules unless the person relying on such deviation establishes that it casts material doubt on the validity of the finding, procedure, decision or result and the other parties to the proceedings cannot rebut that doubt or otherwise establish the validity of the finding, procedure, decision or result.

 

[1] Part 2 of this article will published in the June 2017 issue of GSLTR.

[2] Senior counsel, Irish Bar, and a vice-chairman of the Irish Sport Anti-Doping Disciplinary Panel.

[3] Introduction to Irish Anti-Doping Rules 2015, p. 3.

[4] Art. 8.1 of the 2015 Rules.

[5] Art. 8.2.3 of the 2015 Rules.

[6] Art. 8.2 of the 2015 Rules.

[7] Art. 4.3 of the Panel Rules.

[8] Art. 4.4 of the Panel Rules.

[9] Article 4.5 of the Panel Rules.

[10] Article 13.2.4 of the 2015 Rules and Article 5.1 of the Panel Rules.

[11] Article 5.3.3 of the Panel Rules.

[12] Defined in Appendix I to the 2015 Rules as a standard adopted by WADA in support of the Code.

[13] Art. 8.2 of the Panel Rules.

[14] Art. 8.5 of the Panel Rules.

[15] Article 8.4.8 of the 2015 Rules.