Examination of Witnesses (Questions 121-139)
20 APRIL 2004
Mr Charles Woodhouse, Mr Peter Leaver QC, and Ms
Alison Faiers
Chairman: Lady and Gentlemen, I would
like to welcome you here this morning.
Michael Fabricant: I know you were here
listening to the evidence Professor Cowan was just giving and
I am particularly interested in the whole relationship between
an illicit drug being found and the idea of there being a guilty
intent by the athlete to take that drug, which I believe was one
of the issues that Professor Cowan was making. I wonder if you
could explain your role in this. You are looking at me blankly.
Q121 Chairman: Most people do, Michael!
Mr Woodhouse: The Sports Dispute
Resolution Panel is a service to provide effective and fair resolution,
including an independent tribunal service, but that tribunal must
find matters on the basis of the rules of the respective body,
which will now be the World Anti-Doping Agency. It is a strict
liability issue at the moment, but there are big advances in the
new Code because they are now looking at no fault and negligence,
so it is slightly widening it up. Hitherto, it has been a strict
liability matter and that has caused quite key issues and some
challenges in the courts on which I think Peter Leaver would be
better able to answer.
Mr Leaver: I think you start from
the position that it is only the athletes who know what goes into
their bodies, so they have to be responsible. One of the questions
which was asked of Professor Cowan was about the information that
the athletes give. When they are selected for testing, they have
an opportunity on the form which they have to sign when their
sample is being provided to state what drugs they have taken within
the last sometimes 24 hours, sometimes 48 hours, sometimes 72
hours, so they do have that opportunity and that responsibility
to say what it is that they have taken. They also have, certainly
in the sports with which I have been associated and which I have
seen at the Court of Arbitration for Sport, a great deal of education
about the drugs and the prohibited list. Can I just make this
point: that what we are talking about is substances that are on
the prohibited list, prohibited substances in other words, which
are nowadays put on the list by WADA. It is not a question of
whether these prohibited substances are performance-enhancing
or not; the fact is that they are prohibited and that is the breach
of the rules. I personally do not like calling it a doping offence,
but I prefer to call it a breach of the doping rules. The reason
I do not like calling it a doping offence is because it has too
many connotations with the criminal law. It is a breach of the
rules of the sport and it does not really matter whether it is
performance-enhancing or not; it is a breach of the rules and
that is the reason that athletes are disciplined, because they
have broken the rules. I do not know whether that is an answer
to your question or even a partial answer.
Q122 Michael Fabricant: Yes, that is
helpful. That is the easy one, is it not, the prohibited list?
As Professor Cowan said, that makes his life easy because you
just detect the molecule, it is there and, therefore, a rule has
been broken, assuming of course that somehow or other the product
has not been self-metabolised or whatever. I wanted really to
probe the whole issue of what view you take about those who say,
"Well, somehow this has got into my body by accident or by
a combination of things I have ingested", and also to get
beyond the issue of the easy one, the prohibited issue, to the
one where you are allowed to take a certain amount. Earlier on
we heard about caffeine and we know that has now been taken off,
but caffeine is a good example because previously you were allowed
to have some caffeine in your body and then beyond a certain amount
it became unlawful or a breach of the rules. How do you get round
that sort of problem?
Mr Leaver: Well, I do not really
see it as a case of getting round it, as far as I am concerned,
because what happens when I am involved in one of these cases
is that the athlete has given a sample, the sample has been analysed
and what has been shown on the analysis is that there is a prohibited
substance in the athlete's body. Now, if that prohibited substance
is found in the course of a competition, then inevitably that
athlete has got to be disqualified from that competition. Different
issues may arise about whether or not there should be a suspension
from competition in the future as a result of that prohibited
test. My own personal view is that there should be a limited scope
and a limited scope only for saying that there should not be a
mandatory penalty in such circumstances because it is a very slippery
slope. I know from my own experience after the last Winter Olympics
where I was on the panel in Salt Lake City the lengths to which
athletes will go. I heard a case with a couple of colleagues after
the Games of some Russian cross-country skiers. They had been
taking a perfectly legitimate drug, a drug which had been designed
for people who suffered with anaemia, but it was discovered that
this was a drug which would increase the production of red blood
cells and, therefore, increase their endurance. There are no lengths,
in my experience of sitting on these tribunals, to which athletes,
certainly elite athletes, are not prepared to go to improve their
performance. It may only improve their performance by a few seconds,
but in a cross-country skiing race, those few seconds could be
the difference between a gold medal, a silver medal, a bronze
medal and no medal at all. I think if there is to be any scope
for mitigating the penalty, it has got to be pretty limited because
I go back to what I started with, that it is only the athletes
who know what they have put into their bodies.
Q123 Michael Fabricant: It is interesting
listening to this because it reminds me of the argument about
whether there should be jury trials or trials with a tribunal
or a magistrate because, through your experience, you seem rather
cynical about the motives of those athletes who do take drugs.
I still wonder whether maybe I am being the layman here and maybe
I am always seeing the other side of the story and giving the
benefit of the doubt, but do you not think that it is possible
for an athlete unwittingly to ingest something which then is detected
as being illegal?
Mr Leaver: I suppose it is possible,
almost anything is possible. You start from the position most
athletes do not take drugs. When I sit on the tribunal I am dealing
with one of the athletes who has taken drugs, or it is said has
taken drugs. It is up to the prosecuting authority then to prove
the case but it is said they have taken drugs, and if we find
they have taken drugs then they have sanctions imposed upon them,
but most athletes do not take drugs. Is it possible to take drugs
unwittingly? Of course, it is possible to take prohibitive substances
unwittingly, but certainly at the top levels of most sports they
have enough education about the dangers of taking substances that
they should not do it, and they certainly should not do it without
taking medical advice. There was quite a high profile case involving
an athlete from this country where that may well have been one
of the problems from which he suffered. Again going back to the
sort of cases that are dealt with at the Court of Arbitration
for Sport, there was one athlete in Salt Lake City who took 31
different food substances every day of his life in order to bulk
up his body, to enhance his strength, so he as the pusher on the
bob sleigh team might be able to gain by reason of that enhanced
body strength half a second. That is what the authorities are
up against.
Q124 Michael Fabricant: Were those food
substances illegal?
Mr Leaver: They were illegal.
It was like a man standing in the middle of a railway line with
an express train bearing down on him. He just did not know, he
did not care, he was just trying to bulk up his body, and that
was it.
Michael Fabricant: I think that is cut-and-dried,
Chairman. Thank you.
Q125 Derek Wyatt: Good morning. Did I
just hear you say this was a confidential service? It is not in
the public domain what you do?
Mr Leaver: Yes, it is in the public
domain.
Q126 Derek Wyatt: All your rulings go
into the public domain?
Mr Leaver: The Court of Arbitration
for Sport publishes its decisions. There are two volumes of the
decisions of the Court of Arbitration for Sport judgments.
Q127 Derek Wyatt: The Court of Arbitration?
Mr Leaver: That is the Court of
Arbitration.
Q128 Derek Wyatt: That is not SDRP?
Mr Leaver: That is not SDRP.
Mr Siddall: In relation to the
Sports Dispute Resolution Panel there is provision for decisions
to be in the public domain, certainly at appeal level.
Q129 Derek Wyatt: So it is a given or
it is not a given?
Mr Siddall: It is not automatic
in all circumstances.
Q130 Derek Wyatt: Because?
Mr Siddall: If the parties were
to make representations to keep it within the private domain,
it would be considered by the tribunal, but the expectation is
that decisions would arrive in the public domain, in much the
same way as CAS. We are very much modelled on CAS in that respect.
Certainly over a period of time, accepting that CAS is further
advanced in its evolution, the custom and practice is automatic
in that in appeal matters the decisions of the cases are always
published, when one is talking about disciplinary appeal type
cases. It is different if one is looking at a commercial arbitration
situation.
Q131 Derek Wyatt: You do not feel compromised
that it is not an absolute given that it is in the public domain?
Mr Siddall: We certainly have
not encountered a difficulty at the moment. There is an expectation
the decision taken will be in the public domain.
Q132 Derek Wyatt: Are you saying at the
same time that every case you have dealt with has gone into the
public domain?
Mr Siddall: We have not yet, and
I think this is simply a reflection of the fact we are only a
short period into our evolution, got into a position of as a matter
of course reporting into the public domain, but there has not
been a policy decision that says we will not do that.
Q133 Derek Wyatt: Do you understanding
the apprehension I would have if it is not in the public domain?
To get drugs sorted, there has to be absolute transparency once-and-for-all,
we cannot mess about here. Who are your trustees or who decides
the way you deal with your business? Who makes the decision that
it may or may not go into the public domain?
Mr Siddall: We have a set of arbitration
rules.
Q134 Derek Wyatt: Who made those up?
Mr Siddall: They are put together
and approved by our board. Our independent board of directors
ultimately approved those.
Mr Woodhouse: I think one should
distinguish between doping cases, which must and ought to be in
the public domain, and an awful lot of the work we do which is
eligibility, selection and other types of dispute, and they are
commercial disputes, especially if it is an arbitration, which
can and should be confidential because it is a matter of agreement
between the parties.
Q135 Derek Wyatt: Give me an example
of that side of the equation where you could justify it going
into the public domain, without mentioning who it is? Give us
an illustration of what would make you not put anything in the
public domain?
Mr Woodhouse: We do report the
summary of decisions but sometimes not the names. Doping is distinguished
from all the other things we do—we do not operate in only
one discrete area—and there I fully accept in practice it
must go into the public domain.
Q136 Derek Wyatt: Answer my question;
give me an example of something you would not put in the public
domain?
Mr Woodhouse: A commercial dispute
under a sponsorship contract where the parties elect to have arbitration
and elect to use SDRP to nominate one of our panels to handle
that dispute. That might be a matter of contractual confidentiality
for the parties and we are not talking at all about doping in
that context.
Q137 Derek Wyatt: I still do not understand
what that would be. If I could try and give you an illustration,
you can tell me no and give me an illustration back: a sponsor
sponsors a football match or a cricket match to have something
on television, and finds that although they paid £5 million
for something in fact they did not get what they were promised,
so they come to you and say, "This is unreasonable".
Is that what you are telling me?
Mr Woodhouse: Yes, that is an
arbitration dispute.
Q138 Derek Wyatt: And that is the sort
of arbitration dispute you deal with?
Mr Woodhouse: If it is put in
context, yes, it is quite possible we would be the chosen body
because of our expertise in sport and the relevant area.
Q139 Derek Wyatt: How many cases do you
deal with a year?
Mr Siddall: We have dealt with
on average between 20 and 35 cases a year over our first four
year period, so we are now in a position where we have done something
over 100. That has embraced the full range of our areas of work:
arbitration, mediation, appeals and also our appointing work.
It is important to recognise that in addition to dealing with
cases under our own arbitration and mediation rules, we also act
as an appointing body to governing bodies, for example to appoint
a legally qualified chair to chair a tribunal within a given sport.
That has been a service which I think has been quite beneficial
to the governing bodies, and that is one aspect of achieving the
balance of how to deal with doping cases which is up for discussion
and review as to where the ultimate responsibility would lie.
We are happy to approach it in either fashion.
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