Doc Reid re-argues Lance’s Legal Argument – Time for the Courts to Intervene?

 

In Dr Bruce Malcolm Reid v Australian Football League, Supreme Court of Victoria, Proceeding No SCI 2013 04575, the universally respected Essendon Football Club doctor, Dr “Doc” Reid, is arguing for declarations and an injunction to restrain the AFL from hearing the disciplinary charges against him, and asking that such charges be heard by an independent arbiter.

 

The charges against Dr Reid are limited to that he:

 

  1.       “was part of the decision-making processes of the Club in respect of the development and implementation of a scientifically pioneering program relating to the administration of supplements to its players, knowing that:

 

(a)     the program was to push the legal limit;

 

(b)     the program involved innovative supplement practices and compounds;

 

(c)     the program involved the use of allegedly beneficial, if exotic, mysterious and unfamiliar compounds;

 

(d)     the program’s ftness strategy and use of supplements varied sharply from prior practices at the Club;

 

(e)     the program involved injecting players with an unprecedented frequency.”
(Particulars Paragraph 3)

 

  1.        “made no direct inquires of ASADA in relation to whether AOD-9604 was a prohibited substance”;
    (Particulars Paragraph 21(b))
  2.       was a person named in an Essendon protocol concerning the use of supplements circulated on 15 January 2012;
    (Particulars Paragraph 17)
  3.       failed to take adequate steps to ensure that the Protocol was properly implemented after becoming aware that substances had been administered that had not been approved.
    (Particulars Paragraph 32-35)

 

In Dr Reid’s case, on a careful reading of the charges, even if correct, (the charges are 100% contested), at worst it might be said that Dr Reid was not sufficiently interventionist.

 

There is zero suggestion in the charges (or anywhere else) that Dr Reid ever administered, or supported the use of administering, any performance enhancing drug. (In fact, Dr Reid’s letter dated 17 January 2012, and James Hird’s text message on 30 January 2012, suggest that Dr Reid positively opposed any such practice.)

 

Dr Reid makes the usual athlete/accused argument, ie that the sports establishment hearing structure is weighted against the athlete/accused, and that he is denied a fair hearing. The AFL runs the usual sports establishment defence, ie that it is simply a matter of contract, to which the athlete/accused previously committed, and that the sports establishment is the body best equipped to deal with such claims.

 

These arguments are particularly key given that Dr Reid is , like all of the category of athletes who have been charged with performing enhancing drugs charge , on the basis of evidence rather than a failed drug test (collectively called “non-analytical positives”), charged on as yet un-substantiated evidence. In their case, though the punishment in relation to the performing enhancing drug charges is no less than an athlete accused who fails a drug test, and though the mere fact of being charged will usually disrupt or end their sports career, and some instances, including Dr Reid, may have even worse consequences, the accused has none of the enduring protections of a criminal accused.

 

In substance, the non-analytical positive athlete/accused usually complains that they are being denied a fair hearing (in the USA, denied the Constitutional right to “due process”). There seems to be substantial strength in their complaints.

 

The Legal Arguments:

 

Dr Reid has previously made the following legal arguments to the AFL Commission in relation to the request for an independent arbiter to be appointed:

 

1.       The AFL Commission is not a body that is equipped to provide a fair hearing, for the following reasons:

 

a.        the complexity of the case, including (complex) legal issues;

 

b.       the case will be of lengthy duration;

 

c.        because of a and b, and because the Charge may affect Dr Reid’s professional reputation, the case therefore requires a full-time arbiter;

 

d.       reduced prospect of error and appeal if heard by an appropriately qualified person;

 

e.       less likelihood of interlocutory applications to the Supreme Court in the running of the case;

 

f.         issues of relevance and publicity in this case require a an arbiter less likely to be affected by extrinsic factors;

 

g.        Dr Reid’s legal case includes highly perjorative submissions about the AFL;

 

h.       A case involving a medical professional’s reputation is in a special category;

 

i.         Dr Reid cannot get a just hearing from the AFL Commission, after it has involved itself in the approval of the settlements with the other defendants.

 

2.       Bias, both actual and apprehended, on the part of the AFL Commission.

 

In this proceeding, Dr Reid asserts that the AFL Commission cannot hear the charges against him in an unbiased manner because of:

 

  1.        Conflict

 

a.        The charges raise factual matters already considered and determined by the AFL Commission.

 

b.       The determination of the charges raises questions about conduct by the AFL.

 

  1.       Comments

 

a.        “a most unfortunate matter”

 

b.       “it might be a lonely day” (for Dr Reid);

 

c.        “We can’t let – no matter how clever they were in disguising what they were doing, we can’t ever let a group of people take hold of a player group in the way that this group did. That must never happen again”

 

d.       “responsibility, I think, has not been easy to assign, but I think it has been reasonably assigned”

 

e.       “frankly, what happened [at Essendon] is probably the worst thing that has happened in a footy club”

 

The AFL has not yet delivered its arguments. We can guess that those arguments will include:

 

  1.        that athletes and support personnel sign up to the AFL rules, as a matter of contract they commit to the process set out in those rules;
  2.        that the AFL Commission is well-equipped to adjudicate on this type of matter, because of its experience and expertise in this area;
  3.       the courts are not well-equipped to deal with the particular issues relating to sports enhancing performance drugs.

 

USA Decisions on this Type of Claim:

 

These arguments were, in fact, recently re-run in the USA by perhaps our most famous non-analytical positive accused athlete, Lance Armstrong. On 23 August 2012, Judge Sam Sparks in the US District Court Western District of Texas (Austin) of the USA Federal Court, dismissed Lance Armstrong’s suit asking for an injunction to restrain USADA from proceeding against him. The Judge found:

 

  1.        Armstrong’s due process claims lacked merit.
  2.        The court lacked jurisdiction over Armstrong’s remaining claims, or alternatively declined to grant equitable relief.

 

Firstly, Judge Sparks concluded that the due process complaints lacked merit, and that Lance’s challenges were anticipating unfairness rather than Lance having been subject to actual unfairness. Lance’s specific due claims had included:

 

  1.       that he was not provided an adequate charging document;
  2.       that he had no guarantee of a hearing before CAS;
  3.       that he had no right cross-examine/confront witnesses against him;
  4.      that he had no right to an impartial panel;
  5.        that he had no right to disclosure of exculpatory evidence;
  6.        that he had no right to disclosure of cooperation agreements or inducements provided by USADA;
  7.       that he had no right to obtain investigative witness statements;
  8.       that he had no right to obtain full disclosure of laboratory analyses or an impartial assessment of their accuracy;
  9.      that  he had no right to judicial review of the arbitrators’ decision by a US court;

 

Judge Sparks concluded that each of these complaints were based on speculation of bias (rather than actual bias).

 

Judge Sparks said:

 

“Like the Supreme Court, this Court declines to assume either the pool of potential arbitrators, or the ultimate arbitral panel itself, will be unwilling or unable to render conscientious decision based on the evidence before it.”

 

Judge Sparks reasoned that Armstrong was not in danger of irreparable harm if the USADA jurisdiction issue, itself, was to be determined by the arbitrators. Further, any finding by the arbitration panel might, itself, be overturned by CAS. “In short,  any harm Armstrong might suffer is, at this point, entirely speculative.”

 

His Honour was further confirmed in his view in that Lance had not (as yet) exhausted the avenues open to him:

 

“Further, Armstrong has ample appellate avenues open to him, first to the Court of Arbitration for Sport … where he is entitled to de novo review, and then to the  courts of Switzerland, if he so elects.”

 

Judge Sparks, however, dismissed the suit without prejudice, saying that Lance could come back if and when things developed (ie if and when he was in fact subjected to actual unfairness rather than anticipated unfairness).

 

Secondly, Judge Sparks concluded that the Federal Court had no jurisdiction under the USA Federal Amateur Sports Act, requiring such proceedings to be referred to arbitration. His Honour noted that the Sports Act had (“whether or not this was a good choice is, of course, debatable”) determined that sports eligibility questions would be decided through arbitration rather than federal lawsuits.

 

His Honour referred to the Mary Decker Slaney case, noting that the court had said there:

 

“… when it comes to challenging the eligibility determination of the USOC, only a very specific claim will avoid the impediment to subject matter jurisdiction that (the Sports Act) poses”.

 

The Mary Decker Slaney court had quoted the Tonia Harding case, where an Oregon District Court had said:

 

“There the court cautioned that ….

 

…. courts should rightly hesitate before intervening in disciplinary hearings held by private associations …. Intervention is appropriate only in the most extraordinary circumstances, where the association has clearly breached its own rules, that breach will imminently result in serious and irreparable harm to the plaintiff, and the plaintiff has exhausted all remedies.

 

Yet, while carving out this limited exception to the preemption created by the Amateur Sports Act, the opinion forewarned that while examining whether internal rules had been complied with, the courts ‘should not intervene in the merits of the underlying dispute.”

 

(emphasis added)

 

Finally, Judge Sparks determined that, even apart from his decision on jurisdiction, if he had found that he had such jurisdiction he would have declined an equitable remedy, firstly because, for the above reasons, Armstrong was not in danger of irreparable harm, secondly because , as a matter of international comity, the court declined to: “circumvent the longstanding system of international arbitration in Olympic sports by unilaterally enjoining that system’s operation”.

 

As events turned out, Lance Armstrong ultimately chose not to challenge the sports drug charges, and later again, publicly admitted that the charges were true.

 

Conclusions

 

There can be no doubt that this case is serious. Doc Reid is universally regarded as having a brilliant, long, respected, and personally loved, life in football, faces potential public shame, the potential loss of his medical licence, and an unhappy end to that long career.

 

Yet Doc Reid, in the legal system, must run the same legal arguments that ultimately failed Lance Armstrong.

 

The Supreme Court will now determine this crucially important issue.

 

Can’t wait.