Middleton J Dismisses the Applications

Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority; James Albert Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019

On 19 September 2014, Federal Court Justice Middleton dismissed the EFC and Hird applications for  a declaration that “ the investigation conducted by ASADA … which was referred to as part of “Operation Cobia” … was ultra vires “,  and injunctions restraining ASADA from issuing any notice or relying on information obtained in the investigation, and a permanent injunction restraining ASADA from using any information from the investigation for any purpose under its Act. The joint investigation was, according to ASADA, was part of a wider investigation by ASADA under the Australian Sports Anti-Doping Authority Act 2006 (Cth) (‘the Act’) and Sch 1 (‘the NAD Scheme’) of the Australian Sports Anti-Doping Authority Regulations 2006 (Cth) (‘the Regulations’). EFC and Hird said that ASADA had no power to conduct the investigation in the way it was conducted (involving the use by ASADA of AFL “compulsory powers” and unauthorised disclosure of information), that the investigation was undertaken for improper purposes, and that ASADA breached its confidentiality obligations during the course of the investigation and in the provision to the AFL of an interim report.

See attached file titled “Middleton J Dismisses the Applications” for full analysis.

Essendon FC v ASADA : James Hird v ASADA

 Australian Federal Court Challenge mirrors Lance Armstrong’s Challenge in the USA Courts:

On 27 June 2014, Justice John Middleton in the Australian Federal Court will set out a timetable to a hearing in the legal challenges by Essendon FC and James Hird against ASADA’s legal process. Essendon FC and James Hird ask for a declaration that “ the investigation conducted by ASADA … which was referred to as part of “Operation Cobia” … was ultra vires “,  and injunctions restraining ASADA from issuing any notice or relying on information obtained in the investigation, and a permanent injunction restraining ASADA from using any information from the investigation for any purpose under its Act.

The show cause letters sent by ASADA last week to Essendon FC players are the first formal step in the anti-doping prosecution by ASADA. The process will be, potentially, the most important Australian sports drug case to date due to  the athletes involved, but equally, the most important case to date in Australia of a “non-analytical positive” (prosecution of an anti-doping violation in the absence of a failed test).

We recently saw a very similar legal challenge ahead of the review board process reference by Lance Armstrong. Lance’s response to USADA’s charging letter to him, (the initial USA step prior to the review board process, as in Australia, an athlete protection mechanism designed to require USADA to establish a sufficient basis for the process to proceed to a hearing) had been generally as follows:
1. USADA had failed to disclose the proposed witnesses or their evidence, Armstrong was unable to know/answer the charges made against him. USADA is treating the review board as a rubber stamp, effectively seeking to deny Armstrong the protection of that review board process.
2. USADA had obtained evidence wrongly, in trading concessions/reduced penalties, etc, (the “jailhouse snitch” argument), for evidence, and in obtaining evidence leaked from the now-discontinued grand jury process.
3. The only 2 identifiable claims against Armstrong (the Swiss lab tests from 2001 where the lab director has since denied the tests were sufficient to found a violation, and USADA providing, raw data only, no expert analysis, 2009/2010 blood test results, which show no abnormality and which were published on Armstrong’s own website at the time as proof of the opposite) have no merit.
4. Most of the material was outside the 8 year limitation period.

USADA, conversely, had said that it had ten-plus witnesses, all who would say that Armstrong doped, trafficked, and participated in a conspiracy.

Lance’s legal challenge ultimately failed, not because, as USADA had argued, such cases are never to be reviewed by the courts, but rather because, in Lance’s case, his claims of unfairness were premature.

The Essendon/Hird challenges, equally, ask the Australian Federal Court to stop the process, saying that the investigation is not in accordance with the ASADA legislation. Unlike Lance, however, their challenge is attacking an existing process, not a future one.

This is getting interesting.

Background to the “Non-Analytical Positive” Cases:

Since the BALCO cases commencing in September 2004, the WADA Code, and all sports codes, have provided for the prosecution of athletes in the absence of an analytical positive test result. Michelle Collins was suspended for 8 years (USADA had sought a life ban) based on email evidence and blood and urine test results that evidenced a pattern of doping. Michelle Collins had never failed a drug test, and denied doping.

Interestingly, Michelle Collins had relied on her Fifth Amendment (due process) right against self-incrimination. The CAS Tribunal, however, agreed with USADA that this right did not apply outside criminal cases, and that it was open to CAS to draw an adverse inference against her. CAS repeated this approach for Chryste Gaines and Tim Montgomery.

CAS suspended Michelle Collins for 8 years, on the rationale that that BALCO athletes who admitted guilt, and cooperated by giving evidence against others, such as Kelli White, had been suspended for 2 years, BALCO athletes who admitted guilt, but would not cooperate by giving evidence against others, such as Alvin Harrison and Regina Jacobs, had been suspended for 4 years, Michelle Collins had not been shown by USADA to have “trafficked” or encouraged others, so a lifetime ban was not warranted, Michelle Collins’ failure to plead guilty warranted double the suspension of BALCO athletes who admitted guilt, but would not cooperate by giving evidence against others.

There have followed, in the USA, Chryste Gaines (2 years), Tim Montgomery (2 years), in Australia, Mark French (cyclist) and Sevi Marinov (weightlifting national coach) (drugs found in their rooms, both suspended at the initial 1 member CAS hearing, both then successful on appeal to the 3 member CAS), Olga Yegoreva and others (7 Russian athletes with manipulated samples) and Boevski  and others (3 Bulgarian weightlifter with manipulated samples) (all suspended where samples were manipulated, albeit no evidence that they had done the manipulating themselves), and others.

The key legal question has always been whether these non-analytical positive athletes should be entitled or not to the same Fifth Amendment due process protections afforded to any criminal defendant? or something less on the basis that they are contractually bound to the processes decided by the sports federations to which they belong?

Lance Armstrong was the latest in that line. He was looking like a defendant who might have taken the argument further than ever before. As it turned out, Lance decided against continuing. But the USA Federal Court did not rule out intervening if the right circumstances ever came along.

Lance’s USA Federal Court Action

Lance, like always, was invited by USADA to put material before the USADA Review Board (an athlete protection mechanism designed to require USADA to establish a sufficient basis for the process to proceed to a hearing), contesting whether there was sufficient in the USADA charging letter to charge Lance. Lance’s response was that USADA had failed to disclose the proposed witnesses or their evidence, he was unable to know/answer the charges made against him, that USADA was treating the review board as a rubber stamp, effectively seeking to deny him the protection of that review board process, that USADA had obtained evidence wrongly, in trading concessions/reduced penalties, etc, (the “jailhouse snitch” argument), for evidence, and in obtaining evidence leaked from the now-discontinued grand jury process, that the only 2 identifiable claims against Armstrong (the Swiss lab tests from 2001 where the lab director had since denied the tests were sufficient to found a violation, and USADA providing, raw data only, no expert analysis, 2009/2010 blood test results, which showed no abnormality and had been published on Armstrong’s own website at the time as proof of the opposite) had no merit. In addition, Lance said, most of the material was outside the 8 year limitation period. USADA, conversely, said, in response, that it had ten-plus witnesses (without naming them, or setting out what they would say), who would say that Armstrong doped, trafficked, and participated in a conspiracy. The USADA Review Board decided in favour of USADA.

On 10 July 2012, Lance Armstrong’s lawyers filed an (Amended) Complaint before Judge Sam Sparks in the Federal Court, Texas Division, seeking an injunction staying the USADA requirement that Lance, within 3 days, elect to go to AAA arbitration or accept sanctions (this date was later extended, by agreement with USADA, for 30 days, to allow the Federal Court proceeding to be determined), a permanent injunction staying USADA from imposing sanctions (including disqualification of previous results) on the basis of the facts in the USADA charging letter, declarations that USADA lacked jurisdiction to bring the charges asserted in the USADA charging letter, plus damages against USADA and costs.

Lance’s team made multiple arguments in the action:

1. USADA’s procedures, designed primarily for cases where there have been positive results, did not afford Armstrong due process.
2. Armstrong had not had a charging document that fairly told him the claims that he must defend (not even when they occurred, which rules apply?).
3. Armstrong had no guarantee of a hearing by the Tribunal with final say (the AAA panel is appealable to CAS, which need not decide to hold a hearing).
4. Armstrong had no right to cross-examine his accusers (citing the Greg Lemond example, where Floyd Landis was refused the right to cross-examine, yet the Lemond statement was accepted).
5. Armstrong had no right to an impartial arbitration panel (CAS members all appointed, limited term, paid, by USOC, incentivised therefore to side with USADA, very limited examples of athletes succeeding).
6. Armstrong would have no right to exculpatory evidence, contrary to the legal position in a criminal trial.
7. Armstrong would have no right to disclosure by USADA of witness agreements, contrary to the legal position in a criminal trial.
8. Armstrong would have no right to disclosure by USADA of investigative witness statements, contrary to the legal position in a criminal trial.
9. Armstrong would have no right to obtain full disclosure by USADA of laboratory analyses, nor impartial assessment whether the laboratory procedures are accurate (and the panel can be comfortably satisfied that any improper procedure did not cause an adverse finding).
10. Under USADA’s procedures, Armstrong had no right of review by a USA court.
11. The charges were outside the 8 year limitation period.
12. USADA had improperly induced witnesses, in violation of the WADA Code provisions (requiring reduction in ineligibility periods on this ground only after charges were brought and a period of ineligibility had been determined). Further, the offering of inducements violated federal law in relation to offering inducements for sworn testimony.
13. The Review Board process, meant to be a check on abusive charging decisions, was circumvented, in USADA hand-picking the neutral experts, not providing the evidence supporting the charges to the Review Board, and having ex parte communications with the Review Board. The Review Board did not issue a considered evaluation. Armstrong was not given adequate notice of the charges or opportunity to respond.
14. USADA was using information collected from the grand jury process.
15. Lance having retired, USADA did not have jurisdiction, UCI did. 

The substantive complaint by Lance Armstrong was that USADA’s processes denied him his Fifth Amendment right to due process. This argument had usually failed. But the circumstances here militated towards that due process right, maybe more so than in previous instances.

On 19 July 2012, USADA filed a Notice of Motion to Dismiss Lance Armstrong’s Action seeking an injunction to restrain the USADA anti-doping violation process. USADA’s key grounds:

1. The Ted Stevens Olympic and Amateur Sports Act (“Sports  Act”) (a federal Act establishing arbitration as the exclusive forum for eligibility disputes in sports) pre-empted Armstrong’s claims.
2. Armstrong had failed to exhaust his administrative remedies (a strong historical, factor relevant to the court’s discretion, against granting an injunction).
3. Armstrong’s claims must be arbitrated (Lance, like all athletes, had regularly contracted to be bound by the arbitration process).
4. Armstrong’s claims failed on the merits. 

The USADA argument, on its face, was the traditional view, adopted by the USA courts in previous cases, (eg Mary Decker Slaney’s case), ie that Congress had determined, in clear terms, that USOC and USA Cycling were the bodies best able to deal with such disputes. Further, the courts had, consistently, required a person to exhaust their administrative remedies before seeking court intervention in relation to those processes. On this basis, USADA said, the Federal Court must dismiss, or at least stay, the court action pending the arbitration process.

It seemed, then, that the Federal Court action would be hard fought. Both sides raised valid arguments. On balance, the due process argument seemed to be at least worthy of better court examination, not to be dismissed simply because, right or wrong, that is what USA courts had always done previously. The difference, here, seemed, possibly, the enormous stature of Lance (not merely as an athlete, but as a cancer messiah), and the overdue court examination of the unusual position of the athletes charged on circumstantial evidence rather than a failed test.

 The USA Federal Court – Judge Sam Sparks

 On 23 August 2012, Judge Sam Sparks dismissed Lance Armstrong’s suit in the US District Court Western District of Texas (Austin) of the Federal Court, asking for an injunction to restrain USADA from proceeding against him . (The judgment is on this website.)

  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.

 The key issue for the Judge in finding the due process complaints lacked merit was that Lance’s challenges are anticipating unfairness rather than being subject to them now. Lance’s challenges were all 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. ….  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.”

 The Judge, however, dismissed the suit without prejudice, ie Lance could come back if things develop. Further, Judge Sparks expressed some judicial (and welcome) views on the USADA processes. His Honour was critical of USADA’s process:

 “As the Court stated at the hearing, ….. the deficiency of USADA’s charging document is of serious constitutional concern. Indeed, but for two facts, the Court might be inclined to find USADA’s charging letter was a violation of due process, and to enjoin USADA from proceeding thereunder. First, it would likely of no practical effect: USADA could easily issue a more detailed charging letter, at which point Armstrong would presumably once again file suit, and the parties would be back in this exact same position some time later, only poorer for their legal fees. Second, and more important, USADA’s counsel represented to the Court that Armstrong will, in fact, receive detailed disclosures regarding USADA’s claims against him at a time reasonably before arbitration, in accordance with routine procedure. The Court takes counsel at his word. With the understanding that Armstrong has received all the process he is due at this time, and will receive adequate notification of the charges against him in time to prepare a defense, the Court rejects Armstrong’s …. challenge. …… ”

 Judge Sparks then concluded that the Federal Court had no jurisdiction. 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: “… 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 Slaney court had quoted the Tonia Harding case, in the Oregon District Court as follows:

 “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 pre-emption 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.’ ”

 Judge Sparks held, ultimately, that:

1. Armstrong was not in danger of irreparable harm. 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.”
2. Armstrong had not exhausted his internal remedies, namely the arbitration procedures in the USADA Protocol. Judge Sparks: “If the panel’s resolution is manifestly unjust and devoid of any reasonable legal basis, Armstrong may have a judicial remedy; but this court cannot act on the basis of a hypothetical injury.”
3. Armstrong’s agreement with USOC bound him contractually to submit his due process concerns, themselves, to the arbitration process. Finally, His Honour determined that, even apart from his decision on jurisdiction, if he did have such jurisdiction he would decline an equitable remedy, firstly because, for the above reasons, Armstrong was not in danger of irreparable harm, and 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”.

     Judge Sparks finished with a comment for USADA:

    “…. there are troubling aspects of this case, not least of which is USADA’s apparent single-minded determination to force Armstrong to arbitrate the charges against him, in direct conflict with UCI’s equally evident desire not to proceed against him….

    The events in USADA’s charging letter date back fourteen years, span a multitude of international competitions, and involve not only five non-citizens of the United States who were never licensed in this country, but also one of the most well-known figures in the history of cycling. As mystifying as USADA’s election to proceed at this date and in this manner may be, it is equally perplexing that these three national and international bodies are apparently unable to work together …..  

The Australian Federal Court – Justice John Middleton

So now we wait for Essendon FC and James Hird, to take on ASADA, before Justice John Middleton in the Australian Federal Court.

The process is likely, in my view, to showcase the critical justice issues that are thrown up in this key area of “non-analytical positives”. The likelihood is that Essendon FC and James Hird will challenge, in the Australian courts, the level of acceptable proof against an athlete charged on the basis of evidence, not including a failed test, and the ASADA/Court of Arbitration for Sport regime generally.

About time.

 John McMullan