By Jonathan Taylor and Lauren Page, Bird & Bird
The Appellant was a South American rally driver. When applying to his national federation for the renewal of his annual racing licence, in response to questions about his medical history the Appellant provided a copy of a letter from his doctor, stating that he needed to use medications containing amphetamine to treat his ADHD.
Amphetamine is a prohibited substance under the FIA Anti-Doping Regulations, but the Appellant did not apply to the FIA for a Therapeutic Use Exemption (TUE) covering such use, and nor did his national association warn him he needed to do so, and therefore, when a sample collected from him at a subsequent stage of the FIA CODASUR Rally Championship tested positive, the FIA duly charged him with an anti-doping rule violation.
He applied for a retroactive TUE on fairness grounds, further to Article 4.3(d) of the International Standard for TUEs, but the FIA TUE Committee denied the application on the basis that fairness did not require the grant of a retroactive TUE in his case. WADA declined to review that decision, noting that the FIA and WADA would both have to agree for this ground to apply.
The Appellant therefore appealed the FIA TUE Committee’s decision to the CAS, and asked it to grant his application for a retroactive TUE, on the grounds (among others) that (1) he had never otherwise explicitly or implicitly agreed to and therefore was not bound by the FIA Anti-Doping Regulations at the time he was tested; (2) the FIA TUE Committee’s decision not to grant a retroactive TUE on fairness grounds is null and void for failure to state any reasons for that decision; and (3) fairness requires that such TUE be granted (particularly given that his application for a TUE to use the same medicines prospectively was granted).
The FIA disputed the appeal on the basis that (1) the Appellant had tacitly agreed to be bound by the FIA Anti-Doping Rules, including in relation to TUEs; (2) the FIA TUE Committee’s decision not to grant a retroactive TUE on fairness grounds was not susceptible to appeal, or at least could only be challenged for lack of rationality, not on the merits; and (3) the FIA TUE Committee’s decision to deny a retroactive TUE was fair and reasonable and well within its broad margin of appreciation, because it is important that athletes seek permission in advance, not retrospectively, to ensure fairness and the safety of all participants.
In an award dated 12 January 2018, the CAS Panel ruled as follows:
1. An athlete’s mere participation in a sport amounts to tacit agreement to be bound by its rules. Explicit written agreement is not required.
1.1 Athletes generally participate in a sport without analysing the legal principles and regulations governing the sport, but they nevertheless understand that all participants have to be subject to the same set of rules, in order to guarantee a level playing field, and therefore by their ‘mere participation’ in the sport they tacitly agree to be bound by those rules, and so are deemed to be bound by them, ‘whether or not they have ever explicitly signed up to them or even read them’ (award paras 86-88). This is true even if other participants in the sport have signed explicit consent forms (ibid, para 87).
1.2 Therefore, even if the Appellant did not explicitly consent to the FIA Anti-Doping Regulations, ‘tacit or implied acceptance of the rules suffices and that participation in the CODASUR events clearly meant that the Appellant submitted to the FIA regulations including its FIA ADR’ (ibid, para 94). And in any event the evidence showed that the Appellant was in fact aware of the FIA Anti-Doping Regulations, even if he did not pay much attention to the detail of how to apply for and obtain a TUE (ibid).
2. An ADO’s decision pursuant to Article 4.3(d) of the International Standard for TUEs that fairness does not require the grant of a retroactive TUE cannot be challenged on the merits, but only on grounds of irrationality or bad faith.
2.1 The comment to ISTUE Article 4.3(d) states that an athlete may not challenge a lack of agreement by the ADO and WADA that fairness requires grant of a retroactive TUE, whether by way of appeal or otherwise.
2.2 The Appellant’s argument that this comment is not valid or enforceable and does not restrict the general right of appeal against TUE decisions is wrong. There is no conflict between the general right of appeal and this comment, which ‘simply limits the right on appeal to replace the TUEC’s fairness assessment with that of CAS’ (award, para 99). ‘It is allowed to provide a discretion to the association and courts shall not lightly exercise their power of review over the association’s decisions made in the exercise of such discretion, especially in cases in which sports governing bodies have special expertise and experience in relation to their respective sport’ (ibid, para 101). Therefore, ‘CAS cannot replace its assessment of fairness with that of the TUEC’. However ‘appeals may still be permitted on the ground that the decision was arbitrary, grossly disproportionate, irrational or perverse or otherwise outside of the margin of discretion, or taken in bad faith or without the due process rights provided to the athlete’ (ibid, para 102).
3. An ADO has to state the reasons for its decision not to grant a retroactive TUE. If it fails to do so, the CAS will remit the file back to the ADO to make a new decision, with reasons.
3.1 ISTUE Article 6.8 states that any denial of a TUE application ‘must include an explanation of the reason(s) for the denial’ (award, para 114). It was not enough for the FIA TUE Committee simply to say that ‘the members do not consider that the explanations provided fulfil the criteria to grant a retroactive TUE on the basis of fairness’. That is just effectively repeating the wording of ISTUE Article 4.3(d) (ibid, paras 110-11), and does not provide an explanation of the reasons for the denial, justifying the denial (ibid, para 121).
3.2 Nor is it enough to provide reasons subsequently, to WADA when it is reviewing the TUE denial (ibid, para 122), or to argue that the decision will necessarily be the same if the application is remitted back to the FIA TUE Committee for reconsideration. ‘An athlete has a legitimate explanation to understand the rationale of a decision which is a legal ruling affecting his status and which may impact claims of ADRV and possible defences as well as the athlete’s handling of such ADRV case. The decision may be challenged on appeal as shown on this award, albeit to a limited degree, and, therefore, the FIA’s argument that the Challenged Decision is not subject to review and there is no reason to provide a reasoned decision is not acceptable […]’ (ibid). The failure to provide an explanation breaches this legitimate expectation and is contrary to the athlete’s fundamental rights of personality under Swiss law, which outweighs the argument that there has not been any misuse of discretion by the FIA TUE Committee (ibid, para 126). Even if the decision may be the same when reasons are stated, the reasons may be relevant to any later determination of sanction for the ADRV (ibid, para 123). Therefore the denial of a TUE is vacated, the application for a retroactive TUE is remitted back to the FIA TUE Committee, and it must issue a decision on that application that includes reasons for its conclusion (award, para 130).
Bird & Bird LLP (Jonathan Taylor QC and Lauren Pagé) acted for the FIA in the above CAS appeal proceedings.
