LAW REPORT /International Tennis Foundation's drug test rules upheld

LAW REPORT v 24 January 1997
Wilander and another v Tobin and another; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Millett, Lord Justice Potter) 20 December 1996

The procedures instituted by the International Tennis Foundation for testing players for drugs did not contravene either the Anti-Doping Convention 1989 or the anti-competition provisions of the EC Treaty and were not void as being in unreasonable restraint of trade.

The Court of Appeal allowed an appeal by the defendants, Brian Tobin, president, and David Judge, honorary treasurer of the ITF, against the decision of Mr Justice Lightman (Law Report, 16 July 1996) who allowed an appeal by the plaintiffs, Mats Arne Olof Wilander and Karel Novacek, against decisions of Master Moncaster, on 19 and 24 April 1996, striking out paragraph 40 of their statement of claim and refusing them leave to add further claims in their action against the defendants.

The plaintiffs, both professional tennis players, faced disciplinary proceedings for taking prohibited drugs. They alleged by para 40 of their claim that rule 53 of the ITF Rules, under which the disciplinary proceedings were instituted, was void as an unreasonable restraint of trade. The master struck out para 40 as unarguable, and refused the plaintiffs leave to amend their statement of claim to plead that rule 53 contravened European law.

Mr Justice Lightman dismissed the plaintiffs' appeal based on the alleged invalidity of rule 53 at common law but was prepared to allow the appeal, provided the plaintiffs sought leave to further amend their claim, by reference to an unpleaded factor, namely the absence in rule 53 of any appeal procedure despite its requirement in article 7 of the Anti-Doping Convention 1989. The same factor justified granting leave to amend the claim to plead that rule 53 was void as incompatible with article 59 of the EC Treaty, under which restrictions on freedom to provide services within the EC must be abolished.

Under rule 53 a player selected for testing provided a urine sample, which was divided into two specimens marked A and B. Specimen A was analysed by an independent laboratory and the results sent to a review board, who decided whether a positive sample constituted a violation of the rule. If so, the B sample must be tested. The player was entitled to attend in person or by a representative.

If the B sample confirmed the positive reading, and the review board determined that a violation had occurred, the player was subject to mandatory penalties unless he appealed to the appeals committee, whose decision was final and binding.

Charles Flint QC and Christopher Stoner (Townleys) for the defendants; Philip Engelman, Jacques Algazy and Joanne Briggs (Teacher Stern Selby) for the plaintiffs.

Lord Woolf MR said that the argument that rule 53 contravened article 7 of the Convention misunderstood the nature of the rule 53 procedure. The initial determination was made by the independent laboratory which conducted the testing. Where there had been a positive finding, the review board became involved and there was an appeal to the appeal committee.

The appeal committee's powers on quick reading might suggest it was making a first instance decision, because subpara (g)4 referred to it making "rulings and decisions on the player's guilt or innocence" and "the burden of proof shall be on the player to prove his innocence by a preponderance of evidence". But it was apparent on reading the rule as a whole that in the absence of an appeal the guilt or innocence of the player was determined by the test and analysis results, subject to the review board's powers. The appeals committee was therefore exercising an appellate power.

Even if that was incorrect, the combination of the appeal committee and the review of its procedures provided by the High Court certainly provided the the necessary "clear and enforceable provisions for appealing" required by article 7.1.d.iii of the Convention. If the appeal committee did not act fairly or misdirected itself in law, the High Court could intervene.

As long as the position of the player was protected, it was not significant whether the protection was provided by an appellate disciplinary body or the courts.

His Lordship concluded that rule 53 was neither in breach of the Convention nor was it unsuitable or lacking in "proportionality" so as to infringe European law.

Paul Magrath, Barrister