Lawyer says cyclist's case has significance for AFL, NRL doping investigations
A lawyer advising an Australian cyclist who tested positive to cocaine and was banned from competing says he remains confident the athlete's case will be dismissed in the Court of Arbitration for Sport.
But the lawyer, Martin Hardie, says a Federal Court decision today that did not find in favour of the athlete is significant in the broader context of doping investigations in Australia.
The cyclist, who cannot be named and is only referred to in court documents as XZTT, tested positive to benzoylecogonine, the principal metabolite of cocaine, after a race in China in October 2010.
The cyclist was not notified of the positive test result for four and a half months.
Unaware of his failed drug test, the cyclist signed a contract with a professional cycling team that imposed a financial penalty of 145,000 euros should he be found guilty of breaching the World Anti-Doping Code.
Last year, the Administrative Appeals Tribunal (AAT) was critical of the Australian Sports Anti-Doping Authority (ASADA) and the Anti-Doping Rule Violation Panel, which acts under the jurisdiction of ASADA.
The AAT questioned why it took so long for athlete to be notified of the breach, and said both the panel and ASADA misconceived their respective responsibilities under the ASADA Act and the National Anti-Doping Scheme.
The panel's lawyers challenged the AAT's decision in the Federal Court.
Today, the Federal Court in Melbourne upheld the appeal.
Findings relevant to AFL and NRL doping inquiries
Mr Hardie is a lecturer in law at Deakin University and has been acting as the cyclist's advocate.
He is also working with Essendon as the club is investigated over its supplements program in 2012.
He says the cyclist's case is far from over.
"It would have been nice to have a total victory in the Federal Court, but I think the Federal Court's made some very important points today," he said.
"The first point is that the Federal Court's made it clear that ASADA and the Anti-Doping Rule Violation Panel do not make findings that people have doped, all they do is make an assertion that somebody may have doped.
"This is contrary to the media storm that we're experiencing in this country for the last six months.
"For the last six months, Australia has been waiting for ASADA to make a finding that Essendon or Cronulla have doped.
"This case makes it clear that ASADA has no such role, all they do is make an assertion.
"The second point that's fairly clear from the judgment of the full Federal Court is that in Australia, the anti-doping process is confidential, that any details that identify a person subject to a rule violation investigation or allegation, names or any details that identify them, shall [be] confidential until a final determination by the appropriate sporting body.
"In this case, that means that the athlete's name shall remain confidential until the the final determination by the Court of Arbitration for Sport (CAS), again this is contrary to what we've experienced in the last six months in Australia where we've had a tsunami of leaks in a legally experimental environment in respect of the Essendon and Cronulla investigations.
"There's obviously criticisms in the judgment of the way that ASADA's legislation is drafted, and there's criticisms of the significant delays in this case by ASADA and the International Cycling Union.
"What the court's said is it's not for Australian courts to make the final determinations about these things, but that the athlete will need to go to CAS and have those matters agitated in CAS on the basis of CAS law.
"On the facts that have been found by the court, I remain very confident that in the end the athlete will be successful in this case."
Federal Court judgment critical of time delay
Part of today's Federal Court judgment agreed with the findings made by the AAT last year.
Today's judgement says:
"The AAT accurately noted that the panel was confronted with 'a complex interplay of overlapping regimes of international sporting governance'.Â
"We would also agree with the AAT's observations that timeliness of the process was an important matter and that the faults and delays that the athlete experienced in this instance were egregious. Â
"They were not caused by the panel or ASADA but by the Union Cycliste Internationale (UCI), the world governing body for cycling."
Mr Hardie says this case has significance for all Australian athletes.
"Because we can now see two important points, ASADA does not make findings that people have doped and the ASADA process is a confidential process," he said.
"These are two important points that the whole of Australia should be cognoscente of at the present moment."
He says the international cycling authority should wear the blame for the cyclist's failed career.
But he says ASADA should have also taken into consideration previous decisions in the Court of Arbitration for Sport before it pursued action against the cyclist.
Lawyer calls for rethink of process
Court documents acknowledge that the amount of cocaine the athlete apparently tested positive for was "very small".
Mr Hardie says the athlete denies taking cocaine.
"There's various reasons why this could have turned up in his system but that's not the point at this stage, there's all sorts of reasons how it could have got there, creams, bars all sorts of things," he said.
"But the point is, the Court of Arbitration for Sport has said repeatedly that the fundamental rights of the athlete to the A sample and the B sample to be respected and if they're not the sporting organisation cannot rely on the test results.
"Current events in this case means we've really got to have a rethink about how ASADA handles these matters and also we need to think about whether we need a proper Australian anti-doping or sports tribunal to make decisions."
ASADA and Cycling Australia have been contacted for comment on today's judgment.
Next year.
