4 April 2019

STNZ raises questions over legality of Code’s application to recreational athletes

Drug Free Sport New Zealand (DFSNZ) has filed an appeal to the Court of Arbitration for Sport (CAS), reports Stuff.co.nz, after the Sports Tribunal of New Zealand (STNZ) announced that a one year sanction would be issued to a recreational athlete, expiring 3 October 2019. Athlete XYZ was sanctioned for using clenbuterol and dianabol from November 2014 to January 2015, as part of MedSafe’s investigations into the customers of the NZ Clenbuterol internet site, which was shut down in May 2017.

In two STNZ decisions, published on 4 March and 3 April, the STNZ raises serious questions about whether anti-doping rules should apply to Athlete XYZ, as well as whether the current edition of the World Anti-Doping Code is applicable with New Zealand legal jurisprudence. The STNZ is also critical of DFSNZ for applying the Code definition of ‘Athlete’ to recreational athletes who are affiliated to organisations that are signatories to the Code, despite DFSNZ arguing that the Code gives it no choice.

Athlete XYZ was registered with a surf lifesaving club as a volunteer due to his children’s participation in the sport, but participated in a Masters surf lifesaving event nine months after use of clenbuterol (he said he used dianabol to counter the effects of clenbuterol). He was also a member of a local golf club which was affiliated to New Zealand Golf (NZG). He did not ‘compete’ as a golfer in any national level events. In the original 4 March decision (PDF below – click box to open in new window), the STNZ asked the parties to deliberate on an appropriate sanction because of the athlete’s recreational status, which it said entitled him to ‘name suppression’.

The sanction decision, published on 3 April (PDF below – click box to open in new window), reveals that when admitting the violation on 7 September 2018, Athlete XYZ wrote: ‘I did not take the drug for sport performance at all and never intended to cheat!! I partook in a social manner and I am only a volunteer in surf lifesaving … I took the drug to try to lose weight. I was approx. [redacted in the 3 April decision – but stated as 130kgs-140kgs in the 4 March decision] at the time and to think I was cheating is laughable….’

Due to the athlete’s recreational status, the STNZ was heavily critical of the strict requirements currently applicable under the 2015 Code, which were interpreted to apply to anyone affiliated to a body which falls under the jurisdiction of a signatory to the Code. ‘We have much sympathy for the position of the respondent – an amateur recreational participant in sport at local or club level – who now bears the stigma of having taken drugs for what he perceived would assist him to lose weight for health reasons and not for performance enhancement’, it writes in the 3 April decision. 

‘We of course acknowledge that DFSNZ is vested with the discretion to apply the Code to every person in New Zealand who is connected with any level of sporting activity that is subject to SADR [New Zealand Sports Anti-Doping Rules]. However, we question the common sense, fairness and proportionality of the approach that is being taken and the consequences which flow from an undiscriminatory and arbitrary application of the Code to persons who no reasonable person sympathetic with the aims of the Code would think appropriate.’

The STNZ was also critical of the decision to apply the definition of ‘Athlete’ in the Code to any level of sporting participant. DFSNZ advised that the Code and the SADR do not make any differentiation between elite and recreational athletes at present (although this is likely to change with the application of the 2021 Code, the current draft of which allows leniency for athletes that can prove that they fit the definition of a ‘recreational athlete’). 

DFSNZ advised that the SADR ‘do not provide for any differential treatment’. As such, the STNZ found that the SADR:

• Did not require a person to participate in sport or events;
• Did not distinguish between the levels of sport or event played;
• Did not require a person to have expressly agreed to the SADR.

DFSNZ told the STNZ that ‘there is no differentiation or discretion as to sanction, and sanctions are to be applied as provide for in the NZ SADR’. DFSNZ contacted the World Anti-Doping Agency (WADA) regarding the situation, which advised that ‘the Code requires specified Articles of the Code to be incorporated into the rules without substantive change’. The STNZ said ‘that raises the question […] as to whether the definition of “Athlete” contained in the Code is one of those specified Articles that cannot be changed substantively and, if so, whether in terms it contemplates and requires an amendment to be made in the definition in order to catch persons competing at levels below international and national events’. 

Gordon Gilbert was sanctioned with a four year ban, despite his AAF occurring at a recreational mountain biking event, and despite initially finding that the source of his AAF was a supplement he alleges was provided to him by his sponsor…

Interestingly, the STNZ said that DFSNZ ‘was unable to cite to the Tribunal any similar case in any other jurisdiction where a contravention proceeding has actually been taken against a person in similar circumstances to the respondent in the present case’. However, the Gordon Gilbert case does bear remarkable similarities.

‘DFSNZ claims that it has no prosecutorial discretion and that the Tribunal also has no discretion in appropriate cases to absolve a respondent who lacks genuine culpability’, reads the 3 April decision. ‘That is a position that does not accord with the jurisprudence of this country as administered by our courts and which is rooted in proportionality, culpability, fairness and common sense with a strong overlay of concern for human rights’.

The Stuff.co.nz article did not report the basis of DFSNZ’s appeal, however the 3 April STNZ decision suggests that it is seeking to extend the one year sanction applicable to Athlete XYZ. ‘We do not accept DFSNZ’s submission that the respondent should not be given credit for a timely admission’, it reads. ‘We are dealing in this case with a man who, as found by us after hearing him and after he was cross-examined, purchased and used for a short period prohibited drugs in a genuine endeavour to combat a serious weight problem and who had no thought (or intent) that these drugs would enhance sporting performance. Over three and a half years later, he was confronted by DFSNZ with an allegation that there was a direct connection between his actions in purchasing and using the drugs and his participation in local club swimming/surf life saving and golf events.’

Athlete XYZ is understood to be the 37th athlete sanctioned as a result of investigations into customers of the NZ Clenbuterol internet site (see table below). Those sanctioned include 27 rugby union players; three rugby league players; three cricketers, two ice hockey players; one martial arts athlete and one surf lifesaver/golfer.

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