Sports/Mergers. Guidelines beyond reproach

It seems ironic that the credibility of international athletics as a whole has recently been damaged by a string of cases involving high-profile athletes.

This is all the more ironic given the fact that the prime reason for the introduction of a system of drug testing was to protect the image of the sport which had become tarnished by rumours of drug misuse. Following in the footsteps of too many before her comes Diane Modahl - an athlete whose case must surely force a fundamental reappraisal not only of drug testing systems, but also of the procedures followed when a test proves positive.

Although there is much of interest to a lawyer in Diane Modahl's case, it is the evidential and legal principles followed by those judging her which need consideration.

Diane Modahl was banned following a drug test which apparently revealed a record ratio of testosterone to epitestosterone in a urine sample provided by her. At the first hearing the arguments put forward in her defence that this was inter alia caused by a medical condition were not accepted by the tribunal.

On appeal her lawyers queried whether the Lisbon testing laboratory had correctly followed the scientific procedures and guidelines laid down by the International Amateur Athletic Federation (IAAF).

It was also alleged that Modahl's sample had become degraded by being left unrefrigerated for about 40 hours before being transferred to the laboratory. The medical evidence produced by her lawyers (albeit at a late stage) supported the view that this could have led to an inaccurate test result.

Contrast this with Al Guy, a senior IAAF official and one of the members of the original tribunal which heard the case, who was quoted in The Sunday Telegraph as saying: "If I conduct testing at Gateshead on a Friday night, I'll hand the samples over and they might be in someone's car boot until they are delivered to the lab at Chelsea on the Wednesday morning."

The legal procedures followed at the two hearings into Diane Modahl's case are worthy of scrutiny. By its own guidelines the IAAF provides for the production of contemporaneous documents evidencing the chain of custody relating to the samples given.

At the first hearing, none of the directors of the testing laboratory were available for cross-examination by Modahl's lawyers on their procedural methods.

This, together with the fact that no chain of custody could be evidenced, makes the tribunal's initial decision difficult to reconcile with the burden of proof required.

At the appeal hearing new scientific evidence produced by Modahl's lawyers was admitted and proved crucial to the appeal tribunal's decision to overrule the initial decision. The appeal tribunal clearly felt that it could not be said beyond reasonable doubt that Modahl had taken testosterone enhancing drugs.

At the time of writing the Modahl case seems certain to run to a further hearing. Meanwhile, the reputation of the sport, the athletes and the sports administrators continues to suffer. There are salutary lessons to be learned and, hopefully, lessons which all sporting bodies will learn.

Drug testing procedures must be carried out to the highest scientific standards taking into account all current medical evidence and in accordance with the guidelines laid down by the relevant sporting body. If this is not the case then no sportsman or woman can be proven a cheat beyond reasonable doubt.

The procedures followed by tribunals sitting in judgment must be made clear to all, and not least, those who support the particular sport.

Where one party does not have the opportunity to cross-examine a witness or to properly consider the evidence before them then the hearing should be adjourned to a time when the other party is given such an opportunity.

The stakes in these cases are much too high for a tribunal to be rushed into a decision without being able to consider all the salient points in issue.

Moreover, if the ultimate sanction of a tribunal is the power to ban an athlete, a measure effectively ending a lucrative career, then it is meritorious that the medical evidence, procedures and guidelines followed must be beyond reproach.

Michael Breen is a partner in Edward Lewis and head of the firm's sports unit.

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