The insolvency lawyer versus the athlete

When head of Edge Ellison’s insolvency practice John Sullivan picked up the baton for a broke British Athletics Federation in 1997 he did not expect to be fighting an athlete’s claims in the House of Lords. Claire Smith reports.

When John Sullivan returned from his summer holiday two years ago to learn that the governing body of British athletics, the British Athletics Federation (BAF), had called in the administrators, he thought very little of it.

And as head of the insolvency practice at Edge Ellison, one of the leading departments of its kind in the Midlands, Sullivan was not surprised when the federation approached him to represent it in court.

BAF ran into a wall in October 1997. The limited company could not afford to pay off debts of some £530,000 and declared itself insolvent.

What Sullivan did not expect was to become involved in one of the highest profile sports cases. Nor to be locking horns with a sports lawyer in the House of Lords.

Olympic middle-distance runner Diane Modahl had been given a four-year ban by the BAF in 1994 after failing a drug test in Portugal. She was cleared on appeal a year later.

Modahl chose to sue the BAF on two grounds. She claimed the Lisbon laboratory which carried out the test was no longer accredited because it had moved premises, and that the disciplinary appeal tribunal which imposed the ban had been biased.

At the end of last year, the creditor’s committee of the BAF decided to take the Modahl litigation from London firm Farrer & Co and hand it to Sullivan’s department.

“The committee wanted the whole thing done in an insolvency context,” says Sullivan. “They gave us the Modahl litigation because they felt we could empathise.”

Farrers had applied for Modahl’s claims to be struck out in 1996, but the High Court dismissed the application. On appeal, only the bias claim was left to stand.

However, Modahl was determined to fight on. And two weeks ago Sullivan confronted her in the House of Lords as she pursued the accreditation issue.

Sullivan was up against Tony Morton-Hooper, a sports lawyer from Mishcon de Reya. Morton-Hooper argued that the Lisbon laboratory had lost its accredited status when it moved premises without advising the International Amateur Athletics Federation or the International Olympic Committee.

Sullivan argued that in the absence of notification of any change in the accredited status of the lab, BAF was entitled to assume the test was legitimate.

“To suggest that BAF should automatically be responsible for any mistake carried out by those responsible for doping control in Portugal would be quite unreasonable,” says Sullivan.

“BAF didn’t actually have any part in the taking of the test or the testing of it,” he says. “At the end of the day, if anyone was at fault it wasn’t BAF.”

Sullivan won and Modahl now has to prove her allegation of bias if she is going to get compensation or recoup any of the legal and medical costs of her five-year battle.

“I didn’t expect she would take this thing to the Lords,” says Sullivan.

“She has both delayed matters and incurred considerable costs. It just wasn’t necessary to go that far.

“I wasn’t at all surprised by the result last week,” he says. “I didn’t think it should have gone to the Lords in the first place. It’s pretty difficult now for them to justify why leave was given.”

Modahl’s argument has now moved to the bias claim.

Morton-Hooper explains: “Two members [of the tribunal] had made statements in the past which we believe showed they were predisposed to the view that athletes were guilty until proven innocent.”

But Sullivan counters: “Without wishing to be dismissive, I have always taken the view that the bias claim was secondary. The five members of the tribunal reached a unanimous decision, and only two of the five are alleged to be biased. I just do not follow how this allegation of bias can be sustainable.”

Morton-Hooper responds by arguing that, if two members are biased, that “infects the whole decision”.

However, Sullivan is sympathetic to Modahl’s situation, but believes the case should go no further. “The one thing I have been sure about all along is that she believes she is innocent,” he says.

“She certainly feels she was wronged so she’s determined to fight.”

He has written to her lawyers and asked to meet them to discuss the way forward. The response has been “fairly negative”.

But he wants to get the case resolved as soon as possible. “I would be disappointed if in 12 months time we haven’t got all this sorted out. I am intent on bringing this to an end as soon as possible.”

He admits that working on an important sports law case is an unusual situation to find himself in, but that is why he enjoys insolvency work.

“Insolvency is real life,” he says. “You never know what you’re going to get next.

“I cannot think of any other area of law where you get to work on such a variety of cases. I’ve covered everything from pig-farming to coal mining.

“I like to do something new so it’s been an interesting episode,” he says.

“But it hasn’t made me want to become a sports lawyer.

“There is too much regulation in sports law, it all comes down to rules.

“What lights my fire is the complexity of international cases that we get to deal with.”
John Sullivan
Head of insolvency
Edge Ellison