The British Olympic team competes in Sydney this month without two of its most talented athletes: European 200m champion Dougie Walker and winner of the British Olympic 400m trials Mark Richardson.
Both these athletes tested positive for the substance 19-norandrosterone but were later acquitted of any doping offences by UKA, which regulates athletics in this country. However, the IAAF, the international athletics regulator, intervened in both cases. With Walker, the IAAF reversed the UKA acquittal shortly before the Olympics. Richardson's case is not due to be heard until after the Olympics, but he has withdrawn in the meantime.
Few would quarrel with the aim of ridding athletics of drugs. But if it is done without proper regard for athletes' rights, then it may quickly turn into a witch-hunt.
An essential safeguard against overzealous prosecution of athletes by athletics bodies should be proper judicial supervision of the disciplinary process. At present, an athlete who tests positive is subject to the disciplinary procedure of the athletics body that carries out the test. Also, as in the Walker and Richardson cases, the IAAF may intervene even after an acquittal by the athlete's domestic body, exposing the athlete to two sets of disciplinary proceedings by two different bodies.
What judicial supervision of these disciplinary proceedings is available? Judicial supervision by English courts of domestic bodies regulating sport in England is well established. Although these bodies cannot be judicially reviewed, their rules and decisions are still open to challenge (see Enderby Town Football Club Ltd v The Football Association Ltd & anor). The analysis is that there is a contract between the relevant body and the athlete. The courts then use public policy or implied terms to intervene in appropriate cases.
But the judicial supervision of the actions of international sporting bodies is far more problematic. The question arose in recent litigation commenced by Walker. After the IAAF's intervention in his case, Walker issued proceedings in England against both UKA and the IAAF. Among the relief sought was a declaration that the suspension imposed by the IAAF on Walker in February 2000 (when Walker stood acquitted) was unlawful, and the granting of injunctions allowing him to compete.
The first question which arose was jurisdiction. The English courts plainly had jurisdiction over UKA (an English company), but the IAAF (incorporated in Monaco) challenged jurisdiction. On 3 July, Justice Toulson dismissed the IAAF's application. He held that Walker was entitled to make his claim against UKA and the English courts had jurisdiction over the IAAF as a necessary and proper party.
The second question concerned the powers that may be exercised by English courts against international regulatory bodies. After the jurisdictional challenge, Walker's case was listed for an expedited trial. The trial was adjourned on 25 July, but Justice Hallett granted an interlocutory injunction against both UKA and the IAAF, permitting Walker to compete in domestic athletics events for a specified period. This was unique in that it amounted to an English court compelling an international sporting body to lift a suspension imposed on a British athlete.
Walker's case therefore represents one instance where there was some judicial supervision of disciplinary proceedings conducted by an international sporting body. However, his case is likely to prove the exception rather than the rule.
In particular, it is far from clear whether an English court would ever assist a British athlete in a case where the domestic sporting body was not also involved in the disciplinary process. This will be the position in all international competitions, such as the Olympic Games. If the English courts will not intervene in these cases, then an aggrieved British athlete is left with only two options, neither ideal.
The first is to seek legal recourse against the international body in the jurisdiction where it is domiciled. In the case of the IAAF, this is Monaco, not noted for its interventionist judiciary. The second is to bring proceedings in the country where the testing took place. In many countries this will not be possible because jurisdiction would be declined, or because no cause of action is available.
Accordingly, there will be serious difficulties for British athletes who feel aggrieved about disciplinary procedures conducted by international bodies in Sydney and elsewhere. Until these difficulties are resolved, the present crusade against drugs in athletics is likely to continue largely unsupervised.
Andrew Hunter is a barrister at Blackstone Chambers.