COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(DOUGLAS BROWN J)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LATHAM
LORD JUSTICE JONATHAN PARKER
| DIANE MODAHL
|- and -
|BRITISH ATHLETIC FEDERATION
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Charles Flint QC & Andrew Green (instructed by Hamond Suddards Edge for the Respondent)
Crown Copyright ©
Lord Justice Latham:
1. Doping is strictly forbidden and is an offence under IAAF Rules.
2. The offence of doping take place when either
(i) A prohibited substance is found to be present within an athletes body tissue or fluids .
4. It is an athletes duty to ensure that no substance enters his body tissues or fluids which is prohibited under these rules. Athletes are warned that they are responsible for all or any substance detected in samples given by them ..
Disciplinary Procedures for Doping Offences
1. Where a doping offence has taken place, disciplinary proceedings will take place in three stages:
2. An athlete shall be suspended from the time the Doping Commission in the case of the IAAF, or its equivalent body in the case of a member reports that there is evidence that a doping offence has taken place.
3. Every athlete will have the right to a hearing before the relevant tribunal of his National Federation, before any decision on eligibility is reached
4. If an athlete is found to have committed a doping offence, and this is confirmed after a hearing . He shall be declared ineligible . His ineligibility shall begin from the date on which the sample was provided.
5. Where a hearing takes place the IAAF or the member (as the case may be) shall have the burden of proving, beyond reasonable doubt, that a doping offence has been committed.
1. For the purpose of these rules the following shall be regarded as "doping offences" see also Rule 55.(2)
(i) The finding in an athletes body tissues or fluids of prohibited substance ..
2. If an athlete commits a doping offence, he will be ineligible for the following periods:
(a) An offence under Rule 61(i) ..
(i) First offence a minimum of four years from the date of the provision of the sample ."
"(B7) Following suspension for an offence under Rule 24 there will be a disciplinary hearing before the Disciplinary Committee at a date to be determined by the Chairman of the Drug Advisory Committee, after consultation with the parties, and in the absence of an agreement, being a date not less than 21 days from the Notice of the hearing being given to the athlete. The Disciplinary Committee shall consist of members of Federation Drug Advisory Committee or its nominees. At the hearing the athlete be entitled to be represented and will have the opportunity to present his/her case. The Disciplinary Committee may exercise all the disciplinary powers given by Rule 24.
(B8) After the disciplinary hearing before the Disciplinary Committee and any declaration of ineligibility, the athlete or the IAAF will have the right of appeal within 21 days. Any appeal will be made to an Independent Appeal Panel consisting of one representative of the athletes Member Association, one representative from the Federation and one person nominated by the Federation who may be a Barrister or Solicitor."
"We held a preliminary hearing at the beginning of October and there were very few points of contention when it came to the hearing, but we had to rubber stamp it all as it came through."
"From what I have learned the new evidence was only a very small scientific experiment carried out to show the sample could have deteriorated. It was not proven on a large scale. There was only a small element of doubt the Appeal Panel gave Modahl the benefit of the doubt. I believe that the IAAF should consider an appeal because the Panel decision could have destroyed confidence in our testing procedures. Yet hundreds of thousands of samples are tested at laboratories here and we have never had an episode like this."
"I understand that it is alleged that the Chairman of the Drug Advisory Committee, Sir Arthur Gold, was biased against the claimant, and that he influenced our selection. This is not true. I was certainly not aware of any bias on the part of Sir Arthur Gold. I can confirm that the Drug Advisory Committee put careful thought into the selection of the Disciplinary Committee and in fact tried to ensure that all members were as impartial as possible. I did raise the question concerning my own selection since being local I knew the claimant. It was however considered this was a good thing since I would be seen to be a more sympathetic figure as a result. In any event, all members of the Disciplinary Committee selected were on good terms with and trusted by, the athletes."
"1. The meeting is sanctioned by the Lawn Tennis Association and will be played under the Rules of Tennis as approved by the International Tennis Federation (ITF).
16. Competitors should be prepared to undergo drug testing as a result of governmental or other binding regulations imposed in the championships by authorities outside its control or by the governing bodies of the game"
"This appears to me to be totally unreal. Any submission to the jurisdiction of the AC (Appeal Committee) must in the circumstances be part of an acceptance of a contractual relationship on the terms of the programme which defines the status, jurisdiction and procedures of the AC."
" . I am not prepared to hold that any implied contract could properly be inferred, at any rate until the plaintiff received the summons to attend the inquiry and submitted himself to the jurisdiction of the stewards . In the present case the plaintiff has submitted to the jurisdiction of the stewards of the National Hunt Committee and at least from the moment when he did so, impliedly to agree to abide by their finding, subject to a legal right which he might have to impugn it. From that moment it seems to me that he was in contractual relations with the stewards of the National Hunt Committee ."
"I readily accept that contracts are not to be lightly implied. Having examined what the parties said and did, the court must be able to conclude with confidence both that the parties intended to create contractual relations and that the agreement was to the effect contended for. It must also, in most cases, be able to answer the question posed by Mustill LJ in Hispanica de Petroleos SA v- Vencedora Oceanica Navegacion SA (No 2) (Note)  2 Lloyds Rep 321 at 331: "What was the mechanism for offer and acceptance?""
"The rules of a body like this are often said to be contract. So they are indeed in theory. But it is a fiction .. putting the fiction aside the truth is that the rules are nothing more or less than a legislative code a set of regulations laid down by the governing body to be observed by all who are, or become, members of the association. Such regulations, though said to be a contract, are subject to the control of the court. If they are in unreasonable restraint of trade they are invalid: see Dickson v- Pharmaceutical Society If they unreasonably shut out a man from his right to work, they are invalid . See Nagle v- Feilden ."
"There is an unreality, I think, about the notion of a contract coming into existence between each competitor and the IAAF not least because entries in competitions are made by the National Federations and not by the competitors themselves and even more unreality about the notion of a contract being formed when the competitor presents himself or herself for dope testing. The animus contrahendi must be open to question. I need not resolve these issues, however, since the plaintiff has dropped from the hearing before me her claim for injunctive relief and her claim for damages: all that she is seeking is declaratory relief. The IAAF for its part accepts that the plaintiff has locus standi to seek to declaratory relief even if there is not a contractual nexus between itself and the plaintiff. I think this concession by the IAAF is rightly made. The plaintiff, as an athlete under disqualification, has an obvious and sufficient interest in establishing whether disqualification was imposed in accordance with the rules under which the IAAF had purported to act or whether those rules are open to challenge on restraint of trade grounds."
"The jurisdiction of a domestic tribunal, such as the committee of the Showmen's Guild, must be founded on a contract, express or implied. Outside the regular courts of this country, no set of men can sit in judgment on their fellows except so far as Parliament authorises it or the parties agree to it."
"We live in days when many trading or professional associations operate "closed shops". No person can work at his trade or profession except by their permission. They can deprive him of his livelihood, When a man is wrongly rejected or ousted by one of these associations, has he no remedy? I think he may well have, even though he can show no contract. The courts have power to grant him a declaration that his rejection and ouster was invalid and an injunction requiring the association to rectify their error. He may not be able to get damages unless he can show a contract or a tort. But he may get a declaration and injunction."
"But I think that could only be done by inventing a fictitious contract. All through the centuries courts have given themselves jurisdiction by means of fictions; but we are mature enough, I hope, to do away with them."
"BAF also agrees that it would be a term of any contract that those responsible for selecting the Disciplinary Committee and that those sitting on the Disciplinary Committee would act in a bona fide manner and would not be biased ."
"First there are cases where the rules provide for a rehearing by the original body, or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned .. .
At the other extreme are cases, where, after examination of the whole hearing structure, in the context of the particular activity to which it relates (trade union membership, planning, employment etc) the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage. This is the result reached by Megarry J in Leary v- National Union of Vehicle Builders In his judgment in that case the judge seems to have elevated the conclusion thought proper in that case to rule a general application. In an eloquent passage he said:
"If the rules and the law combined to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? .. As a general rule .. I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body"
In their Lordships' opinion this is too broadly stated. It affirms a principle which may be found correct in a category of cases; these may very well include trade union cases, where movement solidarity and dislike of the rebel, or renegade, may make it difficult for appeals to be conducted in an atmosphere of detached impartiality and so make a fair trial at the first (probably branch) level an essential condition of justice. But to seek to apply it generally overlooks, in their Lordships' respectful opinion, both the existence of the first category, and the possibility that, intermediately, the conclusion to be reached on the rules and on the contractual context, is that those who have joined in an organisation, or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect.
In their Lordships' judgment such intermediate cases exist. In them it is for the court, in the light of the agreements made, and in addition having regard to the course of proceedings, to decide whether, at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association. Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or rehearings will not be sufficient to produce a just result. Many rules (including those now in question) anticipate that such a situation may arise by giving power to remit for a new hearing. There may also be cases when the appeal process is itself less than perfect; it may be vitiated by the same defect as the original proceedings, or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it had the means to make a fair and full enquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision. These are all matters (and no doubt there are others) which the court must consider. Whether these intermediate cases are to be regarded as exceptions from a general rule, as stated by Megarry J, or as a parallel category covered by a rule of equal status, is not in their Lordships' judgment necessary to state, or indeed a matter of great importance. What is important is recognition that such cases exist, and that it is undesirable in many cases of domestic disputes, particularly in which an inquiry and appeal process has been established, to introduce too great a measure of formal judicialisation. While flagrant cases of injustice, including corruption or bias, must always be firmly dealt with by the courts, the tendency in their Lordships' opinion in matters of domestic disputes should be to leave these to be settled by the agreed methods without requiring the formalities of judicial processes to be introduced."
"In my opinion, if, in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand."
"the famous aphorism of Lord Hewitt CJ in R v- Sussex Justices ex parte McCarthy  1 KB 256 at 259 . "justice .. should manifestly and undoubtedly be seen to be done" it is no longer, it seems, good law, save of course in the case where the appearance of bias is such as to show a real danger of bias."
"When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in Gough is called for, which makes it plain that it is, in effect, no different from the test applied to most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a danger, the two being the same, that the tribunal was biased."
Lord Justice Jonathan Parker:
The "club basis"
The "participation basis"
The "submission basis"
Lord Justice Mance:
(1) Was the appellant in a contractual relationship with the respondents?
"RULE 1 ELIGIBILITY TO COMPETE
All competitions held under the Rules of the British Athletic Association (BAF) are confined to amateurs under the following definitions (hereinafter termed amateurs under BAF Rules):
(1) Definition of Amateur
An amateur is a person who abides by the eligibility rules of the Federation [i.e. BAF]
(2) Restriction of Competition to Amateurs
Competition under Federation Rules is restricted to amateur athletes who are under the jurisdiction of a Member of the International Amateur Athletic Association (IAAF) and who are eligible under the rules laid down by the British Athletic Federation.
(3) Ineligibility to Compete
The following persons are ineligible to take part in competitions under Federation Rules:
Any persons who:
(f) are suspended or banned for a doping offence under Rule 24(15) or (16), .
An athlete does not cease to be an amateur under Federation Rules:
(b) by achieving a performance of merit in a competition and becoming eligible for a training grant or subvention donated by a sponsor or organiser. All monies awarded will be administered in a manner approved by the Federation.
RULE 2 CLUBS
(1) A Club is a bona fide Club or Society of amateur athletes affiliated to the Federation in accordance with its Articles of Association and Rule Book.
RULE 3 CLUB MEMBERSHIP
(1) Membership of a Club commences upon the actual date of election by the Committee of the Club at a properly convened meeting. The application for membership must be made on a form approved by the Federation.
(2) After one year of competition an athlete taking part in any event within disciplines listed in Rule 2(6)(a) .[i.e. Track and Field] must be a member of a Club or Association affiliated directly or indirectly to the Federation.
RULE 6 COMPETITION CONDITIONS
Every promoter of an athletics meeting or competition under Federation Rules, and every person tendering an entry for such meeting or competition shall be considered to have submitted to the jurisdiction of the Federation on all questions which may arise concerning the application, construction, meaning or effect of the Rules of the Federation.
(4) Competitions involving Foreign Clubs and Foreign Athletes
(a) No Club or member of a Club under the jurisdiction of the Federation may compete outside the United Kingdom of Great Britain and Northern Ireland, and no foreign Club or a member of a foreign Club may compete or be invited to compete within the United Kingdom without the permission of the Federation.
(b) Any application to compete outside the United Kingdom or for permission to invite any foreign Club or member of a foreign Club to compete within the United Kingdom must be made to the Federation.
(c) Athletes desiring to compete outside the United Kingdom and any foreign athletes desiring to compete within the United Kingdom must present to the body promoting the meeting at which they desire to compete, a letter signed by the proper official of their Governing Body stating that they are amateurs as defined by IAAF Rules and are permitted to compete.
Rule 24 DOPING
(1) Doping in or out of competition is strictly forbidden and is an offence.
(2) The Federation is responsible for the co-ordination and disciplinary procedures of all doping related matters. It is responsible for the supervision of testing both in and out of competition. All such testing is operated and co-ordinated by the relevant Sports Council Doping Control Unit, or the IAAF. All other doping matters are delegated to its Drug Advisory Committee.
(3) To be eligible for participation in athletic competitions held under Federation and IAAF Rules all athletes must make themselves available for testing when required.
(4) Athletes who may be considered for selection for Great Britain and Northern Ireland Teams at international competitions will be placed on the "out of competition register" and must notify the Federation with details of their contact address and any subsequent changes of address (e.g. at college, or university, whilst training abroad, whilst on holiday etc.) of more than five days duration. All athletes on the "out of competition register" will be notified of their inclusion by the Federation.
(13) Anti-doping tests shall be carried out under the auspices of the relevant Sports Council, or the IAAF, by Independent Sampling Officers unless otherwise required by the BAF
NOTE: See Appendix B for BAF Rules and Procedures relating to testing.
(14) The Federation Drug Advisory Committee will deal with any offences under its Doping Procedures. Under these procedures disciplinary proceedings will take place in three stages:
(a) suspension (An athlete shall be suspended from the time that the Drug Advisory Committee considers that there is evidence that a doping offence may have taken place and written notice to that effect has been sent to the athlete concerned);
(c) decision on eligibility."
"(B1) Testing at competitions should be carried out at a competition venue and out of competition testing must be carried out within 24 hours of notification at a venue convenient to the athlete.
(B7) Following suspension for an offence under Rule 24 there will be a disciplinary hearing before the Disciplinary Committee, at a date to be determined by the Chairman of the Drug Advisory Committee, after consultation with the parties, and, in the absence of an agreement, being a date less than 21 days from the Notice of the hearing being given to the athlete. The Disciplinary Committee will consist of members of the Federation Drug Advisory Committee, or its nominees. At the hearing the athlete will be entitled to be represented and will have the opportunity to present his/her case. The Disciplinary Committee may exercise all the disciplinary powers given by Rule 24.
(B8) After the disciplinary hearing before the Disciplinary Committee and any declaration of ineligibility, the athlete or the BAF will have the right of appeal within 21 days. Any appeal will be made to an Independent Appeal Panel consisting of one representative of the athlete's Member Association, one representative from the Federation and one person nominated by the Federation who may be a Barrister or Solicitor. For this purpose the Independent Appeal Panel shall be the Appeals Committee referred to in the Federation's Disciplinary Procedures.
(B9) If an athlete is found to have committed a doping offence and this is confirmed by the Independent Appeal Panel, or the right to appeal is waived, the athlete will be deemed ineligible as in Rule 24(15) or (16). The period of ineligibility will be deemed to have begun from the date on which the sample was provided or form the date of the sanctionable offence."
"Contracts may be either express or implied. The difference is not one of legal effect but simply of the way in which the consent of the parties is manifested. Contracts are express when their terms are stated in words by the parties. They are often said to be implied when their terms are not so stated, as, for example, when a passenger is permitted to board a bus: from the conduct of the parties the law implies a promise by the passenger to pay the fare, and a promise by the operator of the bus to carry him safely to his destination."
"Since, as we have seen, agreement is not a mental state but an act, an inference from conduct, and since many of the terms of an express contract are often implied, it follow that the distinction between express and implied contracts has very little importance, even if it can be said to exist at all."
(2) What were the terms of the contract regarding the fair conduct of the disciplinary proceedings?
"It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting the matter in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned."
(3) Were the respondents in breach of any such terms?
"From what I have learned the new evidence was only a very small scientific experiment carried out to show the sample could have deteriorated. It is not proven on a large scale. There was only a small element of doubt that the appeal panel gave Modahl the benefit of the doubt. I believe that the IAAF should consider an appeal because the panel decision could have destroyed confidence of our testing procedures. Yet hundreds of thousands of samples are tested at laboratories here and we have never had an episode like this."
(4) If the respondents were in breach of a relevant contractual term, can the appellant, as a matter of causation, attribute her inability to compete between 14th December 1994 and 25th July 1995 to any such breach?