United Kingdom House of Lords Decisions

Modahl v. British Athletic Federation Limited [1999] UKHL 37 (22nd July, 1999)

HOUSE OF LORDS

Lord Chancellor Lord Nicholls of Birjkenhead
Lord Hoffmann Lord Clyde Lord Millett

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

ON 22 JULY 1999

LORD IRVINE OF LAIRG L.C.

My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons which he gives, and with which I agree, I too would dismiss this appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, and with which I agree, I too would dismiss this appeal.

LORD HOFFMANN

My Lords,

    Diane Modahl is a well known British international athlete. On 6 September 1994 she was suspended from competition by the British Athletic Federation ("BAF") because of an allegation that she had breached Rule 24(5)(a) of its Rules for Competition by committing the offence of doping. After a hearing before the Disciplinary Committee on 13 December 1994 she was found guilty. But her appeal to an Independent Appeal Panel was successful. On 26 July 1995 the finding of the Disciplinary Committee was set aside. The Panel held that there was a reasonable doubt as to whether the laboratory test on her urine sample which had given a positive result was reliable. She was reinstated. Now she is suing the BAF for damages. She alleges that her suspension and the initiation of disciplinary proceedings were in breach of the contract between her and the BAF. This was constituted by its Rules, read against the background of those of the International Amateur Athletic Federation ("IAAF") to which it is affiliated. She claims damages for the financial loss she suffered because for nearly a year she was unable to compete in international athletics.

    The BAF applied to strike out the statement of claim under the Rules of the Supreme Court Ord. 18, r. 19 on the ground that it disclosed no cause of action. Although the statement of claim complains of a number of matters which happened in the course of the investigation and subsequent disciplinary proceedings, they have been refined down to two. The first alleges that two members of the Disciplinary Committee were biased. The second alleges that the charge was brought in breach of the Rules because the laboratory which tested her urine sample was not officially accredited. Popplewell J. dismissed the summons to strike out and ordered that both allegations procede to trial. The Court of Appeal upheld his decision on the bias point but allowed the appeal on the accreditation point. It said that on this issue Mrs. Modahl had no arguable case. Against that decision, she appeals to your Lordships' House.

    In order to describe how Mrs. Modahl puts her case, I must summarise the relevant rules of the BAF and IAAF. It is accepted for the purposes of this appeal that the BAF Rules constituted terms of the contract under which she submitted herself to its disciplinary powers.

    The IAAF Rules constitute the background against which the BAF Rules must be interpreted. The IAAF has strict rules against drug taking ("doping") and it is a condition of membership of the IAAF that national athletics federations adopt rules which enforce those of the IAAF. Division III of the IAAF Rules is headed "Control of Drug Abuse". By rule 55.2(i), the offence of doping takes place when a prohibited substance is found to be present within an athlete's body tissue or fluids.

     The responsibility for doping control is divided between the IAAF and its affilated members. Under Rule 58, the IAAF is responsible for control at certain designated events. The national federations are responsible at all other events held within their territories. The Doping Commission of the IAAF has published "Procedural Guidelines for Doping Control", which provide detailed guidance for the national federations on the conduct of doping control during competition. They deal with how athletes should be chosen for testing ("on a final position basis and/or random basis"), how urine specimens should be requested and collected, the division of the specimen into a main 'A' sample and a reserve 'B' sample, their sealing and transmission to the laboratory and so on. Paragraph 7.2 says that "Only laboratories accredited or approved by the IAAF/IOC may be used to carry out analysis on samples taken in accordance with doping control." However, Rule 55.11 of the IAAF Rules provides as follows:

"A departure or departures from the procedures set out in the 'Procedural Guidelines for Doping Control' shall not invalidate the finding that a prohibited substance was present in a sample or that a prohibited technique had been used, unless this departure was such as to cast real doubt on the reliability of such a finding."

    Paragraph 1.2 of the Procedural Guidelines likewise provides:

"These guidelines must be followed as far as is reasonably practicable. However, in accordance with IAAF Rule 55, a departure or departures from these guidelines shall not invalidate the finding of a prohibited substance, unless it was such as to cast real doubt on the reliability of the finding."

    On 18 June 1994 Mrs. Modahl was competing at the San Antonio athletics meeting in Lisbon. This was not one of the designated events at which the IAAF was itself responsible for doping control. Pursuant to Rule 58, responsibility therefore rested with the Portuguese Athletic Federation ("PAF"). In accordance with the IAAF Guidelines or the equivalent rules of the PAF, Mrs. Modahl was asked for a specimen of urine. It was divided into a main 'A' sample and a reserve 'B' sample. The samples were sent to the Laboratorio de Analises de Doping e Bioquimica ("LADB") which had been accredited by the International Olympic Committee ("IOC"). They analysed the 'A' sample and found that it contained a ratio of testosterone/epitestosterone well in excess of the normal limit. Testosterone is a prohibited substance within the meaning of Rule 55.2(i).

    My Lords, I break off the narrative at this point to explain why Mrs. Modahl alleges that LADB was not at the time an accredited laboratory. Although it was on the IOC list of officially accredited laboratories, she says that it had moved its premises without notifying the IOC or IAAF. This is alleged to have vitiated its accredited status. The BAF denies that it had any such effect. I must confess that I would find it remarkable if it did. The IOC has procedures for the regular checking of accredited laboratories and a removal to less suitable premises could well be a ground for the IOC revoking an accreditation. The same might be true of changes in personnel or equipment. But I find it hard to see why such matters should ipso facto nullify the accreditation without any act on the part of the IOC. Mr. Donaldson Q.C., who appeared for Mrs. Modahl, submitted that a laboratory which had changed its premises was in some deep ontological sense no longer the laboratory which had been accredited. But why should this particular attribute should be regarded as essential to its identity? However, I do not pursue this point because the BAF have conceded that there is a triable issue on whether LADB was at the time an accredited laboratory.

    The alleged lack of accreditation forms the basis Mrs. Modahl's claim that, by acting upon its analysis of her sample, the BAF was in breach of contract. In order to identify the term which is said to have been breached, I must continue to describe the events after the result of the test had been reported. Paragraph 8 of the Procedural Guidelines provided for what should happen next:

"8.1. If the analysis of the main 'A' sample indicates the presence of a prohibited substance, the laboratory shall inform the IAAF immediately. The IAAF shall then inform the athlete's National Federation who shall, in turn, inform the athlete as soon as is reasonably practicable. The athlete's National Federation should request an explanation from the athlete, which explanation, if any, should be relayed to the IAAF.

8.2. Once the athlete's National Federation has been informed, the laboratory shall arrange a date within 21 days for the conduct of the test on the reserve 'B' sample. The National Federation shall be informed of the date and time of the analysis of the reserve 'B' sample. Should he choose to do so, the athlete and/or his representative may be present. A representative of the athlete's National Federation may also be present, as may a representative of the IAAF. Once testing of the reserve 'B' sample is complete, the laboratory report should be sent to the IAAF as well as, in due course, a copy of all relevant laboratory data.

8.3. If the IAAF believes that a prohibited substance has been detected in the main 'A' sample and that the reserve 'B' sample confirms the presence of the prohibited substance detected in the main 'A' sample, the test shall be regarded as positive and the athlete shall be suspended at this time. This fact shall be reported by the IAAF to the athlete's National Federation. The National Federation should also be informed that the athlete has breached the rules of the IAAF and is, therefore, subject to disciplinary proceedings in accordance with IAAF Rule 60.

. . .

8.5 Every athlete shall have the right to a hearing before the relevant tribunal of his National Federation before any decision on eligibility is reached. This hearing should take place as soon as possible and under normal circumstances not later than 3 months after the final laboratory report.

8.6 If the athlete is found to have committed a doping offence and this is confirmed after a hearing, or he waives his right to a hearing, he shall be declared ineligible. His ineligibility shall begin from the date on which the sample was provided."

     The PAF notified the IAAF, which notified the BAF. The BAF notified Ms Modahl, who was competing at the Commonwealth Games in Canada. She was represented at a test of the 'B' sample. It gave the same result. On 6th September 1994 she was suspended by the BAF and disciplinary proceedings were instituted in accordance with paragraph 8.5 of the IAAF's Procedural Guidelines. Acting by its Drug Advisory Committee (to which "doping matters" are delegated under Rule 24(2)) the BAF suspended Ms Modahl and instituted disciplinary procedures under its Rule 24(14), which reads as follows:

"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);

(b) hearing;

(c) decision on eligibility."

    The procedures are spelled out in rather more detail in Appendix B.

     My Lords, this statement of the facts and rules is sufficient to enable me to explain the nature of Mrs. Modahl's case on the accreditation issue. She says that upon the true construction of the contract between her and the BAF, the only evidence which could justify the BAF in suspending her or initiating disciplinary proceedings for the offence of having a prohibited substance in her body was a positive result from an accredited laboratory. Mr. Donaldson puts the argument in two ways. First, he says that this should be implied from the fact that the system of accrediting laboratories was a fundamental safeguard for an athlete charged with doping. Alternatively, and putting the matter more narrowly, he says that "evidence" in Rule 24(14) means, in a case which turned on the analysis of a urine or blood sample, evidence from an accredited laboratory.

    Mr. Donaldson accepted that no provision of the BAF Rules expressly imposed such a requirement for a test conducted in a foreign country. Paragraph B3 in Appendix B to the BAF's Rules for Competition provides that "Samples will be analysed by an accredited laboratory". But this paragraph, in its context, applies only to testing within the United Kingdom. It can have no application to tests carried out in Portugal under the Rules of the PAF. For the purposes of implying a requirement that foreign testing shall be conducted by an accredited laboratory, Mr. Donaldson relies upon paragraph 7.2 of the IAAF's Procedural Guidelines: "Only laboratories accredited or approved by the IAAF/IOC may be used to carry out analysis on samples taken in accordance with doping control." This does no doubt apply to Portugal and all other national Federations. We have not seen the Portuguese rules, but one would expect them to reproduce this requirement in the same way as paragraph B3 of the BAF Rules. Further background is provided by the IAAF's Help Notes for athletes, which are in the form of frequently asked q uestions. One is "Can I trust the laboratory with my sample?", to which the answer is "Your sample will be sent to an accredited laboratory. These are regularly checked to make sure they are of the highest possible standard." So Mrs. Modahl would have been entitled to assume that, in Portugal as well as anywhere else, her sample would be analysed only by an accredited laboratory. And one can well see the importance which athletes attach to the system of accreditation as a safeguard of the integrity of the testing process. But the question is whether a breach of the Guidelines by the PAF would entitle Mrs. Modahl to sue the BAF for damages.

    My Lords, there is no allegation that the BAF knew or ought to have known that LADB was not an accredited laboratory. Paragraph 8 of the IAAF's procedural guidelines requires the BAF to act upon notification of a positive result in a foreign country. Paragraph 8.3 says that the athlete shall be suspended from the moment the test on the 'B' sample confirms the presence of drugs. Speed is obviously important. The BAF's Rule 24(14) says that the 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". The suspension and commencement of proceedings involves no finding by the Drug Advisory Committee that any offence has been committed or that the laboratory report is accurate. In my opinion it would be quite inconsistent with these procedures to imply a term that the national federation should not be entitled to initiate disciplinary procedures in accordance with paragraph 8.3 if the laboratory has done something to vitiate its accredited status. This is a matter which may not be within the knowledge of the BAF at all. It seems to me unreasonable to construe the contract so as to impose upon the BAF a potentially large liability in damages in circumstances when it was simply carrying out its duties under the IAAF Rules.

    Mr. Donaldson emphasised the difficult situation of an athlete faced with an adverse laboratory test. The mere fact of suspension, let alone disqualification, may be extremely damaging to his or her career. Although the burden of proof beyond reasonable doubt is upon the Federation, the certified result of the test goes so far to discharge that burden that in practice the athlete will have to adduce evidence which raises a reasonable doubt. The accreditation system is an essential safeguard and therefore it is right that the Federation should be strictly liable for compliance with that system. It is true that holding the Federation liable will not undo the suspension and consequent career damage but it will provide some financial compensation.

    My Lords, the IAAF's system for the control of drug abuse is plainly draconian. It carries the risk of grave injustice to an athlete if a laboratory test should be wrong. But the test may be wrong for many reasons besides the lack of accreditation of the laboratory. And the fact that the laboratory was not accredited does not necessarily mean that the test was wrong. It seems to me capricious to construe the Rules to mean that an athlete is entitled to financial compensation if proceedings against her were initiated on the basis of a test (which may well have been accurate) from a laboratory which had moved its premises but not a test which was wrong on any other ground. I think that the IAAF adopted its system of instant suspension followed by disciplinary proceedings in the belief that although it might sometimes cause injustice in the individual case, it was necessary in the wider interests of the sport.

    The Court of Appeal relied upon Rule 55.11 of the IAAF Rules and paragraph 1.2 of the Procedural Guidelines, which I have already quoted and which provide that a departure from the Procedural Guidelines shall not invalidate a finding that a prohibited substance was present in a sample unless it is such as to cast "real doubt" upon the reliability of the finding. There is a similar provision in Rule 24(22) of the BAF Rules. Mr. Donaldson said that they were wrong to regard the question of accreditation as a mere technicality which these provisions would entitle the Disciplinary Committee to ignore. Speaking for myself, I agree with the view of the Court of Appeal that it was a matter which fell within Rule 24(22). But I do not think that this provision or the parallel provisions in the IAAF Rules are directly relevant to the question in this appeal. The BAF does not need to rely upon them. In suspending an athlete and initiating disciplinary proceedings, the BAF's Drug Advisory Committee is not making a "finding". It is only deciding that, on the information it has been given, it considers that there is evidence that a doping offence may have taken place. For this purpose, as it seems to me, paragraph 8 of the Guidelines shows that the communication from the IAAF that the tests on the 'A' and 'B' samples had been positive should normally be sufficient. In the present case, there is no allegation that the BAF knew or ought to have known of anything which excused it from carrying out its obligations under paragraph 8 of the Guidelines. In those circumstances, the claim is bound to fail and should have been struck out.

    I would therefore dismiss the appeal.

LORD CLYDE

My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons which he gives, and with which I agree, I too would dismiss this appeal.

LORD MILLETT

My Lords,

    I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, and with which I agree, I too would dismiss this appeal.