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2005
Download written decisions and media releases for cases decided by the Sports Tribunal of New Zealand in 2005.
Andrew Stroud v Motorcycling New Zealand
(SDT 05/05)
The Tribunal released two decisions in this case: a provisional decision (9 November 2005) and a final decision (22 December 2005). The decisions resolve different issues and both need to be read together.
Overview:
Appeal against decision of national sports organisation (NSO) – appellant appealed against being relegated (by race steward) and subsequently disqualified (by protest committee) for passing another rider under a yellow flag during motorcycle race - disqualification upheld by appeal committee of NSO - decision affected who would be NZ champion - Tribunal found evidence fell short of showing race marshall made a mistake in determining appellant passed under yellow flag - Tribunal also noted that in law it was only in limited circumstances that "field of play" decisions by officials such as referees or marshals can be overturned - procedural unfairness - Tribunal determined that despite best intentions, the processes of protest and appeal committees were procedurally defective and their decisions had to be quashed - appropriate penalty that steward should have imposed - interpretation of rules - Tribunal found that under Motorcycling's Rules, the only applicable penalty that the steward could impose for a yellow flag infringement was exclusion (disqualification) - appeal against disqualification dismissed.
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New Zealand Federation of Body Builders v Barbora Jurcanova
(SDT 10/05) - Decision released 20 December 2005.
Overview:
Anti-doping – clenbuterol – when visiting family overseas defendant took medicines belonging to mother, including spiropent, to relieve flu symptoms – did not know spiropent was trade name for clenbuterol – brought spiropent tablets back to NZ and continued to use them which she claimed caused her positive test - whether no significant fault or negligence – athlete argued as a novice she had not received same anti-doping instruction as an elite body builder – Tribunal held no difference in “no significant fault” test between novice and experienced athletes although the circumstances of a novice may at times allow an athlete to establish exceptional circumstances – Tribunal expressed sympathy for athlete – however she aware of need to avoid prohibited drugs but took medication without checking whether it was prohibited substance – her inaction amounted to significant fault – 2 years’ ineligibility imposed – suspension backdated.
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New Zealand Federation of Body Builders v Tony Ligaliga
(SDT 11/05) - Decision released 16 December 2005.
Overview:
Anti-doping – Benzylpiperazine (BZP) – recreational use – body builder took a “party pill” containing BZP when on a night out socialising – BZP not specifically named as a prohibited substance under WADA Prohibited List – however it qualifies as a prohibited substance because it falls into the category of a substance “with a similar chemical structure or similar biological effect(s)” to other stimulants named in S6 of the Prohibited List (stimulants) – judicial review - whether determination of NZ Sports Drug Agency that a doping violation had been committed can be challenged before Tribunal - unless a determination of the Agency is challenged in the District Court, the Tribunal is bound to accept it as valid – whether no significant fault or negligence – athletes will only be able to establish no significant fault in truly exceptional circumstances - party pill not taken for performance enhancing purposes and athlete prominent advocate of drug free body building – while Tribunal sympathetic to athlete’s position he had been careless in taking a prohibited substance and had been at significant fault – strict liability nature of WADA Code - no truly exceptional circumstances to establish no significant fault defence - 2 years’ ineligibility imposed.
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New Zealand Rugby League Inc v Wani Roberts
(SDT 13/05) - Decision released 28 November 2005.
Overview:
Anti-doping – cannabis – recreational use at party week before match – expressed remorse – Mene / Koro principles applied – no aggravating circumstances to justify suspension – Warning and reprimand imposed.
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Nicolo Riosa v Canoe Racing New Zealand
(SDT 12/05) - Decision released 10 October 2005.
Overview:
Appeal again non-selection for NZ team – appellant not selected for Men’s Open K1 Marathon team to compete at International Canoe Federation Marathon Championships – although appellant not selected for Men’s open team he had been selected for NZ Masters team - whether Tribunal had jurisdiction to hear appeal – NSO argued that as appellant selected for a NZ team he could not appeal non-selection for open team – Tribunal held appellant could appeal and that Tribunal had jurisdiction to hear appeal – appellant resident in Czech Republic and hadn’t competed in races in NZ against other candidates for NZ team – selectors considered appellant’s international results not sufficient to justify his selection ahead of other candidates - whether appellant given opportunity to satisfy selection criteria – whether there should have been final selection race – whether bias in selection – Tribunal considered selection policy could be more precise and that appellant should have been informed earlier by NSO of desirability of him racing in NZ – however, Tribunal concluded that selection policy substantially complied with, no evidence of bias and there was material on which selectors’ decision could reasonably be based – appellant not establishing NSO had erred in terms of the grounds required under the Rules of the Tribunal - appeal dismissed.
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New Zealand Federation of Body Builders v Steven Ward
(SDT 09/05) - Decision released 7 October 2005.
Overview:
Anti-doping – Stanozolol, Nandrolone and Furosemide – defendant admitted made conscious decision to take prohibited drugs to assist performance and took them knowing the consequences if he got caught – mandatory 2 years’ ineligibility imposed.
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O'Connor v Motorsport New Zealand
(SDT 03/05) - Decision released 7 September 2005.
Overview:
Appeal against decision of national sports organisation – appellant appealed against decision of Motorsport NZ (MNZ) not to grant homologation (ie approval) for a roll protection bar on his racing car – whether lifting eye (attached to roll bar and used to tow car) was part of the roll bar – MNZ refused homologation as considered lifting eye was part of roll bar and therefore had to withstand same stress minima that roll bar required to withstand and there were safety issues – appellant contended eye was not part of roll bar, it would depress in event of accident and this was not valid reason to refuse homologation – Tribunal held eye was not part of roll bar (in accordance with MNZ National Sporting Code) and homologation should have been granted – homologation appeal upheld – appellant also claimed he had been discriminated against by MNZ including delays by MNZ and that homologation granted to other cars with similar configurations - discrimination claim dismissed as no evidence of discrimination – Costs award made in favour of appellant.
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Touch New Zealand v Matiu Soloman
(SDT 08/05) - Decision released 4 August 2005.
Overview:
Anti-doping – cannabis – recreational use – stated used cannabis on one occasion prior to the tournament to relieve stress caused by family circumstances and study - expressed remorse – Mene / Koro principles applied – aggravating circumstance justifying suspension in that defendant signed participation agreement with Touch NZ essentially agreeing not to use banned substances – Tribunal considered 2 months’ ineligibility would have been appropriate but there were strong mitigating factors justifying lesser period of suspension including stressful family circumstances and defendant at relatively young age assuming leadership role in family, apology and promise before Tribunal and wider whānau that would not transgress again, and willingness to act as ambassador for Touch – one month’s ineligibility imposed.
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Touch New Zealand v Willie Morunga
(SDT 07/05) - Decision released 4 August 2005.
Overview:
Anti-doping – cannabis – recreational use – used cannabis at party two weeks before tournament - Mene / Koro principles applied – aggravating circumstances justifying suspension - defendant signed participation agreement with Touch NZ essentially agreeing not to use banned substances –defendant had also previously been in teams where anti-doping violations had occurred (including with cannabis) – Tribunal considered defendant knew rules around anti-doping but chose to ignore them – two month’s ineligibility imposed.
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BikeNZ v Amy Mosen
(SDT 06/05) - Decision released 31 May 2005.
Overview:
Anti-doping - Terbutaline - cyclist not aware needed to get Therapeutic Use Exemption (TUE) for asthma inhaler - While surprising defendant did not have a better knowledge of what was required, Tribunal accepted that in the circumstances she did not - defendant selected at short notice to represent NZ for first time, not a carded athlete, had not been on any drug testing programme, and had never been drug tested before - observations about obligations on National Sports Organisations to inform athletes about TUEs and anti-doping matters - Tribunal accepted defendant did not use terbutaline with intention of enhancing sports performance and that her failure to obtain TUE was due to inadvertence - minimum penalty of a warning and reprimand was appropriate.
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Touch New Zealand v Jade Koro
(SDT 04/05) - Decision released 26 May 2005
Overview:
Anti-doping – cannabis – recreational use – defendant smoked cannabis at party two weeks before tournament where drug tested – Tribunal referred to its earlier decision in Boxing NZ v Mene (SDT 13/04) where sanctions imposed in UK, Canada and Australia for cannabis violations were referred to – Tribunal noted approach in USA (where warnings often imposed) – test in Mene adopted and applied - unless there are aggravating circumstances, a warning and reprimand is appropriate penalty for a first offender who prior to a tournament smoked cannabis "recreationally", rather than for performance enhancing purposes, where that cannabis use did not represent a danger to others – Tribunal emphasised that existence of aggravating circumstances may justify suspension – observations on situations which might amount to aggravating circumstances - Tribunal referred to Touch’s practice of getting players to sign player participation agreements, which essentially include agreement not to use banned substances – it may amount to aggravating circumstances if player signs such an agreement and then uses cannabis – however no such aggravating circumstances in present case as Touch could not produce any evidence that defendant had signed such an agreement – warning and reprimand imposed.
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New Zealand Rugby League v Barry Tawera
(SDT 12/04) - Decision released 6 May 2005
Overview:
Anti-doping – failure to provide a urine sample - defendant initially discarded urine sample and briefly left testing area - subsequently returned and provided another sample which tested negative - refusal to provide initial sample was clear breach of anti-doping rules - however, Tribunal found truly exceptional circumstances existed to justify a lesser penalty than the otherwise applicable two years' suspension - period of one year's ineligibility imposed.
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New Zealand Rugby League v Lawrence Erihe (SDT 09/04) - Decision released 4 April 2005.
Overview: Anti-doping – ephedrine - specified substance - defendant unable to identify how ephedrine came to be in his system - defendant not able to discharge his onus to establish that he did not take the substance for performance enhancing reasons - defendant unable to establish no significant fault or negligence - 2 years’ ineligibility imposed.
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Boxing New Zealand Inc v Alex Mene
(SDT 13/04) - Decision released 7 March 2005.
Overview:
Anti-doping – cannabis – recreational use – defendant tested positive for cannabis after winning NZ boxing title – he used cannabis at party two weeks before tournament – Tribunal accepted defendant’s claim that he was unaware that cannabis was prohibited substance under WADA Code – defendant not a member of Boxing NZ’s elite or development squad and may not have received same level of information as those in squads - however, this did not excuse cannabis offending.
Tribunal reviewed principles for imposing penalties in cannabis cases - Tribunal referred to sanctions imposed in UK, Canada and Australia for cannabis violations – Tribunal considered warning and reprimand was appropriate penalty when the cannabis use was unrelated to the sport, was not taken for performance enhancing purposes, did not represent a danger to others and there were no other aggravating factors – warning and reprimand imposed.
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New Zealand Rugby League v Vince Whare
(SDT 14/04) - Decision released 17 February 2005
Overview:
Anti-doping - cannabis – tested positive while playing for NZ Maori team at tournament - recreational use of cannabis with friends in social setting - cannabis used after usual club season finished and prior to defendant's selection for Maori team - remorse expressed - deterrence - interim suspension taken into account - $250 fine and $250 costs imposed.
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