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2009
Download written decisions and media releases for cases decided by the Sports Tribunal of New Zealand in 2009.
Drug Free Sport New Zealand v Greig Dean
(ST 12/09) Provisional Suspension Decision 29 October 2009; Decision 8 December 2009; Reasons for Decision 14 December 2009.
Overview:
Anti-doping - cannabis – rugby league player tested positive for cannabis after representing province - provisionally suspended from 28 October 2009 - admitted violation – cannabis used in party to celebrate victory of club team - Tribunal considered athlete aware that cannabis was prohibited - his statement that at time of use he didn't think he would be chosen to represent provincial team was no excuse - no mitigating circumstances - Tribunal noted athlete active in a number of sports apart from rugby league and sanction of ineligibility (suspension) will prevent him participating in rugby league and other sports - ineligibility up to and including 29 January 2010 imposed.
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Tim Curr v Motorcycling New Zealand Inc
(ST 01/08) Costs decision 14 October 2009
Overview: Costs - costs order sought by respondent - costs sought in accordance with High Court costs rules - Tribunal does not operate under those rules - appellant partly successful in appeal as to penalty but unsuccessful on other grounds - appellant represented by father who was not a lawyer - respondent claimed conduct of father in representing his son made the case unnecessarily protracted and difficult and caused respondent cost - Tribunal reviewed previous costs decisions - principles for awarding costs in Tribunal - practice of Tribunal has been to award costs only in exceptional circumstances - finely balanced and difficult case - Tribunal held that, even though there was an argument for making a modest costs award in favour of respondent on the basis of appellant's father's conduct as representative, other factors weighed against this - costs to lie where they fall and costs application dismissed.
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Brook Reeve v KartSport New Zealand
(ST 08/09) Decision 12 October 2009
Overview: Appeal against decision of national sporting organisation (KartSport) - junior kart driver (B) appealed against being placed second in race - karts fitted with transponders and electronic timing system used - initial result screens linked to electronic timing system showed B won race - however Finish Line Judge and 3 lap scorers saw finish differently and considered another kart (kart 20) finished first - kart 20 declared official winner - winner of race is who crossed finish line first and not who crossed transponder loop first (which was positioned before finish line) - whether Finish Line Judge entitled to declare different result to electronic timing system - inconsistencies in rules making them difficult to interpret - on interpretation of applicable rules, electronic system to be used but in event of dispute or equipment failure manual system to be reverted to - Tribunal considered there was a "dispute" between what all 4 officials saw and what the results screens showed - in circumstances, Finish Line Judge entitled to determine there was dispute and declare different result to the electronic system - initial order on screen is not final result - final result must be signed by Chief Steward who in this case, following determination of Finish Line Judge, determined kart 20 was winner - on facts this determination correct and appeal dismissed - no need to consider whether equipment failure - observations on field of play rule and whether any right to protest decision of Finish Line Judge under KartSport rules.
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Drug Free Sport New Zealand v Liza Hunter-Galvan
(ST 07/09) Provisional Suspension Decision 29 May 2009; Decision 28 August 2009
Overview:
Anti-doping - erythropoietin (EPO) - athlete admitted violation and that deliberately took EPO - Tribunal rejected her submission that suspension should be backdated to the date of sample collection as she had made a “prompt” admission of the violation - Tribunal did not find her admission to be prompt in circumstances - she did not admit violation until her B sample was analysed and she had obtained packaging of samples - while she was entitled to take those steps, Tribunal considered an athlete who has knowingly taken EPO does not "promptly" admit the violation by requesting that her B sample be analysed - comments on confidentiality and privacy obligations in Sports Anti-Doping Rules which prevent Tribunal and parties to anti-doping proceedings publicly disclosing information before Tribunal has made and publicly issued a final decision - mandatory sanction of 2 years ineligibility imposed (commencing from date of provisional suspension 29 May 2009)
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Brook Reeve v KartSport New Zealand
(ST 09/09) Minute and Order as to Jurisdiction 13 August 2009
Overview:
Appeal against decision of national sporting organisation (KartSport)- jurisdiction - Tribunal ruled it did not have jurisdiction to hear this appeal pursuant to KartSport's rules - those rules require an appeal to Sports Tribunal to be preceded by a KartSport appeal board hearing and decision - appellant had intended to appeal to KartSport appeal board but his filing fee was received by KartSport after time limit stipulated in their rules had expired - KartSport not prepared to extend the time limit and hold KartSport appeal board hearing - as there had been no KartSport appeal board hearing and decision the Tribunal had no jurisdiction to consider the appeal.
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Christopher Cox v KartSport New Zealand
(ST 16/08) Decision 7 August 2009
Overview:
Appeal against decision of national sporting organisation (KartSport) that junior kart driver breached rules during race by overtaking after a yellow flag was shown - field of play - Tribunal cannot question in these circumstances whether yellow flag should have been shown or not - however this did not dispose of issue of whether was an overtaking in breach of rules - evidence accepted that appellant passed two other karts as result of them sliding on damp track and drifting to outside of track - appellant gave evidence that he took avoiding action to prevent a potential accident and found himself in front rather than deliberately overtaking in breach of rules - Tribunal concluded this was not an "overtaking" within meaning of the rules - it was for KartSport to establish that there had been a breach of the rules and establish all elements of the breach - one of these elements was that there had been an “overtaking” within the meaning of the rules - KartSport did not establish that before the Tribunal - Tribunal considered KartSport did not properly address or consider this aspect at KartSport appeal hearing which was a breach of natural justice - Tribunal has the power to remedy procedural breaches in earlier hearings into the same matter but here KartSport was unable to establish before the Tribunal one of the required elements, namely that there had been an “overtaking” - appellant acknowledged yellow flag and, in order for there to be a breach of the rules, there had to be a finding that having done so he ignored it - this was not adequately determined in the KartSport processes - Tribunal upheld appeal, quashed finding of breach, overturned fine and ordered KartSport pay appellant half of his appeal filing fees.
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Drug Free Sport New Zealand v George Playle
(ST 06/09) Decision 22 July 2009.
Overview:
Anti-doping - cannabis - athlete admitted violation - recreational use at party - Tribunal accepted corroborated evidence that cannabis use not intended to enhance sports performance - mitigating factors - athlete not originally selected for team and called up on short notice - athlete gave evidence that at time used cannabis he did not anticipate he would be playing and would not have used cannabis if had been selected - Tribunal accepted evidence that in hurried circumstances of athlete's call up into the team he had received no, or limited, information on NSO's anti-doping policy or his anti-doping obligations - however, cannabis is prohibited substance and athletes have an obligation to be aware of, and comply, with anti-doping rules - 6 week's suspension appropriate in circumstances - Tribunal noted that cross code effect of suspension will prevent him playing rugby as well as Touch - 6 weeks' ineligibility imposed (suspended up to and including 2 September 2009).
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Drug Free Sport New Zealand v Aaron Neemia
(ST 02/09) - Provisional Suspension Decision 30 March 2009, Decision 12 June 2009.
Overview:
Anti-doping - cannabis - second violation (see Softball NZ v Aaron Neemia, SDT 08/06, decision 7 April 2006 for decision relating to first violation) - law changed this year due to changes in WADA Code and Sports Anti-Doping Rules - Tribunal now has discretion of imposing suspension of between 1 to 4 years (instead of mandatory 2 year suspension under old law) for second cannabis violation (where not taken to enhance sports performance in both violations) - first Tribunal case dealing with second cannabis violation under new law.
Athlete admitted violation - Tribunal accepted corroborated evidence that cannabis use not intended to enhance sports performance - used at suggestion of friend to help sleep and help with pain relief for knee injury - used 2 or 3 days before national softball final - no mitigating factors - taking cannabis for pain or sleep relief not mitigating factor - aggravating factors were that that he was an international athlete who was expected to set example for other players and despite strong warning from Tribunal less than 3 years ago of consequences of further cannabis offending, he was prepared to smoke cannabis again just 2 or 3 days before national final - minimum suspension of one year not inconsequential (player withdrawn from national side, will miss world cup and cannot take up overseas playing contract) - however, issue for Tribunal is not consequences to player but degree of fault of player - in circumstances, minimum sanction of one year's suspension was not appropriate - 18 months' ineligibility imposed (commencing from 30 March 2009 to take account of provisional suspension).
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Drug Free Sport New Zealand v Steven Manson
(ST 04/09) - Provisional Suspension Decision 30 March 2009, Decision 21 May 2009.
Overview:
Anti-doping - cannabis - recreational use at party - athlete admitted violation - Tribunal accepted corroborated evidence that cannabis use not intended to enhance sports performance - no mitigating factors - aggravating factors were that that he was an experienced athlete who knew he was taking prohibited substance and used it the night before tournament - Tribunal required to credit provisional suspension period - Tribunal considered whether provisional suspension period had impact as NZ softball season was finished - however provisional suspension period had disturbed his plans to play softball overseas and he had put his softball career on hold for a year as a result, therefore provisional suspension had impacted on him - given recent cases of cannabis violations involving softballers, the Tribunal warned softball payers in general that if they should appear before the Tribunal for cannabis violations, the Tribunal may start imposing harsher penalties - 2 months' ineligibility imposed (commencing from 30 March 2009 to take account of provisional suspension).
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Drug Free Sport New Zealand v Thomas Cameron
(ST 03/09) - Provisional Suspension Decision 30 March 2009, Decision 20 April 2009.
Overview:
Anti-doping - cannabis - recreational use at party - athlete admitted violation - Tribunal accepted corroborated evidence that cannabis use not intended to enhance sports performance - no mitigating factors - had received appropriate drug education and knew taking prohibited substance - his knowledge was aggravating factor - 2 months' suspension appropriate (commencing from 30 March to take account of provisional suspension) - athlete was softball player - Tribunal considered whether suspension should be longer as NZ softball season now finished - however athlete had intended to now be playing softball overseas where season starting or started - 2 months' suspension will prevent him playing overseas until 30 May 2009 and will be effective penalty - 2 months' ineligibility imposed (commencing from 30 March 2009).
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Drug Free Sport New Zealand v Tom (Zig Zag) Wallace
(ST 15/08) - Decision 5 March 2009
Overview:
Anti-doping - probenecid - boxer tested positive for probenecid - admitted violation but gave evidence violation was inadvertent - doctor at accident and emergency clinic prescribed him probenecid to help treat cellulitis in knee - neither doctor nor athlete knew probenecid was prohibited substance - athlete informed doctor he was competitive boxer subject to drug testing and asked if suggested treatment would cause any problems if he was later drug tested - he accepted the doctor’s assurance it would not - however doctor did not check whether probenecid was prohibited in sport but wrongly assumed it was not - Tribunal had sympathy for athlete and accepted there was no significant fault on his part but could not accept his defence that he had no fault - he had received drug education and material containing instructions on steps athletes need to take when prescribed medication - while complied with step of advising the doctor that he was an athlete subject to drug testing, there were other steps set out in the material that needed to follow but did not do - did not request doctor to check medical catalogue to clarify status of probenecid (which states probenecid is prohibited) - did not ensure therapeutic use exemption requirements were met if no other treatment alternatives were available - no fault defence rejected - Tribunal not needing to consider no significant fault defence further (which if defence established would result in a minimum penalty of one year's suspension under anti-doping rules) as probenecid recently recategorised as a specified substance under new rules and lesser penalties available under lex mitior principle (if Tribunal thought appropriate to apply lex mitior principle) - unlike athlete in recent case of DFS v Boswell (ST 01/09), the athlete here informed the doctor that he was subject to drug testing and asked whether the treatment would cause any problems for drug testing - he relied upon the doctor’s assurances and although this did not absolve him of all his obligations, it was a factor to be taken into account in determining penalty - he also had voluntarily withdrawn from competing when advised of the positive test - appropriate penalty in all circumstances was a reprimand only.
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Noel Curr v Motorcycling New Zealand Inc
(ST 09/08) - Costs decision 26 February 2009
Overview:
Costs - costs order sought by respondent after appeal struck out for being out of time - costs sought in accordance with High Court costs rules - Tribunal does not operate under those rules - not appropriate case to award costs - costs applicaition dismissed.
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Drug Free Sport New Zealand v Dane Boswell
(ST 01/09) Decision 12 February 2009; Reasons for Decision 24 February 2009
Overview:
Anti-doping - probenecid - rower tested positive for probenecid in November 2008 - athlete subsequently requested B sample also be tested and this was was also positive - proceedings brought to Tribunal in 2009 by Drug Free Sport upon second positive test result - admitted violation but gave evidence violation was inadvertent - doctor prescribed him probenecid to treat injured hand - neither doctor nor athlete knew probenecid was prohibited substance - athlete did not take prohibited substance deliberately and was not a "drug cheat" - however athlete did not discharge his obligations as athlete subject to Sports Anti-Doping Rules - had received appropriate anti-doping education and materials as athlete in registered drug testing pool but had not followed advice been given in doping education - did not tell doctor was athlete subject to drug testing - did not ask doctor to check status of substance intended to prescribe - did not use phone text service allowing athletes to check whether substance is prohibited - therefore could not succeed on defence that had no significant fault - lex mitior principle applied - at time of violation in November 2008 the penalty for a probenecid violation was 2 years' suspension - however, under the latest Sports Anti-Doping Rules 2009, since 1 January 2009 probenecid has been re-categorised as a "specified substance" with a range of lesser penalties that can be applied - although violation happened before 1 January 2009, the new rules allow Tribunal to impose lesser penalties available for a specified substance if Tribunal considers appropriate - relevance of provisional suspension proceedings in the particular circumstances of this case in determining appropriate sanction - Tribunal considered 2 months' suspension appropriate in all circumstances of case - 2 months' ineligibility imposed.
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