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2011 | 2010 | 2009 |2008 | 2007 | 2006 |2005 | 2004 | 2003 | Results in anti-doping cases
2010
Download written decisions and media releases for cases decided by the Sports Tribunal of New Zealand in 2010.
Drug Free Sport New Zealand v Kyle Reuben
(ST 20/10) Decision 1 December 2010; Provisional Suspension Decision 8 October 2010.
Overview:
Anti-doping - rugby league player refusing or failing to provide a sample - initially provided an insufficient sample - asked chaperone about possible repercussions for cannabis use - subsequently told chaperone that not prepared to wait to pass a further sample and would accept the consequences - chaperone reported he advised consequences of leaving but athlete walked off without completing test - athlete admitted violation - stated put family commitments first and had wanted to do the test as quickly as possible to get ride with brother and make sure he got home in time to collect child from babysitter - also stated told chaperone of social cannabis use and while he knew that first time cannabis offenders may get suspended for a few months, he did not realise that he could get suspended for two years for refusing to provide a sample - not a case of no significant fault or negligence - chose to walk away from the chaperone and not complete the test - his justification for doing this falls well short of “exceptional circumstances” test for no significant fault/negligence - Tribunal found chaperone had warned athlete that would face 2 years’ if walked away - athlete may have been confused and thought if he acknowledged taking cannabis he would get a similar penalty as athletes who test positive for cannabis - however, he was mistaken if thought this - fact that an athlete may have smoked cannabis has no relevance to the penalty applied when the athlete refuses to complete a test - 2 years’ ineligibility imposed, commencing from date of provisional suspension.
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Drug Free Sport New Zealand v Rangimaria Brightwater-Wharf
(ST 14/10) Decision 29 November 2010; Provisional Suspension Decision 27 July 2010.
Overview:
Anti-doping - powerlifter tested positive to dimethylpentylamine – admitted violation but gave evidence violation accidental – on morning of competition took capsule of supplement “Ripped Freak” unknown to her containing dimethylpentylamine - not listed as ingredient (although geranium seed extract was) - athlete made inquiries to distributor in 2009 and was advised didn’t contain prohibited substances - dimethylpentylamine added to Prohibited List in 2010 after athletes found guilty of violations in 2009 (although not specifically listed in 2009, dimethylpentylamine held to be sufficiently close to other prohibited substances) – after Tribunal hearing but before Tribunal had made its, WADA advised it would be reclassifying dimethylpentylamine as a “specified substance” in the 2011 Prohibited List meaning lesser penalties available – WADA advised it considered substance could be treated as specified substance now in existing cases even though reclassification didn’t come into effect until 2011 (for practical rather than strictly legal reasons) – potential application of lex mitior principle considered which didn’t strictly apply as law change not in force at time of hearing– whether Tribunal should now treat as specified substance – recent overseas cases treated as specified substance - due to exceptional circumstances of WADA position and approach of tribunals overseas, fairness to NZ athletes justified Tribunal treating as specified substance – Tribunal satisfied not taken for performance enhancing reasons – athlete honest and had high values but responsibility lies with athlete not to take prohibited substances - athlete had received anti-doping education but failed to check with Drug Free Sport (DFS) the status of substance although aware of DFS help line - failure to check with DFS meant she had a degree of fault – while made inquiry to distributor in 2009, no further inquiries to DFS or medical practitioners etc before tested positive in 2010 – Tribunal considered comparable anti-doping decisions of its own and overseas bodies concerning athletes inadvertently taking prohibited specified substances including cases where doctors had mistakenly prescribed athletes prohibited substances (such as DFS v Chalmers ST 13/09, 11 March 2010) which the present case was seen as more serious than - 6 months ineligibility was appropriate here, commencing from date of provisional suspension.
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Thomas Emmerson v KartSport New Zealand Inc
(ST 18/10) Decision 18 November 2010
Overview:
Appeal against decision of NSO - jurisdiction – executive of KartSport NZ changed rule dealing with permitted fuels, including prohibiting use of bio-fuel blends in open class races – appellant (E) uses bio-fuels in his kart and at subsequent race meeting competed in one class but was not able to compete in open class due to this fuel restriction - E sought to challenge validity of this fuel rule and protested to stewards - stewards' panel heard his protest and concluded no infringement of rules by KartSport – E appealed to KartSport Appeal Board – Appeal Board considered stewards should not have heard protest as E not a “competitor” in that class under the Rules and he had no right to protest - despite this, Appeal Board considered E’s appeal anyway because stewards had considered the complaint – Appeal Board dismissed his appeal and E appealed to Sports Tribunal.
Whether Appeal Board can effectively validate a protest, if not a legitimate process, by hearing appeal on its merits - whether this gave Tribunal jurisdiction to hear matter - appeal from stewards’ decision could only be on grounds that decision was wrong – Appeal Board, in trying to be fair to E, considered complaint about validity of Rules but exceeded its jurisdiction in doing so – Tribunal considered whether out of fairness it should consider E’s complaint that the changed fuel rule was ultra vires and invalid – Tribunal concluded it would be wrong to consider matter and that it had no jurisdiction – Tribunal’s jurisdiction under KartSport rules was to consider appeals from KartSport Appeal Board that had arisen from legitimate protests under rules – not case here as E did not have the right to have the fuel rule declared ultra vires (under procedure in the rule dealing with right to protest) – fact that Appeal Board elected to consider the merits does not give Sports Tribunal jurisdiction to do so when Appeal Board had no jurisdiction to consider the merits – Tribunal declined jurisdiction – appeal also filed to Tribunal out of time – appeal delayed in post due to insufficient postage – meaning of when decision “announced” to E to start time period running to file appeal – appeal dismissed.
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Announcement of Anti-Doping Decision (all details relating to case are confidential) Announcement 19 November 2010.
The Sports Tribunal has heard and decided an anti-doping application and found that there was no violation.
All details relating to this case are strictly confidential, pursuant to the Sports Anti-Doping Rules.
Drug Free Sport New Zealand v Woodes Rogers
(ST 15/10) Decision 11 October 2010; Provisional Suspension Decision 12 August.
Overview:
Anti-doping - powerlifter tested positive to numerous prohibited substances: T/E ratio > 4:1; Oxymesterone; Metabolites of Methandienone; Metabolites of Methyltestosterone; Metabolites of Oxymetholone; 19-norandrosterone - failed to participate in proceedings - extent of offending amounted to aggravating circumstances under Anti-Doping rules - question whether aggressive and insulting language/attitude in correspondence could be ''aggravating circumstances" left open - Tribunal able to impose suspension of up to 4 years due to aggravating circumstances - however, accepted that athlete's correspondence amounted to prompt and frank admission - under WADA Code, such an admission expressly prevents increased penalty due to aggravating circumstances being applied but this provision does not expressly appear in Sports Anti-Doping Rules - despite these differences between WADA Code and Anti-Doping Rules, given the admission, Drug Free Sport accepted it was not appropriate to seek higher penalty than 2 years' suspension - 2 years' ineligibility imposed (commencing from date of provisional suspension).
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Garth Shillito v Fencing New Zealand
(ST 13/10) Reasons for Decision 29 September 2010; Decision 1 September 2010
Overview:
Appeal against decision of NSO - non selection for NZ team - S appealed decision of Fencing NZ (FNZ) not to select him for NZ Men's Open Sabre Team to compete in Commonwealth Fencing Championships 2010 - whether selection process followed and selection criteria properly applied - S pointed to his NZ ranking of 3rd as justifying place in 5 person team - also complained that not all of selected team had competed in all competitions identified as counting towards selection and one member of team resident in Australia and his selection on team was based on results in Australian competitions - also raised questions concerning whether discriminated against on basis of age - FNZ argued deficiencies in ranking system gave S higher ranking than warranted, selectors had to consider prediction of athlete performance in competition as well as rankings/results, and results of Australian resident fencer justified his inclusion in team.
Tribunal could not conclude that FNZ failed to follow selection policy - ranking and results in specified tournaments were primary selection criteria but were not exclusive in determining relative performance of fencers - prediction of potential performance in championships also to be considered - matter for selectors what weighting they placed on various competitions and results, including Australian competitions - Tribunal would have to identify clear errors in selection process to intervene and considered no obvious failure by selectors here but rather a judgment call on relative performance - Tribunal concerned over whether age had been factor in not selecting S, which it could not be under selection policy, but ultimately considered this was not the reason for his non-selection - While appeal dismissed, S had properly brought his appeal and exposed matters wanting in FNZ selection policy - Tribunal made comments on what a clear selection policy should contain.
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Drug Free Sport New Zealand v Adam Stewart
(ST 19/10) Decision 8 September 2010
Overview:
Anti-doping - attempted use, and possession, of prohibited substances – EPO, hCG and Pregnyl Solvent - athlete member of Commonwealth Games cycling team - violations relate to two incidents where he imported prohibited substances by post – 2 years’ ineligibility imposed.
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Drug Free Sport New Zealand v Bruce Kake
(ST 05/10) Decision 31 August 2010
Overview:
Anti-doping – cannabis – athlete tested positive after final of national Touch competition – admitted violation – left tournament to be with family when found out grandmother passed away – smoked cannabis that night for comfort purposes – although not intending to return to tournament, returned next day – Tribunal accepted cannabis not taken for performance enhancing reasons and took into account bereavement and that player had not intended to return to tournament at time he smoked cannabis – however, were aggravating circumstances requiring a deterrent and meaningful suspension – very experienced international player who admitted well aware of doping rules yet made deliberate decision to play knowing night before smoked cannabis and hoped wouldn't get caught – his team didn't win but would have been disqualified if it had as result of his violation – Touch season over – Touch NZ had suspended him from competition in new season on another disciplinary matter from 1 November to 31 January 2010 and therefore asked Tribunal to commence any suspension it might impose form 1 January 2011 – Tribunal does not appear to have power to impose suspension commencing on future date – However, Tribunal considered it must have the power to impose a meaningful and effective sanction - appropriate sanction in every case depends on the particular circumstances of that case – a meaningful and effective sanction in circumstances of this particular case was a suspension that did not expire until after end of next Touch season - in imposing the penalty, Tribunal took into account his suspension in Novembers and December by Touch NZ on the different matter – Tribunal emphasised penalty not to be read as imposing any “tariff” but rather was penalty that was effective and meaningful taking into account all circumstances in case - Tribunal therefore imposed suspension until 16 March 2011 when next Touch season due to finish.
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Drug Free Sport New Zealand v Kavossy Franklin
(ST 10/10) Provisional Suspension Decision 23 June 2010; Decision 18 August 2010.
Overview:
Anti-doping - cannabis - basketball player testing positive at NBL game - athlete admitted violation but failed to participate in hearing - as cannabis is a specified substance an athlete can qualify for lesser penalty than 2 years' suspension but has to: establish how the cannabis got in their system; establish that it was not taken with the intention of enhancing their sports performance; and produce corroborating evidence in addition to his or her own word - Registrar of Tribunal communicated requirements to athlete on several occasions and athlete aware of requirements and consequences of not complying - however, Tribunal aware from discussions between athlete and Registrar that athlete felt unable, for personal reasons, to provide evidence of corroborating witness - Tribunal recognised that providing corroborating evidence may be difficult in some circumstances but was specifically required under Sports Anti-Doping Rules to qualify for lesser penalty - Tribunal had no choice but to suspend athlete for 2 years - athlete now in USA and Tribunal noted suspension applied worldwide - Tribunal suspended athlete from 23 June 2010 (provisional suspension date) to 23 June 2012.
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Drug Free Sport New Zealand v Khalid Slaimanrel
(ST 06/10) Provisional Suspension Decision 22 June 2010; Decision 13 August 2010.
Overview:
Anti-doping - refusal or failure to provide sample in an in competition test at a powerlifting event - admitted violation - stated only participated for fun and not intending to compete in powerlifting in future but intended to continue to pursue bodybuilding as he thought a suspension order would not prevent him
- Tribunal advised athlete on cross code effect of suspension (suspension applies to sports other than powerlifting as it applies to sporting bodies that are signatories to WADA code)
and advised he should take advice before participating in activities of any other organised sporting body -
usual sanction of 2 years' suspension reduced by 3 months to take into account delay not attributable to athlete between
test refusal and notification
by Drug Free Sport to athlete that they would refer matter to Tribunal
-
Tribunal suspended athlete from 22 June 2010 (provisional suspension date) until 22 March 2012.
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Drug Free Sport New Zealand v Corey Webster
(ST 09/10) Provisional Suspension Decision 23 June 2010; Decision 21 July 2010.
Overview:
Anti-doping - cannabis - NZ basketball representative testing positive at NBL game - athlete admitted violation - Tribunal accepted evidence cannabis not taken for sports performance enhancing purposes but used with a friend in time of personal stress – relevant criterion under rules is athlete’s degree of fault – athlete, and his team, have taken laudable steps since the violation but these do not have direct bearing on his degree of fault - that he is international athlete did not assist his cause as arguably greater responsibility on international athlete to comply with anti-doping requirements - Tribunal took into account that athlete under personal stress during the time of use as relevant to fault but took view not a major consideration – athlete knowingly used cannabis two days before important match when previously educated in, and well aware of, anti-doping rules and Basketball New Zealand’s commitment to them – this means he must accept a reasonable degree of fault - appropriate sanction in the circumstances was two months’ ineligibility commencing from date of provisional suspension on 23 June 2010.
Tribunal noted it had recently reviewed its approach to sanctions for cannabis violations - Tribunal will soon formally notify NSOs and members that starting point for cannabis violations will be increased to four months’ suspension before taking into account aggravating and mitigating factors – does not apply to this case but will apply to future cannabis cases occurring after the notification has taken place.
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Wayne Gear v Table Tennis New Zealand
(ST 05/09) - Decision 13 July 2010; Reasons for Decision 15 July 2010
Overview:
Appeal against decision of an NSO - natural justice - table tennis coach G appealed his non-nomination by Table Tennis New Zealand as coach for Youth Olympic Games - Tribunal rejected argument that nomination of coach is not a selection decision for purposes of Tribunal Rules - TTNZ high performance team panel consisting of 2 members drew up a long list of candidates for coaching position - long list included both panel members who drew up list but did not include G - they considered G for long list but for reasons relating to an earlier disciplinary matter on which G received a reprimand only, they did not include G on list - one of panel members was ultimately nominated by TTNZ as coach - G was unaware of procedures until after coach had been nominated.
Principle of natural justice that person cannot be judge in their own cause - Tribunal took view on facts that the two panel members were judges in their own cause and therefore decision not to include G on the long list should be set aside on this ground - therefore unnecessary to make decision on other appeal grounds of bias as nomination decision set aside on the principle that a person cannot be a judge in their own cause - comments on whether apparent bias, as opposed to actual bias, would have been sufficient to overturn decision but this did not have to be decided - comments on other appeal grounds - Tribunal observed that usually no obligation to ask for expressions of interest and athlete or other candidate does not have right to make submissions on selection and unless express provisions in applicable rules, selector is not required to discuss potential selection with candidate or give reasons for non-selection after event - appeal allowed and nomination of coach by TTNZ set aside - nomination of coach referred back to TTNZ
for determination in accordance with its selection criteria - Tribunal emphasised that in allowing the appeal it was not indicating any preference between G or coach TTNZ had nominated and noted that if TTNZ chose to re-nominate that coach, the Tribunal saw no reason why he should not be the coach.
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Handball New Zealand v New Zealand Olympic Committee
(ST 05/09) - Decision on challenge to jurisdiction 13 July 2009; Decision on whether to accept matter for determination 9 June 2010
Overview:
NSO attempted to appeal against decision of NZOC - whether Tribunal had jurisdiction to hear matter - if Tribunal had jurisdiction, whether it should exercise jurisdiction to hear matter - from 2004, there were two rival NSOs within sport of handball in NZ- in 2006, NZOC suspended HNZ, the appellant NSO, from membership - neither HNZ nor rival NSO, NZHF, are currently members of NZOC - in subsequent years there were various apparently unsuccessful meetings concerning possibility of combining the two NSOs into one and also a mediation between NZOC and HNZ which did not settle - HNZ then appealed to Tribunal against NZOC decision concerning its suspension - NZOC challenged jurisdiction - Tribunal held it had jurisdiction - HNZ wrongly brought matter as an appeal but due to the mediation procedures previously adopted by parties, the Tribunal was able to treat the matter as a sports-related dispute referred by agreement under Part D of the Tribunal Rules and s38(b)(i) of the Act.
Although the Tribunal had jurisdiction to hear matter, it had a discretion whether to exercise that jurisdiction in such matters - after calling for submissions from parties whether it should exercise that discretion, Tribunal adjourned matter until 31 May 2010 in hope HNZ and NZHF could resolve differences and form united organisation - by 31 May there was no immediate prospect of this happening - NZOC rules require a member NSO to demonstrate wide recognition as the governing body for that sport and recognition by an International Federation of that sport that is recognised by the IOC - on the evidence HNZ could not establish it had wide recognition as the governing body for handball in NZ - in June 2009 the International Handball Federation, IHF, resolved to accept NZHF as a full member - whether IHF entitled to register NZHF as member was not a matter for the Tribunal - even if Tribunal could consider validity of NZOC decision to suspend HNZ, Tribunal could not make a decision leading to reinstatement of HNZ as member of NZOC because HNZ is not recognised by IHF - no practical relief Tribunal could give - to proceed further would incur cost and not resolve underlying dispute - therefore Tribunal declined to exercise its discretion to hear the matter.
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Gary Lawson v Bowls New Zealand (ST 01/10)
Shannon McIlroy v Bowls New Zealand (ST 02/10)
Shayne Sincock v Bowls New Zealand (ST 03/10)
Jamie Hill v Bowls New Zealand (ST 04/10)
Resolved by agreement of parties in Mediation conducted by Sports Tribunal on 18 March 2010. Appeals withdrawn on 19 March 2010.
Overview:
The Sports Tribunal provided mediation assistance to the parties in the above matter on 18 March 2010. The mediation was conducted by Mr Tim Castle of the Sports Tribunal. As a result of the mediation, the parties resolved their differences by agreement and the appeals to the Tribunal were withdrawn. All details relating to the mediation agreement are confidential to the parties.
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Drug Free Sport New Zealand v Dawn Chalmers
(ST 13/09) - Decision 11 March 2010
Overview:
Anti-doping - furosemide - boxer tested positive after winning NZ championship - took furosemide prescribed by her doctor for medical condition - doctor mistakenly advised her (also mistakenly confirmed by pharmacist) not to use furosemide "close to" or "around competition" when in fact it is prohibited substance not to be taken in or out of competition - athlete took no further steps to check or clarify this advice - furosemide reduces fluid retention and can reduce weight and potentially have performance enhancing consequences for a boxer trying to fit into a weight division - however Tribunal accepted athlete did not take it to enhance performance but to treat medical condition and penalty less than 2 years' suspension was available - senior athlete who received appropriate drug education and had responsibility to further check status of prescribed medication - while had been given mistaken advice by doctor she had been explicitly alerted it shouldn't be taken close to or around competition but did nothing to clarify what this meant - Tribunal took into account her openness, prompt admission of fault, that she knew likely to be tested if won and that received mistaken advice from doctor and pharmacist - however, this case more serious than previous Tribunal cases where prohibited medication mistakenly prescribed - this because of her explicit knowledge that there was an issue with furosemide and her failure to clarify the position - 3 months' ineligibility from hearing date of 17 February 2010 imposed (effectively 5 months' suspension taking into account 2 months that she had been provisionally suspended before hearing).
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Drug Free Sport New Zealand v Vince Whare
(ST 11/09) - Decision 1 March 2010
Overview:
Anti-doping - third cannabis violation (reprimanded and fined in 2005 and suspended for 2 years in 2006) - first case before Tribunal of any third time doping violation - rugby league player tested positive for cannabis after representing province - Sports Anti-Doping Rules provide for a life time ban for third violation unless (in the case of "specified substance" such as cannabis) athlete can establish how substance got in system and provide corroborated evidence that use not intended to enhance sports performance - if athlete establishes this, Tribunal has discretion to impose lesser penalty ranging from a minimum of 8 years' suspension to lifetime ban.
Athlete admitted violation - athlete and witness provided evidence which satisfied Tribunal that he smoked cannabis socially and not with the intention of enhancing sports performance - assessment of degree of fault - at one stage alleged addicted to cannabis but subsequently gave evidence contrary to this and therefore issue of whether addiction would be relevant factor in assessing fault did not need to be considered - whether nature of cannabis and its social use (including that not used for performance enhancing performances here) relevant to assessing degree of fault - breach was inexcusable but Tribunal took into account all the circumstances of case (including his deliberate breaching of the rules despite previous warnings from Tribunal, his personal circumstances including the effect of suspension, and the nature of cannabis and its social use) - a penalty greater than the minimum of 8 years’ suspension but less than the maximum lifetime ban met the intent of the Rules - 10 years' ineligibility imposed (commencing from date of provisional suspension).
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