Published July 11, 1999
In a 60-page decision rendered on April 19, 1999, sprinter Ben Johnson was reinstated to sport eligibility in Canada. Independent adjudicator Graeme Mew concluded that the lifetime ban imposed on Johnson by Athletics Canada was excessive in the circumstances, a decision that has important ramifications for sport in Canada. In this article, the Centre for Sport and Law's Rachel Corbett and Coaches Report editor Sheila Robertson first review the background and then spell out Mew's reasons for his decision.
Sprinter Ben Johnson was 37 years old at the time the reinstatement decision was rendered. He represented Canada at three Olympic Games, Pan American and Commonwealth Games, and two world championships. He has held world records in the 100m as well as in indoor events including 50m, 60m, and 50 yard sprints. At the Seoul Olympics in 1988, Johnson won the 100m gold medal, breaking his own world record. He was subsequently disqualified when his urine sample tested positive for metabolites of the banned steroid Stanozolol. Johnson was charged with a first doping infraction and, in keeping with the antidoping rules at the time, he was suspended from competition for two years.
After completing his suspension, Johnson returned to competition. On January 17, 1993, he competed in an International Amateur Athletic Federation (IAAF) Grand Prix event in Montreal. Following the race, the Doping Commission of the IAAF declared that Johnson had violated antidoping rules as his urine sample showed an abnormally and unacceptably high testosterone to epitestosterone ratio (T/E ratio). On April 21, 1993, consistent with IAAF rules governing second doping offences, Johnson was banned from competition in athletics for life. On the basis of the IAAF infraction, Athletics Canada itself imposed a lifetime penalty to be served concurrently with the IAAF penalty. As well as being unable to compete, Johnson was not permitted to be involved in any role with any sport that is federally funded or otherwise subscribes to Canadian antidoping policies.
Under the Canadian Policy on Penalties for Doping in Sport and the Doping Control Standard Operating Procedures, Canadian athletes may apply for early reinstatement to sport eligibility. Johnson became the first athlete in the world to seek reinstatement from a lifetime ban when he initiated his application in the fall of 1998. On December 14, 1998, Graeme Mew, a partner in the Toronto law firm of Smith Lyons, was appointed as an independent adjudicator to hear the matter. Other parties at the hearing were Athletics Canada and Sport Canada.
Johnson's application involved three preliminary meetings over a span of six weeks and four days of hearings in March 1999. The adjudicator heard testimony from 11 witnesses and received into evidence nearly 100 documents.
In seeking early reinstatement to sport eligibility, an athlete must show, on a balance of probabilities, that there are exceptional circumstances that justify reinstatement. Under the rules that govern such a hearing, an adjudicator is required to consider a number of criteria including age, remorse, circumstances surrounding the infraction, experience in sport, contribution to sport, prospects for rehabilitation, prior- and post-infraction conduct, cooperation with investigating bodies, and length of suspension served. The athlete may also advance other criteria for the adjudicator's consideration.
The adjudicator must be satisfied that, on the basis of these criteria, the applicant's penalty is excessive in the circumstances.
The Adjudicator's Decision
In reaching his decision in this case, Mew applied the evidence given by the parties to the criteria. He found the factors of remorse, contribution to sport, experience in sport, cooperation with investigating bodies, and length of suspension to be neutral, and he put little weight on them.
Mew also did not place weight on the argument advanced by Johnson that the suspension prevented him from earning a livelihood. On this point, he stated: "[I agree] that Mr. Johnson was selling himself short in claiming not to have any other marketable qualities . Mr. Johnson has a high school education. He has travelled widely. Although he can appear, at times, to be shy, he has an engaging personality. I heard no evidence which suggested any serious attempt on the part of Mr. Johnson to find alternative employment."
A factor weighing against Johnson's reinstatement was the lack of support for his application from Athletics Canada. Weighing in favour of his reinstatement were his age, his prospects for rehabilitation, his prior- and post-infraction conduct and, most significantly, the circumstances surrounding his infraction.
The Adjudicator's Reasons
Mew's decision to reinstate Johnson to sport eligibility in Canada arises out of two circumstances surrounding the 1993 doping infraction. First, in weighing the evidence and with some reservations, he was not persuaded that Johnson knowingly and intentionally manipulated his T/E ratio to the unacceptable level at which it tested. Second, and more importantly, following the IAAF Doping Commission's decision to impose a lifetime ban, Johnson was misinformed by his national sport governing body-Athletics Canada-as to the type of hearing to which he was entitled. Under the rules of the IAAF, the appropriate hearing procedure that should have been offered was a "hearing" before an independent arbitrator or panel. At the hearing, the onus would have been on the IAAF or Athletics Canada to prove to the criminal standard of proof (that is, beyond a reasonable doubt) that a doping infraction had occurred.
Instead, Athletics Canada offered an "appeal" wherein the onus was on Johnson to prove, on a balance of probabilities, that the IAAF Doping Commission was wrong and that a doping infraction had not occurred.
There is an obvious and significant difference between a hearing and an appeal in terms of who has the onus of proof and the level of proof necessary. In the adjudicator's view, Johnson's loss of opportunity to have the hearing to which he was entitled was a critical factor that weighed very heavily in favour of his reinstatement.
"In a hearing, you are presumed innocent until proven guilty. If a hearing had been held, the IAAF would have been required to prove beyond a reasonable doubt that the offence had been committed," says Mew, who is honorary legal adviser for Rugby Canada and chairman of the board of the Toronto Nomads Rugby Club. "By contrast, in an appeal, the appeal tribunal must be persuaded that the original decision-maker is wrong. Further, most appeal tribunals will not substitute their own impressions for the view of those who had the opportunity to hear the evidence first hand; in other words, at the hearing Johnson never had."
Mew suggests that to avoid such situations, sport organizations must read their own rules. However, he adds that quite often the rules fail to cover the precise situation confronting the organization, which is exactly what happened in the Johnson case. In order to deal with these scenarios, sport organizations should write their rules more flexibly and ensure that when implementing their rules, they act fairly and reasonably.
"Athletics Canada simply told Johnson he had the right to an appeal, and that was neither reasonable nor accurate," he says.
In his decision Mew concluded: "Athletes are held, quite properly, to high standards of conduct . By the same token, athletes are entitled to expect from their sport governing bodies a high standard of procedural fairness . Sport governing bodies must obey their own rules, just as they expect athletes to. Here, though, through inadvertence, Athletics Canada failed to meet the appropriate standard in 1993. In my judgment, Ben Johnson was prejudiced by this failure."
Mew takes issue with media reports that his decision has enabled Johnson to "get off on a technicality."
"This is more than a mere technicality; this involves a lifetime ban, the ultimate sanction from an athlete's point of view," he says. "It was clear from the hearing I presided over that there were legitimate issues which merited further investigation."
More particularly, there were a number of circumstances surrounding Johnson's test results that would have been closely scrutinized had Johnson had the hearing to which he was entitled. These factors include omissions in the way the test results were reported, which might have placed the T/E ratio below the threshold of an automatic infraction; an interval of 19 hours between the time his sample left the Grand Prix event and arrived at the testing laboratory; and his otherwise normal T/E ratio profiles in the week preceding and following the positive test.
While these were not factors the adjudicator considered in the context of this reinstatement hearing, they would have been considered at the proper hearing, had it occurred in 1993. In Mew's view, the failure to consider these issues is not a technicality, but rather a substantive error that seriously prejudiced Johnson's right to a fair and proper hearing under the rules of the IAAF.
What The Decision Means
Graeme Mew's decision is final and binding on the parties. However, Johnson's reinstatement is effective in Canada only, and Johnson remains ineligible to compete under IAAF rules. As well, the IAAF has what is termed a "contamination rule" which states that any athlete who competes against a suspended athlete in an IAAF-sanctioned event will also face sanctions. In light of this rule, Johnson agreed not to compete in Canada until the IAAF had an opportunity to consider his application for international reinstatement, a condition that Mew wrote into his decision.
While not supportive of his request for Canadian reinstatement, Athletics Canada is bound by Mew's decision and has indicated that it will support Johnson in his efforts to be reinstated internationally, currently under way.
The most significant point in Mew's decision is that sport organizations must be held to the same strict rules that athletes are expected to comply with. Another key point he makes is that the greater the stakes in terms of an individual's livelihood, the higher the standard of fairness to which the sport organization must be held.
As Mew points out, many of Canada's sport organizations are run by "gifted amateurs," often volunteers, whose focus is delivering programs and doing what's best for the sport. They are not necessarily focused on legalities and rights or on examining the legal implications of their actions.
According to Hilary Findlay, managing director of the Centre for Sport and Law, which coordinated Johnson's reinstatement hearing, such omissions are rarely intentional. More often than not, they arise because of the sport organization's focus on trying to do what is best for the sport and the greatest number of athletes, and others within the organization. A case in point involved long track speed skater Patrick Kelly and the Canadian Amateur Speed Skating Association (CASSA) [Coaches Report, Summer 1996].
"CASSA decided that the weather was going to play havoc with the opportunity for the athletes to demonstrate their ability in a clean fashion for the 1995 World Sprint Speed Skating Championships, so they decided to designate as the selection event a different competition at the indoor Olympic Oval in Calgary," says Findlay. "The decision made perfect sense in terms of providing the best forum for selection, and all the athletes but Patrick Kelly agreed. When the matter came before the court, it found that while there was no malicious intent on the part of CASSA, the organization had failed to recognize that it had a contract with each individual athlete through the Athlete's Agreement and that it couldn't unilaterally change such a contract. The court also noted that Kelly had structured his own personal training schedule to ensure peak performance at a particular time and that minor variations to training schedules can have huge ramifications for an elite athlete, which it did in this case."
In Findlay's opinion, the growing numbers of legal interventions in sport both domestically and worldwide mean that sport organizations must ensure that their policies are clear, that situations are addressed properly and effectively, and that policies are updated and communicated to the entire membership. By the same token, athletes, coaches, athlete representatives, and others within the organization have a responsibility to make sure that they, too, are fully aware of the rules, regulations, and policies, and that they address situations appropriately. The result will be greater trust and more consistency in expectations that everyone is going to be treated fairly, and she views Mew's decision as reinforcing this point.
The adjudication procedures of the Canadian Policy on Penalties for Doping in Sport is an example of a clear mechanism and clear rules for hearing reinstatement applications.
"There is confidence that these rules will be followed and that applications will be dealt with properly," says Findlay. "[Johnson] had the opportunity to bring forward the information he thought pertinent, all the parties had an opportunity to be heard, and the adjudication was conducted within, not outside of, the sport system.
"Everyone in sport readily accepts the notion of fair play; it has been harder for some to accept the notion of fair procedures. I think Graeme Mew's decision is an important link to achieving that acceptance."
Editor's Note: Since this article was written, Athletics Canada applied to the IAAF Council, on Johnson's behalf, seeking reinstatement. The IAAF has referred the matter to a sub-committee for additional study. Johnson is presently taking steps to advance his case for reinstatement in the event that action by the IAAF is further delayed.
Originally published: Coaches Report (1999) Vol. 6(1)