Sheikh challenges standing of FEI’s strict liability principle in anti-doping cases

endurance-stockThe world’s highest court for sport-related cases has reduced the suspension imposed by the FEI Tribunal on Sheikh Hazza Bin Sultan Bin Zayed Al Nahyan over a positive test for a banned substance in an endurance horse he rode in Abu Dhabi early in 2012.

During the hearing, the sheikh’s legal team took issue with key elements of the FEI’s strict liability principle that holds the rider as the Person Responsible for any drug or medication infraction in a horse unless they can prove no fault or negligence. That has proved to be a very high bar to clear in cases that have gone before the FEI Tribunal.

The sheikh was appealing the FEI  Tribunal decision from April 7 last year over what had been his winning ride on Glenmorgan in a CEI3* race at Al Wathba on February 11, 2012, after which the horse tested positive for propoxyphene and its metabolite norpropoxyphene.

Propoxyphene, an opiate analgesic, is classified as a banned substance under FEI rules.

Sheikh Hazza, as the rider and therefore the Person Responsible, was immediately suspended from March 12, 2012 – the date on which he was told of the positive result. A two-month provisional suspension was imposed on the horse from the same date.

The sheikh conducted extensive investigations to establish the source of the propoxyphene between mid-June 2012 and late February 2014, with the evidence pointing to the administration of a product to Glenmorgan a day before the race by a veterinarian who had believed it was free of prohibited substances. He had accepted the assurances of a veterinarian from another stable.

The FEI Tribunal, in its decision, had imposed a 27-month suspension, taking into account a previous rule violation by the sheikh in early 2005. He subsequently appealed the tribunal’s decision in relation to the 2012 race to the Court of Arbitration for Sport, the highest appeal body in the world of sport.

The three-man CAS panel, in its 48-page decision, rejected his argument that making the rider the Person Responsible for the horse was an unnecessary and/or disproportionate interference with fundamental rights, and so unlawful and therefore outside the powers of the FEI.

However, the panel accepted the FEI’s argument that the Person Responsible and strict liability provisions simply meant that if the horse had a prohibited substance in its system, the athlete’s results with the horse were automatically disqualified and the athlete would be banned unless he or she could show that the substance got into the horse’s system through no fault or negligence of the athlete.

The CAS took into account that systems had been in place at Glenmorgan’s home, W’rsan Stables, which employed more than 200 people, to avoid inadvertent doping, and therefore decided that the athlete’s fault was “not significant”.

As a result, his appeal was partially upheld, with a partial amendment to the FEI Tribunal’s decision. He remains disqualified from the event, but his suspension was reduced from 27 months to 18 months.

The argument put forward by the sheikh before the CAS was, in summary, that there was no safe legal basis for automatically attributing the actions of third parties whom riders do not and cannot fully control to the riders themselves.

It was argued that the relationship between the third party in question and the rider must be examined. It would only be in relatively unusual circumstances that it would be appropriate or fair to attribute a third party’s acts to the rider.

To put it another way, one holds the rider responsible for what the third party did, and treats him as having been negligent, for not preventing those actions.

The sheikh asserted that if the rider could not reasonably be expected to have prevented the third party’s actions, he could not fairly be held responsible for them.

It was the sheikh’s position that he could not, based on the facts and circumstances, have been reasonably expected to take any further steps with regard to the integrity of the horse.

The horse had been housed in his father’s carefully run stables, which had strict controls around medication use with the aim of preventing drug infractions; he had had next to no contact with the horse before the event; and he had no prior involvement with the training and nutrition of the horses.

The CAS panel, in its findings, noted that both the Court of Arbitration for Sport and the Swiss Federal Tribunal had upheld the lawfulness of the presumption under the World Anti-Doping Code that an athlete was at fault for the presence of a prohibited substance in his system.

This applied equally to the athlete when it came to his horse, the FEI had argued, citing the partnership created between the horse and the rider. The horse, it said, cannot speak and must depend upon the rider to put his welfare first, even though it is the rider who stands to benefit from any plaudits, points and/or prizemoney obtained by breaching the rules.

The strict liability principle had been a cornerstone of the FEI’s regulatory framework since 1982.

The FEI pointed out that changing the rules to make those who prepared the horse for competition responsible for keeping the animal drug-free would not only make the rules much harder to enforce, it would encourage riders not to take responsibility for the condition of the horses they rode, but leave that vital task to others.

A rider wealthy enough to pay others to care for his horses would be able to avoid liability by delegating all responsibility to his staff, the FEI said.

It would effectively encourage all riders to avoid responsibility for the condition of their horses, which was contrary to the fundamental tenets of equestrian sport, would put the welfare of the horse at risk, and would greatly undermine the fight against doping in the sport.

The CAS panel concluded that the FEI rules did not breach the fundamental rights of the appellant. The FEI rules, it said, were modelled on an accepted regime to combat doping in sport.

The designation of the rider as the person responsible for a breach of the drug rules was a soundly based policy, it said, because the rider was generally in a position to take care and adopt appropriate precautions to avoid a positive test.

“The fact that riders will be in different situations and have varying degrees of involvement with the horse and its preparation is inevitable and the rules can no doubt produce harsh outcomes in certain circumstances,” it said.

However, the imposition of strict liability of the rider as the Person Responsible was a measure that fell well within the margin of appreciation permitted to the FEI in making rules for the sport.

“Further, if there is any infringement of personal rights under the rules, then the panel considers that it is justified by the public interest in the fight against doping in the sport, by the need to have rules which encourage careful conduct by riders and by the private interest of the FEI in having clear, readily applicable, rules.”

The possible availability of the “no fault” or “no significant fault” defences further supported the legitimacy of the strict liability that surrounded a positive test.

The panel, in its conclusions, said the sheikh and his father had employed highly qualified and properly instructed staff to care for their horses and prepared them for racing. Extensive measures were in place to avoid positive tests. This, it said, was entirely consistent with the sheikh’s commitment to the welfare of his horses and to clean racing.

However, given the obligations of the Person Responsible, the panel did not consider that he had shown he bore “no fault” in connection with the violation. Accordingly, he could not establish a no fault defence.

In reducing the suspension, the panel noted that the previous violation had occurred in January 2005, more than seven years before the positive test under scrutiny. Quite different sanction regimes existed then. It would be unjust and unfair to count the earlier violation as a breach of the Equine Controlled Medication Rules for the purposes of increasing the situation.

The panel comprised a German attorney, John Faylor; a British solicitor, Mark Hovell; and a New Zealand barrister, Paul David, QC.

Sheikh Hazza was represented by Adam Lewis, QC, Nilo Effori, Karel Daele, Ramona Mehta and Emma Woollcott.

The FEI was represented by Jonathan Taylor and Lauren Page.

The full panel decision can be read here

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