Court: Appeal Board of the Jockey Club
Judge: Sir E Cazalet, A Mildmay-White, C Hall
Date of judgment: 20 Aug 2004
Summary: Sports - discipline - doping - disqualification - strict liability - construction of Rules of Racing - relevance of quantification of drug - Article 6 and Protocol 1 Article 1 ECHR - whether Rules unlawful
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Instructing Solicitors: Charles Russell
Be My Royal came first in the Henessy Cognac Gold Cup 2002. Analysis of a post-race urine sample found morphine, a Prohibited Substance under the Rules of Racing. The trainer, M, was called before an enquiry by the Jockey Club Disciplinary Panel. M raised 6 preliminary points, seeking to prove that the quantity of morphine present was so small as to be irrelevant to the horse’s performance or health, or that the Rules were unfair if they precluded proof of this. The Panel ruled against M on these points and disqualified the horse. It also found M in breach of the rules, though he was spared any penalty as it was agreed that the morphine was present due to feed contamination which had affected a number of other horses. M appealed.
(1) Whether the Rules should be construed so as to require proof that the quantity of drug present could have had an effect on performance or health, or to permit proof that it could not.
(2) Whether, if the Rules did not bear such a construction they were unlawful under Article 6 and/or Protocol 1 Article 1 ECHR
(3) Whether M had a legitimate expectation that a de minimis rule would be applied in his case, or the Club was estopped from contending that mere proof of the presence of the drug was sufficient.
(1) None of the construction arguments advanced by M could be upheld. Culpability was irrelevant to the sporting sanction of disqualification The Rules set out what was clearly intended to be a strict liability regime, prescribing disqualification on proof that a Prohibited Substance had been present in a Sample. They did not envisage evidence as to quantification, save in cases where a threshold was prescribed, of which this was not one. Decisions of the court of Arbitration for Sport in Raducan v IOC, CAS 94/126 and Baxter v IOC  ISLR, SLR-1, considered.
(2) Protocol 1 Art 1 ECHR was not engaged; M had not argued that the Club was a public authority, which was an essential pre-requisite (Gustaffson v Sweden considered); in any event the regime did not interfere with an existing possession but rather regulated the terms on which one might be acquired (Gudmunsson v Iceland (1996) 21 EHRR CD 89 applied). Nor was Art 6 ECHR engaged, as M had not sufferd any penalty or sanction.
The high-profile nature of the race from which Be My Royal was disqualified made this the most prominent case in a clutch of 39 morphine positives, all evidently emanating from a single batch of feed contaminated with poppy seed. M engaged 3 Leading Counsel to fight his cause. The Appeal Board’s 131 paragraph decision follows a series of CAS rulings upholding the principle and legal validity of rules providing for automatic disqualification of sports competitors where drugs are found, but is surely the most detailed examination of the issues so far.