Lawyer’s Perspective

Paul Matthews March 2022

I have personally been involved in competition gliding for 40 years during which time I have flown in a world championship and several international events as well as being CD and held other organizational positions in national and world championship events.

As a result of this journey I have known most of the members of the 2020 Australian Womens’ gliding team and their families for decades. So for me it was an easy decision to offer to assist the team members in their appeal to FAI’s IAT (International Appeals Tribunal) and subsequently to ICAS (The International Court of Arbitration for Sport).

My initial reaction on reviewing the background was “But no rules have been broken. What is going on here?”  Fascinatingly, lawyers who subsequently reviewed the full circumstances – and there were several – reached that same simple conclusion.

Simply put, what followed with the FAi’s IAT was the worst case of bias and denial of fairness and natural justice that I have witnessed in over 50 years as a lawyer.

Background

Amongst others things that occurred throughout this ordeal:

  • A threat was made by an IGC Bureau member to GFA to withdraw the appeal, in absence of which Australia’s approval to run the 2023 World Championship event in Narromine might be compromised;
  • In what should have been conducted as a totally independent process, FAI appointed to the IAT panel people who were closely associated with many of the individuals who opposed the appeal. The Australian team objected to the Secretary of FAI about the makeup of the panel however he declined to change the panel membership;
  • The IAT allowed the British and German teams an additional month to file their cross appeals but later objected to the Australian team requesting one additional day to file its appeal to ICAS over this last Christmas period;
  • The process would, we thought, have been completed in three to four months but it took over twenty months. The team made numerous objections to FAI about these delays but it refused to intervene;
  • The IAT sought assistance in the wording of its determinations from people external to the panel who were opposed to the Australian case. It sought “evidence” from third parties without disclosing this to the Australian team and failed to allow them to submit an alternative narrative;
  • And throughout the entire process there was unvarnished hostility directed at the Australian representatives and cheery bonhomie accorded to the other two teams.

However, as we had anticipated early in the IAT appeal, we lost. As we had also anticipated early in the appeal, we then proceeded to lodge a further appeal to ICAS in Switzerland once we had the IAT decision. However the timing of the handing down of the IAT decision was the final “gotcha” move by the IAT, and let me explain.

The IAT rules require that any appeal to ICAS must be filed with that court in Switzerland within 21 days of receiving the decision. ICAS appeals are highly legalistic and the pleadings required to initiate an appeal are long and complex.  21 days is a very short time period at the best of times.

The IAT decision comprised firstly what is called its determined “Statement of Facts” and secondly the decision itself which flows from the SoF and which is relatively short. The SoF is the major part of its process.

The IAT advised us on 14 August 2021 that it had finalised its SoF (having declined to make a further twenty or so amendments requested by the Australian team). Presumably the panel members had reached their decision by August and its decision document comprised just another four or so pages which, one would think, would take a few days to draft and be approved by its three members.

Or so you would think.

However the final decision was not sent to the Australian team until 1st December, more than three and a half months later. It was received on 2nd December. Crucially therefore, this meant that any appeal to ICAS needed to be prepared and lodged with that court by 23 December. Under the ICAS rules no additional time is allowed for Christmas let alone the impact of Covid on the operations of a law firm and let alone that it is always the busiest time for the business world in the Southern Hemisphere. We can all draw our own conclusions from this timing. The team’s ICAS appeal legal team chose to use the word “unfortunate” but I would be less charitable and use the words “malicious” and “deliberate”.

As a result our ICAS appeal lawyers inadvertently filed the appeal documents one day late due to confusion over what constitutes a public holiday under the Swiss court rules, namely: is a declared half day public holiday” a whole “day” or does it not count at all? Who knows, and it is not defined in the court rules. The FAI lawyers objected to the court that the appeal was not filed in accordance with the FAI rules (within 21 days) and the court having no discretion, dismissed our appeal before it could start.

There is no right of appeal against this decision.

And so ended two years of incredibly time-consuming work by the five members of the appeal team and me. It felt like a death in the family.

Quigley’s case

ICAS case of USA Shooting and Quigley –v- UIT 1995

I cannot finish without mentioning this case. We were advised of it by the QC heading our ICAS appeal legal team. I only wish I had known of it before the start of the IAT appeal although in light of their conduct I doubt it would have made any difference to the ultimate decision.

This 1995 case was a landmark decision concerning the interpretation and application of rules in sporting events and the responsibility of organisations to avoid confusion and ambiguity in event rules. It still applies as the definitive law to this day. It would have been the centre plank of the Australian’s appeal to ICAS.

The Quigley case deals with a US skeet shooter in a World Championship event in Cairo in 1994 and it was basically a doping case. In this instance Mr Quigley was in the lead position with one days competitions remaining. He fell ill that evening and the team doctor wished to prescribe a particular drug. But being cautious the doctor called in the event doctor and the two of them determined that it was within the rules to take this drug which was done. The following day Quigley went on to win the event but the organisers on seeing the results of a post event drug test decided he had breached the rules and disqualified him from the event. Quigley appealed to ICAS.

The rules of the event stated –

Article 2 of the UIT Anti-Doping Regulations is entitled “Definition,” and it begins with the following words:

“Doping means the use of one or more substances mentioned in the official UIT Anti-Doping List with the aim of attaining an increase in performance …” (emphasis added).

The court held that as Quigley had no intention to take the drug to “increase his performance” then he could not be in breach of the rules. This raised the principle that it is not for an athlete to ponder what a rule might mean but a matter for the organising body to ensure that rules are unequivocal and understandable.

The most relevant piece of the decision below applies equally to the Australian pilots’ case:-

“34. The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule-appliers must begin by being strict with themselves. Regulations that may affect the careers of dedicated athletes must be predictable. They must emanate from duly authorised bodies. They must be adopted in constitutionally proper ways. They should not be the product of an obscure process of accretion. Athletes and officials should not be confronted with a thicket of mutually qualifying or even contradictory rules that can be understood only on the basis of the de facto practice over the course of many years of a small group of insiders.” (See the full case)

In an extraordinary parallel to our own case, the international shooting body had been deliberating for some time as to whether to make the no drug rule absolute and to remove the “no intention” part of its rules, but it had been unable to reach an agreement. So once again, history repeats itself.

And hence, it was not for the Australian team to ponder whether the rule requiring the organisation to delay the publication of it data by 15 minutes might possibly apply to them. If the organisation wished it to apply to teams and pilots then it needed its rules to state that. The onus is on the event organisers and not the pilots. The error was that of the organisation and not of the team and certainly not of the pilots.