From left Marvin Anderson, Lansford Spence and Allodin Fothergill

DURING THE National Junior and Senior Track and Field Championships held at the National Stadium on June 26-28, a number of athletes had urine samples taken from them. Thereafter, A and B samples, of the said urine, were sent to the World Anti-Doping Agency's (WADA) accredited laboratory in Montreal, Canada, to be tested, in keeping with the revised World Anti-Doping Code (hereinafter referred to as the code) which became effective on January 1, 2009.

A few weeks later, the principals of the laboratory informed the Jamaica Anti-Doping Commission (JADCO), established by the enactment of The Anti-Doping in Sport Act, 2008 (Jamaica), (herein- after referred to as the act), that five athletes had returned adverse analytic findings in their urine samples. This meant that their 'A' urine samples had been found to contain a substance which is on the banned list of substances as established by WADA, and as a result, they had committed an anti-doping rule violation.

The five athletes were Sheri-Ann Brooks, Lansford Spence, Allodin Fothergill, Marvin Anderson and Yohan Blake, all of whom had been selected to represent Jamaica at the International Association of Athletics Federations (IAAF) World Athletic Championships now under way in Berlin, Germany.

Having received the information JADCO, in keeping with Article 7.2 of the Code, informed the athletes, among other things, of (a) the Adverse Analytical Findings; (b) the anti-doping rule violated; (c) the athlete's right to promptly request the analysis of the 'B' sample, or failing such request, that the 'B' sample analysis may be deemed waived; (d) the schedule date, time and place for the 'B' sample analysis if the athlete chooses to request an analysis of the 'B' sample.

Whether or not the athletes opted to have their 'B' sample tested, however, they would also be required, along with their representatives, to face an enquiry by the Jamaica Anti-Doping Disciplinary Panel (hereinafter referred to as the Disciplinary Panel).

Sheri-Ann Brooks opted to exercise her right to have her 'B' sample tested with her representative presented. Inexplicably, the WADA-accredited laboratory in Canada proceeded to test Sheri-Ann Brooks' 'B' sample without either herself or her representative being present. This procedural error, by the lab, led to the Disciplinary Panel finding in favour of Sheri-Ann Brooks. This act by persons at the laboratory must be investigated, and a public explanation given as to how such a foul-up could have occurred.

The other four athletes, Spence, Fothergill, Anderson and Blake, opted not to have their 'B' samples tested, but were also cleared by the Disciplinary Panel after hearing submissions from their legal representatives. JADCO has decided to appeal the decision.

JAMAICA'S ANTI-DOPING STANCE

It is important to point out that Jamaica has always demonstrated to the world that it has a very strong proactive anti-doping stance.

This is manifested in the fact that on February 10, 2004, the country signed the Copenhagen Declaration on Anti-Doping in Sport. Thereafter, on May 16, 2005, Jamaica adopted a Policy Against Doping in Sport. In 2005, JADCO was formed to carry out the country's anti-doping programme in accordance with the dictates of The World Anti-Doping Code, which was first adopted in 2003 and became effective in 2004. Jamaica is also a signatory to this code.

On July 31, 2008, the country adopted the Anti-Doping in Sport Act, 2008, giving JADCO the right as is outlined in Section 3 of the Act to:

(a) promote a drug-free environment for sport and provide athletes and athlete support personnel, with protection of their right to participate in the drug-free-sport, and thus promote health, fairness and equality for all participants in sports;

(b) ensure harmonised, coordinated and effective sports anti-doping programmes at the national level, and international level with regard to the detection, deterrence and prevention of doping; and

(c) respect the rights of individuals and national sporting organisations by the application of fair procedures for, and means to oversee, doping control, determination of Anti-Doping Rules Violation and their consequences, and other decisions made in the interest of drug-free sports.

THE DISCIPLINARY PANEL AND APPEALS TRIBUNAL

The members of both JADCO and the Disciplinary Panel are appointed by the minister of sport, but they are separate and independent bodies.

As is stated in the Second Schedule of the act, every hearing by the Disciplinary Panel shall comprise of three persons: a chairman, who shall be a legal practitioner of not less than 10 years experience, a medical practitioner with not less than five years' practical experience, and one sports administrator or athlete. It was such a panel, duly constituted as prescribed by the act, having heard submissions from the athletes' representatives, that decided in favour of the accused athletes.

Section 21 of the act provides for the right of appeal by any aggrieved party based on a decision of the Disciplinary Panel. This right to appeal can be exercised by (a) any athlete or other person who is the subject of the decision being appealed; (b) the commission (JADCO); (c) the relevant international federation (in this case the IAAF); (d) the relevant national sporting organisation (in this case the Jamaica Amateur Athletic Association); (e) the Jamaica Olympic Association and (f) WADA. Such an appeal must be lodged within 14 days of the decision by the Disciplinary Panel with the Jamaica Anti-Doping Appeals Tribunal (called the Appeals Tribunal from here on). It is under this section of the act that JADCO has stated that it will be lodging its appeal.

The Appeals Tribunal is constituted in accordance with the Third Schedule of the act. The members of the Appeals Tribunal are also appointed by the minister of sport and consists of six persons made up of (a) a chairman and vice-chairman, being both persons who have served as either a judge of the Court of Appeal or of the Supreme Court; (b) persons who have served in (i) the post of director of public prosecutions or a senior member of staff of the Office of Director of Public Prosecutions; (ii) sports administration for at least 10 years and (iii) sports medicine for at least 10 years. This is the body which will hear JADCO's appeal.

TWO CRITICAL SECTIONS OF THE ACT

There are, however, two critical sections of the act which must be noted in relation to the appellate process.

First, Section 23 of the act. This section states that, "Where an appeal is in respect of an international event or a case involving an international level athlete, the decision of the Disciplinary Panel may be appealed directly to the Court of Arbitration for Sport (hereafter referred to as the CAS)". In other words, any of the aggrieved parties may ignore the Appeals Tribunal and appeal directly to the CAS. The CAS was established by the International Olympic Committee (IOC), statutes of which came into force on June 30, 1984.

Article 13.1.1 of the code also states that where WADA has a right to appeal, and no other party has appealed a final decision with the Anti-Doping Organisation process (meaning the local - Jamaican - Anti-Doping Organisation Process) WADA may appeal such decision directly to CAS. Therefore, if JADCO decides to appeal to the Appeals Tribunal, WADA or the IAAF would have to wait until this process is completed before either of these bodies can appeal to the CAS.

Second, Section 21 (2) of the act. This section states that, "Every decision of the Disciplinary Panel in respect of an Anti-Doping violation shall remain in effect during the appeal process unless the Appeals Tribunal otherwise order."

Article 13.1 of the code also stipulates that decisions made under the code, or rules adopted pursuant to the code, may be appealed. Such decision shall also remain in effect while under appeal unless the appellate body orders otherwise. It must be noted that the act in Jamaica was enacted pursuant to the code of WADA.

The Disciplinary Panel, therefore, having found the athletes not guilty of an anti-doping violation, means that the athletes cannot be deemed guilty, "unless the Appeals Tribunal or the CAS otherwise orders." The athletes, therefore, have every right, having been so selected, to be a member of Jamaica's team to the IAAF World Athletic Championships in Berlin.

COMMENT BY OFFICIAL

It is interesting to note the comments of the highly respected local and international track and field administrator Teddy McCook.

If McCook is quoted correctly, he is reported to have told one newspaper that, "Regardless of what the (JADCO) tribunal do in Jamaica, it has to come to the IAAF. If the IAAF is not satisfied with the decision that was handed down, the IAAF will appeal against the decision by the Jamaica tribunal and once that is done, then it goes to the Court of Arbitration for Sport ... that's the procedure, so anybody thinking about them (the athletes) running in Berlin can forget that ... once it goes to the CAS then they will be automatically suspended until the hearing."

One interpretation of Article 13.1.1 of the code is that, once JADCO decides to appeal to the Appeals Tribunal, the IAAF and/or WADA cannot appeal to the CAS, they can only do so if JADCO decides not to appeal to the appeals tribunal. Of course, under the act, JADCO has the right to bypass The Appeals Tribunal and appeal directly to CAS.

The act says nothing about athletes who are found not guilty of a anti-doping violation being suspended until the decision of the Appeals Tribunal is handed down. Therefore, if the appeal by JADCO is to the Appeals Tribunal the athletes will not be suspended, pending the outcome. However, if the appeal is to the CAS, the athletes will be automatically suspended and will not be able to compete on behalf of Jamaica until that body has decided.

Delano Franklyn is an attorney-at-law and book publisher.