Matthew Astley, joint head of Harrison Drury’s sports law team, looks at the lessons from the landmark case of UK Anti-Doping v Ryan Bailey.
Mr Bailey faced a potential four-year ban for refusing or failing to submit to a drug test. In what it said was “an extremely unusual” and “unique” case, the panel ruled that although Mr Bailey refused without compelling justification to submit to a drug test, he nevertheless bore No Fault or Negligence.
What happened in this case?
The incident took place on 30 May 2017, when Mr Bailey was a player for Toronto Wolfpack, a rugby league side which plays in both Canada and England, and which at the time competed in the Kingstone Press League 1.
The Canadian anti-doping agency, on behalf of UKAD, attended a training session at Lamport Stadium in Toronto to carry out urine and blood tests. As he came off the training pitch, Mr Bailey, who had been selected for testing on numerous occasions in the past, was asked to submit to a drugs test and was offered, and duly drank, a bottle of water from a cooler bag. The bag contained bottles of water which the drug tester and doping control officer had purchased from a store on the morning of the test.
While certain formalities were being dealt with in a dressing room at the club, Mr Bailey took a second bottle out of the cooler bag and drank it. Around 20 or 30 minutes later, he selected a third bottle of water out of the bag, opened it and took a sip, but subsequently commented that the bottle had not “cracked” upon opening. Mr Bailey asked to try another bottle but again remarked it that it had not cracked upon opening and that he had concerns that the water might be contaminated.
Although the drug tester tried to reassure Mr Bailey that the water could not be contaminated as it had just been bought, Mr Bailey remained convinced that it was. Despite being reminded that a failure to provide a sample might be an anti-doping rule violation, Mr Bailey was adamant that he was not going to provide a sample because he could not guarantee the water had not been tampered with or was not contaminated, and he did not want to jeopardise his career. He also refused to provide a blood test, as the contaminated water may already have reached his blood stream.
What were the consequences of refusing the anti-doping test?
As Mr Bailey not only refused verbally to submit to a sample collection but also signed documents to this effect, including an Athlete Refusal Form, the panel found that he had undoubtedly refused within the meaning of the rules, and that while his response may have been irrational, “an irrational refusal is still a refusal”.
Moreover, before there can be an anti-doping rule violation, there needs to be an absence of compelling justification. While Mr Bailey argued that he was justified in not taking the test due to a legitimate fear the water may be contaminated, his refusal to submit to the test could not have been compellingly justified if it remained “physically, hygienically and morally possible” for the sample to be provided and the panel found that there was “no valid reason for Mr Bailey not to have taken the test”.
Despite the above finding, however, Mr Bailey successfully contended that there was “No Fault or Negligence” on his part, meaning that his potential four-year ban from competing was completely eliminated.
No Fault or Negligence applies where the athlete concerned is able to establish that they “did not know or suspect, and could not reasonably have known or suspected, even with the exercise of utmost caution” that they had violated an anti-doping rule. In the present case the panel found that although Mr Bailey was told that his refusal might constitute an anti-doping violation, with serious consequences, “his mind was quite unable to take in or process this information” and it would not be right to conclude that he was at fault or negligent.
What are the implications of this case?
On the face of things, some readers may be concerned that this case will open the floodgates and set some sort of wide-ranging precedent for establishing No Fault or Negligence. However, the panel emphasised that this was “a truly exceptional case” which was decided “on its own very special facts” and based upon considerable medical evidence, and in this respect parts of the panel’s ruling are redacted, reflecting the sensitive nature of such information.
The panel also noted that a few days after the incident Mr Bailey underwent a (negative) drug test without a problem and it was convinced that he was not trying to cheat or conceal illicit drug taking. However, because an “exceptional case” cannot be precisely defined, arguably UKAD v Bailey leaves the door open for any number of other exceptional cases, on their own merits.
Harrison Drury’s sports law team can assist sports clubs, players and regulatory bodies with sports anti-doping and dispute resolution matters. For more information please contact Matthew Astley on 01772 258321.