Maria Sharapova calls ITF biased - The legal issues

Maria Sharapova spoke out today for the first time since her doping ban was reduced and claimed that the International Tennis Federation (ITF) had acted bias and were keen to make an example out of her.

Sharapova tested positive in January for the drug, meldonium, and was initially given a two year ban which was, yesterday, reduced to 15 months following appeal to the Court of Arbitration for Sport (CAS).

Sharapova said the following:

"I got a 24 month suspension but they [ITF] wanted four years for me. I went through the ITF hearing, which was in front of an arbitration panel which was chosen by the ITF... I am at a hearing knowing the people that I am speaking to were chosen by the people I am actually in a fight with. They call that neutral? That is not neutral. CAS is neutral and this is what CAS has awarded to me."

National governing bodies such as the ITF have a duty to not reach its decisions under any influence of bias. When making decisions they must not show bias to one decision or another and there must not be any perception of bias during the disciplinary process.

The test for establishing bias is an objective one and is based on the reasonable man test: Would the reasonable man conclude, in the circumstances, that there may have been an influence of bias in the decision making process?

This test was applied in two main cases without any favourable results for the claimant:

Modahl v  British Athletics Federation Ltd [2001] EWCA Civ 1447

The claimant was a global recognised athlete. She competed in a competition in Portugal and submitted herself to the anti-doping programme as per the rules. However, her urine sample tested positive for the banned steroid, testosterone and she was subsequently banned for four years having committed a doping offence. The claimant appealed this decision and an Independent Appeal Panel acquitted her on the basis that there was scientific evidence that demonstrated a possibility that the samples provided by her had been de-graded by bacterial contamination which can affect the reliability of the results.

As a result of the acquittal, the claimant sued for compensation from the national governing body, British Athletics Federation Ltd (BAF), on the grounds that BAF had breached their contract with her by failing to act fairly during the disciplinary process as members of the panel, at the first hearing, had been biased towards her.

The Court of Appeal held that there was no evidence of actual bias and could find no perception that the decision and could find no perception that members of the panel had been tainted by bias. Further, the Court held that even if there was a finding of bias, it would have been irrelevant as the unbiased decision of the Appeal Panel would have cured any defects in relation to the first hearing. In determining whether a national governing body's decision making process is reasonable and not defective, the Court will examine the entire decision-making process. Even if defects are highlighted, if the claimant has been able to make recourse to an appropriate appeals panel which rectifies the problem, then there is no unfairness to the claimant.

Flaherty v National Greyhound Racing Club [2005] EWCA Civ 117

In this case Flaherty claimed that the decision making process of the national governing body was tainted on the basis that the Chief Executive of the defendants retired with the panel members whilst his Flaherty's case was being discussed. Actual bias and a perception of bias was alleged against the Chief Executive. The Chief Executive stated to the Court of Appeal that he was acting as a clerk who was advising the panel on how previous cases had been decided and on interpretations of the rules of the Racing Club. This explanation was accepted by the Court and considered a minor defect which was not significant enough to taint the proceedings to the extent that the process had been biased or unfair.

As you can see claimants have an uphill battle when attempting to show any perception of bias in the decision making process of national governing bodies. Notwithstanding that, in the event that they can show bias but the issue has been rectified through an appeals process, then their case will fail as the Courts consider there is no unfairness.

IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.

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