Law Report: Athletics drug ban rules not subject to Community law

Edwards v British Athletic Federation and anor; Chancery Division (Mr Justice Lightman) 23 June 1997

Rules of the International Amateur Athletics Federation which were designed to ban cheating by taking drugs were rules which merely regulated the sporting conduct of athletes, and were not therefore subject to European Community law, which was applicable to sport only insofar as it constituted an economic activity.

Mr Justice Lightman dismissed the plaintiff's challenge to the refusal by the Inter- national Amateur Athletics Federation ("the IAAF") to reinstate him before the completion of a four- year ban from athletic competitions imposed for the use of anabolic steroids. The ban had been imposed on the plaintiff, an amateur athlete and a member of the first defendant, the British Athletic Federation ("the BAF"), on 22 October 1994.

The plaintiff challenged the lawfulness of the IAAF's refusal. Remission of a ban had been granted to a number of athletes in a similar position, but whose national athletic associations limited the lawful period of any such ban to two years by their local laws.

The plaintiff contended (a) that the IAAF could not lawfully distinguish his application from those other applications on the ground that the four- year ban was lawful under his local law; and (b) that the refusal of his application constituted discrimination against him which was unlawful under the Treaty of Rome. The IAAF challenged that contention. The BAF adopted a neutral stance.

Stuart Cakebread (Janes) for the plaintiff; Adam Lewis (Farrer & Co) for the BAF; Robert Howe (Herbert Smith) for the IAAF.

Mr Justice Lightman said that as members of the IAAF the various national governing bodies (including the BAF) were required inter alia to adopt provisions in their constitutions mirroring the IAAF's rules in particular so far as they were designed to control drug abuse. The BAF had adopted those provisions.

Rule 60(2)(a) provided that an athlete who committed a doping offence involving, in particular, the taking of an anabolic steroid would be ineligible on a first offence for a minimum of four years to take part in competitions held under the IAAF's rules or the domestic rules of its members. Rule 60(8) provided, however, that in exceptional circumstances an athlete might apply to the Council of the IAAF for reinstatement before the expiration of that period.

The first issue to be decided was whether Articles 59 to 66 of the Treaty of Rome had any application to the operation of rule 60. Article 6 of the Treaty stated that discrimination on grounds of nationality was prohibited; and Articles 59 to 66 prohibited such discrimination in the freedom to provide services for remuneration within the EU.

The plaintiff contended that the four-year ban imposed on him was an interference with his freedom to earn his living as an athlete within the EU. Community law was applic-able to sport only insofar as it constituted an economic activity. The critical question raised in the present case was whether the drug control provisions of the rules and particularly the provisions for sanction in case of a drug offence, constituted an exclusively sporting rule.

Rules 55 to 61 appeared merely to regulate the sporting conduct of participants in athletics. They were designed to ban cheating by taking drugs and thus secure a level playing field for all participants in the sport. The imposition of penalties for cheating was essential if the rules against it were to be effective.

The imposition of the sanction might of necessity have serious economic consequences for those who breached the rules, but that was merely incidental. A rule designed to regulate the sporting conduct of participants did not cease to be such a rule because it did not allow those who broke it to earn remuneration by participating in the sport for what was, by common consent, an appropriate period.

In view of that decision it was not necessary to decide whether the operation by the IAAF of rule 60(8) to reinstate athletes whose local rules limited the period of a ban to two years of itself constituted unjustifiable discrimination on grounds of nationality in the sense prohibited under Articles 6 and 59 to 66 of the Treaty. The matter would, however, be dealt with briefly.

The policy which sought only to accommodate rule 60 to diffences in national law was not discriminatory: it merely ensured that the IAAF and the application of rule 60 kept within the various national laws.

The action was accordingly dismissed.

Kate O'Hanlon, Barrister