Can Dwain Chambers successfully challenge the life time ban on competing in the Olympics imposed on him for a doping offence?
British Sprinter Dwain Chambers was suspended in 2003 from competition for two years by the International Association of Athletics Federations (IAAF) after testing positive for the banned steroid THB. Having served his ban, this elite athlete has returned to competition and now has his sights set on competing in the Olympics--the pinnacle of every sports person's career and dream. See the author's related article entitled, 'Dwain Chambers and his Quest for Rehabilitation'. But Chambers faces an uphill task in achieving his dream. Because under the rules of the British Olympic Association (BOA), any athlete who is banned for a doping offence by his/her sports governing body is also banned for life from competing in the Olympics. The only way he can do so is to successfully challenge this ban in the Courts and get it overturned. But this is easier said than done. There are a number of legal hurdles to be overcome.
The General Attitude of the English Courts to Sports Disputes
In England, there is a long established legal tradition that the Courts do not generally intervene in sports disputes. They prefer to leave matters to be settled by the sports bodies themselves, considering them to be in the words of Vice Chancellor Megarry in the case of McInnes v. Onslow-Fane ( 1 WLR 1520, at p 1535) "...... far better fitted to judge than courts." And, Lord Denning MR went further and expressed the point in the following succinct and characteristic way in Enderby Town Football Club Ltd v. Football Association Ltd ( 1 Ch 591, at p 605): "...... justice can often be done in domestic tribunals better by a good layman than a bad lawyer." However, the English Courts will intervene when there has been a breach of the rules of natural justice (Revie v. Football Association, The Times, 19 December 1979) and also in cases of 'restraint of trade', where livelihoods are at stake (Greig v. Insole,  3 All ER 449).
Incidentally, a similar situation obtains in the United States (see Harding v United States Figure Skating Association  851 F Supp 1476).
The 'Restraint of Trade' Doctrine
What is meant by a 'restraint of trade'?
A 'restraint of trade' is a restriction that prevents a person from earning his/her living and is generally void. This doctrine in its current form evolved during the late 19th and early 20th centuries when the Courts began to pursue a general policy of enforcing the right of every person to work and offer their services without any restriction.
Lord Macnaghten expressed the doctrine in the case of Nordenfelt v. Maxim Nordenfelt Guns and Amminition Co Ltd ( AC 535, at p 565) in the following terms:
"The public have an interest in every person's carrying on his trade freely: so has the individual. All interference with individual liberty in action in trading, and all restraints in themselves, if there is nothing more, are contrary to public policy, and therefore void. That is the general rule. But there are exceptions; restraints of trade and interference with individual liberty of action may be justified by the special circumstances of a particular case. It is sufficient justification, and indeed, it is the only justification, if the restriction is reasonable ...... reasonable that is, in the interests of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public."
It will be seen from the above judicial statement of the Common Law doctrine of 'restraint of trade' that Chambers will need to satisfy the High Court that the lifetime ban imposed on him by the BOA is unreasonable; does not serve any purpose/interest meriting protection; and is contrary to the public interest.
Examining these elements in turn. For a first doping offence, for which the offender has served his time of two years out of competition, a life time ban prima facie is disproportionate. In other words is excessive and, therefore, unreasonable. So far so good for Chambers.
But in reviewing the other two legal requirements, Chambers, in my view, would appear to have some possibly insurmountable difficulties in persuading the Court to hold that the life time ban is an unreasonable 'restraint of trade'. Why? Because, the aim of doping controls and restrictions is to rid sport of drugs and to keep sport 'clean' in a health sense. This is the interest to be protected and there is also a further interest to be safeguarded, namely, to provide a 'level playing field' for the other competitors in the same event who are not using banned substances to enhance their sporting performance. A sporting consideration. In addition, the public interest, which is generally regarded as a 'fluid concept' and also a discretionary one, also demands that sport be drugs free and drugs cheats should be punished and deterred. There is also judicial precedent in support of this point of view, which will now be reviewed.
Some Previous Court Decisions
In the celebrated case of Gasser v. Stinson ( unreported, 15 June (QBD)), Sandra Gasser, a Swiss athlete, who was given an automatic ban for testing positive for a banned substance found in her urine, challenged the rules of the IAAF, claiming that the rules were in unreasonable 'restraint of trade'. Under these rules, an athlete was not permitted to try to establish innocence, even in mitigation. This meant that a finding of 'guilt' had the effect of resulting in a mandatory suspension of a fixed term and this she claimed to be unreasonable and unjustifiable. In turn, she argued, that an athlete found 'guilty' and punished accordingly could, in fact, be 'morally innocent', in the sense that the athlete concerned had not intentionally or knowingly taken a banned substance. So, to treat those who were 'morally innocent' in the same manner as those who had knowingly cheated, she further argued, was unreasonable. However, the Court agreed with the claimant that the rules were restrictive, but also held that they were 'reasonable'. The Court accepted the IAAF argument that the difficulty of proving 'moral innocence' would open the floodgates to such claims and attempts thereby to thwart drugs cheats would prove to be useless. In other words, general penalties for doping offences could be justified on the ground of the important--one might say overriding--need to eliminate drug taking in sport. This, of course, is the basis for the concept of 'strict liability' in doping cases. Incidentally, it is interesting to note that a Swiss Court actually accepted Sandra Gasser's claim to 'moral innocence' and, as such, refused to uphold a ban imposed on her by her national sports governing body.
Furthermore, the attitude of the English Courts to accept sports governing bodies' needs to fight the oft-described 'war against drugs' by all possible means is also reflected in the subsequent case of Wilander v. Tobin ( 2 Lloyd's Rep 293). In that case, two tennis professionals, Matts Wilander and Karel Novacek, unsuccessfully challenged a similar rule of the International Tennis Federation. Lord Woolf, the former Lord Chief Justice, pointed out in the Court of Appeal the limits of the 'restraint of trade' doctrine in a sporting context in the following terms:
"The history of these proceedings discloses that the claimants have taken point after point with a view to defeating domestic disciplinary proceedings which in relation to sporting activities should be as uncomplicated as possible. While the courts must be vigilant to protect genuine rights of sportsmen in the position of the claimants, they must be equally vigilant in preventing the courts' procedures from being used unjustifiably to render perfectly sensible and fair procedures inoperable."
Again, the above extract from the Appeal Court's judgement also clearly confirms the general reluctance of the English Courts to intervene in sports disputes, leaving them, wherever possible, to be settled extra-judicially by the sports governing bodies themselves.
Although judicial precedent would appear to be against Dwain Chambers successfully challenging and overturning the BOA life time ban imposed on him, it may be argued that the disproportionate penalty could be the deciding factor. Because, in all 'restraint of trade' cases, the English Courts have to perform a delicate balancing act between on the one hand upholding the right of an individual to work and earn his/her living and respecting the public interest on the other. Whilst not condoning drugs cheats, surely an offender, like any other offender, who has served his time, should be given the opportunity of rehabilitation after a certain period of time? In that way, the competing rights of the individual and the public interest, it is submitted, may be reconciled. In any case, it will be interesting to see whether Chambers actually challenges the ban, and, if so, what arguments he uses in support of his claim and also the final outcome in the Courts.