SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC) CENTRE DE RÈGLEMENT DES DIFFÈRENDS SPORTIFS DU CANADA (CRDSC)

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1 SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC) CENTRE DE RÈGLEMENT DES DIFFÈRENDS SPORTIFS DU CANADA (CRDSC) NO: SDRCC DT (DOPING TRIBUNAL) CANADIAN CENTRE FOR ETHICS IN SPORT (CCES) AND JEFFREY AAMS AND GOVERNMENT OF CANADA WORLD ANTI-DOPING AGENCY (WADA) (OBSERVERS) Before: Larry Banack (Arbitrator) Appearances and Attendances: On behalf of the Athlete: On behalf of the CCES: Timothy S. B. Danson (counsel) Robert C. Morrow (counsel) The WADA and the Government of Canada did not participate in the hearing. FIRST PRELIMINARY AWARD ADAMS MOTION (Hearing September 21, 2010) September 28, 2010

2 In the context of a forthcoming Doping Tribunal, wherein the Canadian Centre for Ethics in Sport ( the CCES ) asserts that the Respondent, Mr. Jeffrey Adams committed an anti-doping offence by refusing to provide a urine sample on November 28, 2009, Mr. Adams brought a preliminary motion seeking an Order, inter alia: (c) (d) Compelling Ms. Anne Brown to testify at the forthcoming Doping Tribunal; That CCES disclose the names of the independent experts and the individuals who formed part of the Anti-Doping Review Board; For disclosure and production of all minutes, records, notes, documents, etc. from the Anti-Doping Review Board; Identifying the Chaperone for the September 30, 2009 drug test; and (e) For disclosure and production of the CCES file relating to the September 30, 2009 drug test. 2. Preliminary telephone conferences were convened with counsel participating. Written submissions were received in advance of the hearing of the motion on behalf of Mr. Adams, together with a Motion Record and from the CCES as to the issue of the relevance of the testimony of Ms. Anne Brown. 3. The motion was convened, as scheduled by telephone conference on September 21, After the telephone conference motion I received, as requested, the Award by Mr. McLaren in respect of Mr. Adams dated June 11, 2007 (No. SDRCC DT ) and the subsequent Court of Arbitration for Sport, Arbitral Award dated May 16, 2008 (CAS 2007/A/1312). 5. Substantive defences to be advanced on Mr. Adams behalf that no doping violation occurred, come from Rule 7.31 of the Canadian Anti-Doping Program 2009 ( CADP ) and include: There was no refusal to submit a sample; and If there was a refusal, that was as a result of a compelling justification.

3 The contextual background in respect of the defence of compelling justification is said to be found in: (c) (d) (e) (f) Doping Tribunal Decision (No. SDRCC DT ); Court of Arbitration for Sport Arbitral Award (CAS 2007/A/1312); May, Statement of Claim issued by Mr. Adams in the Ontario Superior Court of Justice (Court File No. CV ); May, Notice of Application for Judicial Review issued by Mr. Adams in the Divisional Court, Superior Court of Justice, Ontario (Court File No. 223/09); September 30, Drug testing process involving Mr. Adams; and Announcement by Mr. Adams of his resignation as a competitive athlete following the Beijing Olympics. EVENTS OF NOVEMBER 28, Based solely on the written material and oral submissions made to date without cross examination and without making any finding of factual determinations, it appears that: (c) (d) (e) (f) (g) As a result of an authorization to conduct out-of-competition doping control on Mr. Adams, Doping Control Officers attended at his residence on November 28, 2009; For various scheduling and personal reasons, the location for the sample collection moved on consent of the parties from the residence of Mr. Adams to his office location; During the period of transit from the residence to the office of Mr. Adams, Doping Control Officer John Smyth telephoned Ms. Anne Brown, General Manager, Ethics and Anti-Doping Services, Canadian Centre for Ethics in Sport; Mr. Adams signed the Selection Order; At a point during the doping control process, Doping Control Officer John Smyth again telephoned Ms. Brown to advise of the status of the process and received information from Ms. Brown; Mr. Smyth informed Mr. Adams of certain information received from Ms. Brown; and During the doping control, Mr. Adams telephoned his lawyer, Mr. Danson, on two occasions;

4 - 4 - (h) (i) As a result of information received from Mr. Danson, or otherwise, Mr. Adams decided for reasons which will be the subject matter of the substantive Doping Tribunal Hearing, that he would not provide a sample or undergo doping control; Mr. Adams thereafter signed Supplemental Report Forms. EVENTS FOLLOWING NOVEMBER 28, By letter dated December 17, 2009, Ms. Anne Brown advised Athletics Canada that the CCES had commenced an initial review in respect of a possible refusal to provide a sample by Mr. Adams possibly constituting a Rule 7.31 violation of CADP. 9. By letter dated January 20, 2010, Mr. Danson, on behalf of Mr. Adams provided an extensive response to Ms. Brown s December 17, 2009 letter. The issues of conflict, bias and denial of natural justice were raised. 10. By letter dated March 22, 2010, Ms. Brown notified Athletics Canada that during the initial review process CCES sought the opinion and advice of a Committee; namely the Anti-Doping Review Board. Although the opinion and advice of the Review Board were considered by the CCES, Ms. Brown advised that the decision to assert an anti-doping rule violation against Mr. Adams was the decision of CCES alone. Having completed its initial review without any final determination, CCES concluded that Mr. Adams had committed an anti-doping violation pursuant to CADP Rule 7.31 by reason of the events which took place on November 28, On March 23, 2009, Mr. Adams was informed by the Sport Dispute Resolution Centre of Canada of the process to be followed in establishing a Doping Tribunal. A. ADAMS CLAIM FOR RELIEF ANNE BROWN 12. Mr. Danson maintains that Ms. Brown is a material and compellable witness with evidence relevant to the matters in issue. It was noted that Ms. Brown testified in the earlier proceedings which led to the Court of Arbitration for Sport s determination. In addition, Ms. Brown was engaged in the process relating to the September 30, 2009 Doping Control. Further, she was engaged in telephone discussions in respect of the Doping Control process on November 28, Ms. Brown was subsequently involved with the commencement of the CCES initial review, evidenced by her letter of December 17, 2009, and then again in respect of the Anti-Doping Review Board process and CCES s determination that Mr. Adams had committed an anti-doping violation evidenced by her letter of March 22, Mr. Danson maintains that Ms. Brown s involvement by telephone conferences on November 28, 2009, as recorded in the reports of the Doping Control Officers, including information conveyed to Mr. Adams as a result of those telephone conversations, makes her a necessary witness and/or at least compellable to be cross examined following the testimony of the Doping Control Officers.

5 - 5 - Responding Position of CCES Relevance of Testimony of Ms. Anne Brown 14. Mr. Morrow maintains that the issue for determination by the Doping Tribunal is narrow. Simply put, it must be determined whether or not from a factual point of view, there was a refusal to provide a sample as required by CADP Rule Mr. Morrow asserts that the reference to earlier proceedings and claims of abuse of process and bias are attempts to broaden the forthcoming hearing into a review of alleged CCES conduct. It is argued that the anticipated evidence of Ms. Brown has no relevance as she was not in Toronto on November 28, 2009 and was not directing traffic or calling the shots in relation to the doping control process that day. 16. Although admitted that Ms. Brown spoke with the Doping Control Officers, she did not speak directly with Mr. Adams and her evidence, at best, might be collateral to the testimony of the only two material witnesses from the perspective of CCES being the Doping Control Officers. 17. On behalf of the CCES, it is asserted that it is at liberty to call the evidence it wishes to support the proposition of a rule violation as it deems appropriate. In these circumstances, it is asserted that the CCES should not be compelled to call Ms. Brown as a witness. It recognizes the risk that in failing to do so, the Doping Tribunal may draw an adverse inference against the CCES as recognized by the Ontario Superior Court of Justice in Miller v. Carley (2009(98) O.R. (3d) at 432 per Quinn J). Discussion Testimony of Anne Brown 18. Although not present in person, Ms. Brown was in communication with the Doping Control Officers on November 28, Decisions made by Mr. Adams on that day must be considered in the context, at least, of the actions and information provided by the Doping Control Officers, which admittedly included information from Ms. Brown. 19. It would not be appropriate for the Doping Tribunal to be asked to render a decision on the merits of the dispute without access to all information necessary to ascertain the applicability of Rule 7.31 in these circumstances. 20. Accordingly, any determination should consider the information conveyed from Ms. Brown which may have impacted on the decisions on November 28, That evidence should not be limited only to that of the Doping Control Officers. The context of the events of November 28, 2009 may be relevant. 21. Further, it is not a satisfactory response by CCES that it accepts the consequences of an adverse inference being drawn from any failure to call Ms. Brown as a witness. That failure to ensure a complete evidentiary record may impair the Tribunal s ability to render a just determination in all of the circumstances.

6 On those bases, and in respect of the events occurring on November 28, 2009, Ms. Brown is a compellable witness to testify in respect of matters which may be relevant to the question in dispute. Either party may choose to call Ms. Brown as a witness. 23. I have reached this conclusion without predetermining the breadth of the examination or cross examination of Ms. Brown. Testimony will be limited to relevant evidence relating to matters within the jurisdiction of and for determination by the Doping Tribunal. If required, further rulings may be necessary to address particular areas of questioning in that context. B. ADAMS CLAIM FOR RELIEF SEPTEMBER 30, 2009 DRUG TEST Position of Mr. Adams September 30, 2009 Drug Test 24. Mr. Adams seeks an order identifying the Chaperone for the September 30, 2009 drug test and disclosure and production of the CCES file relating to that drug test. 25. Such relief is sought on the basis that the CCES process undertaken in September was in substance the same as the impugned drug test, yet the CCES agreed that there was no refusal on September 30, 2009, but there was one on November 28, Mr. Adams relies upon the doctrine of detrimental reliance, entrapment and breach of fiduciary duty. C. ADAMS CLAIM FOR RELIEF ANTI-DOPING REVIEW BOARD Position of Mr. Adams Anti-Doping Review Board 27. Mr. Adams seeks disclosure of the members of the Anti-Doping Review Board and disclosure and production of all minutes, records, notes and documents from the Anti-Doping Review Board, which took place after November 28, Such relief is sought on the basis that Mr. Adams was entitled to fairness during the initial review which may have been lacking, in light of the aborted drug test on September 30, 2009 and the denied involvement of counsel. 29. Mr. Adams relies on conflict, bias and an absence of natural justice.

7 - 7 - POSITION OF CCES IN RESPECT OF MR. ADAMS CLAIMS RELATING TO: (i) (ii) The September 30, 2009 Test The Anti-Doping Review Board 30. Mr. Morrow maintains that the claimed relief in respect of each of these areas is no more than an attempt to expand the scope of the Doping Tribunal far beyond the determination of whether there has been a violation of CADP Rule Mr. Morrow asserted that the objective of disclosure of the files and documents sought on behalf of Mr. Adams was not advanced in aid of any defence to CADP Rule 7.31 but rather a potential motion, not yet brought for abuse of process or a denial of natural justice. 32. Based on earlier jurisprudence, it is clear that the Doping Tribunal will not be called upon to adjudicate as to the applicability of the Charter of Rights and Freedoms in this circumstance. 33. The protocol to be followed in the situation at hand, is said by the CCES to be established in the CADP Program and in particular the provisions relating to Results Management including Rules such as 7.65, 7.69 and Discussion September 30, 2009 Drug Test 34. Although it is not without some doubt, it presently appears that the events of September 30, 2009, may at least from the perspective of Mr. Adams, form part of the context for his actions on November 28, During the course of oral argument, Mr. Morrow acknowledged that CCES may be held to account for the differential determination of events which occurred on September 30, 2009 and November 28, In order to facilitate a cost effective and timely hearing process which may involve events on September 30, 2009; but, without determining the relevance, materiality or admissibility of any information produced, I conclude that Mr. Adams is to be informed in respect of the circumstances of the September 30, 2009 drug test by: Identifying the Chaperone for the September 30, 2009 drug test; and By receiving disclosure and production of the CCES file relating to the September 30, 2009 drug test.

8 - 8 - Discussion Anti-Doping Review Board 37. During the course of oral argument, Mr. Danson was asked if he wished the determination concerning the actions of the Anti-Doping Review Board be held in abeyance pending delivery of a motion if considered appropriate on behalf of Mr. Adams alleging abuse of process and denial of natural justice. Mr. Danson declined that suggestion indicating he required production of the information and documents concerning the Anti-Doping Review Board before deciding what motion might be brought before the Doping Tribunal. 38. As the record presently stands, the Doping Tribunal is only to determine whether there has been a violation of CADP Rule The current process does not engage any determination as to what, if anything, may flow from the review process occurring after November 28, Accordingly, at this time, I decline to make any order, as sought on behalf of Mr. Adams, in respect of the Anti-Doping Review Board. DECISION 41. In respect of the preliminary motion brought on behalf of Mr. Adams heard on September 21, 2010, I determine that: (c) (d) Ms. Anne Brown is a compellable witness to testify at the forthcoming Doping Tribunal; The CCES shall identify the Chaperone for the September 30, 2009 drug test of Mr. Adams; The CCES shall disclose and produce its entire file relating to the September 30, 2009 drug test of Mr. Adams; and It is premature to consider any relief relating to the Anti-Doping Review Board. Toronto, ON September 28, 2010 Larry Banack, Arbitrator