Law Report: Wednesday Law Report

Right of appeal in tennis doping case

21 April 1999

Korda v ITF Ltd (trading as the International Tennis Federation)

Court of Appeal (Lord Justice Morritt, Lord Justice Auld and Lord Justice Clarke) 25 March 1999

ON THE true construction of section (V)3 of the Tennis Anti-Doping Programme, an appeal on the merits lay against a decision of the ITF's Anti-Doping Appeals Committee to the Appeals Arbitration Division of the Court of Arbitration for Sport.

The Court of Appeal allowed the appeal of the ITF against a decision that it was not entitled to appeal to the Court of Arbitration for Sport (CAS) against a finding of the Anti-Doping Appeals Committee.

The plaintiff, a professional tennis player, had tested positive under the Tennis Anti-Doping Programme in respect of a sample taken at Wimbledon in July 1998. He appealed to the ITF's appeals committee, which concluded that exceptional circumstances existed, in that the plaintiff did not know that he had taken or had been administered the relevant substance, and that no sanction should be imposed beyond the mandatory sanction that he should forfeit all computer ranking points and return to the ITF all prize money earned at the tournament.

On 8 January 1999 the ITF filed an appeal with the CAS in Switzerland seeking a full new hearing on the merits. The plaintiff challenged the right of either party to appeal to the CAS, and by originating summons dated 13 January sought a declaration that the ITF was not entitled to appeal to the CAS.

ITF's claim to a right of appeal to the CAS rested on the terms of section (V)3 of the programme which provided: "Any dispute arising out of any decision made by the Anti- Doping Appeals Committee shall be submitted exclusively to the Appeals Arbitration Division of the Court of Arbitration for Sport which shall resolve the dispute in accordance with the Code of Sports Related Arbitration." The ITF contended that there was a contract on the terms of the programme between the ITF and the plaintiff and that, on its true construction, section (V)3 conferred on both parties to that contract an absolute and general right of appeal on its merits to the CAS.

The judge held that there was a contractual relationship between the plaintiff and the ITF on the terms of the programme which embraced the provisions of section (V)3, and that on their true construction the words "any dispute arising out any decision" in section (V)3 extended only to disputes as to the validity, enforceability or construction of the decision and did not authorise an appeal by way of rehearing on the merits. The section assumed that a final decision had been made and was concerned with resolving questions as to the impact of that decision on the parties.

The judge had relied, in construing section (V)3, on the terms of section (L)8 of the programme which provided: "The Appeal Committee's decision shall be the full, final and complete disposition of the appeal and will be binding on all parties."

Charles Flint QC and Paul Goulding (Bird & Bird) for the plaintiff; Michael Driscoll QC and Christopher Stoner (Townleys) for the ITF.

Lord Justice Clarke said that the judge's construction of section (V)3 gave too narrow a meaning to its language, which was in wide terms. The section provided for the submission to the Appeals Arbitration Division of the CAS of any dispute arising out of any decision of the appeals committee and, as a matter of ordinary language, the dispute in the instant case plainly arose out of the appeal committee's decision.

Applying the decision in Harbour Assurance Co (UK) Ltd v Kansa General International Assurance Co Ltd [1993] 3 All ER 897, if the ordinary meaning of the language of section (V)3 were to be narrowed, the justification for so doing had to be found elsewhere in the programme, or in the programme as a whole.

The judge had relied on section (L)8 as precluding all other appeals, but section (L)8 did not expressly qualify section (V)3. The two sections could be read together on the basis that the appeal committee's decision was full, final and binding under section (L)8, subject to any reference to the Appeals Arbitration Division of the CAS under section (V)3.