Not home and hosed; Drugs testing fragilities – a cautionary tale,


The recent decision of UK Anti-Doping (UKAD) v Ryan Bailey issued by the National Anti-Doping Panel (NAPD) recently concluded “in the truly exceptional circumstances of his case, Mr Bailey bears No Fault or Negligence so that the otherwise period of Ineligibility is eliminated.” Read the full judgment here.

On 30th May 2017 Rugby League player Ryan Bailey (a six times Super League winner with the Leeds Rhinos) was asked to provide both urine and blood samples for the Canadian anti-doping agency, Canadian Centre for Ethics in Sport (CCES), following a training session with North American Championship outfit the Toronto Wolfpack.

In Mr Bailey’s own words:
“I was approached by the UKAD chaperone after training and handed bottled water that I drank but then raised issues about the bottles not been sealed. 2 bottles that I checked also wasn’t sealed. I’m concerned about thus water compromised. Also, the chaperone witnessed the bottles not been sealed and didn’t hear the lid click when twisted. I thought I was being fitted up. Something did not seem right. The tester did not appear to know what was going on. The way he had approached me to drink his water and then told me I was going to be tested was dodgy”

Under normal circumstances Mr Bailey’s refusal to submit a sample to the CCES under Article 10.3.1 of the Anti-Doping Rules (ADR) provides:
“…the Athlete’s first anti-doping offence, the period of Ineligibility shall be four years unless, in a case of failing to submit to Sample collection, the Athlete can establish that the commission of Anti-Doping Rule Violation was not intentional, in which case the period of Ineligibility shall be two years.”

The NAPD in their judgment however concluded that “…in the very exceptional circumstances of this case, that unless there is some bar to our doing so, Mr Bailey bears No Fault or Negligence”. Robert Englehart QC of the Tribunal panel stated “Indeed, we note that a few days later Mr. Bailey did in fact undergo a drug test (which was negative) without any problem.”

Toronto Wolfpack Director of Rugby and former Great Britain head coach Brian Noble came out to publicly to support Bailey: “As an organisation we have a duty of care to Ryan both as a player and as an employee. It was important to support Ryan through this difficult personal process, and help him emerge with what we believe is a fair outcome.”

An example of an employer not standing by their employee was First Bristol Limited when one of their bus drivers a Mr. Bailes (not Bailey!) was dismissed after testing positive for Cocaine. Mr. Bailes argued that whilst at work he had been counting the day’s taking and eating sandwiches at the same time and therefore this increased the likelihood of the drug being transferred to his mouth. Mr. Bailes spent £440 on a more accurate saliva test through his GP in an attempt to overturn his dismissal which showed up a negative result for cocaine. Mr. Bailes was not reinstated upon appeal despite the more sophisticated drug test result and his 22 years of unblemished service with First Bristol Limited.

The Employment Tribunal however found in Mr. Bailes favour in his claim for unfair dismissal awarding him a settlement award of £84,000. Employment Judge Christensen highlighted the significant flaws in the investigation and disciplinary process: “The Respondent [First Bristol Limited] was aware that bank notes in general circulation are or could be contaminated by cocaine. This in turn means that it was incumbent on the Respondent, as part of a reasonable investigatory process, to investigate the possibility that that reality may have some significance to the claimant’s positive cocaine drug test.”

It has been widely reported that 88% of bank notes in the UK carry traces of illegal drugs. The Forensic Science Service concluded in its 2010 study that almost every bank note in circulation in Britain may contain traces of cocaine, with 1 in 20 showing up alarmingly high readings.

In conclusion, Employers need to proceed with caution when seeking to dismiss employees following a positive drugs or alcohol test. Employers should implement a robust substance misuse policy which provides the employee with information regarding the methods for testing and the circumstances in which ‘for cause’ and random tests may be carried out.

Do not hesitate to contact Andy Boyde or the Choix Team for further advice.


Andy Boyde – Sport Consultant



Injuries, Wear and Tear – Who Next ; Lessons to learn for Tennis’ elite


With the Australian Open, the first grand slam of the year days away, a number of players, have all retired from warm-up events in Australia in the past few weeks with a number joining the Australian Open casualty ward, withdrawing from the event before it has even started.

This has sparked the debate once more that players are putting their bodies on the line repeatedly without adequate rest and rehabilitation. The combination of an ever dwindling off season, general overtraining and the increasing exposure to the unforgiving concrete courts, that dominate the circuit in the modern era, are the main causes of players breaking down.

With only a few weeks into 2018, injuries and illness or other issues are already prevalent as can be seen from the following:

  • Andy Murray (hip surgery)
  • Raphael Nadal (knee injury & recovery)
  • Stan Wawrinka (knee surgery & recovery)
  • Jo-Wilfred Tsonga (wrist injury)
  • Novak Djokovic (arm/elbow injury)
  • Kei Nishikori (wrist injury & recovery)
  • Nicolas Almagro (knee surgery)
  • Steve Darcis (elbow injury)
  • Sloane Stephens (knee issues)
  • Jerzy Janowicz (knee surgery and laser vision correction)
  • Caroline Garcia (back injury)
  • Garbine Muguruza (severe cramping)
  • Johanna Konta (hip injury)
  • Eugenie Bouchard (buttock injury)
  • Serena Williams (post pregnancy recovery)
  • Victoria Azarenka (custody issues)

It is almost certain that before the first Grand Slam of the year, there will be numerous players who withdraw or cannot play, whilst when the event starts, due to the sweltering conditions there will be player retirements and withdrawals through exhaustion or injury.
With the Australian Open about to begin on Monday 15th January the majority of players will have allowed themselves three weeks off in December in preparation for the Australian summer. Tennis has no off-season like many other professional sports. So, for a lot of the players they will still have been grinding it out in tournaments until the end of November.
Temperatures in Australia often reach 38/40c degrees and this year even higher, making it horrible to sit and watch let alone play!

A combination of the pressure to satisfy tournament sponsors, appease TV and Media schedules, win prize money and secure ranking points is compelling players to compete too regularly and in turn they are putting themselves at a far greater risk of injury.

Top 10 players must commit to specific WTA tournaments, exclusive of the Grand Slams and the year-end WTA Championships, which include the four Premier Mandatory tournaments, four of the Premier 5’s and at least two 700-level tournaments. A player has the option of skipping one of the Premier 5s annually, but must enter the one skipped in the next year. It is not hard to grasp what a gruelling schedule that becomes in practice for Tennis’ elite.
None of this takes account of Davis Cup and Fed Cup which also adds to the scheduling.

The lure of money and keeping sponsors happy puts pressure on the majority of players to play 20 or more tournaments in a calendar year.

The system is set up to make money at tournaments; there is a conflict between players being pushed to make it for themselves and for others and having enough time to rest. It’s an important problem which has not been addressed properly.

The common view of Sports orthopaedic and medical specialists is that the surge in injury-related retirements during play is the result in players entering too many tournaments. The problem is not that they play too much; it’s the way the schedule is set up. Players frequently go through long stints, six weeks or more without a break. Often the tournament play, coupled with the rigors of travel and practicing every day can be too much and most players could benefit from some time off.

The ATP and WTA claim that they have addressed the problem. Both have education programmes emphasising the need for planning a schedule and preparation. The ATP provides full-time trainers for which demand has markedly increased, as do the WTA for the women, though there are many more personal trainers on the men’s tour.

There are the added issues that players hit the ball so hard, the rackets have had such an effect and there is now so much “strength in depth” in both the men’s and women’s games. In addition, matches are tougher on the body and there are few easy ones any more. Players are learning about the balance of preparation, prevention and recovery and rehab. The ATP and WTA would argue that stats don’t show there are more injuries than before; it’s that several high-profile players have had injuries. This catches people’s attention.

The WTA stats over the last five years indicate a doubling of on-site withdrawals. More injuries have been caused by changes in the modern game. There is a need to rationalise the calendar better around the Grand Slams, with constant changes of surface, culture and of time zones influence the body a lot more than is realised.

In addition, players are playing a lot more tennis and it’s a 12 – month sport now. The technology is such that they are more prone to injuries and the majority of injuries seem to be over-use problems.

Similarly, the elite junior players from pre-puberty to late teens seem to pick up the same kind of injuries as the elite groups. There are often changes in the dominant shoulders, with a reduced range of movement. There can be an asymmetry problem and postural changes.
That’s a warning for the professional tours if they allow undue pressure on players to compete. It is a difficult dilemma, but if an authority sets up a new system which penalises a player for not turning up, you have to wonder whether it is better.

The pressure to satisfy tournament sponsors, TV and Media schedules, as well as, to win prize money and ranking points is making players compete too much and run a far greater risk of getting injured. Will the time come when the players start taking the administrators to court?

The ATP/WTA need to take responsibility and put players’ health high on the agenda. Otherwise the situation might give way to litigation, as we have seen in football.

There could be specialists who would come forward and say, “This guy should rest”. You can speculate how long it will be before a player who feels forced into playing might turn around and sue. It might sound farfetched, but you can imagine it happening!

If you require any legal advice surrounding litigation issues, please do not hesitate to contact the Choix team.

Adrian Rattenbury – Sports Consultant