WODEN VALLEY GYMNASTICS CLUB
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Initial Draft for comments
STATEMENT OF ADOPTION OF THE POLICY
The Woden Valley Gymnastics Club Inc (WVGC) supports the Gymnastic Australia’s (GA) Anti-Doping Policy and adopts it wholly as the Club’s Anti-Doping Policy. For the purposes of this Ant-Doping Policy all references to GA should be read as references to WVGC.
When reading the GA Anti-Doping Policy, the word athlete shall have the same meaning as the words WVGC competitor, as defined in Section 4 of the ACT Drugs in Sport Act 1999.
AUSTRALIAN GYMNASTICS FEDERATION ANTI-DOPING POLICY
The only legitimate use of drugs in sport is under supervision of a physician for a clinically justified purpose. This policy prohibits classes of substances and doping methods in recognition of their performance enhancing effects contrary to the ethics of sport and the potential harm to the health of athletes.
Athletes and their physicians must take every care to ensure that the therapeutic use or administration of substances does not contravene this policy.
1.1 In this policy, the following words have the following respective meanings:
“Act” means the Australian Sports Drug Agency Act 1990.
“Agency” means any agency (including ASDA) which conducts Testing of Athletes for the detection of Doping whilst and so long as such Testing is conducted substantially in conformity with the procedures of the FIG, or if the FIG does not provide for such procedures or during the Olympic Games, then in conformity with the Medical Code.
“Anti-Doping Control Officer” means the person appointed or persons deemed to be appointed as such by the GA pursuant to clause 3.4.
“AOC” means the Australian Olympic Committee Inc.
“AOC Secretary-General” means the Secretary-General of the AOC.
“ASC” means the Australian Sports Commission.
“ASDA” means the Australian Sports Drug Agency established under the Act;
(a) any person:
ii. who in the previous twelve (12) months has competed;
in any competition under the control or auspices of the GA, or
(b) any person:
ii. who in the previous twelve (12) months has used;
the facilities of the GA;
unless retired from competition pursuant to clause 15.
“CAS” means the Court of Arbitration for Sport.
(a) the presence, in a person’s Sample, of substances belonging to classes of pharmacological agents; or
(b) the use of the various methods;
prohibited by FIG, or if FIG does not prohibit substances and/or methods or during the Olympic Games, then such substances, methods and classes of drugs described in Chapter II of the Medical Code;
“Doping Offence” means and includes:
(b) the refusal to provide a Sample for Testing upon request by a Responsible Authority or Agency;
(c) Trafficking; or
(1) aiding, abetting, counselling or procuring;
(2) inducing (whether by threats or promises or otherwise);
(3) being in any way, whether directly or indirectly, concerned in, or party to; or
(4) conspiring with any other person to effect;
any of the practices described in paragraphs (a) – (c) of this definition.
“FIG” means the Federation Internationale de Gymnastique.
“GA” means Gymnastics Australia.
“IOC” means the International Olympic Committee being an association created by the Congress of Paris of 23 June 1894 and which is entrusted with the control and development of the modern Olympic Games pursuant to the Olympic Charter.
“Medical Code” means the Medical Code provided for under Rule 48 of the Olympic Charter as in force from time to time.
(a) any person who, or body which is, a member of GA;
(b) any person who, or body which is, affiliated to GA;
(c) any person who is a member of a body which is a member of or affiliated with GA; and
(d) any person taking part in, or involved in or associated with any sporting activity conducted, authorised or recognised by GAF, whether as an Officer or as an Official or otherwise.
“Officer” means all persons who administer, manage, assist or are otherwise involved in the sport of gymnastics other than as an Athlete or Official.
“Official” means all persons who administer, manage, coach, assist or are otherwise involved in the sport of gymnastics other than as an Athlete or as an Officer.
“Olympic Charter” means the Olympic Charter of the IOC or any amendment or modification thereto or replacement thereof.
“Positive Test Result” means a notice from an Agency of Doping.
“Responsible Authority” means the FIG, AOC, the IOC, Sydney Organising Committee for the Olympic Games, the ASC, the Australian Institute of Sport, Sporting Organisations, State Academies and Institutes of Sport and State Sporting Associations.
“Sample” means human biological fluid or tissue.
“Sporting Organisation” means any body controlling a branch of sport, whether within Australia, overseas or internationally and recognised by the IOC, the AOC or the ASC.
“Testing” means the requesting, collecting and analysis of Samples for Doping.
(a) manufacturing, extracting, transforming, preparing, storing, expediting, transporting, importing, transiting, offering (whether subject to payment or free of charge), distributing, selling, exchanging, brokering, obtaining in any form, prescribing, commercialising, making over, accepting, possessing, holding, buying or acquiring in any manner the products or substances which are prohibited under this policy;
(b) acting in the above respect, financing or serving as an intermediary for the finance of the latter, provoking in any way the consumption or use of such products or prohibited substances or establishing means of procuring or consuming such substances; or
(c) being concerned or involved in methods which are prohibited by this policy;
other than in the course of the legal exercise of professional medical, pharmaceutical or analogous activities provided that a person, other than an Athlete, may rebut the presumption of trafficking arising out of mere possession of a substance prohibited under this Code if that person proves to the satisfaction of CAS that the substance was solely for personal use.
(1) Reference to:
(a) the singular includes the plural and the plural includes the singular; and
(b) a person includes a body corporate; and
(c) a State includes a Territory.
(2) If a person or Member to whom this policy applies consists of more than one person, then this policy binds them jointly and severally.
(3) The Position Statement and headings are for convenience only and do not form part of this policy or affect its interpretation.
(4) “Including” and similar words are not words of limitation.
(5) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
2. APPLICATION OF ANTI-DOPING POLICY
2.1 This policy applies to:
(1) Athletes, whether in or out of competition;
(2) Members; and
(3) all persons involved in Trafficking.
2.2 Sanctions are applicable in the event of any infraction of this policy.
3.1 All Athletes must give Samples for Testing at the request of an Agency.
3.2 Every person or body to whom this policy applies must not commit a Doping Offence.
(1) permits and authorises ASDA to attend competitions conducted by it or under its auspices to obtain Samples for Testing;
(2) permits and authorises ASDA to obtain Samples for Testing from Athletes out of competition and will provide reasonable assistance for this purpose;
(3) requires and will cause Athletes and Officials to permit ASDA or other Agency to collect Samples for Testing and provide reasonable assistance for this purpose. This assistance includes the prompt, complete and correct advice of the address and contact details of any Athlete as known to GA or a Member together with any other information requested by ASDA or any other Agency relevant to the collection of Samples;
(4) uses ASDA to conduct any additional test in Australia and at the expense of GA;
(5) permits and assists the FIG and any Agency appointed by FIG to obtain Samples from Athletes for Testing;
(6) will implement and administer this policy promptly and without favour or discrimination to the satisfaction of the AOC and ASC;
(7) subject to any applicable law to the contrary, will require ASDA or any other Agency conducting Testing of Athletes to notify the AOC Secretary-General and the Executive Director of the ASC of:
(a) all positive results of that Testing;
(b) the results of all Testing conducted at the direction of GA;
(c) the results of such other Testing as advised by the AOC Secretary-General or the Executive Director of the ASC from time to time; and
(d) any refusal to provide a Sample upon request.
3.4 Except to the extent required by the rules of FIG, the GA observes the Anti-Doping Policy of the AOC and to this end will appoint an Anti-Doping Control Officer approved by the AOC Secretary-General. Failing the appointment of a person to this position, the President and Chief Executive Officer of GA will be deemed to be jointly and severally the Anti-Doping Control Officer.
3.5 The obligations of the Anti-Doping Control Officer are:
(1) to ensure GA complies with its obligations to the AOC, the ASC and the FIG pursuant to their respective anti-doping policies,
(2) without limiting the obligations under paragraph (1):
(a) to notify Athletes they are liable for selection to provide Samples for Testing whether in Australia or overseas;
(b) to arrange for completion and return of forms required for the purposes of ASDA or any other Agency at the request of the AOC, FIG, ASDA or other Agency;
(c) to submit this anti-doping policy and any amendments thereto to the AOC and the ASC for approval and consistency with the anti-doping policies of FIG, the AOC and the ASC;
(d) to advise promptly the AOC and the ASC of the anti-doping policy of FIG and any changes thereto within 48 hours of GA becoming aware of such changes;
(e) to notify promptly the AOC and the ASC of any circumstances which may be or are an infraction of this policy and/or the anti-doping policies of the AOC and the ASC including:
i. the name of any Athlete who returns a Positive Test Result and details of that result;
ii. the name of any person who GA or any of its Officers, knows or reasonably suspects of having committed an infraction of this policy or the Anti-Doping Policies of the AOC and ASC and all relevant circumstances of that possible infraction; and
iii. the address of the Athlete or person concerned which is last known by GA;
(f) upon request to promptly provide to the AOC and the ASC such information and assistance as the AOC and the ASC may request concerning any alleged infraction of their anti-doping policies or this policy or any practice concerning the use of drugs in sport; and
(g) to provide the AOC and ASC with the opportunity to attend as an observer at any prosecution, and a report concerning GA’s prosecution of any Doping Offence hearing.
4.1 Testing of Athletes must be conducted:
(a) substantially in conformity with the requirements of FIG;
(b) if FIG does not prescribe any such requirements or during the Olympic Games, then substantially in conformity with the Medical Code; or
(c) in the case of ASDA conducting government funded tests pursuant to the Act, in conformity with the Act.
4.2 Minor irregularities, which cannot reasonably be considered to have affected the results of otherwise valid tests, will have no effect on such results. Minor irregularities do not include the chain of custody of the Sample, improper sealing of the container(s) in which the Sample is stored, failure to request the signature of the Athlete or failure to provide the Athlete with an opportunity to be present or be represented at the opening and analysis of the ‘B’ Sample.
5.1 The commission of a Doping Offence is an infraction of this policy.
5.2 For the avoidance of doubt, it is expressly stated that intention to use substances belonging to classes of pharmacological agents prohibited under this policy is not relevant in determining whether Doping has occurred.
6. ADVICE OF ALLEGED INFRACTION
Where GA has requested an Agency to conduct Testing of Athletes, the Agency requestedwill notify;
(a) the Anti-Doping Control Officer; and
(b) the AOC Secretary-General(subject to any law to the contrary); and
(c) the Executive Director of the ASC (subject to any law to the contrary);
of the names and results of Athletes who return a Positive Test Result or who fail to comply with the requirement to provide a Sample for Testing.
7. INFRACTION NOTICE
7.1 As soon as possible after the Anti-Doping Control Officer has received notification or they believe on other grounds that a person may have committed a Doping Offence, they will give to the person an infraction notice, together with a copy of this policy.
7.2 The infraction notice to be given under clause 7.1 may be given by the AOC Secretary-General on behalf of the Anti-Doping Control Officer. Where the AOC Secretary-General gives the infraction notice, they may do so jointly with any infraction notice under the Anti-Doping Policy of the AOC. Should the AOC Secretary-General give the infraction notice on behalf of the Anti-Doping Control Officer, then references in the remainder of this clause 7 and in clause 11 to the “Anti-Doping Control Officer” will be read as if they were references to the “AOC Secretary-General”.
7.3 The infraction notice given pursuant to clause 7.1 must:
(1) be in writing and be delivered to the person’s address as last known to GA;
(2) set out the nature and particulars of the alleged Doping Offence;
(3) set out the sanction that may be imposed under this policy should the Doping Offence be established or deemed to be established; and
(4) state that:
(a) the person may, by notice in writing to be received by the Anti-Doping Control Officer within 14 days of the date of the infraction notice, require GA to refer the matter to the CAS for a hearing;
(b) in the absence of such notice to the Anti-Doping Control Officer, the person will be deemed to have committed the Doping Offence and will be subject to sanction in accordance with clause 8; or
(c) the person may admit the Doping Offence.
7.4 In the event that the person notifies the Anti-Doping Control Officer that they require a hearing pursuant to clause 7.3(4)(a), the Anti-Doping Control Officer must so refer the matter to the Oceania Registry of the CAS for a hearing to be conducted pursuant to clause 9.
7.5 In the event that the person who has been sent an infraction notice pursuant to clause 7.3;
(1) does not notify the Anti-Doping Control Officer within 14 days of the date of the infraction notice that they require GA to refer the matter to the CAS for hearing; or
(2) notifies the Anti-Doping Control Officer that they committed the Doping Offence;
the person will be deemed to have committed the Doping Offence and the relevant sanction pursuant to clauses 8.1 and 8.2 will be automatically applied including the repayment of all grants paid to the Athlete by GA.
Where a discretion as to sanction is involved, or where the Anti-Doping Control Officer is of the view that an increased sanction under clause 8.3 ought be imposed, then GA will refer the matter solely on the question of the applicable sanction to the Oceania Registry of the CAS for a hearing to be conducted pursuant to clause 9.
7.6 Where a person is deemed to have committed a Doping Offence under clause 7.5, the Anti-Doping Control Officer will inform the person by notice in writing of the recording of the Doping Offence and the sanction imposed.
7.7 A person who receives notification pursuant to clause 7.6 may apply to CAS to have the recording of the Doping Offence and the sanction imposed set aside. As a preliminary issue to any hearing, the person must first establish to the satisfaction of CAS that he or she was unaware of the infraction notice sent to him or her or the contents thereof and, as result, did not request the matter be referred to the CAS for a hearing. Should CAS be so satisfied, CAS will then proceed to hear the matter as if the person had requested it be referred to it for hearing.
8.1 An Athlete who is found to have returned a Positive Test Result for Doping will:
(1) unless otherwise determined by the CAS, be required to repay to GA all funding and grants received from GA since the earlier of the implementation of this policy or the occurrence of the Doping Offence; and
(2) have all awards, placings and records won from the date of the occurrence of the Doping Offence withdrawn;
and will be:
(a) ineligible for membership of, or selection by GA in, any Australian representative team;
(b) banned from competing in any events and competitions conducted by or under the auspices of GA;
(c) ineligible to receive, directly or indirectly, funding or assistance from GA; and
(d) ineligible to hold any position with GA;
for the applicable period described in clause 8.2 and may be required to undergo counselling.
8.2 The applicable period for paragraphs (a) – (d) of clause 8.1 are:
(1) for a first infraction other than in the cases provided in paragraph (2) - suspension for two years;
(2) for a first infraction in cases of a Positive Test Result for ephedrine, phenylpropanolamine, pseudoephedrine, caffeine, strychnine and related compounds - suspension for a maximum period of three months;
(3) for a subsequent infraction other than in the cases provided in paragraph (4) - suspension for his or her lifetime;
(4) for a second infraction in cases of a Positive Test Result for ephedrine, phenylpropanolamine, pseudoephedrine, caffeine, strychnine and related compounds - suspension for two years; and
(5) for a subsequent infraction in cases of a Positive Test Result for ephedrine, phenylpropanolamine, pseudoephedrine, caffeine, strychnine and related compounds - suspension for his or her lifetime.
8.3 Where an Athlete or person is found to have committed a Doping Offence other than a Positive Test Result, they will be subject to at least the same penalties as described in clauses 8.1 and 8.2, provided that such penalties are a minimum only and may be increased according to the circumstances and culpability involved.
8.4 The above sanctions may be applied to a person regardless of any sanction or penalty, its duration or timing or whether current or past, imposed by any Responsible Authority provided that:
(1) in accordance with clause 12, GA and CAS will recognise previous sanctions imposed by any Responsible Authority to determine whether the infraction is a first or second offence, provided that the event which resulted in the sanction imposed by the Responsible Authority would be an infraction of this policy if this policy had applied to that event; and
(2) in the event that a Responsible Authority has imposed a heavier sanction than that imposed pursuant to clauses 8.1 and 8.2, the CAS may impose the same sanction imposed by that Responsible Authority.
8.5 Where the rules of FIG provide for a lesser sanction in respect of a Positive Test Result for alcohol, cannabinoids, local anaesthetics, corticosteroids or beta blockers, then that same sanction will be substituted for the sanctions described in clauses 8.1 and 8.2.
8.6 Notwithstanding clauses 8.1 - 8.5, the CAS has an overriding ability under clause 9.5 to reduce the sanction imposed in respect of a Positive Test Result.
9. CAS HEARING
9.1 A hearing under this clause 9 will be conducted pursuant to the Code of Sports-Related Arbitration. All parties to any such hearing may appear in person (or if a body corporate to be represented by any of its officers) or to be represented by their legal representative.
9.2 Where the alleged Doping Offence arises out of a Positive Test Result, the CAS may only determine that a Doping Offence has not occurred if the Athlete establishes on the balance of probabilities that:
(1) the Sampling or Testing procedure was not conducted in accordance with this policy;
(2) the Samples which led to the Positive Test Result were not those of the Athlete; or
(3) the Samples which led to the Positive Test Result were so contaminated as to affect the result of the test;
or any combination of these factors.
9.3 In all other instances of alleged Doping Offences GA bears the onus of establishing on the balance of probabilities that the Doping Offence has been committed.
9.4 Subject to clauses 9.5 and 9.6, if the CAS determines that a person has committed a Doping Offence as detailed in the infraction notice, it will impose on the person the relevant sanction pursuant to clauses 8.1 – 8.5 and determine whether the person ought repay all or part of all grants paid to them by GA.
9.5 In any hearing of the kind referred to in clause 9.2, the CAS may reduce the sanction (but not overturn the Doping Offence) only if the Athlete establishes on the balance of probabilities that extenuating circumstances exist and that as a result of those extenuating circumstances the sanction should be reduced.
For the purposes of this clause, “extenuating circumstances” means circumstances where the Athlete:
(1) did not know or suspect that the relevant substance was prohibited and had no reasonable grounds to know or suspect the substance was prohibited; or
(2) did not know that they had taken or been administered the relevant substance, provided they had acted reasonably in all the relevant circumstances.
9.6 The CAS may impose a sanction greater than specified in clause 8.3 if it is satisfied on the balance of probabilities that it is appropriate to do so in all the circumstances (including the need to fight against the use of drugs in sport and for GA to lead that fight by example).
9.7 In any hearing by CAS:
(a) CAS will decide according to the laws applicable in New South Wales;
(b) GA will bear the costs of CAS but each party will bear their own costs of the hearing;
(c) the hearing will not be confidential and the provisions of R43 of the Code of Sports-Related Arbitration regarding confidentiality will not apply; and
(d) the CAS award will be made public, except in exceptional cases at the direction of CAS.
10. APPEALS FROM DECISIONS OF THE CAS
10.1 A person (including GA) aggrieved of a decision of the CAS under this policy may appeal that decision to the CAS. An appeal may be against the finding that a Doping Offence has occurred, the sanction imposed or both.
10.2 Any appeal from a decision of the CAS must be solely and exclusively resolved by the CAS. The decision of the CAS will be final and binding on the parties to the appeal and no person (including GA) may institute or maintain proceedings in any court or tribunal other than the CAS.
10.3 An appeal will be a rehearing of the matters appealed against and the provisions of clause 9 will apply, mutatis mutandis, to any appeal to the CAS.
11.1 Upon the imposition of a sanction under clauses 7.5 or 9, the Anti-Doping Control Officer will send details of the Doping Offence and the sanction imposed to:
(1) the FIG;
(2) the AOC;
(3) the Agency(ies) (if any) concerned in the incident;
(4) ASC; and
(5) any other person or organisation the Anti-Doping Control Officer believes should be informed.
11.2 If on appeal the CAS overturns the finding that a Doping Offence has occurred or alters the sanction imposed, the Anti-Doping Control Officer will advise the decision to all those persons notified of the initial imposition of the sanction pursuant to clause 11.1.
12. RECOGNITION OF OTHER DECISIONS
12.1 GA will recognise any finding and sanction of a Responsible Authority that a person has committed an infraction of the anti-doping policy of that Responsible Authority, provided that infraction of the anti-doping policy would also have been an infraction of this policy.
12.2 Where clause 12.1 applies, the provisions of this policy will apply to that infraction.
Any dispute regarding the construction and/or application of this policy must be solely and exclusively resolved by the CAS according to the Code of Sports-Related Arbitration. The decision of the CAS will be final and binding on the parties concerned and no Athlete or person may institute or maintain proceedings in any court or tribunal other than the CAS.
14. REVIEW OF DOPING OFFENCE
If a person recorded as having committed a Doping Offence is subsequently found not to have committed that Doping Offence or is otherwise cleared or pardoned of any relevant wrongdoing by:
(1) the CAS; or
(2) FIG or the IOC;
the GA will overturn the Doping Offence and any sanction that had been imposed as a result of that Doping Offence and the Anti-Doping Control Officer will advise this fact to those persons notified of the Doping Offence pursuant to clause 11.1.
15.1 An Athlete who wishes to retire from competition must give GA notice in writing. This notice will not excuse the Athlete from having to give a Sample for Testing where prior notification has been given to the Athlete, nor will it serve to negate the results of the Testing of any Sample already given or the results of such Testing.
15.2 Subject to clause 15.3, upon giving a notice under clause 15.1, the Athlete will thereafter be ineligible to compete for a minimum of 2 years from the date of receipt of the retirement notice by GA.
15.3 At any time beginning 1 year after the retirement date the Athlete may seek reinstatement by written request to GA, at which time the Athlete will again be subject to the provisions of this policy. Reinstatement will not be automatic and the Anti-Doping Control Officer may require the Athlete to provide a Sample for Testing prior to any decision being made by GA as to the Athlete’s reinstatement. If GA reinstates the Athlete, then during the ensuing 6 months from the reinstatement the Athlete will be eligible to compete in domestic competitions only and may be subject to further Testing at the discretion of the Anti-Doping Control Officer.
15.4 CAS may authorise an Athlete to be reinstated or to compete in international competitions before the expiry of the relevant time periods described in clause 15.3, upon the Athlete demonstrating that his or her retirement was not motivated in any way by an attempt to avoid Testing.
16. REVIEW OF SANCTION
16.1 Where a person to which a sanction has been applied under this policy in respect of a Doping Offence (including any preceding GA anti-doping policy) has new and relevant information concerning the subject Doping Offence, they or it may make written application to the Anti-Doping Control Officer setting out the grounds for a possible review of that sanction.
16.2 The Anti-Doping Control Officer will consider the application and:
(1) after first consulting with any other Sporting Organisation which has a current sanction over the person; and
(2) with the prior approval of the AOC Secretary-General and the Executive Director of the ASC;
determine whether to review any sanction imposed under this policy and may alter a sanction imposed previously including a reduction or withdrawal of the sanction.
16.3 The Anti-Doping Control Officer will not alter any sanction under clause 16.2 without the prior approval of the AOC Secretary-General and the Executive Director of the ASC.
16.4 In the event of any alteration to a sanction by GA pursuant to this clause 16, the Anti-Doping Control Officer will promptly notify the person concerned as well as those persons who received notification from them of the Doping Offence and sanction.