Facts
Cecil Russell has applied for reinstatement of his eligibility to participate in organised sport.
History
Cecil Russell a successful swimmer in the past was in various ways a swimming coach, because of possession and trafficking anabolic steroids he was sanctioned for period of ineligibility for life. The sanction was lifted, but imposed again because of violation of the ban.
The criteria for category II reinstatement are:
A. Exceptional circumstances:
a) Age
b) Remorse
c) Circumstances surrounding the infraction, including any factors that may have caused or contributed to the Applicant’s diminished capacity.
d) The Applicant’s experience in sport.
e) The Applicant’s favourable prospects for rehabilitation.
f) The Applicant’s prior, and post-infraction, conduct.
g) The Applicant’s contribution to (the) sport.
h) The Applicant’s cooperation with investigating bodies.
i) The length of suspension served by the Applicant at the time of hearing.
j) Additional factors advanced by or on behalf of the Applicant and determined by the adjudicator to be relevant.
B. The adjudicator may give such weight as he/she decides appropriate.
Decision
When all of the criteria are considered and the evidence is weighed, the arbitrator has to come to a different conclusion than the arbitrator did in 2005. In addition to the evidence that was already before the arbitrator about the convictions that led to to the imposition of Mr. Russell’s lifetime ban and his subsequent brushes with the law, there is now evidence that Mr. Russell has been criminally convicted in the United States for conspiracy to possess with intent to distribute ecstasy; there is evidence that he was involved in a murder and helped to dispose of a body; there is evidence that he asked someone to commit perjury to help him escape conviction; and there is a finding by a judge of the Superior Court that his failure to disclose the Arizona conviction at the 2005 hearing was calculated to deceive.
1. In the circumstances, the arbitrator is not now prepared to reinstate Mr. Russell.
2. As a practical matter, the arbitrator suspect that Mr. Russell will have difficulty persuading any adjudicator that he should be reinstated so long as he continues to skirt around the edges of his ban in the manner described in this decision. Even if he cannot be prevented from continuing with the pattern of coaching-like activities in which he has engaged to date (in respect of which the arbitrator makes no finding) he would be well advised to refrain from such activities because, in my view, they have had, and will continue to have, a significant impact on the overall presentation of his circumstances in a way which has a very negative impact on his objective of being reinstated.
3. This is not a decision about whether or not Mr. Russell is a good coach. Rather, the arbitrator has to decide whether there are “exceptional circumstances” which warrant his reinstatement. In my opinion, the sands having shifted since more evidence has emerged, Mr. Russell has failed, on a balance of probabilities, to discharge his onus of establishing that the conditions for reinstatement are met at this time.
4. While the arbitrator realizes that there will be many parents and athletes who are disappointed with this decision, they will hopefully appreciate that anti-doping rules exist to protect athletes and maintain integrity and fairness in sport. Until Mr. Russell can bring himself more squarely within the criteria which would support his claim for reinstatement, he must continue to be ineligible.
Costs
126. Section 11.2.4 (iv) of the SOP expressly provides that an adjudicator on a Category II reinstatement application does not have the authority to determine or make recommendations for the payment in part or all of the applicant’s legal and other costs incurred for a review. If any party is of the view that the arbitrator has authority to award costs to a party other than the applicant, and the amount of such costs, to whom and/or by whom they should be paid cannot be agreed, the arbitrator will entertain written submissions on (a) the basis for asserting that the arbitrary seeking costs should deliver submissions by 5:00 p.m. EDT on 17 August 2009. Any party against whom costs are sought will until 5:00 p.m. EDT on 24 August 2009 to deliver responding submissions.
