On 14 October the NSW Supreme Court handed down its judgment in proceedings instituted by two NSW harness racing trainers who had received interim suspensions by NSW stewards after prohibited levels of cobalt had been detected in post race urine samples taken from their winning horses (Day v Harness Racing NSW).

The interim suspensions of the training and driving licences of the two trainers were to operate until such time as the NSW Racing Appeals Tribunal could hear formal charges against the two trainers some weeks later.

Cobalt is a crystal which when administered to a horse has EPO like effects, increasing endurance and reducing fatigue.

It was only in 2013 that Harness Racing NSW had become aware of the possible misuse of cobalt and introduced a specific rule within its Rules deeming cobalt to be a prohibited substance if it was detected above a certain threshold (‘the Cobalt Rule’).  This threshold was necessary as cobalt is contained in some legitimate food supplements traditionally provided to harness horses.

The trainers challenged their interim suspensions (and in fact the validity of the Cobalt Rule and the power to impose interim suspensions) on several different grounds as follows.

The Harness Racing Act (NSW) did not contain a power to impose interim suspensions
The plaintiff trainers asserted that whilst the Harness Racing Act provided Harness Racing NSW with the power to control harness racing, it did not contain an express power to prohibit participants by way of interim suspensions.  They also asserted that there was a common law right to engage in harness racing and that the Harness Racing Act should be construed in that light.  They further argued that the power to impose interim suspensions amounted to an unlawful restraint of trade.

The Judge rejected these arguments in the following terms:

“If there is, indeed a common law right to engage in harness racing (a proposition that may be doubted, except if it means no more than that which is not prohibited is permitted) it has been regulated validly by the Harness Racing Act and rules such that only those who are licensed may engage in it.  I reject the plaintiffs’ submission that such regulation amounts to an unreasonable restraint of trade or that, even if it were, this would affect the validity of the Rules.”   

The Cobalt Rule was too wide and ultra vires

The plaintiff trainers asserted that the Cobalt Rule was ultra vires the Act because it was unreasonable and not reasonably proportional to the rule making power conferred on Harness Racing NSW for the fulfilment of its functions.  Eg because use of legitimate food supplements could potentially be caught by operation of the rule.

The Court rejected this argument and said that Harness Racing NSW’s use of a concentration threshold in respect of presence of cobalt was an appropriate way of dealing with this.

The Cobalt Rule was irrational

The plaintiff trainers submitted that the Cobalt Rule was unlawful on the basis that the concentration threshold which Harness Racing NSW had decided upon was a “stab in the dark” and that the making of the Cobalt Rule was “precipitate, ill-advised and premature”.

The Court rejected this argument, taking into account evidence presented to the Court concerning scientific reports which had been commissioned by Harness Racing NSW into what may be the appropriate threshold for cobalt.  In fact there was evidence that Harness Racing NSW deliberately set the threshold at a relatively high level pending further research.

The Chief Steward had not provided the trainers with procedural fairness before imposing the interim suspensions. 

The plaintiff trainers alleged that they had a right to be heard before the interim suspensions were imposed.

The Court rejected this argument on the following grounds:

  • the fact that the Chief Steward was relying upon laboratory reports concerning the Cobalt levels in the winning horses meant that there was little that the trainers could have said in their defence at that point in time;
  • the trainers could have made application to the Racing Appeals Tribunal seeking urgent orders that their interim suspensions be quashed, which they failed to do;
  • the trainers would have an opportunity to be fully heard by the Racing Appeals Tribunal when it conducted the full inquiry into whether more permanent suspensions ought be imposed

 
Pre-judgment or bias by the Chief Steward

The plaintiff trainers alleged that the Chief Steward had displayed bias or had prejudged the issue in imposing the interim suspensions. The Court rejected this argument and held that the Chief Steward was entitled to act on the evidence at hand to suspend the licences on an interim basis.

Conclusion

This case does provide an interesting insight into the manner in which Courts will view challenges to the rules of a sporting body and the manner of such rules enforcement.

Pointon Partners acts for a range of sporting bodies and participants, including in the racing industry.

If you have any queries regarding sports law matters please do not hesitate to contact Michael Bishop or Anthony Pointon for advice.

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