Korda v ITF Ltd (t/a The International Tennis Federation) [1999] APP.L.R.

03/25
Arbitration, Practice & Procedure Law Reports. Typeset by NADR. Crown Copyright reserved. [1999]
EWCA Civ 1098 1
CA on appeal from Chancery Division (Mr Justice Lightman) before Morritt LJ; Auld LJ; Clarke LJ.
25th March 1999
LORD JUSTICE MORRITT: Lord Justice Clarke will give the first judgment.
LORD JUSTICE CLARKE:
Introduction
1. On 22 December 1998 an independent Appeals Committee appointed by the respondent, the
International Tennis Federation ("the ITF"), issued a decision ("the decision") under the ITF's
Tennis Anti-Doping Program ("the Program"). On or about 8 January 1999 the ITF purported
to file an appeal against the decision with the Court of Arbitration for Sport ("CAS") which is
based in Lausanne in Switzerland. On 13 January the respondent issued an originating summons
seeking a declaration that the ITF was not entitled to appeal to the CAS and an injunction
restraining it from doing so. On 29 January Mr Justice Lightman made a declaration to that
effect. He did not grant an injunction, presumably because it was not necessary to do so, but he
gave the ITF leave to appeal to this court.
The contract and background facts
2. The respondent is Mr Petr Korda, a well-known international tennis player. His ATP ranking in
August 1998 was 4 and at the end of 1998 was 13. On 7 May 1998 he signed an application form
to enter the 1998 Wimbledon championships. By that form he agreed to abide by the conditions
set out on pages 1, 2, and 23 of the Competitors Guide 1998 which provides (so far as relevant) as
follows:
"1. The meeting is sanctioned by the Lawn Tennis Association and will be played under the Rules of
Tennis as approved by the [ITF].

16... Competitors should be prepared to undergo drug testing as a result of governmental or other
binding regulations imposed on the Championships by authorities outside its control or by the
governing bodies of the game."
3. The Wimbledon Championships are a Grand Slam event recognised by the ITF.
4. It is not now in dispute that both the appellants and the ITF are contractually bound by the terms of
the Program. As of March 1998 the ITF promulgated the Program. Sections (A), (B) and (C)
provide so far as relevant as follows:
"(A) General Statement of Policy
The purpose of the... Program is to maintain the integrity of tennis and protect the health and rights of
all tennis
players, by education and controlled doping tests. The scope of the Program includes:(a) Doping tests in and out of competition;
(b) The imposition of penalties for doping offences....
(B) Covered Players and Events
1. Any player who enters of participates in an event or activity organised, sanctioned or recognised by
the ITF or
who has an ATP Tour... ranking, shall comply with and be bound by all of the provisions of this
Program.
2. Recognised events include, but are not limited to, Grand Slam tournaments...
(C) Doping Offences
1. Doping is forbidden. Under this Programs the following shall be regarded as doping offences:(c) A Prohibited Substance is found to be present within a player's body....

2. A player is absolutely responsible for any Prohibited Substance found to be present within his body.
Accordingly, it is not necessary that intent or fault on the player's part be shown in order for a doping
offence
to be established under paragraph 1 of this Section (C); nor is the player's lack of intent or lack of
fault a
defence to a doping offence."
5. Section (D) and Schedule 1 set out a list of prohibited substances in three classes. Class 1 includes
nandralone
which is described as an anabolic agent. Section (G) provides for in competition testing of players at
ITF
recognised events. Section (J) provides for the test results to be sent to a Review Board. Mr Flint
stresses the fact
that, if there is any defect in the process at any stage, as, for example, if one of the samples is
disqualified or
two valid samples are not identical, no further action can be taken against the player by the ITF. By
section (J)14,
if the Review Board unanimously determines that a violation of the Program has occurred, the ITF is
notified
and the ITF must notify the player that he is in violation of the Program and that he "shall be subject
to the penalties set out under the provisions of the Program".
6. Section (M) provides that in the case of Class 1 Prohibited Substances and a first violation the
penalties shall be a
mandatory suspension of one year. In addition, section (N)3 provides that the player shall forfeit all
ranking points and prize money earned at the tournament where the player provided a positive
sample, and section (N)4 provides that he shall forfeit all such points and prize money earned at

all recognised events subsequent to the time the player provided the positive sample until the
commencement of any sanction imposed by the ITF.
7. Section (N) provides: "Suspensions shall commence on the day following the deadline for receipt of
notification that the player will appeal or the day after an admission by a player that he is in
violation of the Program, or, in the case of an appeal to the Appeals Committee, shall commence
on the day after the appeal is unsuccessfully concluded."
8. In this case the appellant provided a urine sample after losing in the quarter final. It proved positive
because nandrolone was found to be present. The Review Board unanimously determined that a
violation of the Program had occurred on the ground that the sample contained two metabolites
of nandrolone. As a result, on 28 October 1998 the ITF issued Mr Korda with a notice of
violation to that effect.
The Appeals Committee
9. It is common ground that Mr Korda had a right of appeal to the Appeals Committee. It is also
common ground that the ITF would in no circumstances have such a right of appeal. Mr Korda
exercised his right by filing a notice of appeal on 6 November 1998. The Program provides for
that right in section (L), which sets out the relevant procedure. Section (L), which is headed
"Player's Appeal Process", provides (so far as relevant) as follows:
"2. The case shall be heard by the Appeals Committee on a confidential basis... The Appeals
Committee shall determine whether there has been a violation of the Program...
5. ... The Appeals Committee will not be bound by judicial rules governing the procedure or the
admissibility of the evidence, provided that the hearing is conducted in a fair manner with a
reasonable opportunity for each party to submit evidence, address the Appeals Committee and
present his or its case."
6. At any hearing before the Appeals Committee the following will apply:
(a) the hearing shall be in private; and
(b) decisions must be unanimous; and
(c) the ITF shall have the burden of proving, on the balance of probabilities, that there has been a
violation of the

Program.
7. After an appeal is unsuccessfully concluded, the ITF shall make a reasonable effort to notify the
player or his representative before a suspension commences.
8. The Appeals Committee's decision shall be the full, final and complete disposition of the appeal and
will be binding on all parties. Such decision will be submitted confidentially in writing to the ITF
Medical Administrator who shall forward the decision to the President."
10. Further provisions of the Program relating to the Appeals Committee are to be found in section
(E)4 under the heading "Appeals Committee". That section provides as follows:
"(a) The Appeals Committee shall hear on a confidential basis all appeals of violations of the
Program. The Appeals Committee shall be appointed by the ITF Medical Administrator or his
designee and shall be composed of three (3) experts with medical, legal and technical knowledge
of anti-doping procedures and shall act in accordance with Section (L) of this Program. The
Appeals Committee member with legal expertise shall act as the Committee's chairman.
(b) Subject to paragraph (c) below, the Appeals Committee shall not review, or consider, or have
authority to modify the penalties prescribed under Sections (M) and (N) of the Program.
(c) The Appeals Committee may reduce the penalties as set out in Section (M) and Sections (N)4 and
(N)5 of the Program (but not overturn the violation of the Program) only if the player establishes
on the balance of probabilities that Exceptional Circumstances exist and that as a result of those
Exceptional Circumstances the penalties as set out in Section (M) and Sections (N)4 and (N)5 in
the Program should be reduced. For the purpose of this paragraph, Exceptional Circumstances
shall mean circumstances where the player did not know that he had taken, or been administered
the relevant substance provided that he had acted reasonably in all the relevant circumstances."
11. Section (S), which is headed "Confidentiality", provides (so far as relevant): "The ML, APA,
Review Board, nonvoting observers, selected surrogates, other relevant ITF staff and
representatives and the Appeals Committee shall use their best endeavours to maintain in strict
confidentiality the results of all testing and the identities of any persons involved in proceedings
under this Program, until such time as (1) all proceedings under the Program are concluded and
(2) it has been determined that there has been a violation of the Program."
12. As can be seen from these provisions the Appeals Committee has jurisdiction by section (L)2 to
determine whether there has been a violation of the Program and, if there has, by section (E)4(c)
in limited circumstances to review the penalties which would otherwise be imposed by sections
(M) and (N).

13. In his notice of appeal Mr Korda both challenged the notice of violation and asserted that
exceptional circumstances existed within the meaning of section (E)4(c) and that the penalty
should be reduced.
14. Between 6 and 17 November 1998 the ITF appointed an independent Appeals Committee to hear
the appeals, consisting of Mr David Pannick QC, Dr Michael Peat, who is a specialist in
toxicology, and Dr Ronald D Springel, who is a specialist in addiction medicine and a certified
medical review officer. They heard the appeal on 21 December 1998. At the hearing both Mr
Korda and the ITF were represented by solicitors and counsel. Mr Korda gave oral evidence and
was cross-examined on behalf of the ITF. As I see it, although the hearing was called an appeal it
was really a first instance hearing before the Appeals Committee.
The Decision
15. The essence of the decision of the Appeals Committee can be seen from the following paragraphs
of its confidential report:
"3. Having considered the evidence and the submissions, and for the reasons set out in more detail
below, we conclude that
(1) There was found to be present within the Appellant's body a Prohibited Substance, that is
metabolites 19-norandrosterone and 19-noraetiocholanolone of Nandrolone (an anabolic agent),
contrary to the Anti-Doping Program. Therefore, the Appellant committed a doping offence.
(2) The Appellant has established that Exceptional Circumstances exist in that the Appellant did not
know that he had taken (or been administered) the relevant substance and he acted reasonably in
all the relevant circumstances.
(3) By reason of the contents of the Program, we have no power to mitigate the mandatory sanction
imposed by Section N(3) of the Program: that is the sanction that the Appellant must forfeit all
computer ranking points earned at the Wimbledon tournament at which the positive sample was
given, and must return to the ITF all prize money earned at that tournament.
(4) By reason of the Exceptional Circumstances which we have found to exist, we have decided that
there should be no other sanction imposed on the Appellant for the doping offence which we have
found proved in this case. ....
41. Although the Anti-Doping Program imposes strict liability for Doping Offences, it allows for
mitigation of the otherwise mandatory penalties where the Appellant can show that he did not

know he had taken (or been administered) the relevant substance and that he had acted
reasonably in all the relevant circumstances.
42. ... the Appellant has failed to explain the source of the positive findings. Two possible explanations
have been advanced by the Appellant [which we reject]...
43. However... the Appellant... does not have to show the source of the positive test results. The
Program confers a discretion on this Appeals Committee where we are satisfied, on the balance of
probabilities, that the Appellant acted innocently and reasonably.
44. We are satisfied that there are Exceptional Circumstance in this case. We so decide for the
following reasons:
(5) We heard evidence from the Appellant. Each of us found him to be an honest, open and reliable
witness. His evidence was supported by the absence of any prior or subsequent positive results, by
the absence of any medical evidence of chronic steroid abuse, and by the character evidence from
Mr Boris Becker and from Mr John Pickard. We accept the Appellant's evidence that he did not
knowingly take (or have administered to him) a prohibited substance.
(6) In our judgment, the Appellant has established that he acted reasonably (as well as innocently) in
all the relevant circumstances. Whatever the cause of the positive results, we are satisfied that the
Appellant could not be faulted in any relevant respect. We reject Mr Stoner's criticism by
reference to the Appellant's willingness to take various other preparations (such as minerals and
vitamins). There is no evidence to suggest that any of those other preparations contain Prohibited
Substances.
45. By reason of the contents of section (E)4(b) and (c) of the Program, we have no power to alter the
mandatory sanction imposed by section N(3) of the Program: that is the sanction that the
Appellant must forfeit all computer ranking points earned at the Wimbledon tournament (at
which the positive sample was given) and return to the ITF all prize money earned at that
tournament.
46. We have decided that, by reason of the Exceptional Circumstances which we have found to exist,
there should be no other sanction imposed on the Appellant for the doping offence which we have
found to be proved in this case."
The Issue

16. On 22 December 1998, but before Mr Korda was aware of the decision, his solicitors wrote to the
solicitors for the ITF informing them that in the event of an adverse decision of the Appeals
Committee they would be considering the possibility of an appeal to the CAS or alternatively
recourse to the courts. Mr Korda subsequently accepted the decision, whereas the ITF did not. It
asserted and continues to assert a right in effect to appeal to the CAS by reason of section (V)3 of
the Program. As I have already indicated, the judge held that the ITF had no such right. The
issue in this appeal is whether he was right so to hold.
The Clause
17. Section V of the Program is headed "General" and provides (so far as relevant) as follows:
"1. This Program shall be governed in all respects (including, but not limited to, matters concerning
the arbitrability
of disputes) exclusively by the laws of England and Wales and subject to the exclusive jurisdiction of
the English Courts. ...
3. 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
time limit for any such submission shall be 21 days after the decision of the Appeals Committee
has been communicated to the player."
18. There was an issue before the judge as to whether there was a contractual relationship between the
appellant and the ITF on the terms of the Program and, more particularly, a contractual
relationship which embraced the provisions of section (V)3. The judge held that there was and Mr
Korda does not challenge that decision. It follows that the question for decision in this appeal is
whether, on the true construction of section (V)3, the ITF is entitled in effect to appeal to the
Appeals Arbitration Division of the CAS. That involves some consideration of the way in which
the CAS, and in particular the Appeals Arbitration Division, operates.
19. The CAS publishes a "Guide to Arbitration", which describes it as an arbitration institution. It
comprises two divisions, the Ordinary Arbitration Division, whose task is to resolve all disputes
subject to the ordinary arbitration procedure, and the Appeals Arbitration Division, whose task is
to resolve disputes subject to the appeals arbitration procedure. The Guide describes the
procedure, from which it appears to me to be clear that what is contemplated is an appeal process.
Thus its aim is described in these terms under the heading "Appeals Arbitration Proceedings":
"The appeals arbitration procedure is applied to all disputes arising from decisions taken by the
internal tribunals, or similar bodies of sports federations, associations or other sports bodies,

when the statutes and regulations of these bodies or a specific arbitration clause provide for the
competence of the CAS. It presupposes that the appellant has exhausted all internal judicial
remedies."
20. In Appendix 1 to the Guide the CAS sets out standard clauses, of which the following is
recommended in the case of what are called appeals arbitration proceedings: "Any decision made
by... [insert the name of the disciplinary tribunal or similar court of the sports federation,
association or sports body which constitutes the highest internal tribunal] may be submitted
exclusively by way of appeal to the Court of Arbitration for Sport in Lausanne, Switzerland,
which will resolve the dispute definitively in accordance with the Code of Sports-related
Arbitration. The time limit for appeal is twenty-one days after the reception of the decision
concerning the appeal."
21. The judge placed particular reliance upon the fact that the ITF did not choose that clause but a
different one in section (V)3 of the Program. However, it is or may be significant to observe that
section (V)3 does not refer to the Guide but to the Code of Sports-related Arbitration. The Code
sets out what it calls the statutes of the bodies working for the settlement of sports-related
disputes. Those statutes provide (so far as relevant) as follows:
"S1 In order to settle, through arbitration, sports-related disputes, two bodies are hereby created:
the International Council of Arbitration for Sport (ICAS) and
the Court of Arbitration for Sport (CAS).