Review of the World Anti-Doping Code
The purpose of the World Anti-Doping Code (the Code) and Programs to protect the athlete’s
fundamental right to participate in doping-free sport and thus promote health, fairness and
equality for athletes world-wide is recognised as the bases for the Anti-Doping Programs.
Anti-Doping Norway is strongly supporting the Code. This is a fundamental document
identifying the most important issues needed to secure world-wide common and transparent
anti-doping systems and methods.
These rules are important to secure an athlete’s right to participate in a clean sport. The
Code identifies the fundamental rationale of all anti-doping work and unites all Stakeholders
in a set of principles, common goals and mutual understanding.
The document is detailing those few issues that must be handled similar by all Anti-Doping
Organisations. A common understanding of what a rule violation is, and the consequences if
being in breach of the rules, is vital to ensure equality and fairness. These are principles we
hold high.
It is equally important to further transparency ensuring that all work carried out is open for
review by the monitoring capacity WADA represent.
It is impossible to agree on all detailed issues and items in the Code. We all come from
different cultures and organisations, we all have different access to resources, and different
understandings and beliefs. Only a democratic process, in which we have been invited, will
open for acceptance, even if we do not all agree on the details.
We commend WADA for having taken on the task of developing and maintaining this
important document.
Scope of an Anti-Doping Organisation
The Anti-Doping Convention of the Council of Europe states, in its introduction, that sport
should play an important role in the protection of health, in moral and physical education and
in promoting international understanding. The Convention states its concern by the growing
use of doping agents and methods by sportsmen and sportswomen throughout sport and the
health consequences of participants and the future of sport.
The anti-doping work has been an integrated part of the medical field in NOCs and IFs. The
protection of the athlete’s health in addition to focusing on the performance enhancing issue
has been equally important. Based on the obvious conflict of interest this way of organizing
the work raises, the testing programs have been organized in separate legal entities.
The scope of the anti-doping work has been to preserve the “Spirit of Sport”, characterized
by some main values, including the principle of fair play and also the protection of the
athlete’s health. This is identified as the fundamental rationale for the Code.
We believe that these values shall remain and is taken into consideration at all times when
discussing the content of the anti-doping rules and programs.
This scope and fundamental rationale will be of utmost importance when discussing the
criteria for including substances on the prohibited list. Several substances on the prohibited
list today may not enhance the performance, such as cannabis and alcohol. They will
however be of importance when focusing on the athlete’s health.
We believe that the sport movement has a role to play in promoting public health and
physical activities.
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We are aware of the discussion related to health versus performance enhancing rationale for
the anti-doping work. The revision of the Code should therefore include a discussion related
to the scope of the anti-doping work, focusing on the fundamental rationale for the World
Anti-Doping Code. The outcome will be of utmost importance for the rules, the list and tools
we use to implement the fight against doping.
Scope of the World Anti-Doping Agency
WADA has, as stated in the Code, several roles. Currently, WADA is the only body able to
monitor the anti-doping work world-wide. WADA has also manifested its role as guiding and
assisting developing ADOs. We believe those to roles can be combined in an excellent
manner, and should be a main priority for WADA in the future.
One example to consider was presented during the WADA Think thank in Oslo, 2009, when
a representative from the High Commissioner on National Minorities of the Organization for
Security and Co-operation in Europe (OSCE) gave a presentation focused on experiences
(and challenges) in moving forward an international agenda among and within participating
states. Using this as an example, WADA may provide ADOS tasks and guidance followed by
monitoring the agreed process. Should the ADO not carry out the agreed tasks, the ADO
may be deemed non-compliant until the issues have been rectified.
Risk Analysis
We believe that available resources should be directed to where it is mostly needed, thus
ensuring proportionality between objectives and available means.
In order to ensure proportionality of the requirements put on athletes and stakeholders and
that available resources are used where most needed, an objective risk evaluation should be
the basis from which an ADO should be carrying out all tasks related to anti-doping, being
doping control programs, education programs, science, intelligence programs etc. Strategic
focus should be on those elements identified as a higher risk of doping. Requirements of a
risk evaluation are identified in the International Testing Standard, but should be a
requirement in the Code encompassing all anti-doping related tasks. Such a risk evaluation
should be as objective and empirically based as possible for each sport. The International
Federations should be responsible for carrying out this evaluation, having WADA responsible
for approving the result of the risk evaluation. Alternatively, WADA should be responsible for
writing the risk assessments for all sports. This view is supported by the Norwegian
Confederation of Sports.
The List of Prohibited Substances
The List is one of the fundamental documents in the work carried out by Anti-Doping
Agencies. The development and alteration of this List must be transparent and reviewed in a
manner that ensures a common understanding to the extent possible.
The List Committee composition, mandate and election of members should be identified and
documented.
The responses from the hearing must be made publically available. Arguments for any
alterations must be clear and unambiguous, allowing the stakeholders to understand the
reasoning behind the alteration. This view is supported by the Norwegian Confederation of
Sports.
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The right to a fair hearing
The athlete’s fundamental right to a legal protection and due process must be secured. Legal
protection is secured through several means and methods such as ensuring transparent
processes, independence and competent Hearing Bodies. The principle of allowing the
benefit of the doubt to be in favour of the athlete is a similar protection.
The mechanism of the disciplinary process is left largely to the ADO under the Code,
provided that the minimum procedural safeguards are met. These safeguards are too
vaguely described in the Code and should be strengthened by implementing more specified
requirements.
Requirements for establishing independent and formalised Hearing Bodies similar as for the
Appeal Panels must be identified.
Transparency is crucial and should be guaranteed by implementing requirements for public
hearing.
Judicial competence requirements for members of the Hearing Bodies/Appeal Panels must
be identified as a minimum requirement.
Some International Federations will often forward possible anti-doping rule violations to their
relevant national federation, as the International Federation is only required to “provide a
hearing process” (re WADC). A national federations hearing body will probably seldom be
independent and will probably often lack adequate competence. International Federations, if
having the Result Management, must handle a possible rule violation themselves, ensuring
that an independent, formalised and competent body is in place.
International Federations that does not have the capacity to establish fair, independent and
impartial Hearing Bodies, could allow Sport Accord to establish such Hearing Body to be
used by the International Federation.
Each Filing Failure and/or Missed test is liable to be forwarded as evidence should a possible
Rule Violation be established. The fundamental rights of the athletes regarding a Fair
Hearing should thus be acknowledge also related to the issue of Filing Failures and Missed
Tests. These violations must be reviewed and given by independent panels possessing
correct competence, including the competence of a top level athlete.
These above views are supported by the Norwegian Confederation of Sports.
The Code require guilt to be present for most of the rule violation, similar to the Criminal Law,
such as failure to submit to doping control, possession of prohibited substances, trafficking
etc. A strict liability rule is identified for “presence of a prohibited substance” (re. WADC 2.1),
given the reason that any athlete is responsible for ensuring that a prohibited
substance/method should not enter his/her body. We believe that a requirement of strict
liability shall continue to apply for “presence of a prohibited substance” (WADC 2.1)
Sanctions
3 warnings within 18 month is a very long time, leaving an athlete to be given a very long
ineligibility period with the possibility that such warning(s) may be due to absent-mindness.
The intention is to ensure that an athlete is not hiding and possibly failing to submit to doping
control. This, however, is regulated in article 2.3. The Norwegian Athlete Committee is in
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support of this. Three warnings within a period of 12 month should be reviewed as a possible
rule violation.
The minimum sanction for Rule Violation related to Whereabouts should be 6 month.
Some athletes are struggling with reporting their whereabouts correctly for different reasons
than neglect or possible evasion. A one year ineligibility period does not appear fair in those
circumstances. The Norwegian Athlete Committee is in support of this.
Non-specified Substances/Methods are often used intentionally for the purpose of
performance enhancement, and should require a sanction that will be perceived as fair and
also have a deterrent effect.
Literature supporting a life long advantage from the use of anabolic steroids is growing. Little
research is done on long term effects of blood doping, but from what is known about the
adaptation to endurance training, it is not unlikely that a long term effect beyond two years
also apply for this group of substances. The doubt about a long term effect of doping should
not benefit already sanctioned athletes, but their clean competitors.
There is more money involved in sport today and a sport career can last much longer than
previously. This may make doping an “economic fraud”, where doped athletes earn
undeserved price money, and take away sponsor contracts and other benefits from clean
athletes. More severe punishment should be laid upon those who commit this type of fraud
within sports.
The standard sanction for Non-Specified Substances/Methods must be four years, for
Registered Testing Pool athletes, leaving the flexibility of two years for lower-level athletes.
These above views are supported by the Norwegian Confederation of Sports.
Lifetime ban for a second anti-doping rule violation should be applied for substances not
identified as specified substances and subject to a reduction of period of ineligibility.
Mutual recognition
The comment related to lack of mutual recognition concerning TUE must be removed. This
article identifies the need for mutual recognition by all signatories, with the possibilities of
appeal. The comment for this article however, is in contradiction with the wording and must
be removed. There are no reasons why reliable TUEC in a NADO should not be adequately
competent to make a TUE decision. The possibility of an Appeal is present and could be
applied, should the IF disagree with the decision of the NADOs TUEC.
Registered Testing Pool and whereabouts
Anti-doping organisation identifies a budget for the number OOC tests to be carried out.
Having an oversized registered testing pool from which whereabouts is collected, that is not
in sink with the number of OOC budgeted testing, is unnecessary and again will require use
of maintenance resources of information that will never be used. The number of athletes
required to provide whereabouts must be proportional in relation to the number of budgeted
samples OOC.
Requiring whereabouts from athletes competing in a sport where the benefit from using
prohibited substances out-of-competition is none or limited is unnecessary as these athletes
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will be subject to very limited testing OOC, if any. Collecting whereabouts that will not be
used will undermine the respect of the system, and will require unnecessary use of resources
both for the athletes and for the anti-doping organisation collecting the whereabouts.
Requirements for collecting whereabouts must be limited to sports identified as a risk for
using prohibited substances/methods OOC (risk evaluation), thus reducing the “Registered
Testing Pool” (or whereabouts pool).
WADA should monitor the ADOS Registered Testing Pool, ensuring that the intentions of the
requirements of the Code are met. Harmonized implementation of rules related to the
Registered Testing Pool and Whereabouts is fundamental for the RTPs athlete’s perception
of fairness.
Appeals
It should be possible to appeal each Filing Failure and Missed Test.
Handling Sensitive Information
Anti-Doping Organisations handle particularly sensitive information (medical and legal). The
interpretation of the different rules in each country’s, creates a problem relating to data
privacy and protection. We believe several Antidoping Organisations, including International
Federations, are handling sensitive information without the proper secure and confidential
handling. ADAMS, being the international tool for a Clearing house (14.5) is established
under Canadian Rules and interpreted different from other Rules. Requirements for ensuring
that the level of security is documented and approved must be established, enabling
Antidoping Norway, and other stakeholders, to use ADAMS to all intent and purposes.
Requirements should be identified so that all sensitive information is handled in a secure and
confidential manner and approved by the ADOs relevant National Data Protection Body,
where possible.
This view is supported by the Norwegian Confederation of Sports.
Definitions
The definition of an Anti-Doping Organisation must be altered. There must be a requirement
of independence between responsibilities of Sports/ top athletes and Testing. An
organisation should not be responsible for promoting and working for winning athletes and at
the same time be responsible for these athletes to be tested in an effective testing program.
This view is supported by the Norwegian Confederation of Sports.
Revision of the Court of Arbitration (CAS) – rules
Cases may be appealed to the CAS, related to International Level Athletes. CAS has its
own rules and is not part of the Code- requirement. WADA should ensure that the
Stakeholders are adequately informed of hearings related to the CAS rules, allowing for
stakeholders to provide their comments to the CAS hearing process. It is not adequate that
WADC indentifies the proper rule of law, if the same guarantees is not secured if a case is
appealed to CAS.
This view is supported by the Norwegian Confederation of Sports.
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Education
Physicians being an important part of the athletes support personnel should be identified
especially ensuring that these persons also receive a minimum of adequate education and
information. Several international doping cases has been related to physicians doping
athletes. Requiring ADOs to also educate physicians will raise awareness, among the
medical support personnel. The requirement for Information and Education must include
Physicians (re. CoE Anti-Doping Convention Article 6.
This view is supported by the Norwegian Confederation of Sports.
Guidelines related to lower level sport
The Code is a crucial tool for ensuring application and enforcement of one common and
harmonized approach to anti-doping on a global basis. The Code is however, in terms of
structure and content, aimed at targeting top level athletes.
We believe that sanctions for example should be identified by a more flexible approach for
national lower level athletes, allowing younger athletes to participate in organised training,
but to be excluded from Competitions as a typical example of such flexibility. The sanction for
lower lever athlete could possibly be of another nature as participating in preventive work, in
some special circumstances. The Code opens for some leeway and flexibility for lower level
sport through the definition at “athlete”. The Anti-Doping Program should reflect guidelines
for the purpose of establishing some common grounds also for national lower level athletes.
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