Newsletter 3, March 2013
A new doping settlement?
A review of the key changes to the draft
2015 WADA Code
Alastair Cotton | March 2013
Events of recent months have underlined that the fight against doping in sport
remains as important as ever. From Lance Armstrong to allegations of
widespread drugs use across professional Australian sport, from the number
of Russian athletes currently serving doping bans to the death of a promising
county cricketer, doping scandals have filled the back, and front, pages. There
may not be a more opportune moment for WADA, and all stakeholders in the
anti-doping movement, to review the global approach to tackling drugs in
sport.
WADA launched its 2 year consultation on changes required to the WADA
Code in November 2011 and the final review period has just closed. Two redrafts have been produced and the final version (which will become the third
edition of the Code) will be adopted in November 2013, coming into force on 1
January 2015. The question is has the revised draft moved sufficiently far
forward to tackle the issues that recent events have highlighted?
Certainly the process of consultation has led to substantial improvements in
each of the drafts produced so far. However, too many changes appear to be
driven by the most prominent cases of recent years, including the so called
Osaka Rule / BOA Bye Law (although the specific "Olympic ban" has now
rightly been removed from the second draft), the contaminated beef cases
and doping violations triggered by whereabouts failures. Two comments can
be made. First, hard cases often introduce bad law; drafting rules to address
specific injustices will inevitably introduce too narrow an approach. Secondly,
as the Lance Armstrong case demonstrates above all else, intentional dopers
constantly strive to be one step ahead. The Code must look forward, not back.
So what are the key changes that the Code in its current form will introduce?
From the perspective of Governing Bodies (NGBs) six broad areas are worthy
of note:
1. Sanctions. The Code will introduce 4 year sanctions as the starting point
for the majority of first time doping rule violations, unless the athlete can
Newsletter 3, March 2013
establish that the commission of the violation was not intentional or
reckless. Previously the burden was on prosecutors to seek 4 year bans
on the basis of aggravating circumstances. This was too infrequently relied
on and the change in emphasis is desired by the majority of athletes.
There are some concerns, however, about the current drafting and it is
hoped that these can be resolved before the final draft is adopted. There
is, for example, no definition, of reckless or intentional and one fears
endless appeals on the point. It remains uncertain too whether the 4 year
ban will withstand challenge under European law. In the 1990s the IAAF
imposed 4 year bans on its athletes which were consistently challenged
(most notably by Katrina Krabbe) on the grounds the ban was an unlawful
penalty.
2. Performance Enhancing. For the first time it is mandatory that, to be
placed on the prohibited list, a substance or method must have the
potential to enhance sporting performance. It is also necessary to show
that either the drug poses a health risk or violates the spirit of sport (a
phrase that might still benefit clarification as to its meaning). Again this is a
positive change. However, lead commentators remain concerned that the
Code makes no attempt to recognise that a negligible amount of even a
prohibited substance, which is scientifically proven to be incapable of
enhancing performance and which was not present intentionally, should
not amount to a doping violation. Athletes will be able to argue that a
product consumed was contaminated, although more elaboration would be
desirable to understand how this "defence" will work in practice.
3. Managing Athletes. NGBs in particular should note and inform their
athletes of the following changes:
(i) TUEs. The Therapeutic Use Exemption process is a means by which an
athlete can obtain approval to use a prescribed prohibited substance for
the treatment of a legitimate medical condition. A new provision now
requires a national level athlete who becomes an international level athlete
to re-apply for his/her TUE with the International Federation. There is
obvious scope for confusion in this distinction and tension between the
interpretation at the international and national level on the international
standards for granting the TUE.
(ii) Whereabouts. The filing failures / missed test rule that triggers an antidoping rule violation has been reduced from 3 missed tests in 18 months
to 3 missed tests in 12 months. This will undoubtedly benefit forgetful
-2-
Newsletter 3, March 2013
athletes and draw the potential sting for those who inadvertently miss out
of competition tests. However, in some quarters there is concern that the
change will inadvertently help intentional dopers by making it easier for
them to arrange their doping practices, including by evading testing, over a
shorter period before the "clock" of missed tests is reset.
(iii) Retirement. An athlete who retires must now spend at least 6 months on
the Registered Testing Pool before he/she can return to competition.
4. Disciplinary Process. A new change in the Code may compel those (few)
NGBs who have not delegated results management, including the
presentation of cases to UK Anti-Doping / the National Anti-Doping Panel,
to do so. The Code now imports the right to an independent and impartial
tribunal from Article 6.1 of the European Convention on Human Rights. It
may be that some independence from an NGB will be required in the
prosecution of doping offences.
5. Amnesty. The Code introduces new provisions regarding the ability to
suspend, or reduce entirely, a sanction in order to encourage athletes to
provide "substantial assistance" (in short full disclosure of credible
information and the willingness to provide testimony). There has been
some debate about the role of amnesties in sport, and cynicism that active
athletes (as opposed to athletes nearing retirement) will take such risks,
but any additional intelligence that this provides must surely be welcome.
6. Athlete Support Personnel and New ADRVs. Finally, the Code, if
adopted, will introduce a number of new anti-doping rule violations which
focus on the athlete's support personnel, including complicity in a doping
violation and prohibited association. It will be an offence for an athlete to
associate with, for example, a coach or doctor who is either serving a ban
or has been found guilty of a doping within the previous eight years. NGBs
must impose express obligations on their own coaches, support and
medical staff (for example in the licence with that person) around
compliance with doping rules and specific sanctions for breaching those
(and follow the lead of UKA and Team Sky by removing such persons from
their staff).
The majority of the changes will undoubtedly advance the ability of WADA,
NADOs, IFs and NGBs to combat doping and they strengthen the anti-doping
message, whilst moving towards a more just system. There are other changes
in the proposed Code, not summarised above, which are also welcome,
-3-
Newsletter 3, March 2013
including in particular the use of athlete biological passports and the
extension of the limitation period for historic offences to 8 and 14 years
depending on the rule violation.
However, there are of course also concerns, both in the drafting and the
overall approach. For example, concerns have been raised that the changes
to the Code may not comply with European data protection laws. The Article
29 Working Party (an influential group made up of representatives from each
EU member state’s data protection authority, the opinions of which are often
reflected in the guidance of the UK regulator, the Information Commissioner’s
Office), expressed its concern that “WADA’s proposals do not strike the
necessary and proportionate balance between WADA’s aims and the respect
for fundamental rights” and, in particular, questioning whether athlete consent
is a legitimate basis to process doping information, given that athletes
effectively have no choice but to comply – a concern it has raised before but
which it does not feel is addressed by the new Code. The updating of the
international standards that sit alongside the Code should be watched with
care too.
The Code is, of course, just one tool in a successful anti-doping programme. It
is hoped that as much scrutiny - and resource - is given to other, arguably
more important aspects in the fight against doping. Education, and developing
the right (and positive) culture is paramount (there are few changes to that
part of the Code). There needs to be more intelligence-led and risk based
testing, with international and national bodies routinely sharing information
and collaborating (something so obviously missing in the Lance Armstrong
affair). Testing must be more targeted if it is to remain effective and real
harmonisation of the Code must be internationally led. The recent success of
Interpol in football corruption makes the point, as do the fruits of UKAD's work
with UK law enforcement agencies (in the Ian Burns case for example).
Positive developments in these areas would be equally welcome, to sit
alongside the proposed changes to the Code.
If you require further information on anything covered in this briefing please
contact Alastair Cotton alastair.cotton@farrer.co.uk, 020 3375 7112) or your
usual contact at Farrer & Co LLP on 20 3375 7000.
-4-