Can’t Cope, Don’t Dope- Review of v.2 of WADA’s proposed 2015 Anti-Doping Code
By Shwetambara Mani and Shibumi Raje
The World Anti-Doping Code (the “Code”) drafted by the World Anti-Doping Agency (“WADA”) is the core document that provides the framework globally for anti-doping policies, rules and regulations within sport organizations and among public authorities. The Code was first introduced in the year 2003 (“2003 Code”), revised in 2009 (“2009 Code”) and the 2009 Code is currently being reviewed, the revised draft of which will come into effect in 2015.
The review and revision of the Code is a complex and comprehensive process, taking up to two years and consisting of three phases of consultation and review. The consultation process provides a leeway for stakeholders to make their constructive contributions towards the development of the Code, while reviewing the practicality of the provisions. The first consultation phase for the 2015 Code began in November 2011 and ended in March 2012, the first revised code was sent to the stakeholders in June 2012 (“WADA 2015 v.1”). The second code consultation phase began in June 2012 and ended in October 2012; the second revised code, which is the subject of review, was published in December 2012 (“WADA 2015 v.2”). The review process is expected to reach its conclusion in November 2013 with the presentation of the final code at the Fourth World Conference on Doping in Sport scheduled to be held at Johannesburg, South Africa. This article navigates the provisions of the WADA 2015 v.2, and analyses the most significant amendments to the Code.
In 1998, during the Tour de France, a large number of prohibited medical substances were found by police in a raid. This scandal brought to light the pressing need for regulation of doping in the sporting ecosystem. As a direct consequence, WADA, an international independent agency, was established in November, 1999 with a mandate to “set unified standards for anti-doping work and coordinate the efforts of sports organizations and public authorities”. The original WADA Code was drafted following the principle of strict liability and penalised sportspersons for any drug found in their body during the test, irrespective of whether it was performance enhancing or not. The 2003 Code made no provisions for the use of recreational drugs, thus raising questions about the proportionality of the Code and the balance between restrictions on doping and the human rights of athletes.
Seeking to remedy the shortcomings in the 2003 Code, WADA undertook a comprehensive review process and came out with the 2009 Code. The 2009 Code addressed the inflexibility of the 2003 Code by placing the burden of proof on the athlete, as opposed to the original strict liability provision. The revised 2009 Code introduced an extensive list of prohibited substances, which distinguished recreational drugs from performance-enhancing drugs and excluded from its purview the use of recreational drugs. However, the provision is extended the umbrella of prohibited substances in certain instances to those “with similar chemical structure or similar biological effects”, thereby making the provision a little wider. Further, the 2009 Code provided for incentives (in the form of reduced sanctions) to athletes to come forward and admit to doping or to the knowledge of doping in the sport. This provision is included with a view to “foster the spirit of openness and transparency to doping in sport”.
Although the 2009 Code sought to comprehensively control doping in sport, it fell short in certain aspects. Further, with increased instances of doping in sporting competitions, the effectiveness of the 2009 Code in curbing doping in sport was called into question. It is these shortcomings which led to a call for the revision of the 2009 Code. The immediate cause for the need for a new and improved Code was the United States Anti-Doping Agency’s report confirming Lance Armstrong’s involvement in the doping scandal in cycling. Further, the organisers of the recently concluded London Olympics, 2012 also faced numerous complaints of doping and there was a stronger need for a firmer anti-doping code than the present 2009 Code.
Material Changes in the 2015 Amendment
WADA 2015 v.2 has made some significant changes to the 2009 Code and WADA 2015 v.1. From the inclusion of the principles of proportionality and human rights at the introduction of the Code to a detailed set of therapeutic use exemptions, WADA 2015 v. 2 represents a greater consensus among stakeholders and offers more clarity in comparison to its earlier counterpart. The most significant amendments to the Code are:
Filing Failures: WADA 2015 v.2 draws a clearer distinction between evading and refusing sample collection. Any combination of three missed tests and/or filing failures within a twelve-month period constitutes an anti-doping rule violation. The authority to determine filing failures has been given to the athlete’s International Federation and National Anti-Doping Organizations. Further, an anti-doping organization with testing authority over the athlete has been given the authority to determine whether the athlete has missed an attempted test.
Prohibited Association: A significant improvement to the 2009 Code is the clarity with which ‘prohibited association’ by an athlete has been defined. Under WADA 2015 v. 2, association by an athlete in a professional or sports related capacity with any athlete support personnel (including coaches, trainers and physicians), serving a period of ineligibility or convicted of a violation of anti-doping rules in a criminal, disciplinary or professional proceeding within the previous eight years, would constitute prohibited association. Incorporating the principles of natural justice the amended article requires that an athlete be previously advised in writing by an anti-doping organization with jurisdiction or WADA of such personnel’s ineligibility, before action is undertaken under this Article 2.10.
Prohibited List: Article 4 of the Code specifies the process and procedure for publication of the prohibited list of substances and methods, published by WADA. The 2009 Code sets out the criteria for determining the inclusion of a substance or method in the prohibited list as (a) medical or scientific evidence or pharmacological effect or experience indicating the actual or potential health risk by the use of such substance or method; or (b) WADA’s determination that the use of substance or method violates the spirit of sport and the Code. WADA 2015 v. 2 adds an important requirement to the 2009 provision- if such substance or method alone or in combination with other substances or methods has the ‘potential to enhance or enhances sport performance’, and in addition to that satisfies one of the two criteria set out in the 2009 Code, WADA shall consider such substance or method for inclusion in the prohibited list. WADA has been given the sole and absolute discretion to determine whether a substance or method enhances or has the potential to enhance sports performance. Further, in cases of new designer drugs where there are no studies establishing the effects of use, WADA has been given the sole discretion to determine its inclusion in the prohibited list, WADA’s discretion is not subject to challenge in the case of new designer drugs.
Therapeutic Use Exemptions: WADA 2015 v.2 comprehensively addresses Therapeutic Use Exemptions (“TUE”), and the process and procedure to avail of TUE. The appropriate authority to determine the grant of TUEs for a national level athlete is the National Anti-Doping Authority. For an international level athlete, the appropriate authority is the International Federation; an international level athlete is required to approach the International Federation even if he/she holds a TUE granted by national authority. While the Code encourages the International Federation to recognize a TUE granted by the appropriate national authority, the International Federation can deny a TUE where it is dissatisfied with the reasons of such grant. Further, any denial by the International Federation automatically reverses the grant by the national authority, unless in the event of appeal by the aggrieved athlete to the WADA, in which case the TUE granted by the national authority can be relied on for competing in national level events, pending such review and appeal. Irrespective of a TUE granted by the national authority or International Federation, an athlete may have to obtain a specific TUE from a major event organization in case of specific events. However, any denial by the major event organization does not overturn grants by the national authority or International Federation, as the case maybe.
Intelligent Testing: To more effectively and efficiently detect doping, the new WADA 2015 v. 2 objectively extends the principle of ‘intelligent testing’ to the Testing Menu. The prescribed process includes the sharing of information between WADA, International Federation and other Anti-Doping Organizations on the prohibited substances and methods, most likely to be abused in each sport. The new Code recognizes the fact that the resources available to fight doping are limited and one implication of increasing the Testing Menu, may actually reduce the number of samples analysed in some sports. However, the fall back requirement remains full menu and full testing.
Sanctions: Article 10 of the Code which deals with sanctions on individuals has been revised to reflect a more objective approach in determining penalties. In line with the strong consensus from the stakeholders, WADA 2015 v.2 brings to the table more flexibility. While the draft crisply awards the real cheats with four years ineligibility, cases involving mistakes are subject to more lenient sanctions such as reduced periods of ineligibility. Recognizing that the standard of ‘aggravating circumstances’ set forth in the 2009 Code was seldom used, WADA 2015 v. 2 replaces it with four year period of ineligibility for prohibited methods, anabolics, hormones and masking agents, except where the athlete is able to prove that the violation of the anti-doping rule was neither reckless nor intentional. In the event the athlete is able to establish that the violation was neither reckless nor intentional, the amended Code provides for a reduced two year period of ineligibility. Further, there are provisions for limiting period of ineligibility to one year depending on the athlete’s degree of fault. The burden of proof to avail a shortened period of ineligibility for the prohibited methods, anabolics, hormones and masking agents falls on the shoulders of the Athlete. However, for other substances the burden of proof shifts to the anti-doping organization.
Other significant changes include changes to Article 18, Education, to emphasize prevention and the inclusion of WADA’s authority to conduct testing and investigations on its own initiative within its scope of responsibilities under Article 20.8.
WADA 2015 v.1 versus WADA 2015 v.2
There has been a substantial shift between WADA 2015 v.1 and v.2; with the latter draft providing more flexibility and momentum. One of the most significant changes is the manner in which WADA 2015 v.2 deals with the ‘Osaka Rule’. WADA 2015 v. 1 included the ‘Osaka Rule’ which banned athletes convicted of serious doping offences from competing in the next Olympic Games. The inclusion was not supported by majority of the stakeholders, with the exception of the International Olympics Committee and a few other organizations. WADA 2015 v.2 drops the ‘Osaka Rule’, while accomplishing the larger purpose of the said rule by making the four year ban the norm for serious violations. Apart from that, WADA 2009’s requirement of two samples for testing, the ‘A’ and ‘B’ samples, was substantially changed in the WADA 2015 v. 1. However, the removal of the requirement of the ‘B’ sample was received with much criticism from all the stakeholders. WADA 2015 v.2 reverts to the 2009 position, and requires two samples from the athlete, thus, bringing back the ‘B’ sample requirement.
WADA 2015 v. 1 had attempted to harmonize sanctions where more than two members of a team in a team sport committed anti-doping violations during an event period. Amended Article 11.2 under WADA 2015 v.1 provided for disqualification of a team from the event and an ineligibility period of one year for the team, in addition to the consequences on the individual athletes for violations by more than two team members. The stringent provision was received with much scepticism from the stakeholders on the grounds that event periods and team sizes may vary greatly from sport to sport, and players who weren’t in the team during the violation, may suffer due to the sanctions. WADA 2015 v. 2 goes back to the 2009 position, and leaves the team sanctions up to the event organizers.
WADA 2015 v. 1 extended the statute of limitations from eight years to fourteen years, based on the gravity of the violation. The amendment came with its share of confusion, with stakeholders questioning whether samples should now be saved for fourteen years. WADA 2015 v. 2 limits the sample storage period to ten years and modifies the WADA 2015 v. 1 position on the bases of presence under Article 2.1 and use under Article 2.2. However, the statute of limitation for other anti-doping violations such as trafficking and administration remains as fourteen years.
WADA 2015 v. 1 was severely criticised for its rigid provisions and lack of balance. One of the comments from Australia with respect to WADA 2015 v. 1 indicates that the principle of just and proportionate sanction has not been underpinned in the amended Code, and “harmonization should not come at the expense of providing just outcomes”. WADA 2015 v. 2 presents a significant shift from WADA 2015 v. 1. While the 2009 position has been modified to become tighter in some instances, in other instances the stakeholders have held on to the vacuum and clarity of the 2009 Code, seemingly fairer. The amended WADA 2015 v.2 draft has cautiously taken into account the varied comments from the stakeholders, and shifts substantially from the general lack of flexibility of WADA 2015 v. 1. While the third and final consultation phase is in process, it is hopeful that the final draft to be released in November 2013 provides for more momentum in battling doping in sport, while containing the fairness of the WADA 2015 v. 2 in a tighter and more balanced manner.
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