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Published 19 julio 2019
The 2021 version of the World Anti-Doping Code (the Code) is likely to be approved at the fifth World Conference on Doping in Sport, to be held in November 2019 in Katowice, Poland.
This will be the fourth rewriting of the Code and the culmination of a two-year process involving stakeholder consultation and the circulation of multiple drafts of the proposed Code amendments. 2 Simultaneously, WADA (World Anti-Doping Agency) is also introducing an International Standard for Results Management and an International Standard for Education, as well as revising its six existing international standards.3
Rather than attempt to revisit old ground4, the WADA Foundation Board has directed the Code drafting team5 to limit the scope of the review and focus primarily on new views and arguments, with the aim of making the Code more effective. While many of the proposed changes may be welcomed, the effectiveness of the Code has long been called into question and it does not appear that the changes proposed will have any substantial impact on the overall effectiveness of the Code in tackling the problem of doping in sport.
This article considers some of the concerns around the effectiveness of the Code and anti-doping generally, as well as identifying some of the issues the 2021 Code seeks to address; how it proposes to do so; and the implications for anti-doping bodies.
There are long-standing concerns around the effectiveness of the World Anti-Doping Programme.
We know, for example, that just 1.43% of doping tests return a positive test (an Adverse Analytical Finding or “AAF“) (and in many countries the figure is much lower), but despite the increased onus on investigations and intelligence-led testing in recent years, more and more tests are being carried out – in 2017, testing under the Code increased by 7.1%.6
The prevalence of doping in elite sport is believed to be much higher than these figures suggest. For example, a WADAcommissioned study7, based on anonymous surveys carried out at two elite athletics competitions in 2011, found that up to 57% of competitors had admitted doping in the previous twelve months. This study was not made public until 2017.
When you consider that of the 1.43% of doping tests which return a positive result, many of them relate to athletes in the lower echelons of sport (although there appear to be no readily available figures from WADA on this) or are the result of inadvertent or unintentional doping. Yet more relate to recreational drugs. This raises questions around to whom the anti-doping regime should apply; whom it is catching; and what it is catching them for. The draft 2021 Code does seem to acknowledge that some of these issues are in need of reform and it is worth examining some of these issues in more detail.
The same rules and sanctions can apply to an Olympian and a once-a-week jogger. Under the current Code, while anti-doping organisations are not required to test lower- level athletes, if they do (and many do) and there is, for example, a positive test, then all of the sanctions and consequences set down in the Code apply in the same way as they would apply to an Olympian. This has been the subject of criticism, as these lower-level athletes are unlikely to have had the same anti-doping educational opportunities as higher-level athletes, and it can be argued that the implications of mandatory public disclosure on the employment status of someone, who participates in sport only at the recreational level, may be disproportionate.
Two recent examples highlight the outcomes of concern which can arise.
In New Zealand, “athlete XYZ” was recently banned for one year after his details were found on a list of customers of a man convicted of trafficking steroids online.8 Drug Free Sport New Zealand’s (“DFSNZ”) position appears to have been that, as a member of a surf life-saving club and a local golf club, he was bound by anti-doping rules. While the tribunal appears to have “reluctantly” found that XYZ was bound by anti-doping rules, it expressed human rights concerns at the “potentially vast regime” of DFSNZ. It ruled that DFSNZ had extended the meaning of “athlete” in its anti-doping rules to include members of local sports clubs and that it has done so “not expressly by amending the rules to make this transparent, but by an unannounced executive decision to enforce the contravention of the rules against such a person”.9
DFSNZ appears to have been concerned that the ban was too lenient, and this could set an unwelcome precedent in relation to other cases. This is understandable, given that there are understood to be 20-25 cases arising from the same investigation, which are still to be prosecuted. When it comes to the precedent value of the case, it is also worth bearing in mind, that, as matters stand, the same rules apply to athlete XYZ as apply to the All Blacks. DFSNZ has appealed the decision to the Court of Arbitration for Sport (CAS) in what must surely be the first case of a local surf life-saving club member appearing before sport’s highest tribunal.
The second case involves ninety-year-old US cyclist, Carl Grove, who tested positive in July 2018 at the US Masters Track National Championships, where he won the 90- 94 year-old sprint title.10 The US Anti-Doping Agency admitted that the positive test was probably due to his inadvertent consumption of contaminated meat and, while he was not banned, he was stripped of his title and world record and issued with a public warning.
Concerns have been expressed as to whether testing a 90-year-old is an effective use of an anti-doping organisation’s resources, particularly in the light of the prevalence of doping in elite sport and the lack of antidoping education and understanding at such a level.
Others have argued that testing, at all levels in sport, is a necessity to properly discourage lower-level athletes from cheating and, of course, to catch (some of) those who do. However, a more lenient sanctioning regime may go some way towards satisfying both sides of this argument and this is what the 2021 Code proposes.
WADA indicated, at its recent annual symposium in Lausannne, that 40-45% of AAFs are inadvertent. In other words, they are accidental and not the result of intentional doping. “Intentional doping” is defined in the current Code as conduct which the athlete knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk. WADA’s figures indicate that 44% of AAFs in 2017 were for anabolic agents.
There is no additional breakdown which might provide, for example, details of how many AAFs are found to be the result of the use of supplements or contaminated supplements. However, the WADA figures for 2017 also indicate that nearly 6% of AAFs were for cocaine and cannabis, with a further 2% for narcotics. Many anti-doping organisations have, for many years, decried the resources spent on dealing with AAFs for recreational drugs, as well the length of the bans arising from such positive tests.
The number of AAFs for cannabis has fallen significantly in recent years, due to WADA changing the testing criteria. The current threshold for cannabis is 150 ng/mL in urine.11 This means that findings of cannabis below this level are not deemed to be positive tests and are not reported as AAFs. Until 2013, the threshold was 15 ng/mL and the rationale for WADA to significantly increase the threshold was to ensure that the in-competition consumption of cannabis continued to be detected but that use in the days and weeks before a competition would not necessarily be detected.12
As matters stand, athletes who test positive for cannabis are automatically entitled to a reduced ban based on the ground of “No Significant Fault or Negligence”, if they can demonstrate that it was used in a context unrelated to sport performance.13 Cannabis is classified as a “Specified Substance” and these two factors combined mean that an athlete can avail himself/herself of art. 10.5.1 of the Code, which provides for a reprimand and no ban, up to a two year ban, depending on the athlete’s degree of fault.14
The level of sanction attracted by cocaine has been a bone of contention in recent years. Cocaine is banned in-competition only, meaning that it is not a violation to test positive for cocaine out of competition.
Cocaine is a non-specified substance, placing it in the same category as anabolic steroids, EPO and human growth hormone. The ban for cocaine is between twelve months and four years, unless the athlete can show “No Fault or Negligence” (which is extremely unlikely). In most cases, the upper limit of the ban will be two years, if an athlete can establish that the violation was not taken out-ofcompetition in a context unrelated to sport performance.15
However, the length of the ban in a cocaine case can attract a great deal of legal argument, as the ADRV can arise from taking cocaine out-of-competition (when it is not banned) and then competing in an event before it has left your system.16 However, many athletes test positive for benzoylecgonine, a metabolite for cocaine, which can often remain in your system for 2-5 days after taking cocaine.
Another concern in relation to the type of violations being caught is in relation to findings of minute concentrations of prohibited substances. As has been pointed out by Markus Manninen recently17, WADAaccredited laboratories are able to detect infinitesimally small quantities of prohibited substances – recent cases have involved the detection of prohibited substances in such quantities as 0.5 ng/mL (nanograms per millilitre). One nanogram is a billionth of a gram. Many athletes make the case that such a small quantity could not have affected their sporting performance and should not be regarded as cheating. Equally, such tiny quantities of a prohibited substance may arise from contamination, from a variety of sources of food, supplements, tap water or even from a kiss.18 While this ability to detect miniscule quantities of prohibited substances in athlete samples has made it easier to detect the tail end of the intentional use of a prohibited substance, it also increased the likelihoodthat an AAF will result from contamination of a supplement or other product. The current Code provides that, in order for an athlete to receive a reduced sanction on account of a contaminated product, the athlete must be able to identify the contaminated product which he or she consumed that caused the AAF.19
However, it can be extremely difficult, if not impossible, for an athlete to identify the source of such a concentration of a prohibited substance, thus making it more difficult to avail of a reduced sanction based on, for example, “No Significant Fault or Negligence”. It can, in some cases, be extremely difficult to do so.
A related issue is the problem of substances, which are not prohibited out-of-competition, appearing, in trace amounts, in in-competition samples. This has become increasingly problematic as laboratories can often detect substances which were obviously used out-of-competition and could not possibly have had an in-competition effect.
How does the 2021 Code propose to address some of these issues?
Detection of minute traces The WADA drafting team has decided that, rather than modify the rule in the current Code relating to contaminated products, a better approach would be to raise the reporting limits for those prohibited substances which are known contaminants. It is understood that the WADA List Committee is working on an approach in this regard.
As regards detecting substances not prohibited out-of competition in trace amount in in-competition samples, it is proposed that the WADA List Committee will consider reporting thresholds for certain substances.
During the consultation process, which led to the 2015 Code, WADA had considered creating a “substances of abuse” category that would have included cocaine and carried with it a sanction range of a reprimand up to twelve months. This proposal was ultimately rejected.
This time, however, it does seem that a similar proposal will get over the line. Following significant stakeholderfeedback after draft 1 of the 2021 Code was circulated, WADA has proposed revisions to the Code, which would allow the WADA List Committee to categorise those substances on the Prohibited List, which are often abused in society outside sport as “Substances of Abuse.” If an athlete can establish that he or she took a substance of abuse out-of-competition and unrelated to sport performance, a ban of three months would apply – there would be no legal argument of whether, for example, “No Significant Fault or Negligence” applies. The three-month ban could be reduced down to one month by completing a rehabilitation program satisfactory to the anti-doping organisation in question.
One expects this will be broadly welcomed by anti-doping organisations. However, there are concerns around the practicality and fairness of the proposed reduction to one month. For example, a substance abuse programme can often take a number of months to complete (unless it is a full-time residential programme), perhaps rendering the reduction redundant. In Ireland and presumably many other countries, such programmes are very often not immediately available and have lengthy waiting lists, again, by which time the reduction may be redundant. Finally, and perhaps most importantly, such programmes can be very costly indeed and so there would not be a level playing field for athletes that do not have significant resources.
The draft 2021 Code seeks to add a new category of “Recreational Athletes”, who would benefit from the same flexibility in sanctioning as minors, as provided in art. 14.3.6 – public disclosure would not be mandatory – and art. 10.5.1.3 – the minimum sanction would be a reprimand if “No Significant Fault or Negligence” is established.
The latest draft of the 2021 Code leaves it up to international federations, national anti-doping organisations and major event organisations to each identify who is a recreational athlete based on their own definitions of “international-level athletes” and “national-level athletes”, subject to three overarching criteria, namely, that within the preceding five years the athlete:
The introduction of this definition may be a significant administrative issue for national anti-doping organisations and international federations, in particular, and may have a number of unintended consequences. For example:
While many proposed changes may be well-intentioned and good ideas in theory, the ever-increasing complexity of the Code may have the unintended consequence of smaller and less well-resourced anti-doping organisations dedicating more and more resources to managing and administering those increased layers of complexity. It remains to be seen if this will transpire. One of the stated purposes of the Code and the World Anti-Doping Programme is: “[t]o ensure harmonized, coordinated and effective antidoping programs at the international and national level with regard to detection, deterrence and prevention of doping.”
The effectiveness of anti-doping programmes will remain a challenge and the changes proposed in the 2021 Code appear unlikely to prove materially more effective in catching and deterring doping in elite sport. However, the changes proposed do seek to address some areas of anti-doping programmes which may perhaps be seen as harsh on lower level athletes, in particular. They are, therefore, to be welcomed.
2 The process is described in detail here.3 The Prohibited List, the International Standard for Testing and Investigations, the International Standard for Laboratories, the International Standard for Therapeutic Use Exemptions, the InternationalStandard for Protection of Privacy and Personal Information and the International Standard for Code Compliance for Signatories.4 For example, the question of whether the potential to enhance performance should be a mandatory criterion for placing a substance on the Prohibited List has been the subject of significant debate since the Code first came into operation in 2003.5 It is comprised of senior WADA staff and external experts; namely:– Richard Young (Attorney, main drafter);– Ulrich Haas (Professor of Law);– Liz Riley (Attorney);– Ben Sandford (Attorney and Member of WADA Athlete Committee);– Tim Ricketts (WADA Director, Standards and Harmonization);– Julien Sieveking (WADA Director, Legal Affairs); and– Sébastien Gillot (WADA Director, European Regional Office and International Federations Relations).6 2017 Anti-Doping Testing Figures, available at www.wada-ama.org/ sites/default/files/resources/files/2017_anti-doping_testing_figures_en_0.pdf (accessed 28 May 2019).7 “Doping in Two Elite Athletics Competitions Assessed by Randomized-Response Surveys”, available at https://link.springer.com/article/10.1007/s40279-017-0765-4 (accessed 28 May 2019).8 “Doping proceedings against multiple NZ athletes”, available at https://mch.govt.nz/doping-proceedings-against-multiple-nz-athletes (accessed 28 May 2019).9 “Sports Tribunal has human rights concerns over anti-doping policing of low-level athletes”, available at www.stuff.co.nz/sport/other-sports/111788685/sports-tribunal-has-human-rights-concerns-overantidoping-policing-of-lowlevel-athletes (accessed 28 May 2019).10 “U.S. Cycling Athlete Carl Grove Accepts Public Warning”, available at www.usada.org/carl-grove-accepts-public-warning (accessed 28 May 2019).11 Decision Limits for the Confirmatory Quantification of Threshold Substances (WADA Technical Document – TD2018DL), available at www.wada-ama.org/sites/default/files/resources/files/td2018dl_v1_en.pdf (accessed 28 May 2019).12 Chris Weller, “World Anti-Doping Agenct Raises Olympics’ Marijuana Limits, Ups Positive Threshold From 15 Nanograms Per Millimeter To 150”, in: Medical Daily, available at www.medicaldaily.com/world-anti-dopingagency-raises-olympics-marijuana-limits-ups-positive-test-threshold-15-nanograms (accessed 28 May 2019), and WADA, “New Threshold Level for Cannabis”, available at www.wada-ama.org/en/media/news/2013-05/new-threshold-level-forcannabis (accessed 28 May 2019).13 This is provided for in a comment to the definition of “No Significant Fault or Negligence”.14 Fault is defined as follows: “Fault is any breach of duty or any lack of care appropriate to a particular situation. Factors to be taken into consideration in assessing an Athlete or other Person’s degree of Fault include, for example, the Athlete’s or other Person’s experience, whether the Athlete or other Person is a Minor, special considerations such as impairment, the degree of risk that should have been perceived by the Athlete and the level of care and investigation exercised by the Athlete in relation to what should have been the perceived level of risk. In assessing the Athlete’s or other Person’s degree of Fault, the circumstances considered must be specific and relevant to explain the Athlete’s or other Person’s departure from the expected standard of behavior. Thus, for example, the fact that an Athlete would lose the opportunity to earn large sums of money during a period of Ineligibility, or the fact that the Athlete only has a short time left in his or her career, or the timing of the sporting calendar, would not be relevant factors to be considered in reducing the period of Ineligibility under Article 10.5.1 or 10.5.2.”15 Art. 10.2.3 of the Code.16 Please see by way of example the analysis in “Cocaine blues: What the Paolini case suggests about “recreational” drug use under the 2015 World Anti-Doping Code”, available at http://wadc-commentary.com/paolini (accessed 28 May 2019).17 Markus Manninen, “Doping: legal challenges posed by low concentration of a non-threshold substance”, in: GSLTR 2018/4.18 CAS 2009/A/1926 ITF v. Richard Gasquet, and CAS 2009/A/1930 WADAv. ITF & Richard Gasquet, Sport Dispute Resolution Center of Canada, decision SDRCC DT 16-0249, available at http://www.crdsc-sdrcc.ca/resource_centre/pdf/English/814_SDRCC_DT_16-0249.pdf (accessed 28 May 2019) and CAS 2017/A/5296 WADA v. Gil Roberts.19 Art. 10.5.1.2 in combination with the definition of “No Significant Fault or Negligence”.
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