IN MY VIEW: A new Code for a new era in anti-doping
On 1 January 2015, the sporting community will welcome the 2015 World Anti-Doping Code into force. The new Code represents over two years of hard work by key stakeholders in sport and represents their wish to establish the fairest way of protecting clean athletes in sport – by catching doping cheats.
The new Code is tougher than ever before. Athletes will now face a four-year ban rather than a two-year ban as a starting point, unless they can prove that the use of a prohibited substance was not intentional, or the relevant anti-doping organisation cannot prove intention in relation to a specified substance – i.e. a substance where a non-doping explanation is possible. In these cases, the starting point will be a two-year ban.
Sport wanted a four-year ban, especially after the International Olympic Committee (IOC) was forced to drop Rule 45 of the Olympic Charter, which banned athletes from competing in the next edition of the Olympic Games. The practical effect of extending the ban from two to four years means that athletes sanctioned for intentional doping will miss the next edition of the Olympics.
Under the 2009 Code, sanctions could be extended up to four years for ‘aggravating circumstances’, however few cases were brought forward under that provision, potentially meaning that intentional dopers could compete at the next Olympics. The 2009 Code placed the onus on the prosecuting anti-doping authority to prove that the ‘aggravating circumstances’ warranted an extension of the ban beyond two years. Under the 2015 Code, the onus is on the athlete to prove that their doping was not intentional. There has been some speculation as to whether this change in onus will survive legal challenge. Following an independent legal review that it commissioned, the World Anti-Doping Agency (WADA) is confident that it will.
Complicity in helping to avoid or cover up an anti-doping rule violation will attract the same sanction as the violation itself. Those associating with a coach, physio or other athlete support personnel who has been found guilty of a disciplinary offence equivalent to a doping violation will be banned for two years. It will be interesting to see if – and how – any such cases are developed against other athletes and support staff, especially if such sanctions can survive an appeal.
The statute of limitations – i.e. how far back an athlete can be sanctioned for a doping offence – has been extended from eight to ten years. This will provide national anti-doping organisations with greater power to sanction athletes for past offences, such as in the US Anti-Doping Agency’s case against Lance Armstrong.
There has been some criticism of the Code from some quarters. Athlete organisations have cited their own research which indicates that as much as 95% of doping cases are ‘inadvertent’, and that such a system which sanctions athletes that didn’t intend to cheat isn’t working as it should. The difficulty here is that a cheating athlete has already gone down the route of lying to themselves. It is therefore rare – and brave – for a doping athlete to admit to taking substances in order to cheat.
Athlete organisations have also criticised a decision to remove a ‘substances of abuse’ clause, which offered athletes significant sanction reductions if they could prove that drug use was recreational, with no intent to enhance performance. The argument is that WADA is failing to comply with requirements under its Statutes to protect the health of athletes. However, stakeholders were concerned that the ‘substances of abuse’ clause was too broad and could include a wide range of substances, and could be open to abuse to reduce a sanction. The Code has been amended to allow athletes charged with cannabis use to reduce their sanctions by establishing ‘No Significant Fault’ or ‘Negligence’ by clearly demonstrating that the context of the use was unrelated to sport performance.
I have focussed on just some of the many changes between the 2009 Code and the 2015 Code. A more comprehensive assessment of the changes requires a longer article or, perhaps, a conference. Fortunately, Tackling Doping in Sport is being held at Wembley on 19 and 20 March 2014, and will provide a comprehensive assessment of the latest tools and methods used to tackle doping in sport. For more information, visit: Tackling Doping In Sport 2014
By Andy Brown, Editor of World Sports Law Report, the only monthly journal examining current legal issues within sports.