Demonising Justin Gatlin
13th September 2015
Anti-doping is at a governance and regulatory crossroads and needs to make the right choices if those using the system are not to lose confidence in it, heard delegates at Day One of the 2018 UEFA Anti-Doping Symposium in London yesterday. During the coming year, the draft of the 2021 World Anti-Doping Code will be finalised; the Court of Arbitration for Sport (CAS) will publish rules for its permanent Ad-Hoc Anti-Doping Division; and a push will be made for more international federations to delegate anti-doping functions to the International Testing Agency (ITA).
The final draft of the 2021 World Anti-Doping Code is due to be presented at the World Conference on Doping in Sport in Katowice in November next year. Delegates debated whether every aspect of the Code needed to be revisited during each round of the Code Review Process. CAS Arbitrator Dr. Ulrich Haas pointed out that since the inception of the World Anti-Doping Code in 2003, the “density” of the rules has grown quite dramatically, especially if the growing list of International Standards are considered alongside the Code.
It was pointed out that the 2003 edition of the Code set a standard two year sanction for an anti-doping rule violation (ADRV). By 2009, the standard sanction had not changed, but could be extended upwards to four years for ‘aggravating circumstances’. The 2015 version of the Code upped the standard sanction to four years; and the 2021 Code draft proposes allowing this to be extended to six years for ‘aggravating circumstances’.
It was explained that the danger is that the European Court of Human Rights (ECHR) could view this ‘escalation’ of rules and sanctions as a further erosion of proportionality and of athlete rights. The ECHR has already stated that it considers CAS arbitration as forced arbitration, as the Athlete Agreement may not be compatible with Article 6§1 of the European Convention on Human Rights. This is because athletes must sign it in order to compete in elite sport, and it ties them to resolving all disputes at the CAS.
The 2021 Code draft has already adapted to the ECHR judgment in the Pechstein and Mutu cases, referred to above. The judgment specified that hearings must, in principle, be held in public and decisions freely available to all. Haas pointed out that Article 15 of the 2021 Code draft provides for the free circulation of any decision within the anti-doping community.
Barrister Louise Reilly said that the rules governing a permanent CAS Ad-Hoc division to deal with doping cases are scheduled to be published in January next year. She said that the idea of a permanent CAS Ad-Hoc division, as has been used at the Olympic Games since Rio 2016, was first discussed as part of Olympic Agenda 2020, which also gave rise to the concept of an International Testing Agency (ITA).
There was much debate on how the proposed rules might operate in practice. This included how the CAS might cope with the potentially increased case load; and whether this would affect the ECHR view on whether CAS arbitration is forced; how specialist arbitrators could be recruited and more. It is planned that the new Ad Hoc division would be free for athletes to use.
Ben Cohen explained that the International Testing Agency (ITA) is currently managing anti-doping functions for 39 international organisations. For some, this involves delegation of their entire anti-doping programme and for others, certain functions only. He said that it is now “his job” to persuade more international organisations to delegate anti-doping entirely to the ITA.
David Lech, General Counsel for the Canadian Centre for Ethics in Sport (CCES), waned that a potential risk for the ITA is that its reach may be too broad. He pointed out that as the ITA offered all services to all federations regardless of type and size, it risked being viewed as a “Jack of all trades, and a master of none”. It was also pointed out that there are huge risks inherent with the ITA as if it makes a mistake, it risks tarnishing the reputation of all sports with which it has agreed partnerships.
Cohen agreed that the challenge for the ITA was to find a way of tapping in to the resources and expertise that existing anti-doping organisations already offer. For example, Lech pointed out that the Sports Dispute Resolution Centre of Canada (SDRCC) could be used to adjudicate some North American cases. “The ITA has to tap into existing resources”, he warned. “If it fails to do this, then it is setting itself up for failure”.
A wide range of testing statistics were presented by Francesca Rossi of the Cycling Anti-Doping Foundation (CADF) and CAS Arbitrator Jean-Pierre Morand, who explained the evolution of the IOC’s re-testing programme for the Olympic Games. This contributed to a wider discussion on whether the threat of a sample being retested in the future had a deterrent effect on athletes considering doping.
Rossi outline that the CADF tests at 300 races each year, about 15% of the over 2,000 races in the International Cycling Union’s (UCI) calendar. In 2017, its Registered Testing Pool (RTP) contained 1,187 athletes and it carried out 14,289 tests, receiving funding of CHF6.7 million (€5.9 million) from the professional cycling teams.
Morand explained that the IOC’s retesting programme is targeted at sports in which it is known that doping provides a higher proportional benefit, such as cycling, athletics and weightlifting, using new methods of detecting long term metabolites of prohibited substances. He pointed out that the success of this programme had varied.
For example in 2016, the first wave of analysis re-examined 700 samples collected at the Beijing 2008 and London 2012 Olympics, and returned 65 positives for Beijing and 49 for London. As such, the scope of the reanalysis was widened and currently stands at over 4,800 samples re-analysed for Beijing 2008 and over 5,000 for London 2012, which is still ongoing.
Morand said that there had been a decreasing percentage of positives as compared to samples re-analysed with each “wave” of reanalysis. In comparison, reanalysis of 500 samples collected at the Torino 2006 Winter Olympics returned no positives.
Morand explained that the statistics proved that targeted reanalysis works. For example, 100 of the positives recorded from the Beijing 2008 Olympics and 114 of the positives at the London 2012 Olympics involved just two sports. For reanalysis of samples collected at the London 2012 Olympics, one country recorded 21 positives from 49 reanalysed samples, and four countries recorded 38 positives from 49 reanalysed samples.
Delegates debated whether the value of retesting was limited, as ‘well-prepared’ athletes would perhaps take prohibited substances whilst training, and not during major competitions such as the Olympics. As such, retesting of samples collected out of competition might be worth considering.
Morand also explained that improvements in laboratory testing methods mean that ever-smaller amounts of prohibited substances can be detected. Athlete lawyer Howard Jacobs also pointed out that “well over 50%” of doping cases are inadvertent. It was highlighted the Statute of Limitations in the World Anti-Doping Code now means that samples taken ten years ago can be reanalysed, and athletes have little possibility of explaining how a prohibited substance ended up in their system.
Delegates heard that as such, revisions to the World Anti-Doping Code should consider whether the athlete’s burden of proving how a prohibited substance ended up in their system should be amended in reanalysis situations. Also, it was highlighted that the high proportion of inadvertent cases coupled with the idea that intentional dopers have already made a decision to cheat, the deterrent effect of the possibility that your samples may be tested in the future is likely to be very small, if it exists at all.
Delegates also heard from Canadian weightlifter Christine Girard, who is due to receive a London 2012 Gold medal and a Beijing 2008 bronze next week, after initially receiving a bronze in London and finishing fourth in Beijing. She explained that as the athlete finishing fourth in Beijing had lifted 4kg more than her, she was a “chihuahua” away from the podium.
She explained that the impact of doping at Beijing 2008 meant that on return to Canada, she was seen as “almost good”, despite being only a small dog away from standing on the podium. This had a negative impact on the support and funding that she received, resulting in her training in a car park and going through a very difficult period preparing for London 2012.
“It is a different feeling”, she explained. “It is bigger than just receiving the medals. I will never get that moment back, but I will also never get back the support and funding I might have received during the four years leading up to London 2012.” Girard will explain her story in an interview with The Sports Integrity Initiative that will be published in the future.
Nic Groombridge, a Criminologist with the University of South Wales and the author of A Critical Criminology of Sport and Games, was the only speaker to broach the difficult question about whether doping should be prohibited in sport at all. He argued that current anti-doping rules are ineffective as a deterrent to doping, in parallel to the argument that laws on drugs are ineffective in deterring users from taking them.
He argued that as in society, the focus should be on harm reduction rather than outright prohibition as the war on drugs has been lost. He explained that a needle exchange programme had found that 30% of needles tested showed use of performance and image enhancing drugs (PIEDs), illustrating that the public – and not just elite athletes – are widely using such substances.
Groombridge pointed out that athletes are an easier target to prosecute for PIEDS than the general public, as they too easily surrender their rights. Delegates argued that as athletes are involved in competition and the public are not, permitting them to take PIEDs risked forcing other athletes to do the same in order to stay competitive.
Day One of the UEFA Anti-Doping Symposium showed how anti-doping’s governance and regulatory structures are struggling to adapt to one of the most turbulent periods in anti-doping history. Interestingly, delegates heard how the perception is that doping has not touched European football in the same way in which it has grabbed hold of other sports, such as athletics and weightlifting.
It was pointed out that at Euro 2016, 2,440 samples were collected from 552 players, equating to 4.076 samples collected from each player during a year. Delegates heard that there were no positives, and that most of the cases that UEFA deals with involve inadvertent doping due to contaminated supplements.
Day Two of the UEFA Anti-Doping Symposium will explore this theme in more detail. Is football different from other sports in terms of doping? Do anti-doping rules need adjusting to adapt to team sports? What are the practicalities of sanctioning a team when one member is found to have committed an Anti-Doping Rule Violation?
As investigations into Russia showed, it would be naive to think that football has entirely escaped from the doping cloud that has hung over sport for the past five years. It will be interesting to hear today’s views on how European football’s governing bodies have adapted and responded to a crisis in which they have yet to be implicated.
• A Review of Day Two of the 2018 UEFA Anti-Doping Symposium is available here.
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