The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
A quirk in Dutch law means its national anti-doping organisation (Doping Autoriteit) may be declared non compliant with the World Anti-Doping Code at a World Anti-Doping Agency (WADA) Executive Committee meeting on 14 September. In November 2020, WADA carried out an audit of the Doping Autoriteit and found that an appeal body (the Bezwaarcommissie Nationaal Dopingreglement – or BND) is not fully independent of the Doping Autoriteit, as required by the Code.
The BND handles a very narrow range of appeals. As specified in the Code, most Decisions regarding doping sanctions are taken by the sporting body concerned, or by the Dutch institute for sports law (ISR), which also administers any appeals against such decisions. These bodies are independent of the Doping Autoriteit, as required by the Code.
The BND only handles appeals against therapeutic use exemption (TUE) decisions; any requests for review of any decision taken by the Chairman of the Doping Autoriteit; appeals against decisions of the Doping Autoriteit to withdraw its services; or appeals against any decision of the Doping Sanctions Compliance Committee (CND), which handles cases involving non-compliance with doping sanctions. This narrow range means it has only dealt with two cases in the two and a half years since its launch.
The reason that the BND exists is the Dutch General Administrative Law (Algemene wet bestuursrecht – Awb). This requires an administrative body, such as the Doping Autoriteit, to handle appeals against any decisions it takes.
‘In mid-June, WADA clarified in an email that it does not agree with this practice or this explanation’, wrote Paul Blokhuis, Secretary of State for Health, Welfare and Sports in a 27 August letter to politicians (click here to download) explaining the situation. ‘Since then, consultations have been held with WADA and the Council of Europe, in which attempts have been made to explain the fact that the BND is operationally independent. Nevertheless, on 28 July 2021, WADA issued a procedural announcement that the Dutch situation will be referred to its Compliance Review Committee.
‘On 18 August 2021, at the request of WADA, the Doping Autoriteit has written a substantive letter explaining that the non-compliance statement demands full, including institutional, independence from the BND. However, the point is that WADA’s requirement is not in accordance with the provisions of the General Administrative Law.’
Blokhuis highlights that a declaration of non-compliance ‘is obviously not good for the image of Dutch sport’, as it may mean that Dutch athletes cannot compete in international competition. However, he highlights that WADA’s own regulations require any sanctions to be proportional, and not to go further than necessary to correct any deviation from the Code.
Blokhuis intends to amend Dutch law so that the BND can become fully independent, but adds that this will take time. ‘I have indicated to WADA that for the intervening period, the Doping Autoriteit will adjust its own regulations in such a way that an independent position of the BND vis-à-vis the Doping Autoriteit is secured’. However, these amendments to the Doping Autoriteit’s regulations will not come into effect until 1 October, after WADA’s 14 September Executive Committee meeting.
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