20 July 2018

The lie of the level playing field & why civil immunity for WADA matters

• Last month, the Province of Quebec granted decisions taken by the World Anti-Doping Agency (WADA) immunity from civil jurisdiction. In the context of recent issues, including the Chris Froome decision, anti-doping experts raise questions about whether decisions taken under the rules mandated by the World Anti-Doping Code should be immune from challenge in a court of law. 

It is time that somebody said it. The idea of a ‘level playing field’ is a lie that sport needs to move away from. In literal terms, the phrase itself is a nonsense. Pitches with a slope of more than ten feet from end to end were common until relatively recently. However, even if the tool that gives the following phrase its name indicated that a pitch was ‘on the level’, factors such as wind are likely to give the team playing towards one goal an advantage over the other. And winds can change at halftime. 

In sport – especially in anti-doping – the phrase is regularly proffered to illustrate that all athletes from any background have an equal chance to succeed in their chosen sport. Again, this simply isn’t true. Sport is an activity in which genetics, education, leisure time and money matter. It may be taboo to say it, but sport is about making the best of such advantages.

Leisure time and money are the preserve of countries that rank highly in terms of Gross Domestic Product (at Purchasing Power Parity), or to use its more convenient acronym, GDP (PPP). An athlete born in the UK, for example, benefits from free physical education classes at school from the age of four until the age of 16. In Malawi, physical education only became compulsory in schools from 2017, and is understood to remain optional for girls. Even if the same standards were applicable, the United Nations ranks Malawi’s GDP (PPP) at 141st in the world, compared to 9th for the UK. 

In simple terms, people in developing countries do not have the same amount of time and money to spend pursuing sport. And when money is scarce, it is more likely to be diverted towards essential infrastructure than towards sport. 

British Cycling’s Annual Report reveals that its budget for 2016 was over £30 million. The Malawian Sports Council’s budget for 2017 was £1.8 million. Malawi has never won a medal at the Olympic Games, whereas Great Britain topped the medal table in cycling at the Rio 2016 Olympics with six golds, four silvers and two bronzes.

The UK has a population of 65 million and 148 Universities, whereas Malawi has a population of 18 million and 24 Universities. In other words, the UK has a University per 439,000 people, whereas Malawi has a University per 750,000 people. 

But this doesn’t tell the whole story. Countries such as the UK and the USA have a vibrant sports culture within education that doesn’t exist in some developing countries (such a culture may exist in Malawi – but there is no readily-available evidence to support this). In other words, there is more chance to practice your chosen sport whilst studying to develop your career if you study in the UK or USA, as opposed to a developing country, where sport is not considered an educational priority.

If the playing field were level, as sport argues, that brings forward the uncomfortable conclusion that Malawians are genetically predisposed to be worse at sport than the British. At the elite level, they are worse at sport than British, but this is because of the reasons outlined above. 

It is important to point out that GDP (PPP) is not the only arbiter of sporting success. Genetics also play a part. It is generally assumed that athletes in Kenya, which is ranked 73rd in terms of GDP (PPP), fare well in distance running events. It is understood that this is due to genetics, oxygen uptake due to running and walking at an early age, blood and skeletal composition, diet, and living and training at altitude. However, there is still some debate about whether this assumption is scientifically accurate.

It would appear that Kenyan athletes that fit the profile outlined above are predisposed to be more successful in athletics events where these variables matter. It would appear that Kenyans have the physiology and lifestyle that provides the building blocks for success in certain athletic events, and these building blocks are not evident in all countries. Once again, this illustrates that the playing field is not level. You are born with a sporting advantage or disadvantage.

Running requires almost no specialist equipment, and the success of athletes from developing nations in certain running events is often held up as an example that the economic background of an athlete is unimportant. That may be about to change. Recent research conducted by The New York Times into a US$250 running shoe found that it made athletes 3% to 4% faster. That is only slightly below the 5% to 6% level of advantage which the International Association of Athletics Federations (IAAF) asserts makes it necessary to regulate the natural physiology of females through its Differences of Sex Development (DSD) Regulations.

In other words, before factors such as economics and education are taken into consideration, the playing field is not level. After economics and education are taken into consideration, it becomes even more tilted.

To suggest that the playing field is level is unfair to athletes from developing countries – such as Malawi – who have to overcome issues such as those outlined above in order to compete at elite level. To use an extreme example, until its GDP (PPP) improves, a Malawian will never win the Tour de France, as people have more essential things to spend money on than carbon bikes. 

The Bill that means this matters

The reason why debunking the lie of the level playing field is so important is because sport has built a justice system based around the same ideal. The Chris Froome decision has illustrated to the public that the sporting justice system is far from level. 

The sporting arbitration system suffers from the same issues as civil jurisdiction. To put it bluntly, the more money you have available to put together a comprehensive defence, the more likely you are to be exonerated.

On 15 June, the National Assembly of Quebec approved Private Bill 238 (PDF below), which confirms that decisions taken by the World Anti-Doping Agency (WADA) are immune from civil litigation proceedings. In a statement, WADA said that the Bill was necessary in order to protect WADA from ‘a number of expensive and time-consuming legal challenges’.

Decisions taken by WADA are already protected from civil jurisdiction through Article 13 of the World Anti-Doping Code, which limits final appeals against decisions taken under the Code to the Court of Arbitration for Sport (CAS), an arbitration body funded by sport. The Athlete Agreement (PDF below), which most elite athletes sign upon participation in elite sport, also limits all appeals against decisions taken by sports governing bodies, including WADA, to the CAS.

No avenue for appealing a CAS decision to another body is mentioned in the CAS Code of Sports Related Arbitration. CAS decisions can be appealed to the Swiss Federal Tribunal, which can only rule on whether the CAS applied the correct procedures and interpreted rules correctly. In other words, the CAS is the final court of appeal for WADA decisions, and its decisions are final.

The Bill was put forward by Canadian politician David Birnbaum, following discussions with WADA. The Agency argued that it couldn’t provide details of the ‘expensive and time-consuming legal challenges’ referred to in its statement, as it argued that a number of the cases are still pending.

‘A discussion took place between WADA and Mr Birnbaum on the issues faced by WADA in this regard, and he told us he wanted to offer his support and lead the legislative process’, wrote a WADA spokesperson in an emailed response to questions. ‘All parties in the National Assembly of Québec were very supportive at every stage and clearly understood the importance of providing WADA with the level of protection it requires to fulfil its mission’.

When asked if the Bill would reduce an athlete’s right to appeal doping decisions outside of the CAS, WADA said that the appropriate way to appeal doping decisions is through the CAS. ‘The object of the Bill is to provide civil jurisdiction immunity for decisions rendered in good faith by the organisation’, continued the spokesperson. ‘The Bill does nothing to protect WADA or its directors, officers and employees from criminal investigation or prosecution’. Presumably, this means that WADA considers appeals against its decisions to be confined to the arbitration system that sport has created.

The Bill only provides WADA decisions from civil jurisdiction immunity in the province of Quebec. However as mentioned, Article 13 of the World Anti-Doping Code states that the CAS is the final appeal body for all international doping disputes. The fact that Article 13 exists raises the question as to whether decisions taken by the body can be seen as being as fair to athletes as decisions taken by a court of law.

The points outlined above raise questions as to why such civil immunity is necessary. Athletes are already prevented from appealing doping decisions outside of the CAS. If the decisions its makes are fair to athletes, then why does WADA need civil immunity?

The CAS was set up to adjudicate on whether sporting rules have been correctly applied. ‘With all sports rules that apply globally, it is critical to obtain a definitive ruling from one authoritative body, rather than a range of different decisions from different courts and tribunals across the globe, which would lead to uneven application of the rule and so deny athletes a level playing field’, writes Jonathan Taylor, a member of WADA’s Compliance Review Committee (CRC) and drafter of regulations for the IAAF.

‘Right from the outset, it was established that the jurisdiction of the CAS should in no way be imposed on athletes or federations, but remain freely available to the parties’, reads a history of the CAS. However in 1991, the CAS published a guide to arbitration which contained model clauses such as: ‘Any dispute arising from the present Statutes and Regulations of the … Federation which cannot be settled amicably shall be settled finally by a tribunal composed in accordance with the Statute and Regulations of the Court of Arbitration for Sport to the exclusion of any recourse to the ordinary courts. The parties undertake to comply with the said Statute and Regulations, and to accept in good faith the award rendered and in no way hinder its execution.’

This model clause, which has been adopted by most international federations, appears at conflict with the original aim that the jurisdiction of the CAS should not be imposed on athletes or federations. As illustrated by the scientific detail in recent decisions regarding the systemic doping outlined by Richard McLaren in his Independent Person (IP) Reports for WADA, the CAS has moved beyond its initial aim of adjudicating whether sporting rules have been correctly applied. 

This has meant that some athletes argue that decisions taken by WADA merit examination in the civil courts. “To file an appeal with the Swiss Federal Court is useless”, said Russian bobsledder Alexander Zubkov recently. “I took this decision after consulting with lawyers. The Swiss Court considers only procedural irregularities, and those are not the essence of the charges against me […] I am aware that the IOC still appealed. They may have found some other evidence. We shall see later. For our part, we are considering another legal way. I do not need the recognition that the process was conducted properly, but proof of my innocence.” 

It should be pointed out that Zubkov has never returned an AAF (tested positive). He was sanctioned on the basis of ‘physiologically impossible’ levels of salt in his sample, which led to the International Olympic Committee (IOC) attempting to ban him for life from the Olympics on the basis that this indicated that his sample had been tampered with. On appeal to the CAS, this was reduced to a ban from the PyeongChang 2018 Winter Olympics but, as can be seen from the above, Zubkov is still keen to remove the stain of doping from his record.

Could Zubkov’s case be one of the ‘expensive and time-consuming legal challenges’ which WADA argues that civil immunity is necessary to combat? As explained above, the agency’s lips are sealed. So, does the arbitration system created by sport mean that its rules are evenly applied to all athletes, as claimed above?

Froome case takes the issue public

Chris Froome

The recent Chris Froome decision has illustrated to the public that athletes do not face a ‘level playing field’ in anti-doping cases. It is understood that Froome produced over 1,500 pages of evidence in support of his argument that urinary salbutamol concentration is not a reliable indicator of inhalation at above limits set by WADA. This included a study that extrapolated data collected through testing absorption of salbutamol through both the lungs and gut of dogs, to humans.

As such, it appears that WADA’s rules were open to challenge on the basis of scientific invalidity since 2004, when it first sought to distinguish permitted from prohibited use by measuring urinary salbutamol concentrations. However, for 14 years, the rules remained unchallenged because athletes sanctioned after testing positive for salbutamol could not afford the expensive defence that Froome was able to produce.

To use the previous example, a Malawian athlete may not have the resources available to Froome in putting together his defence. Italian cyclist Alessandro Petacchi served a one year ban and lost five of his Giro d’Italia stage victories, after salbutamol levels of 1,320 ng/mL were found in his urine after he won the 2007 race. For him, the playing field looks anything but level.

The International Cycling Union (UCI) has confirmed that after Froome requested information from WADA in relation to his case in January 2018, WADA produced Technical Document TD2018DL (PDF below). This allowed for the salbutamol Decision Limit to be increased above the 1,200 ng/mL limit, based on the specific gravity of the sample. The UCI said that this is designed to factor in the hydration status of the athlete, which a scientist whose studies provided the bases for WADA’s rules has stated was not contemplated when the rules were first developed.

In other words, it would appear that WADA changed the rules as a result of the Froome case, whilst it was still in progress. As such, athletes such as Petacchi and Diego Ulissi, who have served a sanction based on rules that have been proven to be unscientific, have every reason to feel aggrieved (the UCI insists they were treated fairly).

This doesn’t support the argument that the arbitration system created by sport creates a level playing field for athletes. Unfortunately for WADA, such cases are not confined to Froome and salbutamol.

Money talks?

On 12 December last year, UK Anti-Doping (UKAD) settled a case involving Tyson Fury. A sample given by Fury in February 2015 had shown elevated levels of nandrolone metabolites. The boxer had also failed to provide a sample in September 2016. 

In recognition of the respective counter-arguments and the risks inherent in the dispute resolution process, each side has accepted a compromise of its position’, read a UKAD statement‘The proceedings have therefore been resolved on the following basis: the anti-doping rule violations based on the reported presence of elevated levels of nandrolone metabolites are upheld, the refusal charge is withdrawn, Hughie and Tyson Fury each receive a two-year period of ineligibility, and their results from their respective fights in February 2015 are disqualified.’ 

In mentioning the ‘risks inherent in the dispute resolution process’, UKAD’s statement acknowledges an uncomfortable truth of the anti-doping arbitration regime. An athlete with deep pockets can undermine and threaten the entire system. WADA’s 2016 Annual Report states that its budget was US$28.3 million, $8 million less than Neymar’s $36.2 million annual wage. And we wonder why so few footballers test positive.

Fury’s period of ineligibility expired on 12 December 2017, the date of the settlement agreement. The case took two years, and resulted in a backdated two year ban that had expired by the time the case was settled. UKAD has sanctioned nine other athletes with four year bans for a first anti-doping rule violation (ADRV) involving nandrolone under the 2015 World Anti-Doping Code. 

In 2014, when sanctioning a rugby union player with a two year ban for an ADRV involving nandrolone as mandated by the 2009 Code, UKAD’s former Director of Legal, Graham Arthur said: “The 2015 World Anti-Doping Code deals severely with those who, like Nick Clancy, choose to intentionally dope. Next year, any athlete deliberately seeking to performance enhance will automatically be handed a four-year ban.” Why Fury was treated differently has never been fully explained.

There are many more examples of situations where the scientific validity of WADA’s rules have been questioned by athletes. WADA considers higenamine to fall into same category as salbutamol, made infamous by the Froome case. Footballer Mamadou Sakho was successful in calling into doubt whether higenamine is actually a beta-2 agonist at all. Yet despite this 2016 case, higenamine is still listed as a beta-2 agonist on WADA’s 2018 Prohibited List, and athletes are still being sanctioned after testing positive for it. 

Laboratory errors, whilst very uncommon, also do happen. Mike Morgan and Lisa Jones of Morgan Sports Law represented cricketer Kusal Perera, who had a provisional suspension lifted after the Qatar laboratory withdrew a stated AAF, accepting that its cause may have been naturally generated. In another case that appears to involve a false AAF, WADA suspended the Mexican laboratory after Mexican fencer Paola Pliego missed the Rio 2016 Olympic Games. 

The cases above serve to illustrate that athletes do not face a ‘level playing field’ in terms of anti-doping decisions. Therefore, is it fair to introduce civil immunity into such an environment? Claudia Pechstein would not support such a move, and new scientific evidence adds support to her case that her blood values were natural and not the result of blood manipulation… there are many more examples.

The expert view

In 2017, it is estimated that sport generated US$90.9 billion in revenue. Under the 2015 World Anti-Doping Code, the standard penalty for a doping offence was doubled from two to four years. The reason why civil immunity is important is because an argument exits that an arbitration court funded by sport is not the appropriate place to challenge the scientific basis of WADA’s anti-doping rules. 

One wrong decision can end an athlete’s career, resulting in potential losses of millions in terms of wages and endorsements. Why shouldn’t an athlete seek to recover those earnings through a civil suit?

There are two points on which experts appear to agree. The first is that WADA needs protection from frivolous lawsuits, and the second is that independent checks and balances are needed in order to ensure that the scientific methods that WADA uses to test and sanction athletes are valid.

Travis Tygart

“It’s common in the US for government entities such as public schools, law enforcement, city councils to have a “qualified immunity”, meaning they are immune from liability from civil lawsuits (they generally can be sued but they have a ‘qualified immunity’ affirmative defence) for decisions made in good-faith in the normal course of business”, points out Travis Tygart, CEO of the US Anti-Doping Agency (USADA). “There is an obvious balancing test in ensuring these organisations make good, fair decisions in accordance with the rules, while not being undermined or bankrupted by the process of expensive civil lawsuits, especially frivolous ones from those with extraordinary resources.  

“That said, the liability shield is not ‘absolute’ and these organisations can be liable for decisions under certain circumstances, such as malicious decisions, decisions in bad faith or for deliberately failing to follow their rules and procedures. Of course, there are other mechanisms of checks and balances and accountability for these government organisations with a ‘qualified immunity’ such as elections, other independent government insight (Government Accountability Offices, etc.), legislative bodies changing laws, media, etc.

“On the one hand, global anti-doping efforts should not be undermined because of the deep pockets of litigious dopers filing frivolous lawsuits. Obviously, the Russian State has attempted to hijack the CAS process and the court system to take down those attempting to holding it accountable. This is wrong, and civil laws preventing this are good for clean athletes and the fight for fair play.  

“On the other hand, the problem with applying these same ‘immunity’ rules (if that is what this legislation does) to WADA is that the court system is one viable mechanism to ensure WADA’s accountability in its decision making. WADA’s conflicted board, with no independent oversight, is a problem and as Lord Acton’s saying goes (right or wrong), ‘absolute power corrupts absolutely’ (even the perception of this is bad for confidence in the anti-doping system).  

“Any mechanism, including civil suits, to hold conflicted decision makers at WADA accountable is good for the system. Interestingly, as I am sure you know, the WADA Code revisions process has raised this independent accountability question, and asked for how to best address it. This immunity law should go hand and hand with real mechanisms for WADA oversight. Pretty sad from a WADA accountability standpoint when, as was evident from the last WADA ExCo and Foundation Board, WADA decision makers (on the sport side) would not even agree on the simple concept of reviewing WADA and its stakeholders handling of the Russian State doping system.

“At the end of the day, if WADA fails to follow its rules or makes illegal political, malicious, bad-faith decisions, then suing them in a jurisdiction outside of Canada that otherwise has jurisdiction of the claim seems to be a viable check.”

Paul J. Greene, a lawyer who has represented athletes in front of the CAS, agrees that the application of civil immunity to WADA decisions is limited. However, he argues that WADA’s scientific testing methods may not be subject to the same scrutiny if it is immune from civil jurisdiction. Given the Froome case, this point is particularly significant.

“Practically, the Bill 238 has limited value because it provides immunity only in the province of Quebec”, he states. “WADA can thus be sued in other countries, such as the US, where claimants can bring lawsuits in the State where they are affected. However, what the Bill represents has bigger implications in the international sports world. By providing immunity to WADA and its employees, directors, and officers for any decision made in connection with the mission of fighting doping in sport internationally, it removes pressure to fully vet its scientific testing. 

“While WADA always wants to ensure it has accurate testing in order to remove any likelihood of a false positive, this Bill, if it is adopted by other provinces and nations, may end up hurting athletes because WADA no longer faces liability for not fully exhausting its scientific tests that find new long-term metabolites before they are used on athletes. As a result, athletes may be accused of doping based on long-term metabolites that are not well-established or proven, and which might actually be wrong, but because of the immunity from civil liability, WADA would not face any repercussions. WADA already has extensive protection under the World Anti-Doping Code, placing a high burden on athletes to prove a test is scientifically invalid, so implementing a Bill exonerating WADA from any civil liability completely removes any need to get its science completely right every time.”

The Institute of National Anti-Doping Organisations (iNADO) said that it is too early to assess the implications of the decision. ‘At this point, iNADO is choosing to keep this circumstance in a watching brief’, wrote an iNADO spokesperson in a statement. ‘It is early days and it is much too early to fully appreciate the pros and cons of this decision.  We will carefully monitor as scenarios develop and as we codify this decision and its implications for the anti-doping community.’

‘WADA is a private organisation and does not have a democratic control system’, wrote lawyer Wil van Megen in a personal capacity, adding that he was not speaking for FIFPro. ‘In fact, this means that it is already almost impossible to address any abuses that may take place. Looking at investments in anti-doping – including hidden investments in State-financed anti-doping laboratories – we face a very ineffective system. By granting the institution immunity, it implies that it is deemed necessary to do so, without any justification. 

‘In a normal situation, any organisation and its participants must be able to be addressed and held responsible if things go wrong. Immunity might be a license to take questionable decisions.’

Tilting the tilted

In any judicial system, money buys lawyer expertise. The only way in which sport is any different from other areas of life is due to the myth of the level playing field. We do not pretend that everyone in the world has the same educational, economical, or business opportunities. Why should sport be any different?

At Tackling Doping in Sport 2013, the Athlete Ombudsman for the US Olympic Committee (USOC), John Ruger, said that between 40% and 60% of US doping cases are inadvertent – i.e. non-intentional. A year earlier, former Director General of WADA, David Howman, told The Guardian: “It is very easy to catch the dopey doper. The sophisticated doper is becoming harder to detect and that’s a big challenge for the anti-doping movement.” 

The reality is that most elite athletes that report an AAF did not intentionally dope. Most athletes take supplements, and as the recent cases of Josh Barnett, Gordon Gilbert, Demarte Pena, and Jimmy Wallhead and countless others illustrate, some of these supplements contain prohibited substances that are not featured on the label. In other cases, such as those of Froome and Sakho, the scientific accuracy of WADA’s rules has been found wanting. 

It often takes a challenge from an elite athlete, such as Froome or Sakho, to prove that the science that underpins WADA’s rules is subject to question. Until that happens, ordinary athletes continue to be sanctioned based on inaccurate science. Given that the standard four year sanction for an ADRV could result in the end of an athlete’s career, it appears correct that such science should be subject to independent assessment.

It is too early to say where Quebec’s approval of civil immunity for decisions taken by WADA will lead. However, WADA’s history shows that its rules are likely to become more complicated over time. Without independent adjudication of the science that underpins such rules, there is a danger that civil immunity could further erode the few rights that still exist for athletes.

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