Features 18 November 2019

Sport intervened to make changes to Athletes Anti-Doping Rights Act

Major changes were made to the Athletes Anti-Doping Rights Act after the Sports Movement intervened in its passage at the recent World Conference on Doping in Sport, The Sports Integrity Initiative can reveal. They include removal of a recommendation that sporting officials face the same consequences as an athlete for violations of the World Anti-Doping Code; the addition of a sentence clarifying that the Act ‘is not a legal document’; and removal of clarity regarding Athlete rights concerning B samples.

Part One of the Act (PDF below) sets out athlete rights as specified in the World Anti-Doping Code and its accompanying International Standards. Part Two specifies recommended athlete rights that anti-doping organisations are encouraged to adopt. The Act was approved by the World Anti-Doping Agency’s (WADA) Executive Committee at the World Conference on Doping in Sport on 7 November in Katowice, Poland.

Item 6.1 on the Agenda for the WADA Executive Committee meeting…

The Sports Movement’s concerns are contained in Item 6.1 of the Agenda for the Executive Committee meeting. They request that the document be renamed as ‘Athlete Rights under the World Anti-Doping Code’ rather than the ‘Anti-Doping Charter of Athlete Rights’, as planned. Sport also wanted Part Two, specifying recommended athlete rights, removed entirely. 

At the conference, there was speculation as to the reason behind the name change. The International Olympic Committee (IOC) has the Olympic Charter. The Agenda for the WADA Executive Committee meeting appears to confirm that the Sports Movement would not allow athletes to have an additional Charter of their own.

At the Conference, it also emerged that a requirement under the 2021 World Anti-Doping Code for all third parties agree to be bound by its provisions had been removed. Article 20.1.7 of the July 2018 draft of the 2021 World Anti-Doping Code required all IOC officials and employees to be bound by the provisions of the Code. Similar requirements were placed on the International Paralympic Committee (IPC) by Article 20.2.7; on International Federations by Article 20.3.4; on National Olympic/Paralympic Committees by Article 20.4.8; on national anti-doping organisations (NADOs) by Article 20.5.10; on Major Event Organisers by Article 20.6.5; and on WADA by Article 20.7.12.

The wording of these Articles has been changed in the October 2018 version of the Code. They all now read: ‘Subject to applicable law, as a condition of such position or involvement, to require all of its board members, directors, officers, and those employees (and those of appointed Delegated Third Parties), who are involved in any aspect of Doping Control, to agree to be bound by anti-doping rules as Persons in conformity with the Code for direct and intentional misconduct, or to be bound by comparable rules and regulations put in place by the Signatory’. At the World Conference on Doping in Sport, concerns were raised that the last section concerning ‘comparable rules’ may allow such bodies to supplant the provisions of the Code with their own regulations.

A similar change has been made to the Anti-Doping Charter of Athlete Rights (PDF below), through the removal of Article 17. It read: ‘Persons that deal with Athletes or are part of, or act on behalf of an Anti-Doping Organization in any way, should be subject to the Code and face Consequences comparable to those an Athlete would receive if they were to be sanctioned for such conduct’. Why such changes have been made is not known.

B samples

When a sample is taken from an Athlete at a Doping Control Station, it is split into an A sample and a B sample. An athlete can later request analysis of their B sample if the A sample results in an adverse analytical finding (AAF) for a prohibited substance. Revisions to the 16 May version of the Anti-Doping Charter of Athlete Rights have removed clarity for Athletes regarding their rights concerning B samples.  

The Charter specified: ‘An Athlete has the right, when their A Sample tests positive for a Prohibited Substance to request that their B Sample is tested and that within defined time limits, that they are present at the opening of their B Sample, or a representative is present on their behalf, or if they cannot attend that it should be witnessed by an independent person or a video link of the opening made available to the Athlete’. The Act states: ‘An Athlete has the right, when analysis of their A Sample results in an Adverse Analytical Finding, to request analysis of their B Sample as provided in the Code and International Standards. (Code Articles 2.1.2, 6.7 and 7.2, International Standard for Results Management, International Standard for Laboratories)’.

Because the reference to ‘defined time limits’ has been removed, Athletes would have to search through the Code and International Standards to find these limits. Secondly, Article 6.7 – which refers to the splitting of a sample – only exists in the 2021 Code and not in the current 2015 Code. In other words, rather than specifying the Athlete rights that exist as the Charter did, the Act requires them to identify and discover those rights through analysis of the Code and its related International Standards.

Other changes

The 6 November Athletes Anti-Doping Act does add further detail to the Athlete Rights that exist during a sample collection session. The 16 May Charter specified that an Athlete has the right to see a Doping Control Officer’s (DCO) ID; to ask for information about sample collection; to hydrate; to be accompanied by a representative; to delay reporting to the doping control station for valid reasons; to be informed of their rights and responsibilities; to document concerns about the process; and to receive a copy of the records of the sample collection process. 

The Act adds that the Athlete can ask about the type of sample collection and the conditions that need to be adhered to. It also clarifies the right to hydrate is specific to the provision of a sample that meets specific gravity thresholds. 

Soft power

When Olivier Niggli, Director General of WADA, was asked about the name change to the Athletes Anti-Doping Rights Act, he replied with a one word answer. “Semantics”. However, as the above underlines, the devil is in the detail. 

The purpose of the Anti-Doping Charter of Athlete Rights was to clarify, for Athletes, their rights under the World Anti-Doping Code and International Standards. Following the intervention of the Sports Movement, the Athletes Anti-Doping Rights Act has lost some of that clarity.

In his speech at the World Conference on Doping in Sport, IOC President Thomas Bach spoke at his frustration at Vitaly Mutko’s successful appeal to the Court of Arbitration for Sport (CAS) against his exclusion from the Olympic Games. The removal of Article 17 from the Charter would appear to further undermine sport’s ability to sanction such officials for doping offences. 

It also appears to be a slap in the face for Athletes. Along with the changes to the final draft of the 2021 Code, the Act appears to be confirmation that sporting officials will not be held to the same standards as athletes in anti-doping proceedings. 

Changes in the Athletes Act specifies that it is not a legal document…

This principle was central to the Charter, as it underlined that whatever your station within sport, you would be treated the same under the rules of the World Anti-Doping Code. Its removal suggests that officials will not be treated as harshly as Athletes under the World Anti-Doping Code.

At the World Conference on Doping in Sport, the WADA Athletes Committee elected Ben Sandford – a lawyer – to replace Beckie Scott as its Chair. As such, the apparent insistence that the Act specifies that ‘it is not a legal document’ appears to be a further slap in the face. All animals are equal, but some animals are more equal than others, as Orwell wrote…

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