SII Focus 31st December 2020

US pro sport sanction issue highlights WADA politics

A two game suspension reportedly issued to Luke Gifford of Dallas Cowboys has once again highlighted differences between the World Anti-Doping Code and the anti-doping programmes of the US professional leagues. The argument that has broken out between the World Anti-Doping Agency (WADA) and the US over differing sanctions highlights differences between those who want to maintain global anti-doping’s status quo, and those who want change. 

Differences

Section 6 of the National Football League’s (NFL) 2020 Policy of Performance Enhancing Substances (see right) outlines that a positive test for a stimulant, diuretic or masking agent will result in a two game suspension, rising to six games if it involves an anabolic agent, and eight games if tampering is involved. However, importantly, the regular NFL season involves just 16 games.

This is much less that the 25 game suspension mandated for a first violation involving a stimulant or DHEA (androstenolone) mandated by Major League Baseball’s (MLB) Joint Drug Prevention and Treatment Programme; or the 80 game suspension it mandates for a first offence involving a named ‘performance enhancing substance’. However, each MLB club plays 162 games in a regular season.

It is much less than the 20 game suspension for a first offence involving a prohibited substance mandated by the National Hockey League’s (NHL) Collective Bargaining Agreement (CBA – click here to download), where each club plays 82 games in the regular season. It is much less than the 20 game suspension mandated in the National Basketball Association’s (NBA) CBA (page 421 onwards), where each club also plays 82 games.

In contrast, athletes returning adverse analytical findings (AAFs) for stimulants, diuretics, masking agents, or anabolic agents would face a four year ban under the World Anti-Doping Code, unless extenuating circumstances are involved. The US professional leagues also have differing policies regarding substances of abuse, ordinarily involving a year out whilst entering a rehabilitation programme. The NFL has a separate Substance of Abuse Policy (see right) which mandates treatment (and fines) for athletes judged to have used substances recreationally. 

WADA used Gifford’s suspension to again highlight the differences between the Code and the anti-doping policies of US sport, which it appears to view as inferior. “Without meaningful deterrents in place, clean athletes are forced to risk their safety lining up against illegally bigger and stronger opponents”, a WADA spokesperson told InsideTheGames. “Others will inevitably feel that they have to take prohibited substances just to compete, thus putting their own health at risk”.

US professional sports are not signatories to the Code because they have Collective Bargaining Agreements (CBAs) with the unions that represent their athletes. Under such CBAs, the professional sports leagues and player unions negotiate anti-doping testing protocol. In contrast, the Code has little athlete input and requires the surrender of many rights – a situation that wouldn’t be acceptable to the US player unions and would lead to a lockout. That situation transpired in 2011.

Travis Tygart

“This is just another attack by WADA on US sport”, said Travis Tygart, CEO of the US Anti-Doping Agency (USADA). “They are trying to deflect attention away from the fact that they won’t reform themselves and the US government is trying to improve the system. There are three reasons why US professional sports won’t sign the World Anti-Doping Code. Firstly, the professional athletes have bargaining power of up to 50%. Under the World Anti-Doping Code, they would have none. Secondly, the Code in certain cases, railroads innocent athletes into four year sanctions. At our last count, we recorded 27 cases where athletes did absolutely nothing wrong but were treated like intentional cheats. Finally, why would a private business agree to the political machinations of WADA governance and a legal system where cases are decided by an IOC-funded court in Europe?”

Tygart’s comments are understandable. Analysis of WADA’s testing figures in 2017 and 2018 by The Sports Integrity Initiative showed that around 0.6% of tests conducted under the World Anti-Doping Code resulted in an anti-doping rule violation (ADRV). But this doesn’t paint the whole picture. As Tygart highlights, the Code treats athletes as guilty of a doping offence unless they can prove that they are innocent. 

As a result, that 0.6% also includes athletes that were sanctioned as they couldn’t conclusively prove that they are innocent. Assessing intent in anti-doping is hugely problematic, as an athlete’s first line of defence will always be that they didn’t intentionally cheat. However from conversations with NADOs over the years, it is estimated that somewhere between 5% and 15% of cases are considered unintentional.

USADA assisted Jimmy Wallhead in discovering the source of his AAF…

USADA is one of the few National Anti-Doping Organisations (NADOs) that assists athletes in proving the source of their AAF. USADA paid for analysis of supplements used by British athlete Jimmy Wallhead in order to help him prove that they were the source of his ostarine AAF. More recently, it helped middle distance runner Brenda Martinez prove that prescription medication was the cause of her hydrochlorothiazide AAF.

“This is our sixth no-fault case in just one year, meaning that yet another athlete has been unjustly charged with a violation and publicly recognised for ingesting a prohibited substance from a completely innocent source, such as contaminated medication, meat, or water, and despite there being no effect on performance”, said Tygart in a statement on that case. “USADA strongly objects to this requirement under the rules and will continue to urge WADA to reform the system to be fairer for athletes”.

Webster spent his life savings attempting to prove the source of his AAF…

NADO’s don’t have to assist athletes. In order to secure ADRVs, it is not in a their interest. In December 2017, Sonny Webster was sanctioned with a four year ban after spending his life savings attempting to prove that a supplement was the cause of his ostarine AAF. Both Wallhead and Webster returned an AAF for the same substance, and both argued that supplements were to blame. 

Sport is international – leagues aren’t

Although the MLB, NBA, the NHL and the NFL are not signatories to the Code, the MLB, NBA and NHL are affiliated to international federations that are Code signatories. This can create issues when US players from these leagues compete in overseas tournaments such as the World Baseball Classic, the Basketball World Cup, or the World Cup of Hockey.

‘Except as otherwise provided below, only a single organization shall have authority to conduct Testing at Event Venues during an Event Period’, reads Article 5.3 of the World Anti-Doping Code. ‘At International Events, the international organization which is the ruling body for the Event (e.g., the International Olympic Committee for the Olympic Games, the International Federation for a World Championship and Panam Sports for the Pan American Games) shall have authority to conduct Testing. At National Events, the National Anti-Doping Organization of that country shall have authority to conduct Testing. At the request of the ruling body for an Event, any Testing during the Event Period outside of the Event Venues shall be coordinated with that ruling body.

‘If an Anti-Doping Organization, which would otherwise have Testing authority but is not responsible for initiating and directing Testing at an Event, desires to conduct Testing of Athletes at the Event Venues during the Event Period, the Anti-Doping Organization shall first confer with the ruling body of the Event to obtain permission to conduct and coordinate such Testing. If the Anti-Doping Organization is not satisfied with the response from the ruling body of the Event, the Anti-Doping Organization may, in accordance with procedures described in the International Standard for Testing and Investigations, ask WADA for permission to conduct Testing and to determine how to coordinate such Testing. WADA shall not grant approval for such Testing before consulting with and informing the ruling body for the Event. WADA’s decision shall be final and not subject to appeal. Unless otherwise provided in the authorization to conduct Testing, such tests shall be considered Out-of-Competition tests. Results Management for any such test shall be the responsibility of the Anti-Doping Organization initiating the test unless provided otherwise in the rules of the ruling body of the Event.’

From the above, it is not clear what should happen if a Code non signatory – such as the MLB, NBA, NHL or NFL – is organising an international tournament that also features overseas players that are normally subject to the Code. Can USADA conduct tests on all players, including those from the professional leagues? Is the international federation free to conduct tests on the US players? Must the US players be left out of the testing programme, or do two testing programmes run at once?

Annex H of the International Standard for Testing and Investigations (ISTI) only sets out procedures for what should happen if an anti-doping organisation requests permission to test at an event and is unable to reach an agreement with the event organiser. In such cases, Annex J makes it clear that WADA’s decision is final. 

‘If WADA decides that permission for Testing at the Event should be granted, either as requested by the requesting Anti-Doping Organization or as proposed by WADA, WADA may give the ruling body the possibility of conducting such Testing, unless WADA judges that this is not realistic and/or appropriate in the circumstances’, it reads. However, the scenario outlined in Annex J only appears to cover events where all bodies concerned fall under the jurisdiction of the Code.

International federations and national anti-doping organisations (NADOs) have previously faced issues when organising tournaments outside of the US that feature players from the US professional leagues. The Code obligates them to test all the players competing, yet is not clear what would happen if a player were to return an AAF.

Under the Code, the starting point for a ban would be four years. However, as US professional sports are not Code signatories, how any ban could be enforced would be problematic – especially as it would breach that league’s CBA. If the NADO were to attempt to sanction the player using the professional league’s system of game bans, it would be likely to face allegations of unfairness from other athletes, perhaps forcing WADA into an appeal that it couldn’t win.

Politics

With cooperation, the issue isn’t hugely complicated to sort out. “We crossed this bridge years ago, when we hosted the first tournament”, Dan Halem, MLB’s Chief Legal Officer, told The Sports Integrity Initiative in 2016. “The countries are members of the international baseball federation (IBAF), so the testing is conducted under their rules. Because it is an international tournament, they are tested through the IBAF. If a player tests positive, even if they are a professional player in our league, they are still subject to WADA sanctions. However, we would discipline them independently.”

Halem also shed some light on why the US professional sports are not keen on becoming Code signatories. “I think that having the flexibility to design our programme the way that we think it should be designed in our sport means that we have a stronger programme”, he said. “We meet with WADA and USADA on a regular basis to share information and cooperate. A lot of the criticism about why we didn’t adopt the WADA Code was back in the 2005/6 era, and we’ve evolved. Our programme is certainly one of the strongest programmes in the whole world in terms of PEDs. We spend over $10 million per year just on the analytical portion of it. We put a lot of time and money into it.”

As Halem points out, WADA and USADA meet with the US professional sports regularly to discuss such issues. So WADA is fully aware of the reasons why US professional sport hasn’t adopted the World Anti-Doping Code, and is aware of how players from leagues that are non-Code signatories can be sanctioned in compliance with the Code. 

So why has this issue again arisen towards the end of 2020? Why is WADA again criticising US professional sports for not being signatories to a Code it knows they cannot and will not sign up to?

Money and power. Firstly, the Office of National Drug Control Policy (ONDCP) recommended that the US should consider withdrawing funding from WADA due to its failure to reform. This led WADA into considering sanctions against signatories that do not meet funding commitments and – in a highly politicised move – to present two budgets to its Executive Committee meeting.

Secondly, US legislators have put the entire World Anti-Doping Code sanctioning system under criminal jurisdiction through the Rodchenkov Anti-Doping Act (RADA). Why does WADA see criminalisation as a threat? Because of a concept called the ‘specificity of sport’ recognised within European Union law. Sport argues (debatably) that this concept recognises that sport has special characteristics that require legislation that may fall outside of recognised European law. 

This has allowed the expert lawyers that work for sports governing bodies to carefully build a closed arbitration system, with no rights of appeal to ordinary courts of law. It allows a separate body of ‘sports law’ to develop, in which the previously mentioned lawyers are experts, having built the system themselves. An athlete, who is guilty unless they can prove they are innocent, goes into a fight with such lawyers completely unarmed.

The complacency that has developed within such a system was evident in the Sun Yang case – the first Court of Arbitration for Sport (CAS) hearing to be held in public. Under such a closed arbitration system, the corruption identified at FIFA and the International Association of Athletics Federations (now World Athletics) was allowed to continue. In both cases, only when criminal law intervened were corrupt officials removed.

In 2021, the anti-doping system hangs on a precipice. Either you support the status quo, or you want change. The US appears to be pushing for change and rather than engaging with its proposals, WADA appears to have resorted to attacking the US. The above is an attempt to illustrate why.

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