SII Focus 14th March 2019

WADA Symposium: Athletes make inroads into the WADA Code

The global athlete movement for recognition on sport’s governing bodies is gathering momentum. This was highlighted at the World Anti-Doping Agency’s (WADA) 15th Symposium, which took place from 13-14 March in Lausanne and involved a closed session for athletes to voice and formulate their concerns.

For the second time in its 15 year history, athletes were given a time slot on the agenda of the WADA Symposium, and there are signs that they are slowly getting recognition within, and representation on, the anti-doping body that governs them. WADA has committed to a single athlete representative on its Executive Committee in the future; and athlete concerns have been taken into account in the drafting of the 2021 World Anti-Doping Code, which will be finalised at the World Conference on Doping in Sport, which takes place in Katowice, Poland, in November.

However, although slow progress has been made, a number of concerns remain. In some areas, athletes still feel like second-class citizens, despite taking all of the risks involved in pursuing a lifetime dedicated to sport. There is still a perception that there is a ‘them and us’ approach to anti-doping regulation, not helped by recent anti-doping history.

“We sacrifice a lot”, explained Ali Jawad, who won a Silver in the Rio 2016 Paralympics in the -59kg powerlifting event, but took time out from training to attend the Symposium. “We are bound under very strict rules on a daily basis. We’ve got the most to lose. So we want the most say. We’ve been fighting for that for years. I think we’ll get there eventually. It’s a very slow process, but we’re making tracks. We are getting listened to, but we have to keep fighting for it. I am the type of person that will keep fighting for it until the majority are happy with how they are governed.”

Code Progress

There are encouraging signs in the draft of the 2021 Code (PDF below) that regulators have paid attention to the wishes of athletes. “We’ve been involved right through the process, with every change, no matter how technical”, Ben Sandford, a member of WADA’s Athlete Committee, told The Sports Integrity Initiative. “By having an athlete voice and an athlete perspective, everybody has been able to understand the issues that athletes are really concerned about; why they are concerned about them; and also the weight of concern.”

And athletes have managed to implement change. “There’s a lot of really good stuff that’s happening in this Code”, continues Sandford. “Things that we specifically pushed for to be included were bringing back multiple violation sanctions, tampering and results management standards. There are also other things to work on for the future – we haven’t quite got the ideal solutions to all the issues.” More on that later.

1. The ‘Protected Person’ & ‘Recreational Athletes’

“Having definitions around recreational athletes and the protected person is really important”, explained Sandford. “There were lots of athletes that felt strongly that in certain sports, if you are a 16 year old athlete who is competing internationally, and you are competing against a 19 year old athlete, you have received exactly the same education, you are competing in the same competitions week in, week out, then you have the same culpability and the same sanction. So where we’ve got to is a really good solution to that problem.”

Under the 2021 Code draft, a Protected Person is either under 16, or under 18 and is not included in a Registered Testing Pool (RTP) or has not competed in an international event. A person who lacks legal capacity, under applicable national legislation, to understand the provisions of the Code is also considered a Protected Person. 

A Protected Person charged with presence of a prohibited substance under Article 2.1 of the Code avoids having to show how that substance ended up in their system. This makes it easier for Protected Persons to establish No Significant Fault or Negligence, which qualifies them for a sanction ranging from a reprimand to a two year ban, depending on the assessment of guilt.

In cases involving trafficking or attempted administration, sanctions against Athlete Support Personnel will be considered ‘a particularly serious violation’ when they involve a Protected Person, and may result in a lifetime ban. The reporting of anti-doping rule violations (ADRVs) mandated by Article 14.3.2 of the Code is not required when a Protected Person or Recreational Athlete is concerned. So no more mandatory reporting of sanctions levied on 12 year olds for eating energy bars (more on this here).

2. Substances of Abuse & contaminant thresholds

The 2021 Code also includes Article 10.2.4, which mandates that when an ADRV involves a Substance of Abuse, and the athlete can establish that the use occurred out of competition and was unrelated to sporting performance, then an athlete can reduce a sanction to one month, if they agree to completion of a substance abuse programme. A Substance of Abuse includes prohibited substances that are abused in society outside of the context of sport, and are identified as Substances of Abuse on the Prohibited List.

“Substances of abuse is a huge issue, as is thresholds regarding common contaminants”, said Sandford. “But that issue has being going on since the beginning of the Code. We know what the most commonly found contaminants are, and now that the equipment is so sensitive that we can pick up picograms of something that is never going to help the athlete, then what are we doing. If we can find thresholds for these substances, then that would be good.”

Sandford was referring to the Code Science Working Group’s work on how to deal with trace contamination. Richard Young, Partner at Bryan Cave Leighton Paisner LLP and Lead Drafter of the Code explained that the sensitivity of equipment has advanced to be able to detect picograms of a substance in an athlete’s sample. In anti-doping terms, this is understood to mean that tests can now detect one trillionth of a gram (0.000,000,000,001g) of a substance.

Under the Code, any amount of a non-specified substance (i.e. most of the substances on the Prohibited List) constitutes an AAF, irrespective of whether it has any effect on an athlete’s physiology. Young used the example of hydrochlorothiazide, which resulted in an AAF from contaminated tap water.

3. Prize money redistribution

Another area pushed for by athletes was redistribution of prize money back to other athletes in cases where a winning athlete is convicted of an ADRV. Under Article 10.9 of the 2015 Code, the priority for forfeited prize money was repayment of costs awarded by the CAS. Under Article 10.11 of the 2021 Code, Code signatories must take ‘reasonable measures’ to return prize money to other athletes that would have been entitled to it. Given her story, Christine Girard would probably approve.

“We have had to work this through with the international federations, because they don’t want to be going through lengthly court cases in order to get their money back, and we completely understand that”, explained Sandford. “But if they do get the money back, it should be given back to the athletes that should have won the prize money in the first place.

“The federation has no duty to reimburse the athlete. We are not making that federation follow the athlete to the end of the earth. They don’t have to implement court proceedings to try and extract that money from them. If they do get the money back through the anti-doping results management process, there should be some way in which the athlete can get that money. We are just making sure that there is space in there that means if the money is retrieved, it does go to the athlete.”

This Article is not intended to impose an affirmative duty on the Anti-Doping Organization or other Signatory to take any action to collect forfeited prize money’, outlines the 2021 Code in WADA language. ‘If the Anti-Doping Organization elects not to take any action to collect forfeited prize money, it may assign its right to recover such money to the Athlete(s) who should have otherwise received the money. “Reasonable measures to allocate and distribute this prize money” could include using collected forfeited prize money as agreed upon by an International Federation and its Athletes.’

Remaining issues

As Sandford mentioned, there are many remaining issues that need sorting out. Fortunately, he has support. Jawad said that athletes have been discussing how the UN Charter applies to human rights in sport.

“It was fascinating the way in which it does relate to sport”, he explained. “What I took out of it was that the organisations that govern athletes have a responsibility to respect us too. I am willing to fight for that.

“Right now, I feel that for athletes to be heard in the way that we want, we need voting rights and we want a seat at the top table. Because, in essence, sport without athletes doesn’t exist. Organisations like the IOC, WADA and FIFA don’t exist without the athletes. So why can’t the athletes have the majority of the say in what goes on in sport?”

1. Sporting justice is rigged against athletes

One of the major problems is that whether intentional or not, the sporting justice system is rigged against athletes. Article 14.3.2 of the World Anti-Doping Code mandates that all ADRVs are published. However, Article 14.3.3 of the Code outlines that when it is determined that an athlete did not commit an ADRV, the decision ‘may be publicly disclosed’, but only with the consent of those involved.

Athletes have no say in whether an ADRV is published when they lose a case. But due to the wording of the above Articles, ADOs do get a say in whether cases they lose are published. This inequity results in a lack of published case law in favour of athletes that can be relied upon to provide a defence when an athlete is confronted with an adverse analytical finding (AAF) or charged with an ADRV.

“It’s an interesting discussion when you look at all the case law that’s being developed”, said Sandford. “It predominantly involves athletes who have been found guilty. There’s not a whole lot of good case law out there for athletes being exonerated of anti-doping rule violations (ADRVs). 

“Some of the cases that are not put into the public domain are fascinating and involve issues around whether the athlete was competing in-competition or out of competition. By looking at them, you can really build up a much stronger sense of what is happening in the global anti-doping community, and how the rules are playing out. But often, you just don’t see them because they are not publicly disclosed or released.”

“It would be good to have public disclosure, but then there’s a negative side to that where you have somebody who’s a low level athlete, and the public disclosure of their AAF is going to ruin their job as a Police Officer. So you have a really strong deterrent, but there are proportionality issues.”

The problem is compounded by the Athlete Agreement, which many sporting organisations require athletes to sign in order to participate in elite sport. The origins to the Athlete Agreement lie in Bye-law 6 to Article 44 of the Olympic Charter. ‘All participants in the Olympic Games in whatever capacity must comply with the entry process as prescribed by the IOC Executive Board, including the signing of the entry form, which includes an obligation to (i) comply with the Olympic Charter and the World Anti-Doping Code and (ii) submit disputes to CAS jurisdiction’, it reads.

This position is strengthened by Article 13.2 of the 2015 World Anti-Doping Code, which requires any signatory to accept the jurisdiction of the Court of Arbitration for Sport (CAS). This provision remains in the draft of the 2021 Code.

The origins as to why recourse to ordinary courts is prohibited lie in a nebulous concept called the ‘specificity of sport’. According to the European Commission, the specificity of sport ‘refers to the inherent characteristics of sport which set it apart from other economic and social activities, as recognised in the amended Treaty of the European Union in 2009’. The Treaty on the Functioning of the European Union (TFEU) states that the European Union ‘shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and educational function’.

In addition, the CAS doesn’t publish all decisions, and some of the ones that find in favour of athletes are published in image format only, rendering text searches impossible. An example is the Dutee Chand decision. Fortunately for athletes, doping.nl has been doing great work in collecting such decisions and making them text searchable.

The CAS is governed through the International Council of Arbitration for Sport (ICAS), which consists of 20 members appointed by sport. The 275 CAS Arbitrators (2007 figures) are appointed by ICAS for four years, but are ‘appointed at the proposal of the IOC, the IFs and the NOCs’, according to a history of the body. 

ICAS also ‘receives and manages the funds allocated to its operations’. The International Olympic Committee’s (IOC) Annual Report reveals (p142) that in 2016, it contributed US$7.6 million to the funding of the ICAS. Further information on how ICAS is funded is scarce. It is understood to be funded by Olympic organisations (IOC, ASOIF, AWOIF, NOCs) and by private parties, based on usage. 

‘As 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, head of WADA’s Compliance Review Committee (CRC). ‘And the Court of Arbitration for Sport has been set up to be that authoritative body’. However, the playing field in sport is almost never level.

Given that Sandford is a lawyer, he is probably aware of all of this issues and therefore, his comments are considered extremely measured. Also, there may be valid reasons for all of the issues outlined above. However, athletes can perhaps be forgiven for thinking that there is a conspiracy designed to weaken their defence, when they are faced with a doping charge. 

They would also have considerable ammunition to support the allegation of a conspiracy. That ammunition is further bolstered by additional inequities that remain in the draft of the 2021 Code. 

2. Sporting official sanctions ‘subject to national law’

Another point picked up by both Sandford and Jawad was that whilst it is great that the introduction to the 2021 Code outlines that ‘directors, officers, employees and volunteers of Signatories’ are bound by the provisions of the Code, a footnote specifies that ‘the obligation to require an employee to be bound by the Code is subject to the applicable country’s employment law’. As usual, the devil is in the detail.

“The Code should be applicable to Directors, Officers, employees, and volunteers”, explains Sandford. “I think that’s absolutely vital. You want people working in anti-doping that are subject to the Code. The part that we’re unhappy with is that if it’s an employee, then national employment law can trump the Code. This will be hard to resolve, but it’s a huge double standard. Employment law applies to athletes as well, yet we don’t get to rely on national employment law to avoid consequences or sanctions.

“You see athletes thrown under the bus all the time. I can’t say that you cannot sanction me because New Zealand employment law doesn’t allow me to. I will completely support this as it is, if this is all we can do. But I think that ideally it would be a level playing field so that if an employee is complicit and an athlete is complicit, they would receive the same sanctions and the same period of ineligibility. What we are working towards is universality of the rules.”

Jawad agrees. “How do you sanction athletes?”, he asks. “Do you sanction them within national law? All nations are different when it comes to sanctioning. Some nations have made doping illegal, so you could face criminal charges. Other countries don’t. As a global organisation, do you say that you support making doping illegal so that everybody is the same, or do you keep the status quo and try and incorporate coaches and personnel into the sanctioning regime?

“I would like it all to be the same, because they are all part of our network. For officials to have more rights than we do concerns me, because we are the ones that compete. It’s a difficult one, because the whole athlete support network is a relatively new thing. It has developed over the years, so we have to assess what it looks like at the moment and how we can improve on it. As athletes, we are always the ones that are going to lose the most, because we are the ones that compete.”

3. The athlete’s ‘B sample’

Article 6.7 of the Code mandates that an A sample or B sample given by an athlete can be split by the ADO concerned, for ‘good cause’. “Athletes have always felt really strongly about the B sample”, states Sandford. “When your B sample is being tested, you are allowed to be present, but when your B sample is split, there is no duty to invite you. 

“The other problem with the testing of the B sample or the splitting of the B sample is that the athlete might be on the other side of the world. From an ADO point of view, that often results in really long delays. From an athlete point of view, it is really costly. So one of the things we’re suggesting is to film or Skype, so that the athlete can see that their B sample is being opened or split in the correct manner.

“The athlete doesn’t have to actually be there. We should have the technology to manage this now.”

A voice too loud to be ignored

When briefing the media at the Symposium, WADA’s President Sir Craig Reedie was at pains to emphasise that WADA’s role is that of a regulator. As such, it is perhaps inevitable that it would listen to the concerns of those it regulates. It has taken a long time to get to where we are now, but how far things have progressed perhaps stands as testament to those who have been involved in educating athletes about their rights.

Having said that, there is still a long way to go. The issues outlined above only represent some of the inequity between athletes and the sporting federations that govern them. In terms of anti-doping, many of these were highlighted by EU Athletes in the tweet below.

Screenshot of Russia’s Ministry of Sport’s internet site, showing Kravtsov as Head of the CSP…

The World Players’ Association (WPA) has consistently called on WADA to implement the UN Guiding Principles on Business and Human Rights, as well as other measures. In the face of criticism from Jawad through Athletes for Clean Sport and from the Institute of National Anti-Doping Organisations (iNADO), WADA has now agreed to further modify governance reforms announced in November last year, but the perception lingers that athletes are under-represented on a body that – essentially – governs them.

Athlete perception of WADA’s role has not been helped by its handling of the Russian doping situation. By changing its demands to accommodate the reinstatement of the Russian Anti-Doping Agency (RUSADA) without Russia acknowledging State involvement, WADA has allowed officials implicated in State doping, such as Alexander Kravtsov, to remain in power. 

Detail on Kravtsov from Dr. Grigory Rodchenkov’s affidavit…

According to an affidavit from Dr. Grigory Rodchenkov, former Director of the Moscow Laboratory, Kravtsov was involved in discussions about the supply of erythropoietin (EPO) to the Russian biathlon team. He has been head of the Centre of Sports Preparation for the National Teams of Russia (CSP) since 2009 and remains in his post today. 

Meanwhile, Russian athletes who compete under the jurisdiction of the International Association of Athletics Federations (IAAF) and who were too young four years ago to have been involved in State doping, remain excluded from international competition. It also looks likely that they will miss the Doha 2019 IAAF World Championships. 

WADA is not in charge of sanctioning athletes or excluding them from competition. But through its suspension of RUSADA, it sent a strong signal that corruption would not be tolerated. That signal has now been compromised. Under the strict liability rules that apply to doping offences, it is hard to see how WADA would afford that same compromise to athletes. Lance Armstrong might still be competing, if the US Anti-Doping Agency (USADA) had afforded him the same level of compromise.

“Your assessment of the last two years is obviously accurate”, said Andy Parkinson, CEO of British Rowing but also Chair of the IPC Taskforce, to Reedie. “But the calmness with which you presented it, I am not comfortable with”. But as explained above, some good has come from a very messy situation. WADA’s compromise has spurred athletes such as Sandford and Jawad, as well as many others (as Callum Skinner’s Open Letter attests), to push for change. 

“The big consensus is to keep fighting for what you believe in”, said Jawad. “If you are passionate about things inside the organisation that are not going right, then raise it and you shouldn’t be afraid of that. As athletes, we have a huge voice, and it will be listened to. We just have to make it loud enough on a consistent basis, so that we are not ignored.” In the future, it seems almost impossible that would happen.

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