Demonising Justin Gatlin
13th September 2015
The 900 delegates at the World Anti-Doping Agency’s (WADA) annual Symposium in Lausanne heard that new International Standards are being formulated; new Articles introduced into the World Anti-Doping Code; governance reforms are being introduced; and athletes are gaining a greater – albeit limited – say in the organisation that governs them. “Anti-doping is extremely complicated”, was a phrase used by more than one delegate, as WADA prepares for its fifth World Conference on Doping in Sport, which takes place in Katowice, Poland from 5-7 November and will ratify the 2021 World Anti-Doping Code.
Athletes highlighted how anti-doping cases won by athletes at first instance are almost never published, making defending themselves against a doping charge additionally difficult. They also highlighted that WADA’s rules specify that sanctions covering officials specify that they are subject to national laws, whilst athletes are expected to surrender their rights and arbitrate all disputes at the Court of Arbitration for Sport (CAS), at the exclusion of national courts. More than one athlete mentioned that this compounded the difficulties with understanding the complexities of anti-doping regulation.
Governance changes proposed by WADA envision the possibility of an athlete representative on its Executive Committee in the future. The WADA Athlete Committee has developed a Working Group to examine how athletes can provide a truly representative person to sit on the WADA Executive Committee at a ‘progressive’ meeting last night.
Beckie Scott of the WADA Athlete Committee highlighted how long it had taken even to get to this stage. Today marked the 15th WADA Symposium, and Scott highlighted that athletes were given a time slot on the agenda for the first time just two years ago.
As illustrated above, anti-doping is getting bigger, but is it getting better? Delegates heard that 40% to 45% of adverse analytical findings (AAF) are inadvertent; that co-operation with law enforcement is crucial in exposing doping; and we already know that just 1.43% of doping tests results in an AAF. Yet in 2017, testing increased by 7.1% to 322,050 doping tests.
In 2015, then UK Anti-Doping (UKAD) Chairman David Kenworthy told the BBC that a standard urine test costs £371 and an Athlete Biological Passport (ABP) test costs £439. As such, using a lower cost of £350 for all tests, this would mean that at least £112 million is being spent annually on testing, or to look at it another way, each AAF costs over £24,000. And an AAF – or positive test – does not necessarily equal an anti-doping rule violation (ADRV).
“It has now been clear for a number of years that the strategy on anti-doping has moved away from testing”, said WADA’s Director General Olivier Niggli, who also announced that the Agency is developing prevalence studies to ascertain how many athletes continue to dope. “That’s why rather than having only testing, we now have the Athlete Biological Passport and investigations. Investigations are as important as testing – if not more important. There’s testing and testing. Testing still makes sense, but at least some of it needs to be based on intelligence. There are ways of refining results and making testing meaningful. No testing at all would be a hole in the system, but testing is not the only answer and it needs to be proportionate to the other methods.”
As events in Austria and Germany have brought into sharp focus, cooperation between the media, WADA and law enforcement can result in not only sanctions being brought forward against athletes, but against doctors complicit in supplying them. Even when the testing system flagged nothing suspicious about the athletes concerned.
“More anti-doping organisations are doing intelligent testing”, added Günter Younger, WADA’s Director of Intelligence and Investigations. “Intelligent testing takes time, because you need to gather all of the information. One of my main objectives is to reach out to police authorities, because we have something that they don’t have in terms of knowledge of sport, but we don’t have what they have, which is the powers of law enforcement to carry out house searches, etc.”
For the first time, athletes were given the chance to discuss issues relevant to them in a closed session, which WADA outlined would allow them to talk freely. Ben Sandford, a member of the WADA Athlete Committee, outlined how there was much to welcome in the 2021 Code, including:
• New provisions to cover multiple violations, tampering & results management;
• Recording of any splitting of an athlete’s B sample;
• New provisions covering substances of abuse, trace contamination and prize money redistribution; and
• New definitions of Recreational Athletes and Protected Persons.
However, he also highlighted that sporting officials should be held to the same standard as athletes under the Code. He said that this principle of sanction equity is undermined by a provision outlining that sanctions applicable to officials are ‘subject to national law’, a luxury that athletes are not afforded. He also explained how athletes are disadvantaged due to the non-publication of cases won by athletes at first instance – in other words, dismissed. He expanded on these points in an interview, which will be published on The Sports Integrity Initiative soon.
The Anti-Doping Charter of Athlete Rights will be referenced in the 2021 Code, and will include 14 Articles. Sandford outlined how athletes can contact WADA and ask them to enforce the Charter if – for example – they are not receiving adequate levels of education as mandated in the Charter. However, if WADA decides that there is no case to answer, athletes do not currently have a right to appeal. Sandford argued that an Athlete Ombudsman is necessary to bridge this gap.
As mentioned, WADA will approve the 2021 World Anti-Doping Code at the fifth World Conference on Doping in Sport in Poland in November. But this is only part of the story. WADA is introducing an International Standard for Results Management (see picture on right) for the first time, as well as an International Standard for Education, and is also working on revisions to its six existing International Standards.
As such, many amendments are being sifted through. For example, Yaya Yamamoto of the Japan Anti-Doping Agency (JADA) outlined that 160 comments have been received on the International Standard for Education alone, which will be discussed at an Education Committee meeting in April.
Richard Young, Partner at Bryan Cave Leighton Paisner LLP and Lead Drafter of the Code, explained some of the major changes. Perhaps most interesting is the revelation that the Code Science Working Group is working on how to deal with trace contamination. Under current anti-doping rules, any amount of most substances present in an athlete’s sample can constitute an ADRV, despite the fact that the sensitivity of equipment has advanced to be able to detect picograms – in other words, a sugar cube dissolved in an Olympic-sized swimming pool. Young used the example of hydrochlorothiazide, which resulted in an AAF from contaminated tap water.
Articles 2.11.1 to 2.11.3 will allow those guilty of intimidation of, and retaliation against, whistleblowers to be sanctioned with an ADRV. A new definition entitled ‘Protected Persons’ will allow sanctioning flexibility when dealing with young people or those with a cognitive impairment. A similar flexibility will be provided when sanctioning those who can prove they fall under a new definition of ‘Recreational Athlete’.
Young outlined that NADOs and sports governing bodies are free to use a stronger definition of a ‘Recreational Athlete’ than that provided in the Code. However, he highlighted that this could create sanctioning issues when the definitions mandated by a NADO don’t match those mandated by a sporting federation.
Particularly interesting is Article 20.3.4, a new provision that would allow an athlete charged with a doping offence to automatically reduce a sanction from four to three years if they promptly admit to intentional doping. It will be interesting to see if this provision is used in practice, if it is included in the final draft approved that the November World Conference on Doping in Sport.
The International Standard for Results Management (ISRM), drafted by Ross Wenzel of Kellerhals Carrard, outlines that no more than six months should pass between the initial review/notification to a decision. This is interesting because Wenzel was WADA’s Counsel in the Gordon Gilbert decision, where ten months passed before Gilbert was notified of his AAF. Perhaps Gilbert’s case is indicative of why this limit has been introduced.
WADA is getting bigger. It now involves over 120 people and a complex regulatory system involving a Code, International Standards and a Prohibited List, as well as an electronic Anti-Doping Administration and Management System (ADAMS) to centrally record results as well as athlete locations for testing. The next generation of ADAMS is also currently being developed. Over 3,700 corrective actions were implemented as a result of its Compliance Monitoring Programme.
The regulation of anti-doping has become complex and confusing – fertile ground for lawyers. However, as social scientists have neatly illustrated, more anti-doping doesn’t necessarily mean better anti-doping.
Niggli outlined that the four investigations WADA conducted into Russia cost US$3.9 million. WADA insists that Russia complied with its updated demands regarding access to the Moscow Laboratory, although there is debate about this. ‘There was a strong sentiment that the Russian acknowledgement of the IOC decision based on the Schmid Report was enough, and we could not hold out for more’, wrote Jonathan Taylor, Chair of the Compliance Review Committee that made the recommendation to reinstate the Russian Anti-Doping Agency (RUSADA) to WADA, in an email.
WADA’s result from spending that $3.9 million has been to get 24 terabytes of information and over 1.5 million documents out of the Moscow Laboratory. The Laboratory Information Management System (LIMS) and the samples that remain in the Laboratory have been under the protection of Russian authorities since they launched an investigation in June 2016. If WADA’s four investigations are correct and Russian State authorities manipulated the doping system, then WADA had better be certain that they can prove that such manipulation stopped in June 2016.
WADA is certainly keen to move on. “Every big scandal provides great opportunities for change”, said Younger. “From crisis we learn, we adapt, we grow stronger”, added Niggli. “We can either go on dissecting what didn’t go as we liked, pointing fingers, or we an go on to develop a truly effective anti-doping system.”
“Anybody who believes that by resolving a doping crisis in Russia you can change the whole culture in Russia is naive in the extreme”, said WADA’s President, Sir Craig Reedie. “This has been a complicated period. We have been in the middle of one of the biggest political stand-offs in world political affairs for the last three or four years. Ambassadors are being dismissed, people are being hacked, and in different countries, very serious crimes are being committed. And in the middle of all of this, we have been successful in getting the data that we required.”
In November, WADA will elect a new President to replace Reedie. It remains to seen if sporting federations will profit from WADA’s herculean task of going through all of the information retrieved from the Moscow Laboratory before November. As such, whether Reedie’s legacy will be determined by the decision WADA took in The Seychelles last year remains to be seen.
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