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Features 6 November 2019

WCDS Day One – 2021 Code: more flexible, but challenges remain

Andy Brown [email protected]

The 2021 World Anti-Doping Code offers anti-doping organisations (ADOs) more sanctioning flexibility than previous editions, however challenges remain in drafting a document that pleases all, heard over 1,600 delegates attending the World Conference on Doping in Sport in Katowice, Poland. Concerns were raised about use of anti-doping samples for gender verification purposes; how third parties that are delegated anti-doping responsibilities are bound by the Code; and more.

Sir Craig Reedie, President of the World Anti-Doping Agency (WADA), outlined how “elements in the system” had failed in dealing with the Russian doping crisis, and that a regret was prioritising regulatory compliance over operational compliance. Reedie admitted that when the Russian crisis broke, it was “not equipped” to deal with such a large scale problem, however its International Standard for Code Compliance by Signatories (ISCCS) had changed that.

As Hajo Seppelt, the German journalist who brought the crisis into the public domain understands, Russia only answered 23 of WADA’s 31 questions regarding inconsistencies in between the data retrieved from the Moscow Laboratory in January and that provided to WADA by Tim Sobolevsky, Dr. Grigory Rodchenkov’s assistant at the Laboratory, in November 2017. Seppelt understands that WADA’s Compliance Review Committee (CRC) has a meeting scheduled for 17 November, with a WADA Executive Committee meeting scheduled for 9 December in London. Reedie is due to be replaced by incoming WADA President Witold Banka on 8 November, so his words about the ISCCS providing an effective took to deal with the issue are unlikely to come back to haunt him.

“My observations tell me that the fight for clean athletes is not in the best place it could be at this time”, said John Fahey, former President of WADA. He pointed out that over 280 Russians had competed during the Rio 2016 Olympics, and 169 at the PyeongChang 2018 Winter Olympics. “That is an ineffective sanction for systemic doping”, he said. “RUSADA [the Russian Anti-Doping Agency] was allowed back in before what was demanded was handed over”. 

Linda Helleland, WADA’s outgoing Vice President, added that WADA now has a possibility to handle the Russian case “appropriately” and “re-establish accountability”. She said that an organisation that can embrace differences of opinion – such as those that exist on how to handle the situation with Russia, will emerge stronger.

Thomas Bach, President of the International Olympic Committee (IOC), appeared to suggest that WADA should explore the idea of making the delegation of their testing programmes to the International Testing Agency (ITA) part of their compliance monitoring. “It is very encouraging that 41 International Federations have already established partnerships with the ITA”, he said. “This is a promising start, but to safeguard the long-term credibility of sport, we need to go even further. This is why we call on all International Federations to follow our lead and fully delegate their entire testing programmes to the ITA and sanctioning to the CAS Anti-Doping Division. This is fully in line with the spirit of the new ‘WADA International Standard on Results Management’, which is to be adopted this week. 

“There must be a level playing field for all athletes on a national level as well. In this context, we would like to encourage WADA to look into this matter and to make it part of their compliance monitoring. 

“This is to ensure that also on the national level, all elite athletes, irrespective of the sports organisation, college, university, commercial entity or professional league they belong to, are all subject to the World Anti-Doping Code and their respective NADO. The same principle of a level playing field for national and international athletes must apply to any kind of legislation or rules in any country. There can be no different standards. There must be the same WADA standard for everybody.”

Funding

The subject of funding anti-doping was, understandably, a persistent theme. “We are close to the critical point”, said Banka. “We must do everything that we can, and sometimes take difficult decisions. In certain cases, only pressure regarding non-compliance with the Code can effect change.”

Banka said it was “ridiculous” that, given the expectations for the organisation, WADA has a budget of just US$40 million. “An average football club has a bigger budget”, he pointed out.

Bach pointed out that alongside governments, the IOC had approved a 47% cumulative budget increase from US$30 million in 2017 to US$44 million by 2022. He also pledged up to US$10 million for a four point action plan. First, it has pledged US$5 million to finance long term storage facilities that will enable international federations to store samples collected during the pre-Games period for ten years. 

Secondly, the ITA will collect samples to be analysed using the new genetic sequencing method from Tokyo 2020 onwards. The samples will only be analysed when the new genetic sequencing test is fully validated. 

Thirdly, the IOC has pledged $2.5 million to the WADA research budget, if governments agree to match that amount. Fourthly, it has pledged $2.5 million towards strengthening the WADA Intelligence and Investigations unit.

Banka and Dr. Peter van Eenoo, of Ghent’s DoCoLab, again called for sport’s partners – such as governments, federations, sponsors, broadcasters – to commit 1% of their budgets towards fair sport. Brett Clothier, Head of the Athletics Unit (AIU) warned that the danger of relying on others to fund anti-doping is that nothing gets done. He pointed out that the AIU had invested $250,000 in the creation of a blood analysis laboratory in Nairobi, as it couldn’t continue to wait for the Kenyan government to invest.

The Code

The main item of business at the World Conference on Doping in Sport is the drafting of the 2021 World Anti-Doping Code. The final draft of the Code (PDF below) is to be finalised at the Conference, presented for endorsement by the WADA Executive Committee and Foundation Board on 7 November, and will come into force on 1 January 2021.

It is possible to detail the 3,243 changes that have been made to the 2015 Code, which WADA has meticulously documented. But for the sake of reader sanity, it is perhaps prudent to pick out some of the main issues that were under discussion on the conference floor.

WADA’s summary of the main changes are featured below. Richard Young of Bryan Cave Leighton Paisner, who led the drafting of the first World Anti-Doping Code in 2003, mentioned a number of “elephants in the room” that have been addressed in the 2021 Code.

These include how delegated third party testing authorities, such as the ITA, are dealt with by the Code (introduction & Article 20); how to deal with situations such as those that occurred with Russia and the International Association of Athletics Federations (Article 24.1 – i.e the International Standard for Code Compliance by Signatories); dealing with sanctions from retesting of samples (Article 10.9); Substances of abuse (Article 4.2.3); and contamination (Articles 7.4.1 and 10.6.1.2).

The 2021 Code also introduces a lighter sanctioning regime for Protected Persons, such as those under the age of 16 (or 18 but not competing internationally) or those lacking legal capacity under national legislation. Where an anti-doping rule violation (ADRV) involves a substance of abuse and an athlete can demonstrate that ingestion took place outside of competition and was unrelated to sporting performance, then a sanction can be reduced to three months or one month, if they complete a treatment programme.

If an athlete admits to an anti-doping rule violation (ADRV) carrying a four year sanction (or more) and accepts that sanction within 20 days, an ADO can offer a one year reduction. In addition, if an athlete accepts a case resolution acceptable to both the ADO and WADA, then their sanction can be cut in half. It is understood that these measures are designed to save ADOs time and costs in processing doping cases.

These are just some of the changes. However, as mentioned, issues remain. Article 20 covers how third parties that are delegated certain responsibilities under the Code are bound by it. 

In the 15 July draft, all third party service providers had to agree to be bound by the provisions of the Code. However in the October 2018 version and the final draft, this had been changed to an agreement ‘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’. Delegates raised concerns that amendments to this Article had limited the scope of those covered by this Article to only those directly involved in doping control, and may allow organisations to supplant the Code with their own rules and regulations.

In addition, concerns were raised about a comment to Article 23.2.2 of the Code, which mandates that anti-doping test results can be used to monitor the testosterone levels of transgender athletes and, potentially, those with a difference of sex development (DSD athletes). During Caster Semenya’s challenge to the IAAF’s DSD Regulations at the CAS, concerns were raised that athletes had not given consent for their anti-doping samples to be used in this way.

“There’s always been a provision in the Code – and you can find it in the 2015 Code – that you can use anti-doping samples for disciplinary and health purposes”, explained Young. “It was brought to our attention that yes, there is a new requirement for testing which is the gender verification regulation which says that the testosterone level has to be below ‘x’ for a period of time. That would seem to be the same type of legitimate use as safety rules, health reasons and code of conduct rules. You probably could have done it under the existing Code language, but why not put it in writing?”

‘No Sample may be used for research without the athlete’s written consent’, reads Article 6.3 of the 2015 Code. ‘Samples used for purposes other than Article 6.2 [detection of prohibited substances] shall have any means of identification removed such that they cannot be traced back to a particular athlete’. As such, you may have been able to use samples in this way under the 2015 Code, but it would appear to have presented a challenge. It would appear that challenge has now been removed.

Article 6.3 remains in the 2021 Code, however it contains footnotes. As explained in the Twitter thread above, these link to Comments on Article 23.2.2, which state that doping samples can be used to monitor the testosterone levels of athletes to monitor eligibility.

Catching the cheats

Traditionally, ADOs have been financed to catch athletes cheating. However relatively recently, it has been recognised that athletes are usually not the ones that direct doping conspiracies. Bach expressed his frustration that the UNESCO  Conference of Parties (COP) to the International Convention against Doping in Sport had rejected the ‘Guidelines and framework on consequences for the UNESCO Convention on Anti-Doping in Sport’ last week.

“This is a missed opportunity for government authorities to fill this void and to step up to their responsibility to sanction everybody who is implicated in a doping case in a robust and deterrent way – and not only the athletes”, he said. “We urge the UNESCO member states to re-consider this question as soon as possible”.

Bach said that the reason he is disappointed is because the IOC only has jurisdiction over the Olympics, as the CAS’s rejection of its attempt to sanction former Russian Minister of Sport, Vitaly Mutko, had painfully made clear (click here for judgment). As such, the anti-doping community needs help from governments in order to be effective.

“When, for example, the IOC is identifying a doctor implicated in a doping case, the only thing we can do is to send the doctor home from the Olympic Games and maybe exclude him from future editions of the Games”, he said. “But after the doctor goes back home, in most cases, he can just continue with his nefarious business without any consequences. This is not acceptable. This is the wrong signal. This needs to be changed.”

Bach’s comments were thrown into sharp relief by Polish President Andrzej Duda and Franz Schwarzenbacher of the Austrian Criminal Intelligence Agency. Duda said that as well as constituting stealing, doping focussed attention not on real achievement, but on those who “poison their body”. Schwarzenbacher said that Dr. Mark Schmidt, the German doctor at the centre of the Operation Aderlass doping investigation, had treated over 30 athletes between 2011 and 2019 using autologous blood doping, sometimes twice a day, also using erythropoietin (EPO) and growth hormone. 

He said that Dr. Schmidt had used a “powder” on athletes that had caused them to “collapse”. When he asked Dr. Schmidt how he had transported blood to Korea for the PyeongChang 2018 Winter Olympics, he said that he had infused it into athletes ahead of a ten hour flight. “All of the athletes were tested many times, and all of the tests were negative”, he said. “There is a gap in the system”.

Schwarzenbacher explained that this gap was because blood would be infused into the athletes one hour before competition, and taken out half an hour after a race. Van Eenoo said that this method creates a problem for testing authorities, because testing athletes so close to competition interferes with their preparation for the event, and corrupt doctors know this and exploit it.

Van Eenoo pointed out that science has its limitations in tackling anti-doping. “The Prohibited List is expanding at an incredible rate”, he said. “We will need more indirect methods, such as passports”. He pointed out that while technology and detection methods are also expanding at an incredible rate, the system is only as strong as its weakest link. He pointed out that although dried blood spot testing is seen as a cheaper method of anti-doping, this perception is incorrect, as it cannot replace urine or blood testing. It could be an additional cost, unless it is accompanied by an intelligent tasing programme.

Young later pointed out that although athletes may be able to get away with certain doping methods today, athletes using such methods are creating a “ticking time bomb”, as ten year storage for sample retesting means that they are likely to be detected in the future. “That is a powerful deterrent”, he explained.

Cat & mouse

The above illustrates how the anti-doping regulatory system has created a game of cat and mouse between those who are determined to cheat and those seeking to catch them, in attempting to stay ahead of developments. It would appear that the 2021 Code has taken great strides in removing the perception that athletes should always be blamed and sanctioned heavily for doping offences, a position that anti-doping authorities have been guilty of taking in the past. That is an educative function for which WADA should be proud. It is not only athletes that need educating.

But challenges remain. Intelligent testing programmes appear to be the only way to catch out intelligent and determined cheats, such as Dr. Mark Schmidt. How WADA has dealt with the Russian doping crisis continues to drive a wedge between the Agency and the athletes it purports to represent. As Fahey pointed out, WADA needs to ensure that decisions are taken by athletes, rather than on behalf of them. A step towards this might be to provide equal representation to them on WADA’s Executive and Foundation Boards.

WADA has a new, young, President who has only relatively recently stopped competing. Its incoming Vice President, Yang Yang, is also an ex athlete. Perhaps they will be able to navigate a way forward.

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