Demonising Justin Gatlin
13th September 2015
The World Anti-Doping Code needs adapting for team sports, whose international federations are well placed to handle the peculiarities particular to their testing programmes, heard delegates at Day Two of the UEFA Anti-Doping Symposium, which took place in London on Friday 23 November. It was argued that strict requirements in the Code covering issues such as the number of athletes in a Registered Testing Pool (RTP); the number of tests required to be performed on them; whereabouts filing requirements; and other issues are hindering international federations from adapting team testing programmes to catch doping cheats.
Delegates also heard about potential changes to the World Anti-Doping Code that will be put forward in the third draft of the 2021 Code, due to be completed in May next year. A final draft will be completed in September for submission to the World Conference on Doping in Sport in Katowice, Poland, in November. These include:
• A possible reintroduction of the ‘substances of abuse’ clause that was removed from the final draft of the 2015 Code;
• A possible requirement that athletes sanctioned with an anti-doping rule violation (ADRV) provide education to other athletes;
• The possible introduction of an ADRV for retaliation against whistleblowers;
• ‘Substantial assistance’ may encompass integrity areas outside of doping (such as match-fixing); and
• The drafting of a separate International Standard for Education (ISE) that will be presented in Katowice.
Other topics included:
• The human cost of anti-doping policies on athletes;
• Whether the current approach to anti-doping education is effective;
• How doping prevalence studies can inform intelligent testing;
• Measures taken by the World Anti-Doping Agency (WADA) to deal with non-compliant organisations.
Delegates heard that the World Anti-Doping Code fails to adequately define team sports, and is inflexible in allowing team sports to adapt the Code in order to catch more doping cheats. Appendix 1 of the Code (page 145) defines Team Sports as ‘A sport in which the substitution of players is permitted during a Competition’.
This definition means that 3×3 basketball is classed as a Team Sport, but the six members of a synchronised swimming ‘team’ are considered individual athletes, pointed out Andreas Zagklis, Legal Counsel at the International Basketball Federation (FIBA). As Article 11 of the Code only requires a team to be sanctioned if two or more Team Sport members return an AAF, Zagklis argued that the above definition can result in inconsistencies in sanctioning.
Zagklis argued that the structured seasons within which most team sports operate combined with WADA’s requirements for a certain number of players to report a certain number of tests as part of an RTP leads to a certain level of predictability. The team sports federations agreed that in-season testing through the RTP is unlikely to catch doping cheats because of this predictability. “These are not athletes that are going to be cheating”, pointed out Ashley Ehlert, Legal Director of the International Ice Hockey Federation (IIHF).
Zagklis said that the risk that players may be tempted to use prohibited substances is higher in the off season, when they are working out to stay in shape, and know that they are not as likely to be tested. “This is where we need to start testing”, he argued.
The Code mandates that athletes who are in an RTP must file ‘whereabouts’ information indicating where they will be available for testing for one hour in every 24, three months in advance. Ehlert pointed out that due to the knockout nature of some team sports competitions, such information can become out of date very quickly.
Federations managing team sports know where their players are and can easily randomly test players during the season due to match and training requirements, said Zagklis. This also provides team sports with a testing window that is much longer than the one in every 24 hours required by WADA.
Team sports would like to be able to reduce whereabouts requirements during the season, and operate increased whereabouts and out of competition tests during the off season, argued Zagklis. But the Code does not currently provide team sports with the flexibility to adapt their testing programmes in such a way, he said.
Zagklis also explained that ordinarily, the team has the same interest as the player in ensuring that whereabouts requirements are up to date. However, there is a danger that clubs could manipulate the current system in order to get rid of expensive signings that are either injured, or unproductive, he argued. Failure to update a player’s whereabouts or tell a player to update their whereabouts could lead to the end of an expensive contract, he explained.
“Statistics show that a player will be transferred if he tests positive”, said Zagklis. “The problem ends up with the international federation, which has to sanction the transfer certificate”. He explained that often, documentation relating to an AAF is sent to a player’s old address after he has transferred, or to his old club. The international federation then has the problem of approving a sanction against a player without knowing whether they have had a chance to defend themselves, he argued.
Zagklis also pointed out that Article 10.11.3.4 of the Code mandates that ‘where a period of ineligibility is imposed upon a team’, without any equivalent provision mandating team ineligibility existing in the Code. He said that the Code provides that Team Sports may be disqualified from an event if more than two members test positive, but event organisers – not international federations – can disqualify a team if just one athlete tests positive.
He also pointed out that Article 11 defines that event organisers should implement an ‘appropriate sanction’ if two team members test positive, but determining this sanction can be problematic. For example, what if a team member reports an AAF, but doesn’t play in a tournament? What if one of the players scores the crucial goal? What would the ‘appropriate sanction’ be?
“We cannot say that there is no doping in football”, said Michel D’Hooghe, Chairman of FIFA’s Medical Committee. “What we can say is that there is no doping culture in football, which unfortunately still exists in certain sports”.
Carlos Schneider, UEFA’s Legal Counsel, picked up on this theme. He outlined that as team sports such as football combine skill with physiology and the outcome is dependant on the whole team, the dynamics of doping are perhaps different from those in play in sports such as weightlifting, where physical strength is the crucial factor. “We don’t have EPO cases, but we do have cases involving recreational drugs”, he said.
Schneider explained that in certain cases, Panels at the Court of Arbitration for Sport (CAS) have accepted that there was no intention to cheat without an athlete having to prove the source of the prohibited substance, even when traditional doping substances such as stanozolol are involved. He said that banning ‘recreational’ drugs is a recent development from the 1990s onwards, and is considered controversial because:
• it infringes on areas covered by criminal law;
• has an impact on the personal lives of athletes; and
• there is scientific disagreement about whether some ‘recreational’ drugs have a performance benefit.
Using case law, Schneider said that in case where ‘recreational’ drugs are involved, CAS Panels have been prepared to reduce a ban below four years and sometimes below two years, if an athlete can prove that dependency or addiction were mitigating circumstances. Schneider explained that as cocaine is metabolised very quickly within the human physiology, proving that use was unrelated to sport may be easier than with other ‘recreational’ drugs.
In cases involving cocaine, if the concentration of cocaine is larger than its metabolites, then this shows that ingestion must have been recent. As cocaine is prohibited in competition, athletes may be able to argue for a reduced sanction if they can demonstrate that they took cocaine over 24 hours before a match, and the context of use was unrelated to sport.
Richard Young of Bryan Cave Leighton Paisner, a lead drafter of the 2021 Code, later said that this is one of the changes to the Code currently being examined by drafters. “This is a problem that we can solve”, he explained.
Inconsistency regarding sanctions for recreational drugs can also prove a problem, pointed out Zagklis. He said that during the last year, FIBA has been asked to approve an eight month ban in Italy; a two month ban in France; and a four year sanction in Israel, all involving cannabis. “We have to recognise these decisions, unless we go to the CAS and pay to appeal”, he pointed out.
Another issue highlighted is one particular to US sports that are not Code compliant, but whose players also take part in competitions outside of the US. Players can be issued with a 20 game ban for a stanozolol positive by a US professional league that is not a Code signatory, but then arrive in Europe to take part in a competition where they would have received a two or four year sanction for the same offence.
Zagklis revealed that FIBA had been threatened with Federal prosecution in the US due to a confidentiality clause within the National Basketball Association’s (NBA) Collective Bargaining Agreement (CBA) with its players. FIBA had attempted to ascertain test results from the Montreal Laboratory relating to a player, but had to anonymise the sample and attempt to trace it back to the player involved, he said.
Ehlert said that the IIHF tests the Kontinental Hockey League (KHL), which is based in Belarus, China, Finland, Latvia, Kazakhstan, Russia, and Slovakia. She argued as the IIHF is far removed from the players that compete in the KHL, it relies on the knowledge of local NADOs in order to conduct targeted testing.
Delegates heard that although more needs to be done to ensure that coaches and doctors are familiar with the requirements of the Code and the Prohibited List, team sports are very reliant on team organisation. For example, team doctors are responsible for medical treatment of an entire team. They have to ensure that treatment doesn’t involve prohibited substances or, if it does, that the correct Therapeutic Use Exemption (TUE) has been applied for.
Delegates were also shown four cold treatments, two of which would result in an AAF. It was highlighted that an athlete’s personal doctor, who might recommend such a treatment, might not be as familiar with the nuances of the Code as a team doctor.
WADA, as a global regulator, must have jurisdiction to take appropriate action against signatories that do not comply with the Code, pointed out Liz Reilly of Bird & Bird. She outlined the action that sporting bodies had taken following the discovery of the systemic doping system within Russia.
Dr. Paul Dimeo of Stirling University highlighted the gap between prevalence studies, which indicate that between 20% and 50% of elite athletes are doping and testing figures which in 2017, showed that 1.43% of tests result in an AAF (2016, 1.6%). He pointed to a study by Olivier de Hon of the Dutch Doping Autoriteit, which found that 40% of 4,500 AAFs either involve substances that are not considered performance enhancing, or ‘recreational’ drugs.
“What are we catching?” he asked. “There is a human cost to anti-doping. These are policies about people.”
Dimeo highlighted a long list of cases involving Laboratory errors; medications; weight loss drugs; social drugs; contaminated meat; contaminated water; accidental ingestion and more. The athletes concerned included Stephen Colvert; Therese Johaug; Chris Froome; Adrian Mutu; Jason Livermore; Kristen Shaldybin; Sara Errani; Nicklas Backstrom; Paola Pliego; Jeff Hammond; Yasuhiro Suzuki; Mamadou Sakho; and more.
“Substantial reform is needed”, argued Dimeo. “If anti-doping wants to raise its game, that will mean a greater impact upon athletes. Education therefore needs to be better. It is my view that no athlete should fall under the remit of the Code unless they have been fully educated.”
Dr. Martial Saugy of the Swiss Laboratory (CHUV) pointed out how the conclusion of social science prevalence studies is that biological testing underestimates the true prevalence of doping. However, Saugy and Marjolaine Viret of the Université de Neuchâtel outlined how biomarkers within the Athlete Biological Passport (ABP) could be used as an indication of doping prevalence in athletes subject to the ABP programme.
Richard Young of Bryan Cave Leighton Paisner, the lead drafter of the 2021 World Anti-Doping Code along with Liz Reilly of Bird & Bird, highlighted some of the major changes planned. Young pointed out that the document is not WADA’s Code, but is based on submissions from stakeholders.
Emily Wisnosky of the Université de Neuchâtel pointed out that although the Code is formulated using comments from stakeholders, the 2015 Code Review involved six drafts, and stakeholders only had an impact on the last two drafts. “Despite fifteen years of the Code, it is still difficult to tell when and how the principle of proportionality should apply”, said Wisnosky. “The CAS could help make the Code a more proportionate document and define the mechanics of proportionality”.
Wisnosky warned that an escalation in inadvertent doping cases risked creating a “negative feedback loop” at the CAS. She explained that CAS Panels often include a passage in the award outlining that the principle of proportionality only applies in “rare” or “exceptional” cases. If the question of whether the circumstances are “exceptional” is the test of whether to apply the principle of proportionality, this would mean that the more normal it is for Athletes to be caught for inadvertent or non-doping conduct, the less exceptional or rare these circumstances become, and then CAS Panels may be less likely to apply the principle of proportionality.
During Day One of the conference, delegates also heard that the European Court of Human Rights (ECHR) could take the view that an escalation of rules and sanctions represents an erosion of proportionality and athlete rights. The ECHR has already stated that it considers CAS arbitration as forced arbitration, as the Athlete Agreement may not be compatible with Article 6§1 of the European Convention on Human Rights. This is because athletes must sign it in order to compete in elite sport, and it ties them to resolving all disputes at the CAS.
A possible change discussed was the re-insertion of the ‘substances of abuse’ clause, which was dropped from the 2015 Code at the last minute. Young said this would mandate that if an athlete can prove that use was outside of competition and the context of use was social and not intended to enhance performance, then the period of ineligibility would be three months. That three months would be able to be reduced down to one month with an agreement to enter counselling or treatment, Young explained.
Another amendment being considered would allow those subject to the Code to be sanctioned for retaliation against whistleblowers. Another option being considered is allowing athletes to reduce their sanctions for providing ‘substantial assistance’ to sports integrity cases that do not involve doping. At present, under Article 10.6 of the Code, an anti-doping organisation may reduce the sanction applicable to an athlete if information that they provide helps lead to an ADRV. One proposal being considered is that this is extended to include information that helps in sanctioning an individual for match-fixing or corruption offences.
How these provisions might work in practice was a topic of debate amongst delegates. Views were given on difficulties with defining and proving ‘retaliation’ against whistleblowers, and formulating appropriate sanctions. Likewise, delegates suggested that it may prove problematic to reduce a sanction under the Code for information that helps convict an individual outside of the jurisdiction of the Code. It was suggested that the appeal process for this particular suggestion might prove particularly difficult.
Dr. Laurie Patterson of Leeds Beckett University explained that she had been part of a project in partnership with Ernst & Young that audited all the whistleblower programmes operating in anti-doping. The Report (PDF below) attempts to ascertain which methods of collecting information from whistleblowers are most effective, with a view to formulating future standards.
Another suggestion was that the terms ‘prompt admission’ and ‘timely admission’ under Articles 10.6 and 10.11 of the Code are replaced with an acknowledgement of an intentional ADRV. Delegates opined that due to the difficulties with the requirement for an athlete to prove how a prohibited substance ended up in their system, this might lead to athletes falsely admitting to intentional doping in order to reduce their sanction.
Young pointed out that improvements in detection methods had created issues due to the strict liability principle of the Code, which requires an athlete to explain how a prohibited substance entered their system, however small the quantity. He said that in cases of low level contaminants, it had been put to scientists that reporting thresholds should be raised. Young outlined that whether the Code’s definition of ‘atypical’ needs to be amended, as it only mentions endogenous substances (i.e. those produced within the human physiology, rather than those external to it).
If these changes are made, this would allow an atypical findings to be reported for low level clenbuterol positives rather than an AAF, Young explained, as these are likely to have been caused by contaminated meat. Reporting thresholds could also be introduced to address low level AAFs that may have been caused by contaminated products. Dr. Saugy pointed out that technically, this should be considered as a reporting level rather than a threshold.
Perhaps the most controversial proposal was the suggestion that a requirement to provide education be considered as part of a doping sanction. Dr. Patterson pointed out that if this were implemented, there was a risk that education from former dopers risked being perceived as a negative – i.e. something that athlete must provide rather than something they want to do.
Marc Vouillamoz, UEFA’s Head of Medical and Anti-Doping, explained that a draft of a new International Standard for Education (ISE) will be presented at the World Conference on Doping in Sport, Katowice, in November next year. UEFA is not a signatory to the Code, but Vouillamoz explained the initiatives it uses to educate footballers about the Code.
• A UEFA integrity application, which allows whistleblowers to report integrity issues anonymously;
• €10,000 in funding for National Associations to educate youth on anti-doping through the UEFA HatTrick programme from 2020-24, if the Associations meet UEFA’s criteria;
• A UEFA e-learning programme module dedicated to anti-doping;
• Outreach at youth tournaments (#EqualGame).
Vouillamoz pointed out that the Code’s stringent testing requirements had the effect of drawing financial resources away from education. “Athletes have a right to appropriate education about anti-doping”, he said.
Dr. Laurie Patterson pointed out that Sir Craig Reedie, President of WADA, had recently said that it was better to educate athletes than to test and sanction them. However, she explained that WADA’s 2017 accounts revealed that it had spent US$838,475 on testing, and US$78,528 on education. She explained that on average, just one research paper per year is being produced examining athlete education on anti-doping, compared to numerous papers on testing methods.
As might be expected from an anti-doping conference involving a large proportion of lawyers, most of the issues that arose came down to inconsistency in anti-doping rules and how they are applied. However, many of the issues discussed are also particular to team sports – an issue which delegates felt the Code does not adequately address.
For example, it was argued that due to the structured season in which team sports operate, a sanction imposed at the start of a season could be viewed as harsher than one imposed at the start of the off season, as it may allow a player to return for the crucial end of season stage. Also, if a club suspends a player when he reports an AAF, no credit is given for this when eventually sanctioning the player for an ADRV.
The arguments put forward by the team sports are significant when considered alongside the topics debated on Day One of the UEFA Anti-Doping Symposium. This is because the ITA, which is funded by the IOC, highlighted that its mission is to persuade more international federations to delegate anti-doping entirely to the ITA. Day Two suggested that unless the ITA receives more staff and funding, this may be more difficult than envisaged.
Another issue is the upwards creep of sanctions under the Code, and the danger that this could spur European regulators to consider the proportionality of the Code. However, an alternative argument was heard suggesting that harsh sanctions spurs a proactive approach.
Alexis Schoeb, a member of the International Cycling Union’s (UCI) Arbitral Board, said that as the sanctions mandated on World Tour teams are harsh, this forces teams to get involved. If two riders report an AAF during a year, their team will be suspended from international competition for 15-45 days. If three report an AAF, the team will be suspended for up to a year. “The suspension has to be effective, but not too effective”, he said, pointing out that no suspension has gone beyond 45 days.
Given the perception that the percentage of elite athletes testing positive as a result of the testing system is well below the percentage that prevalence studies indicate are doping, it is also significant that admission of ‘intentional doping’ is being considered to replace ‘prompt admission’ and ‘timely admission’ in the 2021 Code. Such a change would allow anti-doping organisations to claim that they had caught intentional cheats, however it runs the risk that athletes may confess in order to avoid a lengthly ban.
Anti-doping organisations are already offering such plea bargains to athletes, as the Sonny Webster case indicates. Again, inconsistency is a problem. Jimmy Wallhead tested positive for the same substance as Webster, however the NADO supported his case by sourcing and analysing the supplement concerned, whereas Webster spent his life savings attempting to prove how ostarine ended up in his sample.
In conclusion, delegates heard that the World Anti-Doping Code needs adapting for team sports, but needs to be consistent in taking a global approach. An issue is that this may involve more regulations in the form of a longer Code and more International Standards, and such developments cost money. If the current testing-based approach is continued, there is a danger than increased funding will lead to more anti-doping, rather than more effective anti-doping, which is perhaps why changes to he Code have been suggested that would allow ADOs to claim that they are catching ‘intentional’ dopers.
WADA is funded 50% by governments, who agree on a level of funding which is then matched by the IOC. The reality is that unless WADA can show that anti-doping is becoming more effective, then austerity-pressed governments might start to wonder why they are continuing to invest.
• A review of Day One of UEFA’s 2018 Anti-Doping Symposium is available here.
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