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Is it time to move on from a WADA Code which is ‘one size fits all’?

TORONTO, ON – JUNE 19: Cheerleaders of the Toronto Argonauts perform as the Argonauts face the Hamilton Tiger-Cats in Toronto, Canada. (Photo by Dave Sandford/Getty Images)

The World Anti-Doping Agency (WADA) Code has had plenty of recent press in Australia courtesy of its role, albeit indirect, in the Essendon supplements saga. Yet WADA has a global role across a huge variety of sports in the fight against doping in sport. This post explores whether the WADA Code is trying to do too much given the multi-dimensional nature of its task.

More than 630 sporting organisations around the world have accepted the WADA Code. Who knew there were so many different types of sports? The IFC, or International Federation of Cheer Leading, is one of them. So too is the IeSF, otherwise known as the International E-Sports Federation (dedicated to electronic sports). The International Skateboarding Federation has also accepted the WADA Code.

These sporting organisations are a long way from the Olympic movement so pivotal to the creation of WADA. One must also ask how a Code directed to enforcing anti doping rule violations (ADVRs) for sports in the Higher, Longer, Faster categories can adapt to these less mainstream sports. The creators of the Code must surprise themselves at times, perhaps as they debate what kind of prohibited substances could improve use of a joystick in a game of WarCraft III: The Frozen Throne.

The terminology used in the WADA Code also gives away its Olympic origins. The Code does not apply to ‘sports people’ but to ‘athletes’. The concept of ‘athlete’ is certainly far removed from a ‘gamer’. That said, the IeSF describes gamers as ‘sportsmen’ in this pitch, so perhaps ‘athlete’ is the next step:

Video-game players are often termed geeks or nerds.

But have you ever considered calling them sportsmen?

Gone are the days when gaming was just about a speedy blue hedgehog or a rotund plumber with a moustache.

Does the WADA Code deal well with ‘circumstantial evidence’ cases?

Legacy issues concerning the inception of the WADA Code lead to more significant questions about whether it has been overtaken by modern doping detection practices. The Code was based on an assumption that doping violations could be ascertained by the presence of prohibited substances or markers in test results.

Yet over time, an acceptance has grown that circumstantial evidence is a more likely means of establishing a violation. The USADA Lance Armstrong investigation led to his eventual admission of guilt, even though he had never been sanctioned for a doping violation in the history of his cycling career.

In the notes to Article 2.2 of the WADA Code, it is stated that a violation may be established by any reliable means. Witness statements, admissions, documentary evidence, conclusions from longitudinal profiling and other analytical information may establish a violation.

The show cause notices issued by ASADA to 34 Essendon players illustrate the unfairness of the process where a circumstantial case is concerned. True it is, the anti-doping organization might have decided behind the scenes that the athlete has a case to answer. However, it need not yet disclose its hand. Instead, the athlete is required to ‘show cause’ why a rule violation has not occurred.

The show cause regime does make sense where the alleged ADRV concerns a positive test. There, the test speaks for itself. It is either positive or negative. In the case of a positive test, the athlete has a relatively straightforward decision to make. It can be a decision to argue no fault: “Gee, the waiter did say last night that the eye fillet came from [destination where beasts rampantly ingest clenbuterol], I think I have grounds to establish exceptional circumstances”.

Alternatively the athlete might decide to ‘fess up: “Okay, it’s clear that the medical experiment I conducted with Dr. [Interesting surname] behind the caravan off the beaten track of Stage 5 when I pretended to have a comfort break has not worked.”

However, the show cause regime does not make sense in the context of a circumstantial case based on interviews and other extrinsic material. If there is any doubt about what substance an athlete took, how is it fair for that person to be required to respond in the dark to the allegation?

There is also the administrative hassle. An athlete must start from scratch when preparing his or her response because the precise nature of the case is not known. All one can do is box at shadows. The anti-doping organization must then try to match the response to its own evidence. The parties’ arguments could pass like ships in the night! It is hard to envisage a more inefficient process.

In short, whilst the WADA Code promises fairness, primarily by providing a fair hearing in due course, the process leading up to that in a circumstantial case is arguably both unfair and inefficient.

‘Substantial assistance’ less likely with current show cause process

There is no incentive for an athlete to provide substantial assistance at the show cause stage.   This is because they are unable to assess the strength of the case they must meet.

For example, if the evidence shows that multiple team mates observed a player requesting a banned substance by name and then injecting it, this will be regarded as a strong case. Contrast this to a case of conjecture and ‘dot-joining’ which only needs one piece of evidence to fall away for the jigsaw puzzle to fall to bits.

Realistically, someone is far more likely to fall on their sword by dobbing in someone else if they are convinced the case against them is sufficiently strong that they otherwise face a lengthy ban.

It must be remembered that “substantial assistance” under the WADA Code (which has found corresponding expression in the AFL Code and the ASADA Act) involves help “which results in the Anti-Doping Organisation discovering or establishing an ADRV by another person or which results in a criminal or disciplinary body discovering or establishing a criminal offence or the beach of professional rules by another person.” (emphasis added)

It is therefore in the interests of the anti-doping organization, not just the athlete, to get the process right. The anti-doping organization will want to facilitate the supply of substantial assistance, which means the conditions for this to occur need to be right.

Is TRUST IN THE PROCESS HELPED BY the standard of proof?

Perhaps it could be said in support of the current process: “Well, we have a high standard of proof to discharge so you should have comfort that we’ve actually thought about it before issuing a show cause notice.” Let’s look at this.

True it is, the standard of proof is more in line with the test for professional misconduct. The organization must establish an ADRV to “the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation made”.

This test is said to be greater than ‘the balance of probabilities’ (familiar to civil lawyers) but less than ‘beyond reasonable doubt’ (the criminal standard). Yet how are we meant to assess these tests in the real world? The answer my friends, lies in “the vibe” (which is perhaps not very comforting at all).

Does the WADA Code deal with the dynamics of team sports?

The WADA Code is more consistent with the concept of athletes engaging in solo based activities rather than team sports. In keeping with the strict liability nature of the Code as it applies to every athlete, WADA says that if the banned substance is administered by medical personnel or a trainer, then Article 10.5.1 concerning No Fault or Negligence is unlikely to apply because one is responsible for choosing such personnel.

A tennis player who chooses his or her personal entourage will, of course, choose his or her own trainer or medical personnel. However, this is certainly not the case for an AFL football player (or those involved in professional team sports generally) who must acquiesce to one’s employer’s decisions in this respect.

complex interactions in the administration of the WADA Code

Finally, the WADA Code is not a linear model. We have seen the controversy and litigation which can arise when a sporting organization (the AFL) and a statutory body (ASADA) are each separate signatories to the Code, but choose to cooperate to aid the streamlining of what would otherwise be independent processes.

Reading the Commonwealth Games Federation (CGF) Anti-Doping Standard one is inclined to ask: Sound familiar? Not only are the rules concerning anti-doping rule violations (ADRVs) similar to what we have read in the AFL Code or ASADA Act, but so too is the complexity. The CGF has jurisdiction to sanction athletes and support personnel only in relation to the Commonwealth Games. This means that all adverse analytical findings and evidence of other ADVRs can be handled by the CGF, but also shared with the relevant International Federations pursuant to the WADA Code as well as their own anti-doping rules.

Conclusion

Looking ahead for WADA, the organization should ask itself how, in an ever more complex world, the implementation of the WADA Code can be achieved in a manner which is forward thinking, proactive, but fair to athletes as well. The concept of ‘one size fits all’ has its appeal. But it might also be out of date.

 

 

 

 

7 Responses to “Is it time to move on from a WADA Code which is ‘one size fits all’?”

  1. Mark johnstp

    very helpful…the adventitious character of the wada code bears on the central issue of natural justice, and opinions about natural justice, even in the everyday sense of whether the players deserve a fair go, will influence the outcome in this case.

    Where? When? The obvious place is the adrvp…

    So here is the crucial request for your knowledge about process; who appoints the members and what is their characteristic outlook likely to be?

    This is the real determinant of the outcome, not the case before the goodly Middleton, no?

    Reply
    • Natalie Hickey

      Hi Mark, there are 38 members of the WADA Foundation Board appointed by the Olympic movement and Governments. Australia’s representative is Peter Dutton, the Minister for Sport. Based on the commentary to the Code, the attitude remains firmly strict liability and ‘one size fits all’, likely from the concern that increased discretion equates to uncertainty. In my view, there is room for strict liability, but in circumstantial cases a greater focus on a process which safeguards fairness to the athlete.

      Reply
      • Mark johnstp

        Dear Natalie,

        Have been looking into the present constitution of the ADVRP.

        Position Appointee Gender Start date End date
        Chairperson Andrew McLachlan Male 07/12/2012 06/12/2015
        Member Hayden Opie Male 17/10/2012 17/10/2014
        Member Peter Fricker Male 01/04/2014 31/03/2016
        Member Diana Robinson Female 05/07/2013 04/07/2015
        Member Paul Carey Male 15/04/2014 14/04/2016
        Member Stuart Thorn Male 15/04/2014 14/04/2016

        The he last three are recent appointments due to the April 10 fiasco, where three other experienced members were dropped by a blanket rule coming from the Abbot gov.

        Obviously Opie knows the sports law inside out, Robinson is a sports doctor, Fricker an ex cop, McLachlan a pharmaceutical researcher at U Sydney.

        It doesn’t look like a panel which will not do anything other than play by the rules.

        But the interaction of the rules, the evidence, and the public interest may determine no particular outcome as the uniquely defensible one.

        Here is what I mean:

        If ASADA,s case is pretty much what is already in the public domain then it’s a circumstantial case with a broken-backed chain of evidence. Dank seems to have testified to the ACC that it was thymosin that was administered. Alvi can’t or won’t deny this. Carter is not the most reliable of witnesses.

        This is precisely the kind of circumstantial case where the Briginshaw standard can break either way. Someone sympathetic to the players could reasonably think:

        It is more likely than not that TB 4 was administered to some or other of the 34, but given the impact on the players I can’t reach the standard of not being oppressed by doubts. I am therefore not comfortably satisfied.

        An ex-cop on the other hand is likely to go with the bad smell test, and be very satisfied.

        NB A further appeal by essendon may mean Opie is not on the panel when they hear the case.

        All the above is just an invitation to you to comment, not a set of fixed opinions.g

      • Natalie Hickey

        Hi Mark, I’ve been thinking about your thoughtful remarks. The Panel will have the challenge of a circumstantial case and a higher burden of proof than balance of probabilities. That circumstantial case will likely rely on adverse credit findings (if made) against a Support Person. My own view is that it would be wise to finalise the process concerning Stephen Dank to completion, with all evidence concerning him having been tested in the clear light of day, before continuing against the EFC players (assuming that process is not halted by court order). If the case against Stephen Dank does not stand up to scrutiny, any extrapolations relying on that evidence are likely to carry limited, if any, weight in the other proceedings. If, however, administration of prohibited substances can be demonstrated to that higher standard, the findings might prove relevant and important building blocks in the other cases.

  2. Mike Anger

    When Chinese swimmers dope, or Romanian weightlifters, or anyone who’s not an Aussie, then they are drug cheats and need to have the book thrown at them.

    When Aussie athletes dope, or are suspected of doping, suddenly the drug code is draconian and needs to be thrown out.

    When Aussie athletes dope, the courts must be used to avoid even the investigation of the doping. Let alone any penalties.

    When Aussie athletes dope, no stone is left unturned to get them off the hook.

    Conspiracy theories are dreamed up to explain away the evidence.

    After all, they probably didn’t mean to cheat, being Aussies.

    Imagine the indignation if Chinese swimmers went to court to get an anti doping investigation shut down.

    Reply
  3. Mark Johnston

    Dear Natalie,

    Weirdly Dank has had a show cause notice since April, but no listing in the register of findings has been made against him. The initial reason was the fiasco of the ADRVP losing 4 members beforehand and so not having a quorum.

    It was reported in the age around april 10 that the new members would need three months to get up on the case…seems utterly implausible to me.

    So one thing to consider is that asada does not have the full list of goods on dank, and hoped they could prize a few players away from the pack by the offer of substantial assistance.

    One thing I do not follow is just what happens at the afl tribunal stage. Suppose the advrp finds against the players, does the afl tribunal have leeway on the penalties, and if so could the tribunal turn into a trial of asada’s evidence?

    Reply
  4. Mark Johnston

    One more thing. Today’s document download makes it look as if Essendon had a second agenda in the case before Middleton, namely to publicly discredit the afl’s handling of this. And thereby create more sympathy for the players.

    Certainly on the strength of the two submissions, it looks like asada gets to keep or at least re-acquire its evidence.

    Essendon’s lawyers must have known that, but the upper admin of the afl are now looking very suspect in all this.

    By the way, I have no brief for or against the Bombers per se. (I’m a cat supporter myself.)

    Reply

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