Analyzing the new world anti-doping code: a different perspective.

• Author: Teitler, Steven

I--Introduction

Observations regarding the World Anti-Doping Code can often be divided in two distinct categories. One the one hand, there are those that defend the doping regulations, stressing the necessity of the described elements of the anti-doping programs and policies. On the other hand are those observations that detail the unfairness of these programs and policies, or the Code's disregard for the privacy and other interests of (professional) athletes.

Marshall and Hale have written a more neutral analysis of the provisions in the new, 2009 Code, pointing out the major changes and offering a critical view to various aspects of the 2009 Code. Our contribution will take the analysis and views of Marshall and Hale as a starting point, offering additional insights and opinions concerning the 2009 Code and the way this set of rules will work out in practice.

II--Who are cheats?

1. Doping is a many-sided phenomenon. This also applies to anti-doping rule violations. The Code distinguishes eight different kinds of violations, but it will come as no surprise that per violation a wide range of variation exists on how these violations may actually take place. This is especially true when it comes to use of prohibited substances:

* An athlete may for instance use a prohibited substance for therapeutic reasons, but without the required Therapeutic Use Exemptions (TUE).

* Another athlete may enter into a sophisticated doping program, using several drugs, following a well prepared scheme which is designed to avoid being caught, with the help of a number of people who provide the necessary knowledge and facilities.

* Another athlete may act on his own, by purchasing a prohibited substance without any outside help or knowledge, while being keenly aware of the nature of his actions.

* Yet another athlete may look for something extra by using supplements, without being aware of the possible risks involved or even checking whether or not any of the contents are mentioned on the Prohibited List.

* A fifth athlete may buy a nutritional supplement, read carefully what ingredients it contains, double check with the manufacturer and his federation that indeed no prohibited substances are mentioned or included, and still be faced with an adverse analytical finding due to contamination.

* A sixth athlete may abuse the asthma medication for which he has received a TUE for performance enhancing purposes.

* A seventh athlete may take a few puffs of marihuana during a party, with no intention of gaining any performance enhancing advantage and without ever being aware that his behaviour involves the use of a prohibited substance.

2. The sports community, the press and the general public make distinctions between these different kinds of violations (to which more examples could easily be added). Some of these violations are not always seen as doping or as abuse of substances with the intent to gain an advantage over other athletes. Consequently, opinions may vary about how the different violations as described above should be treated. Usually there are rather strong feelings about the penalties that should (or should not) follow such behaviour. To many, at least one or two of our imaginary seven athletes should not be considered cheats, and should therefore not be punished.

3. However, for the understanding of how the Code works, it is fundamental to recognize that it intends and is designed to catch all the athletes that are mentioned in our examples. As the intention of the Code is to 'to catch them all', all these athletes are considered to be cheats and should be punished. Under the Code, there is no such thing as a 'by-catch'. In our opinion, this basic principle has to be acknowledged in any discussion about the Code. Therefore, our article is based on the idea that under the Code, there is no by-catch and in this respect our opinions are clearly different from the approach that Marshall and Hale have chosen.

4. Of course, once this basic principle is acknowledged, there are numerous questions that should be asked and addressed, with one of the most important questions being: Is it relevant to the Code that the use of any prohibited substance or method was intentional, and if this distinction is indeed relevant, how does the Code deal with this issue? And a directly related important question is: Is performance enhancement in the Code a central characteristic of doping or is it not? Marshall and Hale (1) have focussed on these issues as well, analyzing the way that the Code deals with 'recreational use'. But by describing something that they call 'by-catch of morally innocent cheats', the authors reach different conclusions than we do. The assessment of other issues, for instance the question whether or not the 2009 Code is more flexible than the 2003 Code, is dependent on the fundamental approach that is chosen, and the opinions of the authors may therefore differ from ours.

   III--Recreational use

1. The question whether or not the World Anti-Doping Agency (WADA) and the Code deal with the use of 'recreational drugs' or the 'recreational use' of (certain) drugs highlights one of the most fundamental issues of the fight against doping. This issue centres around the question which substances and methods should be included on WADA's Prohibited List. No topic, maybe with the exception of sanctions, has been the subject of more debate within the world of antidoping.

2. First of all, the Code does not use terminology like 'recreational use' or 'recreational drugs'. There is only one official Prohibited List which declares substances to be prohibited. In addition, there is a group of specified substances, and that's it. So far, it appears to be clear and simple. So, why are things not as simple as they appear to be:

   1. Some substances on the Prohibited List have a different status than others; (2)

   2. There is much debate about whether some substances belong on the List, because their ability to enhance sport performance is questioned;

   3. Some substances that WADA considers prohibited, are not actually included on the List, yet lead to the standard sanctions when they are detected in the athlete's body. (3)

   In article 4.3.1, the Code establishes three criteria for including a substance or method on the Prohibited List: (i) potential health risk, (ii) performance enhancing potential, and (iii) violation of the "spirit of sport". The Code then adds a fourth criterion in the following article (article 4.3.2): The masking potential of a substance or method. In a previous article (article 4.2), an additional insight can be found. This article describes performance enhancing potential and the potential as a masking agent as the key factors in any evaluation for including a substance or method on the List. The comments to this article refer to the premise that there are certain agents that no one that considers himself an athlete should use. In summary, one can conclude that the criteria of the List are in itself quite clear, but that there is an ongoing debate about how these criteria should be interpreted, applied and prioritised. (4)

3. The fact that there is no mention of either 'recreational drugs' or 'recreational use', does not mean that they are not an issue in the world of anti-doping. On the contrary, they are the subject of continuing discussions between governments, International Federations, national anti-doping organizations (NADOs) and WADA. Opinions vary greatly in this regard:

   1. Some are in favour of removing all recreational drugs from the Prohibited List, because their use is not sport related, and the sports organizations should therefore not want to regulate their use.

   2. Some feel that recreational drugs should be treated the same as steroids (for instance from a formal standpoint, but also from a social, moral and an athletes-as-role-models point of view).

   3. Some argue that all substances should not only be treated equally, but should also be prohibited both in and out of competition. Their view is that training, especially in team sports, also has a competitive element. Hence, why should some substances only be considered performance enhancing in competition (and consequently only be prohibited in competition).

   4. Others have the stance that only substances that are performance enhancing should be included on the list.

   There has been no agreement on this subject, nor on the List criteria as mentioned above. The Code currently presents a compromise between the stakeholders. Views may vary from country to country, between International Federations (IFs) and NADOs, but also between NADOs, governments, etc. amongst themselves.

4. The Code purposely stays away from the discussion about whether drugs are recreational drugs, and whether or not they are used for recreational purposes. Instead, it focuses on the bottom line: Does the presence, use, possession, administration, etc. of a substance or method constitute an anti-doping rule violation or not. In this sense, the authors' statement that as far as WADA is concerned, the use of stimulants as 'party drugs' is left to others to regulate, is not accurate. It disregards the fact that the reason that any athlete has, or claims to have, for the use of doping is hardly relevant in terms of the determination whether an anti-doping rule violation occurred. If an athlete can prove that he has not taken a substance with the intention of enhancing his performance, he will--under the strict liability rule--still be guilty of having violated anti-doping rules.

5. Only after the anti-doping rule violation has been established, do the rules allow the particular circumstances of the case to be taken into account. It is at this point that the time of use, possession, etc. (namely, in or out of competition, in other words the possible recreational element) and the nature of the use come forward. In this regard, the Code indeed applies to recreational use and/or recreational drugs...