A critical analysis of article 4.3 of the world anti doping Code.

• Author: Cornelius, Steve
• Position: ARTICLES

1. Introduction

Doping is as old as sport itself and the modern phenomenon of doping emerged as soon as modern sport emerged in the nineteenth century. (1) Initially doping seemed to be an acceptable and even necessary element of sport. (2) However, as reports of side-effects on the psychological, physical and physiological well-being of athletes began to surface, a steady call for measures to redress the problem began to arise. The International Amateur Athletics Federation (3) was the first International Federation to address the problem of doping in sport when it adopted a simple rule against doping in 1928. (4) However, the fight against doping only truly gained momentum after the deaths of cyclists Knut Jensen at the 1960 Olympic Games and Tommy Simpson during the 1967 Tour de France. (5) In 1967 the International Olympic Committee (IOC) established a Medical Commission and approved a ban on doping the following year, in time to conduct the first tests on athletes at the 1968 Winter- and Summer Olympic Games. (6) However, because of the inconsistency in measures to deal with doping from one sport to the next and from one country to the next, the World Anti-Doping Authority (WADA) was established in 1999 to harmonise and strengthen anti-doping actions and rules across all sports and countries. (7) This resulted in the adoption of the World Anti-Doping Code (the Code) in March 2003. (8) The legal status of WADA and the Code was elevated with the adoption of the International Convention against Doping in Sport 2005 (the Convention), which expressly refers to WADA and the Code.

The result is that athletes are now subject to the doping control measures of WADA and the terms of the Code on at least two grounds. In the first instance, any athlete participates in sport on the basis of a contractual relationship, (9) the terms of which are derived from the constitution, laws, rules and regulations of the various bodies, unions, associations and federations which govern the particular sport. Secondly, in view of the express recognition which the Convention accords to WADA and the Code and the adoption and/or ratification of or accession to the Convention by most countries affiliated to the IOC, compliance with the Code and the authority of WADA also becomes matters of national and international law. In addition, many countries have adopted legislation to deal with the issue of doping in sport as envisaged in article 5 of the Convention. This also brings compliance with the Code and the authority of WADA into the sphere of national law.

This article provides a critical analysis of article 4.3 of the Code and questions whether the Prohibited List can be challenged on the grounds that one or more of the substances or methods have been inappropriately classified in terms of article 4.3 and should therefore not be included on the Prohibited List. This article does not address issues relating to the prudence or desirability to include or not to include any particular substance or method on the Prohibited List. It merely highlights flaws in the drafting of article 4.3, warns of a potential basis on which WADA and the Prohibited List can be challenged and proposes ways to deal with this risk.

2. Prohibited List

In terms of the Code (10) WADA must now revise and publish the Prohibited List of substances and methods which are prohibited as doping. A substance or method is considered for inclusion on the Prohibited List if WADA determines that it meets two of the following three criteria:

a It is performance enhancing.

b It is dangerous to the athlete's health.

c It is contrary to the spirit of sport.

A substance or method can also be added to the list if WADA determines that it has the capacity to mask the use of other prohibited substances or methods.

In particular, article 4.3 provides:

4.3 Criteria for Including Substances and Methods on the Prohibited List

WADA shall consider the following criteria in deciding whether to include a substance or method on the Prohibited List.

4.3.1 A substance or method shall be considered for inclusion on the Prohibited List if WADA determines that the substance or method meets any two of the following three criteria:

4.3.1.1 Medical or other scientific evidence, pharmacological effect or experience that the substance or method, alone or in combination with other substances or methods, has the potential to enhance or enhances sport performance;

4.3.1.2 Medical or other scientific evidence, pharmacological effect or experience that the Use of the substance or method represents an actual or potential health risk to the Athlete;

4.3.1.3 WADA's determination that the Use of the substance or method violates the spirit of sport described in the Introduction to the Code. 4.3.2 A substance or method shall also be included on the Prohibited List if WADA determines there is medical or other scientific evidence, pharmacological effect or experience that the substance or method has the potential to mask the Use of other Prohibited Substances or Prohibited Methods.

4.3.3 WADA's determination of the Prohibited Substances and Prohibited Methods that will be included on the Prohibited List and the classification of substances into categories on the Prohibited List is final and shall not be subject to challenge by an Athlete or other Person based on an argument that the substance or method was not a masking agent or did not have the potential to enhance performance, represent a health risk or violate the spirit of sport.

WADA publishes a revised version of the Prohibited List at least once per annum. The 2012 Prohibited List contains an elaborate list of substances and methods across 15 categories.

To act lawfully and be compliant with article 4.3 of the Code, WADA must, in deciding which substances and/or methods should be included on the Prohibited List, apply its collective mind to the matter and in good faith make a determination which meets the standards set in the Code. (11) This means that in respect of each substance or method included on the Prohibited List, WADA must consider whether the substance or method is performance enhancing and/or harmful and/or whether its use is contrary to the spirit of sport, alternatively, whether it could mask the use of a prohibited substance or method. But the Code does not confer on WADA a discretion to determine which substance or method WADA deems performance enhancing or harmful.

The drafters of the Code sought to make the process of determining which substances and/or methods should be included on the prohibited list, more transparent by providing objective standards according to which the determination must be made. These standards are mostly scientific. Both article 4.3.1.1 and article 4.3.1.2 require WADA to consider scientific or medical evidence or pharmacological effect to determine whether a substance or method is or could be performance enhancing or harmful, as the case may be. This seems somewhat tautologous as both medicine and pharmacology are also sciences and evidence on these grounds would also constitute "scientific evidence".

In other words, the Code imposes a duty on WADA to determine whether there is medical or other scientific evidence, pharmacological effect or experience which indicates that the substance or method is or could be performance enhancing or harmful. Article 4.3 of the Code therefore imposes on WADA a duty to make a determination in accordance with the relevant evidence, rather than a discretionary competence to weigh the various factors and make up its own collective mind on the matter.

There is an apparent problem with this formulation. Even though we live in the golden age of science and we strive towards the discovery of exact scientific conclusions through the application of proper scientific method, medicine and pharmacology, like the law, are not certain and precise. Scientific and medical evidence relating to the impact which substances and methods have on the human body, are often inconclusive and sometimes contradictory. There are innumerable variables that could at different times and in different studies impact in various ways on the eventual results. Vagelos and Galambos (12) explains this succinctly when they recall

[m]edicine, I suddenly realised, is not an exact science. It could not be learned and applied by rote, even from a body of knowledge as comprehensive as Loeb's. Once the disease was understood, the physician could treat the patient in a variety of ways, using similar drugs and solutions on the basis...