Practice makes perfect: an analysis of the world anti-doping code 2009.

• Author: O'Leary, John

Introduction

The reality of elite sporting competition today is that cheating in one form or another is relatively commonplace. No example of cheating however carries the stigma nor results in such punitive and emotive reaction as doping. For whatever reason, doping more than any other type of sports cheating, has transcended sport and entered the public domain. The public consciousness of anti-doping has been raised in part because of the stringent sanctions attached to such a breach and because the loss of a lucrative career often forces the hand of the sanctioned athlete to utilise appeal mechanisms built in to the regulations of sports governing bodies and, if unsuccessful, to seek recourse from the courts. For these reasons anti-doping and the law enjoy a complex and special relationship (1).

Over the past ten years anti-doping regulation has been radically revised. Two landmark regulatory models epitomise the rigorous approach the issue: the World Anti-Doping Codes of 2003 and 2009. The 2009 model contains some important amendments to the 2003 code. The objects of this chapter are twofold: to evaluate the importance of the World Anti-Doping Code (the Code) in the light of a changing legal and political landscape and to evaluate whether the 2009 Code improves on the 2003 model by satisfactorily balancing between the right of individual athletes to complete with the desire on the part of sports governing bodies to regulate effectively against those who seek to avoid anti-doping restrictions. In this context it is necessary to consider both the legal and the sport regulatory framework because, whether it is considered conceptually as a process of juridification or as an example of legal pluralism, the interaction between law and regulation has become so interwoven that the significance to the athlete of this distinction is practically irrelevant. Equally, as lawyers are actively involved in both the process of law and regulation, such a distinction might be considered more accurately as the difference between hard and soft law.

The changing legal and political landscape

It is important to observe the way in which, since 2003, the law has embraced the Code thereby further blurring the distinction between law and regulation. What in 2003 could have been perceived as little more than a professional code of conduct has now taken on a greater judicial and political significance. Courts, for many years, have condoned the use of the Code but tended to do so on the basis of Lord Denning's philosophy that ' justice can often be done ... better by a good layman than by a bad lawyer' (2) as might befit an approach to the Code predicated on a view that such regulation covered merely internal sports disputes which, for the most part, were not worthy of legal intervention. Although the Court of Appeal in Modahl v British Athletics Federation Ltd (3), did seem to strengthen the legal status of the Code by holding relationships between athletes and governing bodies was contractual and as a consequence, the Code constituted contractual terms, it did so only on a majority. The strong dissenting judgment of Jonathan Parker LJ followed a line of argument promulgated by Lord Denning who, in cases such as Nagle v Feilden and Lee v The Showman's Guild of Great Britain expressed his concern that the identification of a contractual nexus in such situations was little more than a fiction.

This lowly legal status is now in need of reappraisal following the ECJ decision in Meca-Medina v Commission of the European Communities (4). The European Court of first Instance agreed with the European Commission that the anti-doping rule fell outside the scope of European competition law. The ECJ disagreed and gave an important judgment which helps to establish the sphere of legal influence and also whether the anti-doping regulations contained within the Code are a proportional response to the perceived problem. The Court stated: 'although anti-doping regulations fall within the ambit of the law as an economic activity, they did not, on the facts, breach principles of proportionality under EU law.' It would be fair to state therefore, that those sporting bodies that draft anti-doping regulation that is broadly in conformity with the Code will not be susceptible to legal challenge. The Code allows for deviation in certain articles and it is here that governing bodies must beware if they deviate to any significant degree by making their regulations more stringent (5).

The Code is not wholly justiciable. As Weatherill points out, the judgment brings the Code into line with other areas of sports regulation where the courts have been more active:

The same point, delivered in slightly different vocabulary and in relation to Art.39 not Art.81, is found in * E.C.L.R. 657 the Court's judgment in Bosman which accepts as "legitimate" the perceived sports specific anxiety to maintain a balance between clubs by preserving a certain degree of equality and uncertainty as to results and to encourage the recruitment and training of young players. And in Deliege, an Art.49 case, the Court accepted that selection rules limited the number of participants in a tournament, but were "inherent" in the event's organisation. Such rules are not beyond the reach of the Treaty, but they are not incompatible with its requirements. (6). It is also important to note the growing status of WADA and its code, inter alia, through its acknowledgement by supra-national government organisations such as UNESCO. The UNESCO International Convention Against Doping in Sport (7) states its purpose 'within the framework of the strategy and programme of activities of UNESCO in the area of physical education and sport, is to promote the prevention of and the fight against doping in sport, with a view to its elimination' (8). The convention is interesting because it adopts, overtly, the WADA Code whilst asserting the primacy of the Convention where there is conflict (9). Such conflict is inevitable as the Convention stands, referring as it does to the repealed 2003 Code. It also emphasises how little distinction there is between law and regulation. Article 3 of the convention confirms that state parties agree to adopt appropriate anti-doping measures, encourage cooperation and foster links 'in the fight against doping in sport, in particular with the world anti-doping agency'.

The need for anti-doping regulation

Long before the rise of WADA and its Code, the International Olympic Committee (IOC), was in the vanguard of the 'war' against dopers. The unyielding philosophy, and rhetoric, adopted by the IOC and the governing bodies was and is based on the premise that doping is contrary to the very essence of sporting competition. This philosophy which underpins all anti-doping regulation been adopted almost axiomatically by those who run sport. In 1999 the IOC reiterated 'its total commitment to the 'fight' against doping, with the aim of protecting athletes' health and preserving fair play in sport. Any declarations which go against these principles are both wrong and misplaced'. (10)

Although the IOC has long held these principles sacred, its influence over governing bodies was ineffective. As Beloff explains '.in my experience, rules of domestic or international federations tend to resemble the architecture of an ancient building: a wing added here; a loft there; a buttress elsewhere, without adequate consideration of whether the additional parts affect adversely the symmetry of the whole. (11)

The history of doping regulation in sport is littered with examples of governing bodies failing to draft their doping codes competently. Little thought was given to the compatibility of doping rules between sports. Also, governing bodies seemed unaware of how previous doping rules of their own sport interacted with new provisions. The danger was that a successful legal challenge could not only call into question the reliability of the testing procedure and encourage other athletes to initiate court action, but could also prove disastrously expensive for the domestic federation. (12) What was required was a effective international standard that could transcend such problems as athlete mobility because 'the problems of undertaking testing among an elite group of athletes who were increasingly mobile and who were likely to be in their native country, and therefore accessible by their national doping control officers, for only part of each year. Indeed there was a growing number of athletes who spent most of their elite career outside their home country. For example, world class Australian road cyclists spent most, if not all, of their time in Europe where the major events and teams were located. Much the same could be said for the increasing number of South American and African track and field athletes who followed the American and European calendar of competitions. Such a high level of athlete mobility required a set of anti-doping regulations that would prevent athletes exploiting the loopholes and inconsistencies found in the anti-doping regulations of various countries and domestic affiliates of international federations'. (13)

As a result of this, sport has harmonised the doping regulations of the various national and international governing bodies.. The rise of the World Anti-Doping Agency (WADA) can be seen as a response to the inadequacies of earlier regimes and a realisation that successful anti-doping policies come at a price. From a jurisprudential perspective WADA might be viewed as one of many quasi-judicial global administrators and 'the extent that they develop a law-like quality, they do so after-the-fact, consequential upon the administrative tasks in which they are engaged. They develop substantive rules of conduct, and also procedural rules for decision-making and decision-accounting, but they lack any constitutive co-ordinates to underpin these substantive and...