Will the new WADA code plug all the gaps? Will there be by-catch?

• Author: Marshall, John

1. Introduction

   1. The World Anti-Doping Agency, WADA adopted substantial amendments to the WADA Code ("the Code") at its conference in Spain in mid November 2007. This paper looks at the new amendments which will be operational by 1 January 2009.

   2. Before examining the changes to rules designed to catch drug cheats, it may prove interesting to reflect on what is meant by a drug cheat. Is a drug cheat:

   (a) Someone who gains an advantage over fellow Athletes (1) by use of a substance/method which is illegal because of the health risks associated with its use?; or

   (b) Someone who is in breach of the rules made by WADA? (2)

2. WADA and the Code

   (1) Background

   3. The World Anti-Doping Agency ("WADA") was established in November 1999 in Switzerland. On 5 March 2003 WADA adopted a document entitled the 'World Anti-Doping Code' ("the Code"). The Code envisaged that WADA would become the world's peak anti-doping body and that each international sporting federation ("IF") would be a Signatory to the Code. The Code also envisaged gaining worldwide acceptance by each National Anti-Doping Organisation ("NADO") signing the Code. That has come to pass.

   4. The Code seeks to harmonise anti-doping rules and principles on a worldwide basis. It does this by having three elements being the Code itself, "International Standards" adopted by WADA and "Models of Best Practice". Of the International Standards the most important is the WADA Prohibited List.

      (2) Impact

   5. The impact of the Code and the WADA Prohibited List has been profound for the following reasons:

      (a) most national governments support the Code and the WADA Prohibited List;

      (b) the National Anti-Doping Organisations ("NADOs") of most countries have become Signatories to the Code and have implemented WADA's objectives (3);

      (c) most international sporting federations have adopted the Code which has had the consequence that national sporting federations affiliated with the international bodies (e.g. athletics) were required to comply with the Code and the WADA Prohibited List; and

      (d) most national sporting federations have adopted WADA compliant Anti-Doping Policies ("ADPs").

   6. Changes to the Code will affect all athletes and virtually all sporting organisations.

3. The Changes

   7. There are an enormous number of changes. (4) It is not possible to discuss them all or even to classify them all. For instance:

      (a) There are changes which fix obvious gaps. (5)

      (b) There are changes which clarify areas where doubt has been expressed (6) or to confirm the result of particular CAS decisions (7).

      (c) There are changes which will assist in harmonisation: "all provisions are now mandatory in substance and must be followed": 2nd para of the Introduction.

      (d) There is a new statement of Athlete responsibility which bolsters the strict liability principle underlying the Code: a new part to Art 2 (8) and new Art 2.2.1 (9).

      (e) There are several changes which introduce greater flexibility in sanctions: see from para 9 below.

      (f ) There will be mandatory provisional suspension for a positive 'A' Sample: new Art 7.5.1--see from para 37 below.

      (g) Mandatory whereabouts requirements will be introduced: change to Art 2.4--see from para 20 below.

      (h) A new concept of an "Atypical Finding" will be introduced: replacement Art 7.3--see from para 33 below. Centrebet is not issuing odds that this was prompted by the Ian Thorpe debacle.

      (i) There is to be a new sanction for breaching an existing sanction: new Art 10.10.2--see from para 39 below.

      (j) There will be sanctions for teams, not just individuals: new Art 11.2--see from para 41 below.

      (k) There are new appeals: amendment to Art 13.2 and new Art 13.3--see from para 43 below.

   8. This paper will examine those which seem to be more important. The most important, which is dealt with first, is the increased flexibility.

4. Harmonisation with Flexibility

   9. The goal of harmonisation resulted in the original Code being a one size fits all set of rules that lacked flexibility. The most significant area of rigidity was the mandatory minimum 2 year suspension with limited defences and virtually no discretion in sentencing. (10) The lack of discretion was strongly opposed by sports which had sophisticated ADPs and experienced tribunals pre WADA.

   10. That has been addressed and is best explained by the comment to Article 4.2.2:

       "[Comment to Article 4.2.2: In drafting the Code there was considerable stakeholder debate over the appropriate balance between inflexible sanctions which promote harmonization in the application of the rules and more flexible sanctions which better take into consideration the circumstances of each individual case. This balance continued to be discussed in various CAS decisions interpreting the Code. After three years experience with the Code, the strong consensus of stakeholders is that while the occurrence of an anti-doping rule violation under Articles 2.1 (Presence of a Prohibited Substance or its Metabolites or Markers) and 2.2 (Use of a Prohibited Substance or Prohibited Method) should still be based on the principle of strict liability, the Code sanctions should be made more flexible where the Athlete or other Person can clearly demonstrate that he or she did not intend to enhance sport performance. The change to Article 4.2 and related changes to Article 10 provide this additional flexibility for violations involving many Prohibited Substances. The rules set forth in Article 10.5 would remain the only basis for eliminating or reducing a sanction involving anabolic steroids, hormones, certain stimulants identified on the Prohibited List, or Prohibited Methods.]"

   11. This is a very important change and one that is definitely in the right direction.

   12. The change will be implemented primarily by a new Art 4.2.2 which deals with Specified Substances and makes all substances Specified Substances with these exceptions "... the classes of anabolic agents and hormones and those stimulants and hormone antagonists and modulators so identified on the Prohibited List ..."

   13. Specified Substances will be sanctioned differently pursuant to new Art 10.4:

       "10.4 Elimination or Reduction of the Period of Ineligibility for Specified Substances under Specific Circumstances Where an Athlete or other Person can establish how a Specified Substance entered his or her body or came into his or her possession and that such Specified Substance was not intended to enhance the Athlete's sport performance or mask the use of a performance-enhancing substance, the period of Ineligibility found in Article 10.2 shall be replaced with the following: First violation: At a minimum, a reprimand and no period of Ineligibility from future Events, and at a maximum, two (2) years' Ineligibility.

       To justify any elimination or reduction, the Athlete or other Person must produce corroborating evidence in addition to his or her word which establishes to the comfortable satisfaction of the hearing panel the absence of an intent to enhance sport performance or mask the use of a performance enhancing substance. The Athlete or other Person's degree of fault shall be the criteria considered in assessing any reduction of the period of Ineligibility."

   14. The effect is that for many substances there will be a discretion that can be applied so as to achieve an appropriate sanction. A clear example where this will make an important difference is that the well regarded international Australian footballer Stan Lazaridis almost certainly would not have received his 12 month suspension for use of finasteride.

   15. As to so called 'party' drugs, much will depend on which stimulants will be 'so identified' on the Prohibited List in 2009. See from para 50 below.

   16. Other measures to increase flexibility are:

       (a) Amendment to Articles 10.3.1 and 10.5.2 which widen the application of the 'No Significant Fault or Negligence' defence to all ADRVs.

       (b) Amendment to Article 10.5.3 which widens the application of a reduction for Substantial Assistance.

       (c) New Articles 10.5.4 and 10.9.2 which provide that admissions may be rewarded with a reduction up to 50% in certain limited circumstances.

       (d) Amendment to Article 10.2 by which the standard two year ban is made subject to Articles 10.4, 10.5 and 10.6.

       (e) New Art 10.5.5 which explains how the various potential reductions can work in combination to produce a maximum reduction no lower than 1/4 of the otherwise applicable sanction.

       (f) New Art 10.6 which allows for an increased sanction where there are aggravating circumstances.

       (g) New Art 10.7 which sets out a table that is designed to provide a commonsense way of dealing with multiple violations or second violations. (11)

   17. Another very significant change that will increase flexibility is the new definition of Athlete. All...