Tacking Doping in Sport Day 2: Code Revisions Need Closer Examination
Planned revisions to the World Anti-Doping Code need closer examination before the 2015 version is published, heard delegates at day two of Tackling Doping in Sport 2013, which took place 13-14 March at Twickenham Stadium. The 250 delegates from over 30 countries held a lively round-table discussion on contentious areas of the new version of the Code, with suggestions to be submitted to the World Anti-Doping Agency as part of its Code Review process next week.
Joseph de Pencier, CEO of the Institute of National Anti-Doping Organisations kicked off the day by highlighting seven main areas of change in the 2015 Code. The audience was split over whether the standard two-year ban for a first time offence should be increased to four years, as proposed in the 2015 Code. Under the 2009 Code, sporting organisations wishing to prosecute an athlete who has intended to cheat for longer must push for 'aggravated circumstances' under Article 10.6 to scale a first time offence ban up from two years to a maximum of four. However, UK Anti-Doping (UKAD) pointed out that they are often curtailed from doing this by a caveat to Article 10.6, which allows an athlete to 'avoid the application of this Article by admitting the anti-doping rule violation'.
Under the current 2009 Code, the onus is on the international federation (IF) to 'scale up' the ban under Article 10.6. Under the 2015 Code, the onus is on the athlete to scale the standard four-year ban down. There was much debate over whether it is right to place the onus on the athlete to reduce the ban, especially now that athletes face having to pay costs at the Court of Arbitration for Sport should they lose a case, if the IF delegates sanctioning to the national association concerned. “I must now advise athletes that they could face having to pay CAS costs as well as legal costs”, said Antonio Rigozzi, Partner, Levy Kauffmann-Kohler.
Concerns were raised that this could deter appeals from athletes who had inadvertently ingested prohibited substances with no intent to cheat and, conversely, that a four-year ban was so lengthy that it would result in endless appeals from athletes keen to avoid the end of their career. John Ruger, Athlete Ombudsman for the US Olympic Committee, highlighted that between 40% and 60% of US doping cases are inadvertent. “Most athletes have made silly mistakes and for those that have not, penalties can be upscaled”, said Athlete Lawyer Howard Jacobs. “A four year default ban places the burden on the athlete to prove they are not an intentional doper rather than on the IF to prove intentional doping”.
“In cases of inadvertent doping, rank injustice should not be allowed”, said Adam Lewis QC, of Blackstone Chambers. “Where everybody accepts that there has been no intention to cheat, the Code should provide for this”.
It was also pointed out that the 2015 Code doubles the initial doping sanction for competing while banned. Ruger pointed out that if a four-year standard is used, this could result in some athletes facing an eight-year ban for competing in a competition they did not realise they were banned from taking part in.
Issues were also raised around the drafting of certain changes within the 2015 Code. De Pencier pointed out that Article 8.1 of the 2015 Code entitled athletes to a 'fair hearing as set forth in Article 6.1 of the European Convention on Human Rights and comparable principles generally accepted in international law' and clarification is needed as to what this means in practice. He also said that provisions in Article 10.4.2 on contaminated products need clearer definition. Athlete lawyer Howard Jacobs pointed out that the definition of 'contaminated product' in the Code as 'A product which an Athlete or other Person could not have known contained a Prohibited Substance' has the potential to undermine the whole purpose of the contaminated products rule.
Practical issues were also highlighted, such as those involving regulation of drugs for 'therapeutic use' (therapeutic use exemption - TuE. It was pointed out that if an IF doesn't recognise a National Association's TuE, then that can cause issues for the athlete who qualifies for international competition when competing at the national level, as they may find they fail to qualify again due to competing against NA athletes who have that TuE.
Away from the Code revision debate, a fascinating insight into how the media can work with anti-doping authorities was presented by freelance journalist Hajo Seoppelt, who has been carrying out an investigation into doping in Kenya for German state broadcaster ARD. The International Association of Athletics Federations (IAAF) had highlighted how this problem is being resolved through the use of mobile doping units in areas such as Kenya on day one of the conference.
Brett Clothier of the Australian Football League showed that while the Australian Crime Commission's report into doping in Australian sport had highlighted the involvement of organised crime in doping, it has also revealed a number of other issues. These involved the role of anti-ageing parlours in the supply of drugs into the Australian market; and how Australian sport has been using drugs not regulated under the Code, such as drugs not yet tested on humans.
In wrapping up the conference, Mike Morgan of Squire Sanders (UK) LLP said that the event had provided a “balanced discussion” between those arguing for longer sanctions for doping and those arguing for redemption. “Everyone has different ideas about policing integrity, and that's why this conference is worthwhile”, he said.
The conference was covered by media organisations including The Independent, Reuters, The Guardian, the Washington Post and more. Tackling Doping in Sport is an annual event organised by World Sports Law Report, Squire Sanders (UK) LLP and UK Anti-Doping. World Sports Law Report also organises conferences on Betting in Sport and Player Contracts. For more information, visit www.CecileParkConferences.com