Final draft of new WADA Code
Creation of new violations
Significantly, two new Anti-Doping Rule Violations (ADRV) have been introduced into the new Code:
• new article 2.9 makes ‘complicity’ in an ADRV a violation; this was arguably always the case, but the new Code clarifies the position; and
• new article 2.10 creates a violation of ‘prohibited association’. This violation was proposed early in the consultation process and has survived into this likely final draft despite being the subject of some debate. In short, new article 2.10 makes it a violation for athletes and athlete support persons to ‘associate’ with a coach or trainer who is currently serving a ban, or has in the last eight years been convicted of conduct that would amount to a violation.
There are other conditions in place, but in certain close-knit sporting communities, the enforcement of this rule may cause sport some headaches (for example: a husband and wife scenario where one is serving a ban and the other remains an athlete. The same applies for parents and children, neighbours, and so on). No doubt education and guidance on the application of this ADRV will need to be introduced to sport.
These two new rules raise the number of ways an individual can fall foul of the Code from eight to 10.
Retirement and return to competition (Article 5.7)
Typically, retired athletes must sit out a period of time between returning from retirement to actually competing in sport. This sitting out period was originally designed to ensure that returning athletes, who during their retirement were not subject to testing, did not return to sport with the benefits of having been able to use prohibited substances. New Article 5.7 enables an application to be made to WADA to waive this rule on a case-by-case basis in circumstances where a strict application of the rule would be manifestly unfair to an Athlete. The effect in Australia is that retired athletes may be more likely to consider returning to sport if there is the possibility they can compete immediately. Hence, sports may wish to consider implementing some policies or guidelines on handling such matters, particularly around selection time for major events.
Therapeutic Use Exemptions (Article 4)
There are a number of changes to the TUE system that are designed to create mutual recognition for TUEs across sport. In short, the system hasn't changed insofar as non-international level athletes should continue to apply to their National Anti-Doping Organisation (NADO), and international level athletes should continue to apply to their International Federation (IF). However, the new Code establishes that if an athlete holds a TUE that meets the International Standard requirements, then the IF must recognise it. Similar rules are in place for Major Event Organisers. That is, appropriate nationally granted TUEs will suffice for athletes, and they won't have to go through the existing hassle of applying to multiple TUE committees. This addresses the current problem of athletes attending events believing they had a TUE in place, only for it to not be recognised. It will be interesting to see whether, in practice, TUEs granted to athletes from developing or non-established NADOs, or areas where there is a suspicion of irregular practices, will be considered acceptable to the sporting world at large.
Mandatory Provisional Suspension elimination (Article 7.9.1)
In circumstances where an athlete can establish that their ADRV is likely the result of a contaminated product, the mandatory Provisional Suspension can be eliminated. This new article is one of a number of new articles that are introduced with a view to increasing proportionality relating to sanctions in the Code. In practice however, it may not operate as smoothly as intended: it may take time and effort for an athlete to prove a product contaminated, and until they do so they are likely to be provisionally suspended anyway.
Sanctions (Article 10)
The area of the Code with the most changes is Article 10, which deals with sanctions. The intent behind the changes is that WADA wants sports to take a harsher line on intentional doping and to have more flexibility when it comes to inadvertent doping. By way of example:
• bans will be four years for Prohibited Substances that are not Specified Substances, unless the athlete can show that the use of the Prohibited Substance was not intentional. Presently, the starting point for a ‘standard’ sanction is two years, which can be increased to four years for aggravating circumstances.
The new changes will mean that the starting point (for non-specified substances) will be four years, and this can be reduced where the athlete establishes non-intentional use. Hence, the onus is reversed from the sport having to show aggravation to increase the ban, and placed on the athlete to show lack-of-intent to lessen the ban;
• bans for Specified Substances can also be four years if the NADO can establish that the use of the Prohibited Substance was intentional. Under current interpretations, this may potentially lead to a four-year ban for the supplement-based stimulant cases that we see and hear so much about.
In Australia, unlike some other jurisdictions globally, the methylhexaneamine supplement cases commonly receive sanctions of a two year ban due, in part, to the athlete being unable to show 'no intent to enhance performance'. By extension, under the new regime, if the NADO can prove an intent to enhance performance (as opposed to the athlete being unable to prove no intent to enhance performance), the athlete may face a four year ban;
• bans for Evading, Refusing or Failing to Submit to Sample Collection, and for Tampering will also be four years, and will be from four years to life for Trafficking and Administration. Prohibited Association will range between one to two years based on the Athlete’s degree of fault; and
• if an athlete can establish that a product was contaminated, their ban may range from a reprimand up to two years. The effect of this is that in genuine contamination cases, innocent athletes may not face any time out of their sport. Currently athletes in this situation typically can hope at best for a 12-month ban under the No Significant Fault or Negligence provisions.
Substances of Abuse (Article 10.5.1.3)
A new article for substances of abuse has been included. It specifically refers to cocaine and cannabis, but others may be forthcoming. For a finding involving these substances, a penalty between a reprimand and up to one year may be imposed, and this will depend on the athlete being able to show that their use was unrelated to sport performance. Rehabilitation may also be imposed in place of part of the ban. Combined with the fact that WADA has also recently increased the detection limit for cannabis ten-fold, this sends a clear message to sport world-wide of how WADA wants these types of matters to be processed.
Other new provisions include a requirement for athletes to cooperate with investigations into ADRVs. This is a timely inclusion, and echoes the ASADA Amendment legislation recently passed by the Australian parliament. Interestingly, There was a suggestion in the early drafts of the Code changes that WADA wanted to eliminate the ‘B Sample’ process. It was argued that it was too expensive to maintain, and particularly in circumstances where the B matched the A in almost every case, it had become redundant. The new Code however clarifies that the B Sample will remain. It was considered too important to maintaining a fair system and protecting athlete's rights to omit. WADA is also updating their International Standards that deal with testing, laboratories, privacy and so on.
Richard RedmanSenior Associate Garth TowanLawyerLander & Rogers, Australiarredman@firstname.lastname@example.org
This article originally appeared on the Lander & Rogers internet site here.