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Interview with Graham Arthur, UK Anti-Doping Director of Legal

Graham Arthur, UK Anti-Doping’s Director of Legal, will be leading a round-table discussion on amendments to the 2015 World Anti-Doping Code at Tackling Doping in Sport, a two-day conference taking place at Twickenham Stadium, 13-14 March.

 

WSLR: “What are you expecting from Tackling Doping in Sport 2013?”

Graham Arthur: “We are looking for a useful exchange of experiences and opinions, transfers of knowledge and know-how. It’s an opportunity for all of the attendees to collectively up skill each other.”

WSLR: “What are UK Anti-Doping's objectives for 2013?”

Graham Arthur: “One is to learn from the Armstrong case. Collaboration between sport, law enforcement and government is absolutely fundamental to addressing doping effectively. That’s why we have the World Anti-Doping Agency [WADA] and why it’s funded in the way that it is, because both sport and governments recognise that they can’t deal with doping independently. It has to be a collaborative effort and the Lance Armstrong case shows that.”

“You need effective partnerships, but everybody needs to recognise that. It’s a two-way process. Intelligence-based investigations are always based on a number of little pieces of information and unfortunately – this applies as much to law enforcement as it does to doping – different organisations hold those little pieces. If they work together and share them, they can be put together effectively to create a big piece that is helpful in dealing with crime and doping, but if people don’t share, then progress is slow. This year, we’re trying to do more to encourage the sharing of those little pieces to enable us to do what we do as effectively as we can.”

“A case that we’ll be talking about at the conference is a good example this. It involves evidence about the trafficking of steroids, which arose as collateral from another investigation. Criminals are often investigated for ‘crime A’, but evidence of ‘crime B’ - which is steroid trafficking - can often come to light. This 2011 case involved a person who was trafficking steroids in the north-west of England. It needs to be made sure that law enforcement understands the value of that intelligence and its relevance, and also how they can most effectively share that with the relevant authorities. It is incumbent on anti-doping authorities to develop partnerships with law enforcement and not just expect them to share that information automatically.”

WSLR: “What new substances or methods has UKAD had to deal with recently?”

Graham Arthur: “We still have problems with methylhexaenamine, which despite the fact that it was banned from sale last August is still showing up in supplements and is still easy to get hold of. Unfortunately, the tragic story about the marathon runner1 who died due to complications associated with the use of a supplement is probably going to get the message out regarding supplement risks far more effectively than sport could have done on its own.”

WSLR: “Can doping ever be eradicated from sport?”

Graham Arthur: “You have to make it hard to get away with and increase the risk of being caught. That’s what we, in anti-doping organisations, work on. You can eradicate inadvertent use through education, but you can’t eradicate the motivation to cheat. That’s a choice that people make. However, you can make that choice more difficult by letting the person who is thinking about cheating know that the risk of getting caught is high and the consequences severe; and there is now a four-year ban once the new Code goes through for use of some substances. You want the decision to dope to be a risky decision that has severe consequences.”

“For somebody who is thinking about using Human Growth Hormone to make themselves stronger or recover from injury quicker, they will now know that there is a greater likelihood of being detected because the detection window in the test is longer; there is a greater likelihood that information about their behaviour will be passed to an anti-doping organisation through the exchange of intelligence with a third party; and there is now the certainty of a four-year ban once the new Code goes through for use of that substance.”

WSLR: “Are we winning the fight against doping?”

Graham Arthur: “No, because people are still doing it. Are we making it harder and more difficult to get away with? There’s certainly progress there. It’s not easy to get away with. What we’re not seeing yet is the benefits of collaboration across different bodies to uncover systematic doping. There’s an assumption that there’s more doping going on than is uncovered. Certainly at the lower levels of sport - where athletes are starting out - we want to do more to deter that level of athlete from doping.”

WSLR: “Do National Anti-Doping Organisations (NADOs) get the support they need to help tackle doping in sport?”

Graham Arthur: “We are funded by the UK government but it’s limited and reducing as public funding is, so we direct it where it will have the most impact.  However, the amount of money invested by people who cheat and the amount of money invested by governments in sport dwarfs the amount that is invested in anti-doping regulation globally. A big part of why progress is slow is that resources are scarce. International federations often don’t have the resources to invest significantly in anti-doping programmes.”

“We do as much as we can with the financial support that is given to us. However other countries are really struggling. This is an issue, because once you stop investing, then the problem that you’re trying to eradicate just comes back again.”

WSLR: “Is the use of a registered testing pool working?”

Graham Arthur: “A registered testing pool [RTP] is a tool to make sure that you can test an athlete out of competition in circumstances where you wouldn’t normally be able to. You pick that athlete on the basis of risk factors applicable to that athlete and to that sport. So, an athlete whose whereabouts vary considerably and who competes in a sport where doping could be an advantage, is a risk and we have to manage that risk.”

“The system is not perfect, but we have yet to hear from anybody who can come up with a better one. We think that the system does work, however team sports could do more in terms of recognising the benefits that it provides. There’s an assumption that team sports don’t need whereabouts because the athletes are together and can be found quite easily for most of the time. That’s an assumption that doesn’t really bear close scrutiny – it just means that their athletes are together at certain times of the day for training, and when they compete once or twice a week.”

“It does work, however RTPs are onerous and are expensive to manage. Inclusion does need to be based on risk and be proportionate. There needs to be a reason to put an athlete in. Being in a RTP is not a stigma and is not a comment on an athlete’s propensity towards doping, it is an objective assessment based on risk.”

WSLR: “Who should we be targeting in the fight against doping - athletes, or those that provide athletes with drugs?”

Graham Arthur: “Both. The people who provide the athletes with drugs need to be targeted through collaboration with other agencies, as it’s a difficult thing to do in isolation. Targeting athletes is easier to do in isolation as an anti-doping organisation because you have the performance and whereabouts data at your fingertips. The methodology for targeting them varies a lot between the two. The traffickers, suppliers and bad coaches can only really be successfully got at through collaboration across agencies.”

WSLR: “What are your views on how we should approach athletes who have been using 'recreational' drugs?”

Graham Arthur: “Under the new Code2, athletes who use recreational drugs won’t be banned for four years3, because of new provisions regarding ‘substances of abuse’. We support the fact that the Code recognises that certain substances can be abused by athletes and lead to addiction issues. Their sanctions should reflect that. However, the burden should always be on the athlete to show why they have tested positive. Athletes are all under the same obligation to understand what is on the prohibited list and to avoid substances that are on the list. An athlete that abuses a recreational substance and tests positive has some explaining to do. However if the explanation is one that requires a compassionate solution, then that’s what should follow.”

“The new provisions allow an opportunity to treat people with compassion where appropriate. The current system mandating maximum bans doesn’t really help anybody, because the athlete loses the support framework of their sport, whereas the Code provisions now allow for a more balanced approach where an athlete can agree to go into rehab and that will count as part of his ban.”

“However, one of the Code’s pillars of inclusion is health, and governments want the use of recreational substances discouraged through the Code. They want there to be a clear message that the use of substances by athletes, that are harmful to health, is not something that’s compatible with clean sport and so will attract a sanction.”

“Ultimately, the responsibility is with athletes. If athletes test positive for cannabis and cocaine etc., it’s their fault. They know what they’re taking, they know what the rules are, but they do it anyway. They have a choice, and if they choose to be an elite athlete they need to accept all of the responsibilities and privileges that go with that. These substances are bad for health, they are not compatible with the values of clean sport and the values that make successful athletes. They therefore have a place on the [Prohibited] List4.”

WSLR: “Is it too hard for athletes to argue for a reduction in their ban?”

Graham Arthur: "I don’t think that it’s too hard for an athlete to argue ‘substantial assistance5’. However, the provision for ‘substantial assistance’ requires you to go on the record. That’s the thing that puts people off. There are provisions in the new draft Code that help with that. It now offers confidentiality so that it’s not apparent to the person in respect of which ‘substantial assistance’ has been given, where the information came from.”

“This provision works best where athletes provide information to the effect that somebody else is using a prohibited substance, as that person can then be tested. If they then test positive, the ‘substantial assistance’ is made out and the person never needs to know that they were tested on the back of a tip-off. However, that doesn’t apply if the allegation is possession or trafficking or one of the other offences that requires the defendant to go on the record.”

“We have found in a few cases that the rules require you to be forthcoming about your ‘doping CV’. Nothing bad will come of that, because you will get a clean slate once you disclose everything. However some athletes don’t like doing that. We have had a few cases where ‘substantial assistance’ has been mentioned, but the athlete hasn’t wanted to disclose their doping past. We think that this is an important part of the provision, because this shouldn’t be too easy to do. If somebody is facing a two-year ban, they have done something wrong so need to produce something pretty good in order to reduce that.”

“We’re comfortable with the principle of the rules, however ‘substantial assistance’ doesn’t give any credit for information that’s very useful, but doesn’t lead to a particular person facing a charge. We’ve had information to the effect that the use of a particular substance is widespread at a certain level of a sport in a certain part of the country. . So, we’ve developed a testing plan on the back of that information. We wouldn’t know that if we hadn’t been told that by people who used it. That useful information provision isn’t incentivised by the Code. We’d like it to be”

“The provisions on ‘no fault’ and ‘no significant fault6’ are pretty tight, but they’re tight for a reason. They generally apply in cases involving some pretty serious substances, so the athletes should have to go quite some way to show why they shouldn’t receive the full ban.”

“However, things are still very confusing in supplement cases. There are different CAS [Court of Arbitration for Sport] cases that say different things about when you should get a reduced ban. There a lot of methylhexaneamine7 cases that have come before CAS, where the athlete has used a supplement out of competition without realising it has methylhexaneamine in it. The CAS decisions go in different directions on this, which means that national-level panels are finding it difficult also. This needs to be cleared up and we hope it is in the new Code when it’s approved in November8.”

“Whether or not that means it’s too hard for athletes to get a reduction, I don’t know. What we don’t like is uncertainty. If it’s hard to get a reduction in a ban, then the thing to do is to make sure you don’t get into trouble in the first place.”

WSLR: “Is it fair to ban athletes from competing until the costs of CAS proceedings are paid? Would such a ban survive a challenge?”

Graham Arthur: “The approach that we’ve taken when talking to European governments and anti-doping organisations is that it should be something left to sport to regulate. Often, the only way that an athlete can make the money back to pay CAS costs is to compete. If an athlete has lost at CAS and has had to spend time out of his sport, then he’s going to have to do something different to earn that money. It is difficult to find something that remunerates them in the same way. It does have the effect of lengthening the ban and so is an extra sanction, because if it will take an athlete another year after their ban to raise the money to pay CAS costs, then that’s a three-year ban rather than two years.”

“It does have the potential to operate as an artificial lengthening of the ban. That phenomenon has been addressed in the return to training provisions within the draft Code, where athletes were arguing that if they couldn’t return to training before the end of their ban, that would artificially lengthen their ban by the amount of time it would take them to train up to compete again. They also argued that it discriminated against them because an individual sport athlete can train while they are banned. This has been recognised by new provisions within the Code.”

WSLR: “What are your views on providing an amnesty for those that provide assistance in uncovering doping?”

Graham Arthur: “There has been a rush to say that this is the answer to doping in sport. There needs to be a pause to think about this. What a doping amnesty can’t deliver is a contractual or criminal amnesty.

WSLR: “The Australian Olympic Committee has recently taken action against some of its swimmers regarding use of sleeping drug Stilnox. What are your views on whether sporting bodies should be able to sanction athletes for use of substances that are not on the Prohibited List?”

Graham Arthur: “A number of sports sanction athletes who use ‘recreational’ substances out of competition. That’s not a doping offence, but they take the view that it’s incompatible with the values of their sport and should be sanctioned. This seems similar to that. The Australian Olympic Committee has said that the use of this substance is incompatible with the values of our sport and will therefore be punished with sanctions.”

“We respect the rights of sport to have these processes. Where we would voice caution is to say that it needs to be managed in a way that doesn’t confuse athletes about their responsibilities and it doesn’t destabilise the anti-doping system by becoming a parallel Code. As long as it’s clear what is happening and how it’s managed, then OK, but if it looks like it is undermining the Code, then it does become a problem.”

“If, for example, a sport decided to test its athletes for Stilnox using a private lab, but also asked them to test for EPO9. If the lab then finds evidence of EPO use, then it leaves that sport with a choice. It can either pass that information on to its anti-doping organisation with the caveat that it’s intelligence and not a finding, or it can tell the athlete to stop using EPO. You can end up with what constitutes a screening programme. Unless these sorts of issues are managed cooperatively, then you have the potential for abuse.”

WSLR: “Data Protection authorities have serious concerns over some aspects of the Code, such as the International Standards for the Protection of Privacy10 (ISPP). What are your views on whether athletes freely give 'consent' to anti-doping regulations and do you think that doping regulations would survive a challenge based on privacy grounds?”

Graham Arthur: “There is a shared outcome to this debate between privacy regulators and anti-doping regulators. This is that anti-doping regulators can do their work in a manner that is compatible with the fundamental rights given to citizens by data privacy legislation. That’s what we all want.

“The way to manage it is for parties such as the European Commission, the European Parliament and WADA to work together to find a compromise solution that allows anti-doping regulation to work effectively in a context where athletes’ fundamental rights are respected. I think that there is room to manage consent. An athlete shouldn’t have the option to refuse a test on the basis that he doesn’t want his data processed any more than an athlete shouldn’t have the option to ignore any other part of the rules of his sport.”

“We’re confident that there will be a fix provided, especially under the auspices of the Irish Presidency of the Council of Europe, who are very engaged on this and are doing a lot of good work with all of the interested parties to get this fixed.”

WSLR: “I have heard that the Article 29 Working Party11 has concerns over the retention of data for eight years under the current version of the Code. Now that is being extended to 14 years. Is this an issue that is about to blow up?”

Graham Arthur: “If you find out that somebody has committed a doping offence, you should be able to reach back into time and do something about it. The ISPP needs to reflect the fact that there is a proportionate time for which data should be held, including testing data. You don’t necessarily have to give yourself a data privacy problem by extending the limitation period. You can make the data retention period whatever you think is reasonable and proportionate. The statute of limitations and the data retention period are two different things. If the Article 29 Working Party don’t think that it’s proportionate to retain data for 14 years, then it needs mandate how long data can be kept for.”

 


2. The second draft of the 2015 World Anti-Doping Code is available at http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-The-Code/Code_Review/Code%20Review%202015/WADC-2015-draft-version-2.0.pdf

3. The second draft of the 2015 World Anti-Doping Code mandates a four-year ban for use of certain substances in certain circumstances. See article 10.2.1 of version 2.0 of the 2015 Code.

4. The Prohibited List of Substances and Methods, available at http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-Prohibited-list/2013/WADA-Prohibited-List-2013-EN.pdf

5. See Article 10.5.3 of the Code at http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-The-Code/WADA_Anti-Doping_CODE_2009_EN.pdf

6. See comments to Article 2.1.1 of the 2009 Code.

7. See ‘specified stimulants’ under Section 6 (S6(a)) of the Prohibited List.

8. The final drafts of the Code and WADA’s five International Standards will be tabled at WADA’s Executive Committee meeting in September and sent to all stakeholders in October. The final drafts of all six documents are scheduled for approval at the World Conference on Doping in Sport, Johannesburg, 13-15 November 2013.

9. Erythropoietin, see section 2 (S2.1) of the Prohibited List.

10. Available at http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-IS-PPPI/WADA_IS_PPPI_2009_EN.pdf

11. Body made up of European data protection regulators. See http://ec.europa.eu/justice/data-protection/article-29/index_en.htm




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