World Sports Law Report caught up with Frédéric just after his presentation at Tackling Doping in Sport 2012 outlining the process involved in the review of the World Anti-Doping Code ('the Code'). Frédéric was appointed as Director of the European Regional Office of the World Anti-Doping Agency (WADA) in February 2011, having previously worked as Head of WADA's media and communications.
After reviewing stakeholder comments submitted by 15 March, WADA is due to table a revised version of the Code at its Executive Committee and Foundation Board meetings, which will take place on 17 and 18 May in Montreal. In this interview, Frédéric outlines his views on WADA's role in amending the Code, sanctioning, Code compliance, anti-doping in developing countries and whether there can ever be a level playing field for athletes in anti-doping terms.
Tackling Doping in Sport, which took place 14-15 March at Twickenham Stadium, brought together over 200 anti-doping experts from 22 countries. For more information on the conference programme, click here.
WSLR: UKAD1 discussed the Martin Gleeson case2, which involved the use of supplements and the principle of 'strict liability' - i.e. the athlete is responsible for all substances that enter their body. There has also been a case involving Sale Sharks player Karena Wihongi3, who was given a drink at half time by his club, tested positive for Methylhexaneamine and was banned on the basis that he is ultimately responsible for how that substance entered his body and should have consulted a medical professional prior to ingestion. I wondered whether 'reverse doping' is possible, whereby a club with - lets say - a difficult player, could void a player's contract by giving him a contaminated substance? Has the Code review anticipated this possibility?
Donze: "I don't remember any cases like this occurring. But, generally speaking, this is the whole purpose of the Code. The principle of strict liability governs the Code, with a balance allowing the athlete to prove to the satisfaction of the panel that he had 'no significant fault' or 'no fault' in any given case4. It is no more than a reversal of the burden of proof, and the athlete is of course allowed to prove his innocence. That's the whole purpose of the Code: to try and find that balance between strict liability, which allows effective enforcement of the anti-doping rules, while at the same time having the flexibility, once the anti-doping rule violation has been established, for the athlete to prove to the satisfaction of the panel, either that he had no significant fault - with which he can actually reduce his sanction - or that he had no fault at all, and at the end of the day, he can avoid any sanction in this way."
WSLR: In the Wihongi case, it was said that the player should have consulted with a medical professional before consuming the drink provided to him at half time during a game by his club.
Donze: "This is often the issue with supplements and is why there have been so many warnings from WADA and from anti-doping organisations about their use".
WSLR: But isn't checking such drinks given to you by your club at half time during a punishing rugby match extremely difficult?
Donze: "I don't know the specific details of that case, so I can't comment in detail, but there are these protections within the Code that allow for the reduction or avoidance of sanctions. I cannot speculate on how these will look in the next version of the Code, as it depends on what submissions we receive from stakeholders. This will be an interesting discussion, and sanctions - as usual - will be one of the major topics of discussion as part of the ongoing Code review."
WSLR: It was also mentioned that NADOs5 should be able to suspend provisions allowing athletes to reduce their sanction by providing 'substantial assistance' in certain circumstances . Is that something that WADA would be prepared to consider?
Donze: "The principle of substantial assistance already exists in the current version of the Code. But once again, I think it is very important to understand WADA's role in the Code review. WADA acts essentially and fundamentally as a secretariat. It is always important to remember that WADA is a regulatory body composed of signatories, and those signatories make the rules and adopt the rules. So, would WADA be willing to accept a change in terms of the rules pertaining to 'substantial assistance'? I would turn the question round and ask 'does the anti-doping community want this?' This is a question for stakeholders and for WADA's Executive Committee, which will act as a steering group in the Code review. At the end of the day, it is always a question of discussion and compromise."
WSLR: Moving on to the Code review. Firstly, is it on schedule?
Donze: "It has always been on schedule - that is why the schedule was established! The first phase of consultation ended on 15 March and there follows a two month period during which WADA will review all of the consultation responses and will come up with a draft revised version, which will be tabled at the Executive Committee and Foundation Board meetings in mid-May in Montreal7. The Code review has three phases leading into the World Conference on Doping in Sport in Johannesburg in November 20138. We are on schedule, and there is nothing yet that would make me think that this schedule might vary. It was accepted by WADA's Executive Committee and Foundation Board."
WSLR: November 2013 is a very final date. Say, hypothetically, something major were to happen at the London 2012 Olympics, such as the discovery of something like Operation Puerto9. Is there a provision built in to delay the Code review in such circumstances?
Donze: "When we speak of the Code review, we need to think of it as a process. It is not a process that has been or will be affected by any particular case. Of course, a particular case may have some importance as part of the discussions, but we're speaking about anti-doping principles and rules, as well as technical areas such as the international standards10 and such. I wouldn't expect anything to change or affect our schedule."
WSLR: The Court of Arbitration for Sport amended its rules regarding payment of costs during appeal cases at the start of 201211. Has this affected WADA's case load?
Donze: "Not that I know of. The changes mean that if an athlete appeals a case from a national federation, or WADA appeals a case brought by a national federation, then it has to pay, but not if it is an international decision. That's part of the reason why the UCI12 or the IAAF13, who send their cases back to the national federations before it gets to the international level, are considering establishing international disciplinary panels to avoid going back to the national federation. As far as I know, it hasn't had a major effect on case load."
WSLR: How are you finding the conference?
Donze: "I think that the conference is a great opportunity to meet and interact with people who are active in the field of anti-doping. It is the first time I have come, and it represents a great opportunity to mingle with anti-doping experts, athletes, representatives from federations and national associations, anti-doping organisations and more. It's a mix of people that makes discussions interesting and constructive. It was good for WADA to repeat the message that this Code review is an important opportunity for WADA stakeholders to have their voice heard. We want to make sure that the Code is as good and as practical a tool as possible for its users on a daily basis. The stakeholders are the ones that will shape the future of the global fight against doping in sport through the Code revisions. So, for us, it's key to have that contribution from stakeholders. I was very pleased to hear Andy Parkinson, for example, report on the national consultation that UK Anti-Doping conducted [for the Code review]. It is very important for us that everyone can have their voice heard. At the end of the day, the Code is the result of compromises. You cannot have a global universal tool such as the Code being accepted on every single point by everybody. There will always be people that will be unhappy with specific points, however at the end of the day, what we really want is a document that works as well as is possible, that serves the purpose of people working in anti-doping and serves to protect the clean athletes worldwide."
WSLR: You mentioned that 81% of the Code signatories were deemed compliant with the Code.
Donze: "Yes, 81% of signatories were deemed compliant with the Code back in November 2011. It will be interesting to see the next report that we get on this in May at the Executive Committee and Foundation Board meeting. The number is sure to be higher. Add to this that the governments are not direct Code signatories. In the world, there are now 170 governments that have ratified the UNESCO Convention Against Doping in Sport14. This is an amazing achievement. There are 25 countries as of April 2012 that have yet to ratify, however this represents the speediest ratification of a Treaty in the history of UNESCO. If you look at it on a global basis, the anti-doping landscape is pretty harmonised."
WSLR: I have heard criticism from some of the 'developed' anti-doping countries that there isn't a level playing field for athletes. To me, that 81% suggests that there may be a bit of a problem there.
Donze: "One has to keep in mind that Code compliance is not a guarantee of quality. Code compliance means that the Code signatory has rules in line with the Code and has enforced a number of anti-doping activities in key areas that were selected by WADA's Executive Committee - namely in-competition and out-of-competition testing; education; results management; and TUE15 procedures. We work with those stakeholders that are not fully compliant to support them in becoming fully compliant. However, at the same time, we have initiated a major 'better practice' project, through which we want to encourage and support as best as possible all of our stakeholders to improve their anti-doping programmes by going from a macro approach - which we will still have as guardians of the Code - to a more micro approach, to support as much as possible the development of better anti-doping practice worldwide."
"It is a critique that will always happen. You look at your country, you think that your country is probably the most tested, and sometimes with good reason. If I am an athlete, I want my competitors from all parts of the world to have to undergo the same procedures that I have to undertake. This, in particular, is why we launched back in 2005 our anti-doping programme development . We work with developing regions across the world to facilitate the establishment of independent regional anti-doping organisations that can conduct anti-doping activities in regions that were underdeveloped in terms of anti-doping - and sometimes for very legitimate reasons. For example, if you look at some part of Africa or other parts of the world, anti-doping is not high on the agenda because they have more important concerns. Today, there are 15 regional anti-doping organisations across the world, covering close to 120 countries, that can conduct anti-doping activities in regions of the world where nothing, or very little, was done before the creation of these regional anti-doping organisations. It is a progressive process. We won't get to the ideal situation where the playing field will be totally level, but it is one of our goals and missions at WADA to try to ensure that the playing field is as level as possible throughout the world. It will take more work, it will take more years, but we hope to be in a situation in a few years where the playing field is even more level."