Sports, Leisure and Coaching Law
Examine the success or otherwise of the WADA Code with regard to the regulation of the use of drugs and doping in sport
It is submitted that the World Anti-doping Agency (WADA) has achieved a reasonable measure of success in the pursuit of its mandate to establish a drug free sports world.
WADA, both in its structure and in its execution of its policies, is not presented as a perfect mechanism in this respect. There are also well articulated contrary philosophical positions concerning whether sport, particularly at a professional level, ought to be regulated for substance use at all. That question is beyond the scope of this paper. In the present review, WADA is presumed to be acting at all times as a legitimate agency to advance the broad public interest in safe and drug free sport.
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A brief definition and over view of WADA’s structure shall assist in the appreciation of the points made in support of the opening statement above. WADA was founded in 1999 at the instigation of the International Olympic Committee (IOC) and its member bodies in the wake of a number of well publicised doping scandals (Canadian sprinter Ben Johnson’s positive steroid test in the 1988 Olympics; the Festiva cycling team arrest at the 1998 Tour de France are two examples), WADA is the supreme authority with respect to both the establishment of proper test procedures and the determination of what substances will be the subject of athletic sanction when detected (Lerner, 2006; WADA, 2007).
The WADA Code outlines the broad goals of the agency. The Code is the primary regulatory instrument employed to forge an international consensus concerning anti-doping practices in sport. The Code is the structure that binds sports governing bodies, national Olympic committees, and independent sports leagues to the enforcement of the WADA rules concerning doping tests procedures, both in-competition and out of competition, in conformity with the annual WADA Prohibited List of restricted substances and those subject to therapeutic exemption (WADA Code, 2)
This background information is emphasised because it confirms one important yardstick by which to measure WADA success – the critical mass that WADA has achieved since 1999 in assembling a broad membership of the world sports community that supports the anti-doping mandate, and the corresponding elevation of various doping issues and the inherent dangers of substance abuse in the public consciousness. This success, while somewhat intangible, is arguably as important as any specific drug testing programme or the successful pursuit of sanctions for doping violations.
On a related basis, breaches of the WADA Code by athletes are now generally publicly perceived as more than mere transgressions – drug cheating and its ‘win at all costs’ mentality tend to create a negative image of the offender in the eyes of the fan. One example is drawn from the otherwise staid confines of international cricket; Australian star Shane Warne’s use of a banned diuretic was widely described as ‘… the single biggest disappointment’ in the 2003 World Cup. (Mangan, p. 228)
The WADA Code has been held to be in conformity with the generally accepted principles of international law in most respects (WADA Code, 2007, 2). The WADA Code provides for a strict liability regime concerning the presence of a prohibited substance in an athlete, the automatic disqualification of the offender from the subject event, and the imposition of a suspension; all such measures have been deemed to accord with fundamental international law principles, primarily due to the various provisions that permit an aggrieved athlete to apply for a hearing to seek an appropriate remedy by way of arbitration. (Kaufmann-Koehler, 2003, 3)
The legal issues generated by the prevalence of doping in sport must be understood from several distinct perspectives. The first is the subsisting importance of the national or state criminal law regarding the possession, use or distribution of illegal substances. The fact that a stimulant such as cocaine is used by an athlete to enhance performance does not exclude the possible intervention of the state criminal law authorities upon its detection in the athlete’s system.(see Ulrich, below)
In practice, the apparent acceptance of WADA styled enforcement in sports as excluding the intervention of the state is an interesting phenomenon. The effectiveness of WADA has created the undeniable impression that ‘sport crime’, in the sense of prohibited substances and a violation of the WADA ‘play clean’ mandate is an administrative sanction issue for the particular sport league or governing body, not a matter for the criminal law.
A state criminal investigation may create an opportunity for WADA to intervene, or alternatively, to seek the production of search and seizure results from the state authority; the German police investigation into Tour de France cyclist Jan Ulrich and the 2007 Spanish criminal inquiry regarding doping products and public safety are examples (WADA Code, 3). Once in receipt of such evidence, WADA have successfully instituted proceedings pursuant to the Code against athletes targeted by state authorities; challenges to prohibit this approach by way of injunction have failed (Balco, 2006, 1).
Distinct legal issues are engaged at three different points on the continuum mandated by WADA anti-doping procedures – the testing, the analysis of the test results, and the appropriate sanction to be imposed. This continuum has created a definable body of administrative law that has mirrored the emergence of a global administrative law trend wherever private international bodies such as WADA possess authority. (Kingsbury, 2005, 16) Notwithstanding the attacks that have commonly been advanced against the process, a further indicator of over all WADA success is the perception of transparency concerning its practices and the corresponding heightening of confidence that WADA and its constituent organisations adhere to their own Code.
Prior to the institution of the WADA Code, a common tactic for an athlete who was subject to sanction as a result of a positive doping test was to seek a civil injunction. In an era of less than standardised practices, such injunctions were routinely granted, as courts often stated that they would not see an athlete deprived of their ability to earn income on the basis of flawed testing or administrative procedures. (See Reynoldsv. IAAF, 1994) The Court for Arbitration in Sport (CAS) is now the primary vehicle for the determination of all international WADA related proceedings; most national and affiliated sports organisations have established similar arbitration mechanisms. (Pound, 2006, 113)
A recent example of the reluctance of national (or supranational) courts to interfere in WADA-based proceedings is revealed in the Meca-Medina decision. Meca-Medina was an European Court application seeking to declare the IOC rules governing doping control (as propounded in the WADA Code) to be incompatible with European Community rules (EC Articles 82, 83) that regulate competition and freedom to provide services. (Meca-Medina, 2006, para 1, 4) The appellants were long distance elite level swimmers who had tested positive for a prohibited substance, (nandrolone) in post-event testing and each was subsequently suspended from competition for 4 years. The appellants had appealed the suspension to the CAS and each was unsuccessful before the arbitrator regarding the merits; the suspensions were reduced to 2 years.
The European Court held that the economic interests of the appellants were secondary to the legitimacy of the anti-doping initiatives and the absence of any procedural irregularity on the part of the sport organisations involved. (Meca-Medina, para 58, 60)
The CAS was founded in 1984 as an arm of the IOC. It is an unquestioned high level repository of sports administrative law expertise (over 200 cases per year with arbitrators drawn from over 80 countries; alleged WADA Code violations are a significant percentage of the case load). As with civil law arbitrations, the CAS acquires its jurisdiction by the mutual consent of the involved parties, where all decisions are final and binding (subject to extremely limited rights of review). (Lerner, 81) It is submitted that the definable body of sports law generated in CAS anti-doping proceedings is a further hallmark of WADA’s continued legitimacy and success.
The primary focus of WADA’s anti-doping efforts is directed towards individual athletes; the Code extends to all persons involved in athlete support – coaches, trainers and medical personnel. The long and intricate machinations of the United States criminal investigation into the Bay Area Laboratory Co-operative is an example where support persons were implicated in the supply of steroids to Olympic champion sprinter Tim Montgomery and American baseball record holder Barry Bonds. (Balco, 2006, 1)
The range of cases heard by the CAS reflects the breadth of the sporting world itself. The CAS has been called upon to consider reduced competition bans where extenuating circumstances are urged by the athlete (Lukin, 2007, 3); a request for relief from the Prohibited Substance list on the basis that the particular substance will aid in the health of the athlete (Brockman, (2004), 1); where an alleged tampering with a out of competition urine sample test procedure was challenged (Boyer, 2004, 1).
A recent decision of the CAS that highlights the CAS interpretation of the strict liability rules of the WADA Code is that of Zach Lund, the American skeleton racer disqualified from participation in the 2006 Winter Olympics due to a positive test for a prohibited masking agent, finasteride. (Lund, 2006, 1,2) The uncontested evidence before the CAS was that Lund had finasteride in his system due to his long term use of a hair restorative product. The CAS held that Lund was “open and honest” in his description of his failure to take all appropriate measures to educate himself as to the risks.(Lund, p.8)
It is submitted that in a traditional civil injunction proceeding, the absence of intent to gain a competitive advantage might be determinative of the issue, given that a berth in an Olympic Games was at stake. However, consistent with the ‘new age’ of anti-doping attitudes, the CAS held that ‘…the burden on the athlete to establish no fault or negligence is extremely high…’ (Lund, p.9) The arbitrator ruled that Lund was banned from Olympic competition in 2006.
In a 2006 arbitration conducted by the international basketball body, FIBA, a similar imposition of the WADA Code mandated and exacting strict liability standard was imposed for the inadvertent use of a hair restorative (Kurtoglu, 2006, 1), where FIBA upheld a two year competition ban. Other fact situations that highlight the primacy of the WADA Code in modern sport are contained in the newspaper articles excerpted below.( e.g. Gatlin; Ferdinand; Chambers)
In its eight years of existence, WADA has successfully impressed its anti-doping will upon the international sport community. The rules developed and disseminated by WADA have created cohesion and significant consistency in the manner that doping cases are conducted world-wide. As noted in the opening paragraph above, the intangibles associated with WADA’s heightened promotion of the ethical, health and competition issues inextricably linked to performance enhancing substances are WADA’s greatest achievement.
American Arbitration Association (2006) “Sports Arbitration including Olympic Athlete Disputes” http://www.adr.org/About (Accessed March 21, 2007)
“Athletics: Prize-Money Row Bars Chambers from NIA Grand Prix.”(2006) Birmingham Post (England) 17 Feb. 2006: 36
“Balco case trial date pushed back” (March 17, 2006) BBC News
http://news.bbc.co.uk/sport1/hi/athletics/4357145.stm (Accessed March 21, 2007)
“Gatlin Faces Threat of a Life Ban from Athletics”(2006) South Wales Echo (Cardiff) 31 July 2006: 10
Haley, James (2003) At Issue: Performance Enhancing Drugs (San Diego: Greenhaven Press)
Kingsbury, Benedict, Nico Krisch and Richard B. Stewart (2005) “The Emergence of Global Administrative Law” Law and Contemporary Problems 68.3-4: 15
Lerner, K. Lee (ed.) (2006) World of Sports Science (New York: Thomson Gale)
Manjumdar, Boria, and J. A. Mangan, eds. (2004) Cricketing Cultures in Conflict: World Cup 2003. New York: Routledge,
Mottram, David R., ed. (2003) Drugs in Sport New York: Routledge
Pound, Richard W. (2006) Inside Dope (Toronto: Wiley)
“‘Rio Deserved a Longer Ban’ (2004) ” The Evening Standard (London, England): 104
Kaufmann-Koehler, Gabrielle “Summary Opinion re: Conformity of the WADA Code” (2003) http://www.wada-ama.org/rtecontent/document/prof_kaufmann_kohler.pdf (Accessed March 21, 2007)
World Anti-doping Agency, 2007 (WADA) http://www.wada-ama.org/en (Accessed March 21, 2007)
World Anti-doping Agency Code http://www.wada-ama.org/en/dynamic.ch2?pageCategory.id=267 (Accessed March 21, 2007)
World Anti-doping Agency Prohibited List http://www.wada-ama.org/en/prohibitedlist.ch2 (Accessed March 21, 2007)
Table of Cases
Bouyer v. UCI & WADA CAS 2004/A/769,
Canadian Centre for Ethics in Sport v Lukin; WADA third party (January 31, 2007) SDRCC DT-06-0050
IPC v. WADA & Brockman CAS 2004/A/717,
Meca-Medina and Majcen v Commission (Case C-519/04 P) (see also T-313/02
Re: initial opinions)
Reynoldsv. IAAF, 23F.3d1110, (6thCir. 1994), (cert. denied 63USLW 3348).
WADA v. USADA, USBSF & Lund CAS OG 06/001,
WADA v. FIBA & Kurtoglu FIBA AC 2005-6
(Note: all WADA related case law may be accessed through the portals at the main WADA website)