On 4 June 2018, WADA opened the second phase of the review process for the 2021 WADA Code (the ‘Code’),[1] by circulating the first draft of the new Code, along with the outcomes of the preliminary stakeholder consultation and a document summarizing the major proposed changes.[2] While WADA’s initial instructions to the drafting team were that the review should be of a “limited scope”,[3] the first draft reflects a number of significant amendments, many of which will predictably generate debate.
We provide below a brief selection of issues which, far from being merely ‘cosmetic’, might significantly impact Anti-Doping Organizations’ tasks and/or Consequences for Athletes. These can be structured in the form of broader themes which appear to underlie the review. The WADC Commentary Project plans to submit comments regarding this first draft in the 2nd consultation phase and will publish a more detailed analysis of the 2021 Code review in due time.
Theme one: Make it easier to enforce the doping prohibition
Addressing the practical difficulties in investigating and prosecuting anti-doping rule violations – especially against an Athlete’s entourage – without the coercive means of public law enforcement was already central to the 2015 Code review. Proposed amendments again seek to trigger ‘voluntary’ cooperation through a ‘carrot-and-stick’ approach, with the ‘stick’ component arguably predominating.
An important aspect of the proposed review is aimed at deterring fraudulent conduct in the results management and hearing process. In particular, the first draft reintroduces the concept of Aggravating Circumstances (abandoned in the 2015 Code) for such behaviour and making clear fraudulent conduct in the results management and hearing process constitutes Tampering (Comment to Article 2.5). If passed, these amendments might reignite the debate around the legitimacy of compelling individuals under threats of consequential sanctions to cooperate in disciplinary proceedings against them, though the draft Comment to Article 2.5 reserves the right of the accused to a “legitimate defense”.
The new Article 2.11.1 makes it an anti-doping rule violation to threaten a person in order to discourage them from reporting a violation, or to retaliate against them for doing so. The subsequent drafts of the Code might see a narrowing of the wording of that provision drafted in broad strokes, and a refinement of the circumstances in which it may apply – that is of course, if the very concept of the new violation passes stakeholder scrutiny.
Finally, the violation of ‘Prohibited Association’ (Article 2.10) is modified to make its application less cumbersome for Anti-Doping Organizations, by removing the requirement that Athletes must have been notified in advance of a person’s disqualified status as a prerequisite for asserting a violation against them. That this provision would be the focus of a proposed revision is not surprising, since few – if any – violations of Article 2.10 were pursued under the 2015 Code.
The range of potential Consequences incurred for Complicity (Article 2.9) is also increased to allow for a lifetime period of Ineligibility.
Theme two: More flexible sanctions for Minors and Recreational Athletes
The introduction of ‘intentional’ doping and the simultaneous removal in the 2015 Code of the requirement to prove the origin of the substance for Minor Athletes resulted in some confusion for panels asked to adjudicate cases dealing with Minors, especially when the substance involved was not a Specified one and the Minor had no explanation for its presence.
The new provisions seek to provide the additional flexibility sought for Minors under the previous version of the Code, notably by removing a Minor’s burden to establish lack of intention even for violations that do not involve a Specified Substance, with the result that the starting point for these types of violations is a two-year period of Ineligibility rather than a four-year period of Ineligibility (Article 10.2.1). The possibility remains for an Anti-Doping Organization to increase this starting point back to four years by establishing the violation was intentional. The new Code also adds the possibility for Minors to obtain a mere reprimand for No Significant Fault or Negligence in all cases, and not just those involving Specified Substances (Article 10.5.1.3).
While greater flexibility has certainly been granted to Minors, the proposed revisions at the same time narrow the definition of who is to be considered a Minor Athlete (decreasing the age-limit from 18 to 16, in many circumstances) (Appendix 1), thus reducing the pool of Athletes who would benefit from this added flexibility.
It remains to be seen whether these amendments will remedy to the current uncertainties or add new ones. In particular, how panels should assess a Minor’s degree of Fault without the origin of the Prohibited Substance having been established should remain a recurring topic.
Finally, a newly defined category of ‘Recreational’ Athletes is created (see Appendix 1 for the definition), who should benefit from a similar flexibility in sanctioning as Minors do in case of No Significant Fault or Negligence (Article 10.5.1.3), and equally avoid mandatory public disclosure of their sanction (Article 14.3.6).
Theme three: Adjusting analytical approaches to focus on ‘real doping’
The risk of ‘collateral’ damage arising from the growing sensitivity of anti-doping analysis in WADA-accredited laboratories has been evoked for a number of years now – including by the authors – in that it increases the likelihood of Adverse Analytical Findings resulting from contamination or other situations beyond the control of the Athlete.
The amendments recommended by the Code drafting team include the introduction of “reporting limits for those prohibited substances which are known contaminants”,[4] which has been referred to the WADA List Committee for consideration. Similar solutions are being contemplated for substances prohibited In-Competition only which are detected in minute quantities In-Competition after having been obviously used (legitimately) Out-of-Competition.[5] In parallel, new options are planned to be opened for laboratories to report certain purely exogenous substances as ‘Atypical Findings’ (an option currently only available for potentially endogenous substances) for further investigation, rather than as an immediate Adverse Analytical Finding.[6]
The proposed amendments unquestionably go into the right direction and show that awareness has been created around the risk of inadvertent violations that do not carry genuine ‘doping relevance’. However, the exact contours of the new regime that will be designed by the List Committee and its implementation will be key to it success.
Theme four: Harsher sanctions in certain situations, little added flexibility in ‘other circumstances’
A major theme of the previous Code review process was modifying the sanctioning regime to clamp down on the ‘real cheats’ and provide more flexibility in ‘other circumstances’. The current revision continues the trend of ‘harsher’ sanctioning, but (apart from the amendments related to Minors and Recreational Athletes described above) places comparatively little focus on granting greater flexibility for non-intentional doping.
The reference to ‘cheating’ is removed from the definition of an ‘intentional’ violation (Article 10.2.3). The new version retains only the technical (legal) core of the previous definition, which captures the concept of whether the Athlete either knew their conduct would result in an anti-doping rule violation (intent stricto sensu) or knew that there was a significant risk that it may (recklessness). The removal of the term ‘cheat’ – the implications of which were unclear under the 2015 Code – would allow panels to refocus on a more traditional concept of intention, but may place them into a real dilemma when dealing with Prohibited Substances that were wilfully (thus intentionally) ingested, but in a context entirely unrelated to sport (thus without intent to cheat).
As already mentioned, the new sanctioning regime reintroduces the concept of Aggravating Circumstances abandoned in the 2015 Code (Article 10.7). This new provision grants considerable discretion to a hearing panel to increase a standard sanction by up to two years – even on its own initiative (Comment to Article 10.7.1)– where circumstances exist that may “justify” a longer ban. As a result, even first violations for presence or Use of Prohibited Substances could result in an initial six-year period of Ineligibility.
The revisions also provide for two violations committed with “separate culpable intent” to be punished as multiple violations (Article 10.8.4.3), regardless of whether the Athlete or other Person committed the second violation before receiving notice of the first (otherwise a prerequisite for reaching into the increased Ineligibility range for second violations).
As mentioned, little was done to provide additional flexibility in sanctioning violations committed by the ‘average’ Athlete or other Person while new provisions give more flexibility to both Minor and Recreational Athletes. This approach places a great deal of importance on the developments discussed above concerning potential new reporting limits and other modalities for known contaminants, to reduce the risk of inadvertent violations being subject to unduly harsh sanctions under the 2015 version of the Code.
Theme five: Clarified collaboration among Anti-Doping Organizations
With a trend (encouraged by the 2015 Code revision) towards enhanced collaboration among Anti-Doping Organizations, and more ‘non-analytical’ cases being investigated, the results management or review process that must precede any assertion of an anti-doping rule violation has become increasingly complex, especially when several Anti-Doping Organizations are involved (e.g. because Sample collection was delegated).
In future, the revised Code should clarify responsibilities in case of ‘delegation’ of Doping Control functions (Article 20) and assign to WADA the right to designate an Anti-Doping Organization for results management to ensure that such process can always be carried out in each individual case in spite of the competent organization defaulting (Article 7.1.1).
In response to these new circumstances, as well as claims that the hearing process ought to be better described, WADA has further decided to incorporate these procedural aspects into a new International Standard for Results Management and Hearings.
As for the amendments to be discussed by the List Committee, the specifics of the new International Standard will be decisive for the effectiveness of that new approach.
[1] Capitalized words correspond to defined terms in the WADA Code.
[2] https://www.wada-ama.org/en/media/news/2018-06/wada-launches-second-phase-of-2021-code-review-process-and-first-phase-for.
[3] https://www.wada-ama.org/en/what-we-do/the-code/2021-code-review.
[4] WADA, 2021 Code Revision – First Draft (Following the First Consultation Phase): Summary of Major Proposed Changes Found in the First Draft of the 2021 Code, https://www.wada-ama.org/sites/default/files/2018_06_04_secondphasecodereview_major_proposed_changes.pdf, p. 5–6.
[5] Id. at p. 6.
[6] Id. at p. 1–2.
