The World Anti-Doping Agency (“WADA”) has issued the fourth edition of the World Anti-Doping Code (the “Code”), effective January 1, 2021. The Code is the central document which sustains the World Anti-Doping Program. The signatories to the Code include members of the Olympic Movement, national anti-doping organizations for countries across the globe, and international sports federations outside of the Olympic Movement, including organizations for athletes with various types of disabilities and the World Triathlon Competition. Anti-doping agencies and sports organizations are expected to start preparing for the adoption of the new Code this year to ease the transition next year.
These changes remain particularly important, even as many sports leagues, from the National Basketball Association to Major League Baseball in the United States, have cancelled their seasons due to the coronavirus (COVID-19) pandemic. The International Olympic Committee has followed suit, as it announced that it will postpone the 2020 Summer Olympic Games, which were scheduled to be held in Tokyo this July, due to the growth of the pandemic. Nonetheless, sports and athletics will survive this setback, as they have for hundreds of years. When they do, anti-doping agencies may have to accelerate the transition into applying these new rules and move forward with immediate implementation. It will become all the more important for athletes and organizations to get up to speed quickly.
On November 16, 2017, WADA’s Foundation Board initiated a fourth review process for the Code as well as the International Standards. The Code Drafting Team solicited stakeholder feedback and incorporated key elements of that feedback into successive working drafts of the 2021 Code. In November 2019, WADA published the Code and Standards, as well as Athletes’ Anti-Doping Rights Act (formerly known as the Anti-Doping Charter of Athlete Rights). Below are the most significant changes which have emerged from the review process.
Changes to the Code
During the review process for the 2021 Code, stakeholders raised multiple pressing issues regarding the scope of the current anti-doping regime and changing rules and sanctions to address areas of imbalance that are inconsistent with the focus of preventing and penalizing the use of substances that unfairly alter or affect sport performance. Some of the most significant changes for professional athletes include:
- Responding to Recreational Drug Use
Stakeholders noted that sanctions are sometimes based on an athlete’s out-of-competition use of street drugs, when the use is not banned, but the athlete competes in an event before it has left her system. The quantity detected during a test in competition, however, strongly suggests that the use was outside of competition in a social context and it did not affect the athlete’s sport performance. In response, WADA’s List Expert Group will revise the Prohibited List to identity the substances on the List “which are often abused in society outside of sport” as “Substances of Abuse.” The Code now includes a new provision under Article 10, which governs “Sanctions on Individuals,” which provides essentially an exception to the general rule for an athlete who tests positive based on the use of a recreational drug if the athlete can establish the use occurred outside of competition and was unrelated to sport performance. See Code, art. 10.2.4.1. It also includes a provision that, even where the contact with the recreational drug occurred in competition, the use will not be considered intentional or constitute an aggravating factor for a sanction so long as the athlete can “establish the context of the ingestion, use or possession was unrelated to sport performance[.]” Code, art. 10.2.4.2.
In response to the feedback that hearings have become unnecessarily expensive due to argument on the appropriate length of the sanction in these cases, the Code now provides a flat period of ineligibility of three months, with no argument over the question of whether the athlete had “significant fault” for the positive test result. The athlete can then reduce the period of ineligibility down to one month by completing a rehabilitation program which satisfies the anti-doping organization which regulates the athlete. The rehabilitation program incentive was added to address the concern that, where an athlete’s substance abuse does not affect his performance during competition, sports federations and national anti-doping organizations should prioritize the athlete’s health.
- Raising Reporting Thresholds for Trace Amounts of Substances
The 2021 Code steps away from the general rule that there may be an “adverse atypical finding” which can support an ADRV charge if a substance appears in an athlete’s sample in an in-competition test, regardless of when she took the substance. Stakeholders observed that, in recent years, WADA-accredited laboratories have developed the ability to detect increasingly minute quantities of a prohibited substance in the athlete’s urine in an in-competition sample, including those that were clearly used outside of competition and could not possibly have an impact on in-competition performance. WADA has appointed a working group that will reconsider reporting thresholds for certain substances that are not prohibited out-of-competition, including certain recreational drugs, but which may appear in trace amounts in in-competition tests. The working group’s recommendations would then be submitted to WADA’s List Expert Group, which develops the Prohibited List of substances, and the Executive Committee. The List Expert Group would also take the same approach of reviewing reporting limits for prohibited substances known as contaminants, in light of the recent controversy over the detection in clenbuterol, a chemical found in contaminated meat in certain countries, like Mexico and China, but not in others, and the disparity in how ADOs treated these cases.
- Adding the Category of “Recreational Athletes”
Under the current Code, anti-doping organizations are not required to test lower-level athletes, but if they do and an ADRV results, then those athletes are subject to all of the Code’s consequences. Stakeholders who regularly test these athletes argued that they perform the testing for public health reasons and that rehabilitation, rather than sanctions provided by the Code, is more consistent with that purpose; the Code penalties are unfair for athletes with fewer opportunities for anti-doping education as higher-level athletes; and the Code’s mandatory public disclosure requirement on the individual’s employment status is unduly harsh for someone who participates in sport only at the recreational level and not as a full-time job.
The revised 2021 Code provides more flexibility in imposing consequences for anti-doping rule violations by lower-level athletes. The Code characterizes them as “recreational athletes,” and allows national anti-doping organizations of the athlete’s country to make the determination as to who meets the criteria. The Code, however, provides three parameters: the definition must not include any athlete who in the prior 5 years has been (a) an international-level or national-level athlete; (b) representing a country in an international event in an open category; or (c) been in a Registered Testing Pool or other whereabouts pool of an international federation or national anti-doping organization.
- Shifting Burdens of Proof to Anti-Doping Organizations
The 2021 revisions to the Code provide several instances where anti-doping organizations have the burden of establishing certain facts that athletes previously were required to negate in anti-doping rule violation (ADRV) cases. Article 2, which governs “Anti-Doping Rule Violations,” prohibits association in a sport-related capacity with athlete support persons who are serving periods of ineligibility due to anti-doping sanctions. This article has been amended to eliminate the advance notice requirement under the 2015 Code and instead requires the anti-doping organization to prove that the athlete knew the support person was ineligible before it can bring an anti-doping rule violation charge on this ground. See Code, art. 2.10. Likewise, Article 3, which covers “Proof of Doping,” clarifies that departures from if an ADO departs from WADA Standards in a way which could reasonably have caused an ADRV (e.g., standards governing sample collection and handling, whereabout failures, or notices to athletes of the opening of a B sample), the burden shifts to the ADO to prove that the deviation from WADA standards did not cause the ADRV. For example, an anti-doping organization may meet its burden by showing that its failure to give notice of the opening of the B sample did not cause the adverse atypical finding which it contends supporting the ADRV charge by having an independent observer witness the B sample opening. See Code, comment to art. 3.2.3.
- Protection of Whistleblowers
The 2021 version of the Code has added a new article which protects individuals who report anti-doping rule violations. Similar to laws that prohibit certain acts as well as retaliation against a third party who reports the bad act, Article 2.11 of the Code provides that it is an anti-doping rule violation to threaten another person to discourage that person from good faith reporting of information related to an ADRV, non-compliance with the Code or other doping activity, or to retaliate against another person for doing so. The sanction available under Article 10 can range from two years to lifetime ineligibility depending on the severity of the violation.
Changes to Hearing Standards
The 2021 revisions to the Code include more rigorous standards for fair hearings under Article 8. WADA also adopted its first International Standard for Results Management (“ISRM”) along with these 2021 revisions – a step toward more uniformity in the hearings and enforcement process. Some of the key changes include:
- Changes to Initial Hearing Procedures
Hearing panel members must serve a minimum of two years in office and the panel must include at least one member with a “legal background.” If the panel includes a single adjudicator, that person must have a legal background. See ISRM, art. 8.3. They also must be selected from a wider pool to ensure that other members are available in case of a conflict of interest with an appointed panel member. All of the parties must be notified of the panel members’ identities and have the right to challenge any member’s appointment within seven days. That challenge must be decided by an independent person from the wider pool of hearing panel members or an independent institution. See ISRM, art. 8.5. In addition, the ISRM provides a right to a public hearing, consistent with the practice of the Court of Arbitration for Sport.
- Setting Additional Impartial Hearing Panel Requirements
The Code was amended to address the concern that all of the signatories to the Code were not observing the “impartial hearing panel” requirement, including instances in which the same individual is involved in the decision to charge an ADRV (adverse doping rule violation) and the hearing on whether a violation has been committed – acting as the judge, jury and executioner. Article 8 now requires the hearing panel to be “operationally independent” throughout all three of these phases. The ISRM defines the term to mean that individuals previously involved with the case are excluded from participating on hearing panels including board members, staff members, commission members, consultants and officials of the ADO responsible for results management or its affiliates, such as a member federation, as well as anyone involved in the investigation and pre-adjudication of the matter cannot be appointed as members and/or clerks. Under this standard, neither the ADO nor any third party may interfere with a hearing panel’s ability to conduct the hearing or its decision making process.
- Independence in Appellate Panels
The ISRM also provides that hearing panels for appeals must be both operationally independent, like initial hearing panels, but also institutionally independent, which means that they cannot “in any way be administered by, connected or subject to” this arm of the ADO’s results management authority. ISRM, art. 10.2(a). An international or national-level athlete, however, may agree to have his case heard initially by the Court of Arbitration for Sport with the consent of the WADA and the relevant ADO. In those cases, the decision of this court is not appealable, except to the Swiss Federal Tribunal in a circumstance where it would normally have the power to hear the case. These changes to the Code and Standard governing anti-doping efforts worldwide will have a profound impact on the experience of athletes around the world. They reflect a continuing effort to modify rules to address inconsistencies and promote balance and fairness while moving toward the goal of drug-free competition and creating a level playing field in every arena.