09 December 2020
12 min read
#Dispute Resolution & Litigation
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Doping (i.e. using banned substances in order to enhance sporting performance) has plagued professional sport since, well, forever. Athletes competing in the Ancient Olympic Games are reported to have taken things such as figs, brandy, ‘magic’ mushrooms and sesame seeds as performance enhancers. It sounds horrifying now, but it wasn’t all that long ago that substances such as strychnine, heroin, cocaine and caffeine were widely used as performance enhancers. While this wasn’t illegal at the time (cheating was illegal, but enhancing performance by ingesting these substances was not), it shows that athletes have, since sports became a way of competing, sought ways to enhance their performance to gain that little bit extra, be it in height, endurance, speed, recovery, etc.
Since these early times, doping practices (and with the prohibition on doping, the masking of doping practices) have become much more sophisticated. It also became rampant in professional sports and, while some sports (such as cycling and bodybuilding) appear to be plagued more than others, it seems no sport has been immune.
Some of the more modern and high-profile doping scandals include:
In an attempt to tackle the worldwide and growing problem of drug use in sport, the World Anti-Doping Agency (WADA) was established in 1999. WADA’s mission is “to lead a collaborative worldwide movement for doping-free sport”.[3] The World Anti-Doping Code (Code), which establishes a standardised, consistent set of anti-doping rules to be applied worldwide, was first introduced in 2004. The Code was revised in 2009 and in 2015. A further revised version of the Code comes into effect on 1 January 2021.
In this article, we examine the changes in the revised Code and share our discussion with Bronwen Knox, triple Australia Olympic water polo player, on what she sees as the impact of some of the changes.
How the Code is applied
Australia is a signatory to the United Nations International Convention against Doping in Sport and as such, is required to implement anti-doping arrangements in accordance with the principles of the Code.
Australia has adopted the Code into national law in the form of the Australian Sports Anti-Doping Authority Act 2006, the Australian Sports Anti-Doping Authority Regulations 2006 and the National Anti-Doping Policy. Changes to the Code are reflected in changes to the National Anti-Doping Policy, which can be accessed here.
Upcoming changes to the Code
In June 2020, WADA announced that a number of changes would be made to the Code effective 1 January 2021.
The changes to the Code follow a two-year consultation process that began in 2017 and resulted from issues raised by stakeholders to remove inconsistencies. The key changes are detailed by Sport Integrity Australia here. We summarise the key changes below.
1. Categories of athletes
Athletes will be categorised under the amended Code based on their level of competition:
Retired athletes returning to a high level (national or international) competition will be required to give six months written notice to Sport Integrity Australia of their intention to do so. During the six months, they must make themselves available for anti-doping testing before any international or national events.
2. Non-participants
Non-participants in a sport (including board members, executives and high-performance staff) are not subject to testing for banned substances but will be subject to, and liable for, rule violations for tampering, trafficking, administration and complicity.
3. Testing changes
Not all substances (or methods of use) are banned at all times. Some substances are only banned “in competition” (that is, commencing at 11:59 pm the night before an athlete is competing and concluding at the end of the sample collection period for that competition). For example, some recreational drugs or “substances of abuse” such as cocaine, heroin and marijuana are only banned from in-competition use.
Whereabouts information is an important tool in anti-doping testing. Athletes must advise authorities of their whereabouts (sometimes months in advance) to enable unannounced testing to occur. The extent to which an athlete must provide information depends on their level of competition. Under the changes, Sport Integrity Australia will establish a new testing pool (National Testing Pool) to collect whereabouts data of an athlete.
Athletes will now be classified in either the:
4. Rule violations and whistleblower protection
Whistleblower protection has been introduced into the Code. It is now an offence to discourage or retaliate against someone for reporting information relevant to potential doping activities.
This could have benefitted (and was likely included as a result of) Grigory Rodchenkov, who headed Russia’s anti-doping agency and was prominent in the Netflix documentary, Icarus. After whistleblowing the state-sponsored program, Rodchenkov fled to the United States in fear of the ramifications of his actions.
The current violation for tampering with substances has also been amended to include tampering during the results management process. For example, giving false recounts of events or falsified documents as evidence.
5. Prompt resolution of cases
The changes affect how hearings will be conducted to bring uniformity between cases. Additional requirements have been introduced, restricting who can hear a matter. Although it seems obvious, people with industry experience and legal qualifications are now required.
In addition, the Code now mandates that the same individual is no longer able to sit on hearings that decide to charge an athlete and also hear whether a violation has been committed. Like the previous paragraph, this seems obvious and generally occurred in countries such as Australia. Initial hearings for all athletes are through the National Sports Tribunal or the particular sport’s internal tribunal. Appeals must be heard independent from the original decision-maker unless informed consent is given by an athlete in particular circumstances.
6. Education
Ignorance is no excuse and education is key to enable athletes to understand their responsibilities. The updated Code introduces an international standard for education into the Code. Sporting bodies will be required to establish an education pool and an approved education plan which targets athletes and support personnel who require mandatory education, including those who have had previous violations of the Code.
A complete copy of the 2021 WADC can be found here.
An athlete’s perspective
Holding Redlich caught up with Bronwen Knox, a member of the Australian Women’s Water polo team for the 2021 Tokyo Olympics. Bronwen won bronze medals at the 2008 Beijing Olympic Games and the 2012 London Olympic Games. The 2021 Tokyo Olympics will be Bronwen’s third Olympics.
Bronwen has degrees in science, health and law and plans to use her degrees to focus on integrity and equality in sport. With Bronwen’s unique background and insight into WADA and how the Code has operated to date, we asked Bronwen to share her thoughts.
Bronwen’s thoughts
Anti-Doping regulations are, unfortunately, a necessary evil in sport. History has proven that the pressure to perform and win can see athletes disregard their health and make questionable decisions when it comes to performance-enhancing substances. Every single anti-doping requirement, whether it be being accompanied by a chaperone until you have finished providing and packaging your sample or providing comprehensive details about your movements, have been incorporated because athletes have been caught out doing the wrong thing.
These past two years, I have been working in the education field of anti-doping. I was shocked to hear how many athletes test positive to a banned substance due to incidental ingestion through a contaminated product. More often than not, supplements are found to be the culprit. Last I heard it was twelve per year. That is, one athlete per month is caught out due to not carefully checking everything they put into their body or being appropriately educated on their rights and responsibilities. On a side note, I am hopeful that efforts to reduce this number will be helped by recent changes to the Therapeutic Goods Act 1989 (Cth). These changes seek to better regulate supplements. Changes, in effect from 30 November 2020, include certain sports supplements, such as higher-risk ingredients or are in the form of a tablet, pill or capsule, to be therapeutic goods ensuring they are appropriately regulated like medicines.[4]
There are times when anti-doping requirements can feel like an invasion of privacy. Having a tester turn up to your house on any given day to perform a test or having to provide your overnight location three months in advance. It can be especially frustrating when you are asked to provide information you don’t have, such as where the national team is planning on staying while on tour and competing overseas. Often this information is provided a week before flying out, and it can be easy to forget to change your WADA Whereabouts information you submitted over three months ago.
The 2021 WADA changes seem like they will provide greater flexibility in how the rules will be applied. Previously, all ten Anti-Doping Rule Violations (ADRV) had strict liability – meaning that no matter what level of athlete, no matter how much education you received, you were facing up to a four-year ban. Flexibility has now been applied to some of the ADRVs relating to individuals classified as Lower Level Athletes (defined as being neither national nor international level athletes). This flexibility does not extend to include an ADRV associated with the presence of a prohibited substance or interfering with the integrity of the testing procedures.
Discretion, or flexibility, has always been a “scary” concept in sport. Especially when it is used within selection policies and invoked in a decision on who will be selected in an Olympic Team and who will miss out. Having said that, the addition of this flexibility seems like it will better protect athletes who participate at lower levels or socially and do not receive the same amount of education or resources as international or national athletes.
Another positive that has come out of the recent changes in Australia (not in relation to WADA but relevant nonetheless) is the streamlining of the ADRV process. The previous ADRV process was complex and included duplicate steps, often leading to frustrations and lengthy delays in the final outcome. This process has now been streamlined granting power to the Sport Integrity Australia CEO to assert on whether a possible ADRV has occurred.
The process is as follows:
Individuals can still seek judicial review of the Sport Integrity Australia CEO’s decision and apply to have their matter heard by the National Sports Tribunal or a sport-specific tribunal.
One of the biggest concerns I have as an athlete under the new rules is the combination of the retired athlete rule and the declaration of what is considered a National Event. In my sport, there is a domestic national club competition – the Australian Water Polo League (AWL), which is currently considered the highest competition in Australia. Participants can range from upcoming juniors to social competitive players, former national representatives and current national team members.
While I am looking forward to the day that I can stop entering my overnight details three months in advance by ‘officially’ retiring from the sport, I am likely to continue playing in the AWL. If I do, I will have to give six months written notice and make myself available for testing before competing. This will mean I will have to decide at the end of each season if I want to compete in the next. It might be safer to never officially retire...
For further details on the changes to the Code, see Sport Integrity Australia’s website here.
Authors: Alexandra Hollings & Australian Olympian Bronwen Knox.
[1] Sport Integrity Australia and WADA have since filed an appeal of this CAS decision.
[2] https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_A1_2020__FINAL__for_publication.pdf
[3] https://www.wada-ama.org/en/who-we-are
[4] https://www.tga.gov.au/community-qa/sports-supplements-declared-be-medicines Therapeutic Goods Act 1989 (Cth) s 7.
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The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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