Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code
1 January, a new version of the World Anti-Doping Code (WADC or Code) entered
into force. This blog symposium aims at taking stock of this development and at
offering a preliminary analysis of the key legal changes introduced. The
present blog will put the WADC into a more general historical and political
context. It aims to briefly retrace the emergence of the World Anti-Doping
Agency (WADA) and its Code. It will also reconstruct the legislative process
that led to the adoption of the WADC 2015 and introduce the various
contributions to the blog symposium.
WADA and its Code: A Short history
WADA is a public-private hybrid governance body.
It is formally a Swiss foundation, but its executive bodies are composed
equally of representatives of public authorities and Sports Governing Bodies
(SGBs). The current president of WADA, Sir
Craig Reedie, is also vice-president of the International Olympic
Committee (IOC). The WADA was created as a response to the massive doping
scandal that marred the Tour de France in 1998. Its original aim was to “set unified standards for anti-doping work and
coordinate the efforts of sports organizations and public authorities”. The idea of a specific global organization was
submitted at a World Conference on Doping in Sport in Lausanne, in February
1999. A few months later, on 10 November 1999, the WADA was established.
WADA’s key task was, and still is, to devise the
global set of uniform rules applicable to the anti-doping fight: the WADC. The first version of the WADC was finalized in 2003. After amendments were
tabled, a second version of the Code entered into force in 2009. As the WADA does not
dispose of any public (or private for that matter) authority to implement the
Code, it must be transposed by the SGBs and governments at the national and
international level to gain some teeth (a list of the current signatories can
be accessed here).
Compliance with the Code is compulsory for the whole Olympic Movement as
provided by article 43 of the Olympic Charter. WADA’s main responsibility is to monitor and report on the compliance of various federations and States. The Code was first
endorsed by States in the Copenhagen Declaration on Anti-Doping in Sport in 2003, and later supported by the adoption of the
UNESCO International Convention against Doping in Sport in October 2005. The Convention is one of the most
ratified UNESCO Conventions to date with 182 signatories.
2015 is a long document of more than 150 pages, composed
of 25 articles complemented with comprehensive comments. It defines the anti-doping
the burden of proof applicable to doping cases
and the functioning of the prohibited list.
The Code indicates also the technical procedure applicable to doping tests
and the procedural rights of suspected athletes.
Most importantly, it provides for the sanctions regime applicable in case of a
The Code likewise regulates the potential appeal procedures.
The WADC is complemented by a set of five International
Standards, which are mandatory for the signatories. Finally,
the implementation of the Code is also supported by a set of Model Rules, Guidelines and Protocols.
illustrated by the recent doping
scandal involving the Russian Athletics Federation, the
question of compliance with the Code is a prodigious challenge for WADA. The
organisation’s raison d’être is
threatened by the well-known gap between law in the books and law in action.
This discrepancy between a global uniform code and its many local realities, has
led to recent calls
for WADA to be tasked with the implementation of the Code and to take charge of
the testing process. The true impact of the Code 2015 will partially depend on
the clarification of the competences and responsibilities of WADA in this
the Code 2015: The legislative process
WADC 2015 is the result of a peculiar legislative process. WADA claims, since
its early days, that the Code is a living document, subjected to a productive
feedback chain. The revision of the WADC started at the end of 2011 and covered
three different phases of consultation over a two-year period. Approximately
2000 proposals for amendments were submitted to the drafting team. In the end,
the Code was approved on 15 November 2013 at the World Conference on Doping in
Sport in Johannesburg.
specific team managed the consultation process and each of the three
consultation phases included a review and the approval from the WADA Executive
Committee. The first phase started on 28 November 2011 whereby a
call for comments was communicated to stakeholders (WADA does not indicate how
it defines the reach of this category), and feedback was received from 90
stakeholders. The comments led to the drafting of the Draft Version 1.0 of the
2015 Code, which was approved by the WADA Executive Committee in May 2012. On 1
June 2012, the second phase of consultation was initiated with a new call for
comments issued to all the “stakeholders”. Over a period of four months, WADA
received feedback from more than 100 stakeholders, which was incorporated in
the second Draft of the 2015 Code. Eventually, a third consultation phase took
place from 3 December 2012 until 1 March 2013, which led to the Executive
Committee adopting a third draft of the Code. The final mould of the Code was
submitted to the World Conference on Doping in Sport, hosted in Johannesburg in
November 2013. The WADA Foundation Board adopted the final
version of the Code at the Conference.
is adamant (and proud of the fact) that the Code was drafted in an inclusive
and participative process. Although it is undeniably positive that many
stakeholders had the opportunity to access and discuss the drafts of the Code,
the specific reasons leading to the policy choices made remain largely
undisclosed. It is extremely difficult to know why a proposed amendment made it
into the new Code, and why another did not. Moreover, the scope of the notion
of a stakeholder is key to define who gets to contribute. If, for example (as I
suspect), the SGBs and NADOs are massively overrepresented amongst the
stakeholders consulted, it gives them a disproportionate voice in the
legislative process of the new Code. The transparency of the process is also
lagging, as is illustrated by the fact that the comments are nowhere to be
found on WADA’s new website.
This lack of transparency is worrying for an institution partially founded and
managed by public authorities. In any event, improving the transparency and the
inclusiveness of the adoption process of the WADC is a must to ensure that WADA
fulfils the good governance standards it is aspiring to.
Blog Symposium on the WADA Code 2015
blog symposium includes four contributions from very different perspectives, by
specialized academics, practitioners and an anti-doping administrator. They
deal primarily with the various practical changes to the anti-doping fight
induced by the new Code. The objective is to show how the Code has already changed
the way the “anti-doping world” is operating, and the transformations it might
still trigger in the future. The symposium is organized with the help of both
Marjolaine Viret and Emily Wisnosky.
first contribution by Herman Ram, the Head of the Dutch Doping
Autoriteit, covers the impact of the WADC 2015 on the work of
national anti-doping agencies. Ram highlights the various ways in which the
Code has (or may) profoundly changed the operations of the Dutch NADA. In
particular through its focus on a smarter anti-doping fight. He anticipates the
stumbling blocks ahead and identifies the key trends already under way.
second contribution by Marjolaine Viret (@MarjolaineViret)
and Emily Wisnosky (@Ewisnosky), the two researchers involved in the cutting edge WADC-Commentary
project alongside Prof. Antonio Rigozzi (@AntonioRigozzi), focus on the new Code’s
influence on Athletes under medical treatment. They study closely the new legal
regime applicable to obtain a Therapeutic Use Exemption and the potential
sanctions faced by athletes under medical treatment who have not obtained a TUE
before a positive anti-doping test.
third contribution by Mike Morgan (@MSL_Mike), a
lawyer specialized in anti-doping disputes, examines the new sanctions regime
stemming out of the Code 2015. As pointed out in various recent academic
this is probably the most fundamental change introduced in the Code. It is in
any case the most visible, since it will most vividly affect the athletes
failing an anti-doping test. As Morgan shows, the new Code vows to introduce a
degree of flexibility in the sanctions regime and to provide smarter,
tailor-made, sanctions. Whether this aim will be achieve is still very much an
Howard Jacobs (@athleteslawyer), also a
lawyer specialized in anti-doping disputes, analyses the function of the notion
of intent in the new Code. Indeed, one of the main innovations of the Code is
the introduction of specific sanctions based on the intentional or non-intentional
nature of the doping violation. This raises many legal questions linked
especially with the burden of proof. Jacobs goes in great lengths to provide a
clear analytical map of the problems ahead regarding the need to demonstrate
the (non-)intentional nature of an anti-doping violation. He poses fundamental
questions that will likely pop up in front of anti-doping tribunals and the CAS,
and offers some preliminary answers.