The use of banned substances in order to enhance sporting performance (widely known as “doping”) has been an issue in professional sport for many, many years.
Not inconsistent with the Olympic motto of “faster, higher, stronger”, athletes are always looking for ways to better their performance.
Across the spectrum of virtually all sports, doping practices (and with the prohibition on doping, the masking of doping practices) have become much more common as well as sophisticated.
The likes of Lance Armstrong, Floyd Landis, Marion Jones, Martin Vinnicombe and Ben Johnson may possibly be better remembered for their use of performance-enhancing drugs more than anything else.
World Anti-Doping Agency also known as WADA, was established in 1999 as an international independent agency composed and funded equally by the sports movement and the governments of the world with a view to tackling the growing and universal problem of the use of drugs by athletes.
WADA’s mission is to promote, coordinate and monitor the fight against doping in sport in all its forms.
The World Anti-Doping Code (Code), first introduced in 2004, is the core document that harmonizes anti-doping policies, rules and regulations within sport organisations and among public authorities around the world.
The Code was never designed to be a document that stood still. As anti-doping developed, so would the ideas that would form rules, regulations and policies in the future.
Following the experience gained in the application of the 2004 Code, WADA initiated consultation processes in 2006, 2011 and 2017 to review the Code. These review processes were fully collaborative processes that involved the whole anti-doping community, all of whom sought an enhanced Code that would benefit athletes around the world.
The revision process for the 2021 Code (which came into force on 1 January 2021) began at the end of 2017 and following three phases of consultation over a two-year period.
To date, approximately 700 sports organisations have accepted the Code. These organisations include the International Olympic Committee (IOC), the International Paralympic Committee (IPC), International Federations (IFs) (including all IOC-recognized IFs), National Olympic and Paralympic Committees, as well as National and Regional Anti-Doping Organizations (NADOs and RADOs).
The Code works in conjunction with eight International Standards which aim to foster consistency among anti-doping organisations in various areas.
These Standards are:
- The International Standard for Testing and Investigations (ISTI)
- The International Standard for Laboratories (ISL)
- The International Standard for Therapeutic Use Exemptions (ISTUE)
- The International Standard for the Prohibited List (The List)
- The International Standard for the Protection of Privacy and Personal Information (ISPPPI)
- The International Standard for Code Compliance by Signatories (ISCCS)
- The International Standard for Education (ISE)
- The International Standard for Results Management (ISRM)
Signatories, which include Australia, are required to undertake three steps in order to be fully compliant with the Code: acceptance, implementation, and enforcement.
Australia has adopted the Code into its 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.
The current National Anti-Doping Policy (which can be accessed here) reflects the 2021 version of the Code and consequent changes to Australian anti-doping legislation.
Sport Integrity Australia, which commenced operation on 1 July 2020, combines the existing functions of the Australian Sports Anti-Doping Authority (ASADA), the National Integrity of Sport Unit and the integrity functions of Sport Australia.
The key changes to the WADA Code are detailed by Sport Integrity Australia here.
Summary of key changes to the WADA Code
A summary of the key changes are as follows:
Categories of athletes
Athletes will be categorised under the amended Code based on their level of competition:
- international level – athletes who compete on the international stage
- national level – athletes who are competing in a Declared Sporting Event. These are listed on the Sport Integrity website or who is on any Sport Integrity Australia testing pool
- lower or recreational level – athletes who are less likely to have the support and education that higher level athletes have. Sanctions are lower for these athletes
- protected persons – underage athletes (such as children) or athletes who, for other reasons, lack legal capacity have been afforded greater protection and are now classified as protected athletes. Although they are still liable to violations, penalties are less severe compared to athletes of other categories and the identities of protected athletes will not be made public. Penalties range from a warning to a maximum ban of two years.
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.
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.
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:
- Registered Testing Pool – athletes in the Registered Testing Pool have the most stringent requirements for notifying of their whereabouts, including providing 60-minute testing windows
- National Testing Pool – the requirements for this new testing pool are not as stringent as those in the Registered Testing Pool
- Domestic Testing Pool.
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.
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.
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 Code can be found here.
How can FC Lawyers assist you with WADA?
The team of specialised lawyers at FC Lawyers have assisted and advised professional athletes over many years in better understanding their obligations as athletes, including under the World Anti-Doping Code that have prevailed from time to time, and when athletes have been investigated over alleged breaches (or, in some instances, committed breaches) of their obligations.
If you need assistance with the World Anti-Doping Code, contact our team for a no-obligation consultation.
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