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

On 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.

I.              The WADA and its Code: A Short history

The WADA is a public-private hybrid governance body.[1] 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.

The WADC 2015 is a long document of more than 150 pages, composed of 25 articles complemented with comprehensive comments. It defines the anti-doping rule violations[2], the burden of proof applicable to doping cases[3] and the functioning of the prohibited list.[4] The Code indicates also the technical procedure applicable to doping tests[5] and the procedural rights of suspected athletes.[6] Most importantly, it provides for the sanctions regime applicable in case of a violation.[7] The Code likewise regulates the potential appeal procedures.[8] 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.

As 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 regard.

II.            Making the Code 2015: The legislative process

The 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.

A 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.[9]  The WADA Foundation Board adopted the final version of the Code at the Conference.

WADA 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.[10] 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.  

III.         The Blog Symposium on the WADA Code 2015

This 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.

The 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.

The 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.

The 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 contributions,[11] 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 open question.

Finally, 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. 

[1] Its atypical public-private institutional structure has stirred the attention of scholars of the Global Administrative Law movement. See L. Casini, ‘Global Hybrid Public-Private Bodies: The World Anti-Doping Agency (WADA)’ accessible at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520751

[2] Article 2 WADC 2015

[3] Article 3 WADC 2015

[4] Article 4 WADC 2015

[5] Article 5,6,7 WADC 2015

[6] Article 8 WADC 2015

[7] Article 9,10, 11, 12 WADC 2015

[8] Article 13 WADC 2015

[9]Unfortunately, it is impossible to review the presentations and interventions made at the conference, as its website has been desactivated.

[10] Though they were online on the older version of the website.

[11] See, for example, A. Rigozzi,  U. Haas, E. Wisnosky and Marjolaine Viret, ‘Breaking down the process for determining a basic sanction under the 2015 World Anti-Doping Code’, The International Sports Law Journal, June 2015, Volume 15, Issue 1, pp 3-48 (available at http://link.springer.com/article/10.1007/s40318-015-0068-6?wt_mc=alerts.TOCjournals)

Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.

Day 1

Opening Keynote by Miguel Maduro

The audience did not have to wait long for one of the highlights of the conference as Miguel Maduro, a former Chair of the FIFA Governance Committee, took the floor immediately after Johan Lindholm, an Editor-in-Chief of the International Sports Law Journal, and Antoine Duval, the Head of the Asser International Sports Centre, had delivered their opening speeches. Drawing on his experience as a Chair of the FIFA Governance Committee, Miguel identified the resistance to public scrutiny, accountability and transparency as root causes of the governance crisis currently faced by FIFA. He suggested that an independent international agency be established to supervise the governance of international sports governing bodies. According to him, only the European Union is capable of taking such an initiative.

Panel Sessions

The first panel, chaired by Johan Lindholm, revolved around the FIFA transfer system. Jakub Laskowski from Legia Warszawa explained why we might need a different approach to solidarity in professional football. Eleanor Drywood from the University of Liverpool then examined the FIFA's ban on the international transfer of minors, suggesting that international sports governing bodies in general, and FIFA in particular, should take account of the United Nations Convention on the Rights of the Child in order to enhance the protection of minors in sport. Finally, William McAuliffe, a sports lawyer practising in Switzerland, spoke about buy-out clauses and the club's consent to transfer under the FIFA Regulations on the Status and Transfer of Players.

The afternoon session started with a panel on the labour rights and relations in sport chaired by Professor Richard Parrish from Edge Hill University. Jack Withaar from Tilburg University focused on employment contracts in professional sport, concluding with the question whether international sports federations should take into consideration labour standards elaborated by the International Labour Organization. Thereafter, Matthew Graham from the World Players Association shared his insights on the functioning of international players' unions. Finally, Andrea Cattaneo from Edge Hill University encouraged a greater use of social dialogue to regulate professional football.

The last panel of the day, chaired by Professor Mark James from Manchester Metropolitan University, tackled a relatively new topic in international sports law – the protection of human rights. Whereas our research intern Tomáš Grell and Daniela Heerdt from Tilburg University discussed how human rights could be affected by the organisation of a mega-sporting event, Brendan Schwab from the World Players Association shed light on the more specific human rights risks faced by professional athletes. Both Tomáš Grell and Daniela Heerdt agreed that international sports governing bodies need to translate their human rights commitments from bidding and hosting agreements to actual practice. Brendan Schwab, for his part, emphasised that sportspeople are human first and athletes second, and introduced the World Player Rights Policy adopted by the World Players Association in July 2017.

Keynote Discussion between Michael Beloff QC and Sean Cottrell

Throughout his more than 50-years-long career in sports law, Michael Beloff QC, also known as one of the 'godfathers of sports law', has witnessed first-hand the professionalization of sport. This and many more aspects of his truly exceptional career as a sports lawyer featured in his keynote discussion with Sean Cottrell from LawInSport (a trusted media partner of the conference). Michael also touched upon some of the contemporary sports law themes, among which the lack of gender equality in the composition of international sports governing bodies, the role of athletes in good governance of sport, inaccuracies in sporting regulations or transparency at the Court of Arbitration for Sport.   

Day 2

Keynote Lecture by Stephen Weatherill

The second day also kicked off with a keynote lecture, this time delivered by Professor Stephen Weatherill from Oxford University, who examined the conditional autonomy enjoyed by international sports governing bodies under EU law. Against the background of UEFA's Financial Fair Play rules or the FIFA's ban on third-party ownership, he explained how sporting rules that would otherwise be incompatible with EU law could nevertheless be justified on account of the specific nature of sport, what he called the 'sporting margin of appreciation'. However; he also criticised the pyramidal structure of international sport for not allowing those at the bottom end (athletes and clubs) to participate in decision-making processes of international sports governing bodies.

Morning Session

The first panel of the day, chaired by Ben Van Rompuy from Leiden University, offered some interesting perspectives on the application of EU law to sport. Stefania Marassi from The Hague University of Applied Sciences explored the policies adopted by the European Union with a view to contributing to the promotion of sporting issues in line with Article 165 of the Treaty on the Functioning of the European Union. Christopher Flanagan, a lawyer practising in England, discussed why attempts to regulate the financial aspects of professional football are met with challenges under EU law. Employing FIFA's private order as a case study, Branislav Hock from the University of Portsmouth argued in his presentation that successful private modes of governance continuously emerge from public interventions, provided that the public acts as a reversed civil society. It is worthwhile to note that Branislav won the award for the best paper presented at the conference.

Thanks to Women in Sports Law, an association that unites women from more than 40 countries who specialise in sports law, the conference also continued over lunch. Lindsay Brandon, a sports lawyer practising in the United States, and Despina Mavromati, a Co-Founder of Women in Sports Law and a former Managing Counsel at the Court of Arbitration for Sport, talked about the current state of whereabouts requirements in the world anti-doping system. They were joined in the discussion by Professor Richard McLaren.

Keynote Lecture by Richard McLaren

After lunch, Professor Richard McLaren from Western University in Ontario, the former head of WADA's investigation into the Russian doping scandal, spoke about broader challenges to the operation of the world anti-doping system. Among other things, he stressed that athletes have a crucial role in uncovering doping practices, as they know much more about these practices than anybody else. Having insisted that whistleblowers are of utmost importance, he also criticised the International Olympic Committee for its treatment of the Russian athlete Yuliya Stepanova who was eventually blocked from competing at the Rio Olympics despite her exceptional contribution to the fight against doping. In more general terms, Richard asserted that the integrity of sport is threatened not only by doping but also by archaic governance, corruption or match-fixing.

Afternoon Session

After the lecture given by Richard McLaren, the conference continued with a panel on international sports arbitration chaired by Despina Mavromati. Howard Jacobs, an American sports lawyer, together with Lindsay Brandon from his office, discussed the proposal to create a permanent anti-doping division at the Court of Arbitration for Sport. Professor Jernej Letnar Černič from the Graduate School of Government and European Studies in Ljubljana then looked at how the guarantee of a fair trial could be strengthened in proceedings before the Court of Arbitration for Sport. Finally, Kazushige Ogawa from Rikkyo University in Tokyo shared his insights on the functioning of the Japan Sports Arbitration Agency.

The last panel of the conference, chaired by Antoine Duval, addressed one of the most pressing issues in the world of sport – the fight against doping. Kelsey Erickson from Leeds Beckett University examined a range of psychological factors influencing athletes who intend to blow the whistle on doping. Jan Exner from the Czech Olympic Committee focused on the sanctions for anti-doping rule violations, suggesting that a four-year period of ineligibility might be disproportionate. Finally, our last speaker Louise Reilly, an Irish barrister and a former counsel at the Court of Arbitration for Sport, provided a precise overview of jurisprudence dealing with intentional anti-doping rule violations under the 2015 World Anti-Doping Code.

A thank you note

We would like to take this opportunity to thank all the speakers and participants not only for joining but also for actively contributing to the very rich discussions that followed after each session. We hope that this is only the beginning and that the ISLJ Annual International Sports Law Conference will become a tradition in the coming years. For those who did not have the chance to attend, the ISLJ will publish a special issue including the papers of the conference, so stay tuned!

Looking forward to seeing you next year,

The team of the Asser International Sports Law Centre

PS: Feel free to leave us comments with your feedback/suggestions, so that we can work on improving the conference.