What does it actually mean when a country or sports federation is declared non-compliant with the WADA Code?

Published 23 August 2016 By: Natalie St Cyr Clarke

What does it actually mean when a country or sports federation is declared non-compliant with the WADA Code?

As the Olympic Games has taken centre stage again over the last two weeks, so too has doping in sport and the effectiveness of the fight against it. The fight is spearheaded by the World Anti Doping Agency ("WADA"), and one important compliance tool that it has in its armoury is the ability to declare a signatory “non-compliant” with the terms of the WADA Code.

This article examines who exactly must be compliant with the WADA Code (i.e. who the “signatories” are), what it means to be compliant, and the potential consequences of a signatory being declared non-compliant.

 

Who must be compliant with the WADA Code?

All signatories to the WADA Code, which include national anti-doping organisations (“NADOs”) and international federations (“IFs”) listed in Article 23.1 of the WADA Code, “shall implement applicable Code provisions through policies, statutes, rules or regulations according to their authority and within their relevant spheres of responsibility.1

Under the Olympic Charter (“OC”), compliance with the WADA Code is also mandatory for the whole Olympic Movement.2 Rules 25 and 27.2 OC specify that IFs and National Olympic Committees (“NOCs”), respectively, must adopt and implement the WADA Code. Likewise, Article 2.1.1 of the Rights and obligations of International Paralympic Committee (“IPC”) members states that all IPC members have the obligation to comply with the WADA Code.3

Whilst States cannot be signatories to the WADA Code, a non-governmental document, the Copenhagen Declaration on Anti-Doping in Sport was drafted and agreed to by many governments at the Second World Conference on Doping in Sport, in March 2003.4 The Copenhagen Declaration signalled governments’ intention to formally recognise the WADA Code. Subsequently, the International Convention against Doping in Sport was adopted under the auspices of the United Nations Educational, Scientific and Cultural Organisation (“UNESCO Convention”).5 The UNESCO Convention came into force on 1 February 2007 and, at the time of writing, has been ratified by 183 countries with the Central African Republic being the most recent country to ratify it.6

 

What is the meaning of compliance?

Pursuant to Article 23.5.1 WADA Code, monitoring of compliance is conducted by WADA. To facilitate monitoring, each signatory shall report to WADA on its compliance with the Code and shall explain any reasons for non-compliance.7 If a signatory fails to provide compliance information, it may be considered non-compliant with the Code.8

Before reporting a signatory to be non-compliant, WADA must engage in dialog with the signatory. Furthermore, no signatory can be declared non-compliant before it is given an opportunity to submit written arguments to the WADA Foundation Board.9

Signatories must have compliant rules that lead to the practice of a compliant anti-doping program. As such, several anti-doping organisations were declared non-compliant following the coming into force of the 2015 WADA Code for not having code-compliant rules.10 Any anti-doping program must entail the following elements:11

Merely adopting Code-compliant rules may not be enough; Code compliance “should mean an enthusiastic, common and unwavering commitment by all Signatories to recognize and perform the obligations they have assumed regarding doping-free sport.13 WADA has recently stated that, having assessed the compliance of rules, its focus will now shift to the quality of anti-doping programs.14

 

What are the consequences following a declaration of non-compliance?

Provisions of the code

The first mention of the consequences of non-compliance is in Article 20.1.8 WADA Code, which requires the IOC to “accept bids for the Olympic Games only from countries where the government has ratified, accepted, approved or acceded to the UNESCO convention and the National Olympic Committee, National Paralympic Committee and National Anti-Doping Organization are in compliance with the Code.” Likewise, IFs and Major Event Organisations are required “to do everything possible” to award World Championships or Events “only to countries where the government has accepted, approved or acceded to the UNESCO convention.” 15

The WADA Code outlines additional consequences of non-compliance in Article 23.6. These are “forfeiture of offices and positions within WADA; ineligibility or non-admission of any candidature to hold any International Event in a country; cancellation of International Events; symbolic consequences and other consequences pursuant to the Olympic Charter.

Practical implications

Following a declaration of non-compliance, there is no uniform, automatic or mandatory application of any sanction mentioned in the WADA Code. The consequences resulting from such a declaration are determined on a case-by-case basis depending on the severity and nature of the non-compliance. However, given that a condition of laboratory accreditation is the compliance with the WADA Code of the country in which the laboratory is situated, one of the more predictable consequences of a NADO being declared non-compliant is the suspension of the accreditation of the country’s WADA-accredited laboratory, if one exists.16

Spain’s NADO, the AEPSAD, was suspended on 19 March 2016 for the failure of its government to pass the necessary legislation to achieve WADA Code compliance.17 At the time of writing, it is the only country besides Russia to be declared non-compliant. Spain has two WADA-accredited laboratories in Madrid and Barcelona. As a direct result of being declared non-compliant, the WADA-accredited laboratory in Madrid had its accreditation suspended. However, the laboratory in Barcelona has not.18 Article 4.4 of the International Standard for Laboratories (“ISL”)19 allows WADA to decide not to suspend a laboratory’s accreditation if at least 60% of samples are analysed by Anti-Doping Organisations of countries other than that of the suspended NADO. For the Madrid laboratory, unfortunately, 69% of samples analysed were from the AEPSAD.

Another potential consequence of a country being declared non-compliant is the inability of its athletes to compete in the Olympics and other international events and competitions, although such a consequence is not mentioned in Article 23.6 WADA Code. Nonetheless, Article 23.6 WADA Code states that there may be “other consequences pursuant to the Olympic Charter”. Rule 40 OC states that “[t]o participate in the Olympic Games, a competitor, team official or other team personnel must respect and comply with the Olympic Charter and World Anti-Doping Code” and Rule 27.2 OC requires NOCs to adopt and implement the WADA Code. Evidently, the two provisions are intertwined and can be used to prevent a group of athletes from participating in the Olympic Games.

Due to the political uncertainty that Spain found itself in, and consequently its inability to adopt new code-compliant legislation, its athletes were still permitted to compete internationally, presumably because the Spanish athletes themselves were not considered to be non-compliant with the Code.

Of course, no talk of doping and the banning of athletes is complete without mentioning Russia, currently the most publicly visible example of the potential follow-on effects of being declared non-compliant. In contrast to Spain, many Russian athletes are not permitted to participate in the Olympic Games and other international tournaments, as there are so many Russian athletes under suspicion and the comparatively high number of those implicated in the scandal there is no guarantee that any one individual Russian athlete competing is clean. This was also the rationale of the IPC when it imposed a blanket ban on Russian athletes competing in the Paralympics.20

RUSADA, the Russian anti-doping agency, was declared non-compliant by WADA on 18 November 2015, following the Independent Commission Report on doping in Russia.21 This declaration came after the IAAF suspended the Russian athletic federation (“ARAF”) from participation in international athletics for non-compliant practices. Not only did the IAAF suspension mean that Russian athletes were not permitted to participate in International IAAF Competitions, it also meant that Russia could not host International events such as the World Race Walking Team Championships or the World Junior Championships. Additionally, all outstanding doping cases conducted by the ARAF were delegated to the CAS.22

As the cancellation of International Events is a potential consequence mentioned in Article 23.6 WADA Code, and given that FIFA is bound by the provisions of the WADA Code, there could exist a legal basis for the 2018 World Cup to be withdrawn from Russia.

The scale of non-compliance in Russia was such that the Moscow laboratory was deemed non-compliant with the ISL and suspended in its own right, rather than being suspended as a result of RUSADA’s non-compliance. In fact, such was the extent of non-compliance with the ISL, accreditation of the Moscow laboratory was not only suspended; it was revoked.23

Thus, in the cases of both Madrid and Moscow, agencies using those laboratories have had to find other laboratories to conduct their testing. During a period of non-compliance, contracted agencies and/or the NADOs of other countries have to conduct testing on behalf of the non-compliant NADO. In the case of Russia, UK Anti-Doping (“UKAD”) has been contracted to conduct tests on Russian athletes since February 2016.24

International federations

Most discussions focus on countries and NADOs being declared non-compliant. However, one must recall that, under Article 23.1 of the WADA Code, the IOC and IFs are signatories to the Code. This means that, technically, they could be declared non-compliant with the WADA Code. Whilst it is politically unlikely for the IOC to be declared non-compliant, continued high numbers of positive doping cases and other non-compliant conduct in a particular sport could lead that sport to be deemed non-compliant with the WADA Code.

WADA had the power to declare the IAAF non-compliant given the clear evidence that those at the top of the organisation were involved in the concealment of positive doping tests, especially with regard to Russia.25 Bearing in mind that Rule 25 of the Olympic Charter requires IFs to adopt and implement the WADA Code, a declaration of non-compliance could lead to a federation subsequently losing its position as an Olympic sport. According to Rule 45.3 OC, “[o]nly sports which comply with the Olympic Charter and the World Anti-Doping Code are eligible to be in the programme.

Although there are numerous reported positive cases in athletics from athletes of varying nationalities, the current issues centre on one country, whereas in other sports, doping appears to be more widespread among the participant countries. For instance, although the International Weightlifting Federation (“IWF”) has banned Russian weightlifters from participating in the Olympics in Rio following WADA’s Independent Person Report on Sochi allegations,26 the IWF nonetheless remains under fire for the high number of reported positive findings and such actions may not be enough to deflect from the deficiencies of its anti-doping program. Many of the positive tests are from non-Russian athletes, resulting from the retesting of samples from the Beijing and London Olympics by the IOC.27

The Court of Arbitration for Sport (“CAS”) has previously upheld the banning from the World Games of an IF that had a “bad doping record.28 The CAS determined that the International Federation of Body Building and Fitness (“IFBB”) had failed to implement proper anti-doping policies, which was demonstrated by the high number of positive tests during previous editions of the World Games and the conduct of only three out-of-competition tests in a calendar year in a sport such as body building. Consequently, the CAS held that the IFBB was not in a position to ensure compliance of its athletes with the relevant anti-doping regulations.  

Whilst a high number of reported adverse analytical findings is not dispositive of non-compliance and could demonstrate the efficacy of testing, it must be borne in mind that all samples retested were not performed by the IWF but by the IOC, and many medallists at the Beijing and London Olympics have or will have to hand their medals back to the IOC.29 Being samples from international level athletes, it is the IWF and not the NADOs that have out-of-competition testing authority.30 The argument can be made that there has been a failure on the part of the IWF to detect anti-doping violations. Consequently, the IWF has recognised its need to clamp down on doping31 and will have to revise its testing and education practices in order to clamp down on doping or face the potential consequence of being excluded from the Olympics.

 

Closing remarks

Quite clearly, both the degree of non-compliance and the resulting consequences can vary widely as seen in the disparity between the treatment of Russia and other non-compliant countries. Consequences can range from the temporary suspension of WADA-accredited laboratories to more harsh sanctions such as the prohibition on participation in international tournaments.

All signatories to the WADA Code can be declared and suffer the consequences of non-compliance. However, whilst the focus is on the compliance of countries with the WADA Code, international federations are not absolved from severe consequences, although some scenarios are more likely than others.

 

Related Articles

Author

Natalie St Cyr Clarke

Natalie St Cyr Clarke

Natalie St Cyr Clarke is Legal Affairs Manager at FIBA (International Basketball Federation) and Co Chair of the Sports Law Subcommittee of the International Bar Association. Natalie is a New York qualified lawyer with numerous years of experience in sports arbitration and dispute resolution, having previously worked for Libra Law in Lausanne, Switzerland.
  • This email address is being protected from spambots. You need JavaScript enabled to view it.