Do WADA’s anti-doping regulations restrict athletes’ access to impartial experts?

Published 19 May 2016 By: Natalie St Cyr Clarke

Scientist_on_Laptop_next_to_Vials

Aside from the WADA Code1 and the anti-doping regulations adopted by each sport, another regulation less considered by athletes could have an impact on the outcome of an anti-doping disciplinary procedure. The International Standard for Laboratories (“ISL”)2 details the accreditation process3 for laboratories and holds WADA-accredited laboratories and their staff members to certain standards with the aim of ensuring the integrity of the anti-doping program.

Under article 3.2.1 of the WADA Code,4 scientific methods adopted by WADA are presumed to be scientifically valid. However, an athlete’s case may rely on the challenging of such methods and there is often more to an adverse analytical finding than an athlete’s intention to cheat. The opinion of a scientific expert could thus be particularly important for an athlete’s case, backing up facts alleged by an athlete with a scientific explanation.

As the recent Meldonium saga5 demonstrates, holding anti-doping science and practices up to scrutiny is paramount.6 Doping cases and the scientific experts engaged to assist a panel, either party-appointed or as a neutral, are fundamental in this process. This article explores whether, as a result of the ISL, there is a restriction of athletes’ access to impartial experts.

 

The relevant rules

Article 5 para. 4 of the Code of Ethics accompanying the ISL explicitly states that laboratory staff are to be neutral if called to testify. It states:

"If Laboratory staff is requested by either party or the tribunal to appear before an arbitration or court hearing, they are expected to provide independent, scientifically valid expert testimony. Laboratory experts should not be an advocate to either party."

This provision suggests that WADA’s main interest is in striking a fair balance between anti-doping prosecution and the rights of an athlete, by enabling anti-doping practices to be held up to scientific scrutiny and evaluated before an independent tribunal. It lends itself to the notion that laboratory staff are independent of WADA and other anti-doping organisations.

Upon a closer look at the Code of Ethics, the ability of laboratory staff to provide a free and impartial opinion could be in conflict with other provisions in the Code of Ethics. Article 4.1 states:

"Work to aid in forensic and/or legal investigations may be undertaken but due diligence should be exercised to ensure that the work is requested by an appropriate agency or body. The Laboratory should not engage in analytical activities or expert testimony that would intentionally question the integrity of the individual or the scientific validity of work performed in the anti-doping program."(emphasis added)

Regardless of the provision in article 5, laboratory staff are in essence prevented from levelling any criticism towards WADA’s anti-doping practices, whether it be the validity of individual tests or the flaws in the program as a whole. The independent testimony from laboratory staff foreseen in article 5 thus appears to be a somewhat compromised provision.

 

What does this mean for an athlete’s case?

The value of an expert in a hearing is unquestionable and can be the crux of an athlete’s case. However, panels acknowledge their limited scientific knowledge and appreciate that “it is not its function to step into the shoes of scientific experts”,7 and they will likely follow the reasoning and position of a credible expert.8 For that reason, finding and having access to knowledgeable and experienced experts is indispensable.

For athletes seeking to engage experts who are staff members at WADA-accredited laboratories, article 4.1 Code of Ethics, despite article 5, inevitably means that the athlete is confronted with WADA-accredited laboratory staff who are reluctant to testify on their behalf. This could indeed be down to the laboratory staff’s professional opinion being contrary to the position of the athlete. However, the author herself has experienced WADA-affiliated scientists declining to testify for fear of publicly stating, in their professional opinion, that the doping authority was wrong. This provision de facto prevents an athlete from accessing the WADA network of laboratory staff.

In theory, an athlete can find a non-WADA accredited laboratory staff member to attack WADA’s scientific data or methods. In practice, the use of a non-WADA-accredited laboratory staff member as an expert entails numerous difficulties. Additionally, the mere challenge of analytical methods or decision limits by an athlete has been made more burdensome by article 3.2.1 of the WADA Code, which requires an athlete to first notify WADA of any such challenge prior to a challenge being mounted.

 

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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.
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