Delegating anti-doping whereabouts requirements to national sports federation - a benefit or a danger to athletes?

Published 23 June 2014 | Authored by: Emma Mason
Version 3.0 of the WADA World Anti-Doping Code, due to be implemented on 1st of January 2015 (redlined version against current 2009 WADA Code linked), has created much discussion amongst various sport stakeholders.1
However, a recent case concerning Athletes Whereabouts Requirements (“Whereabouts” - defined below) has brought to attention two questions that have not been widely considered:
  1. should the ability to delegate administrative responsibility for Whereabouts filings exist, and
  2. should the delegate, in the event that they fail to fulfill their delegated Whereabouts duties, also face sanctions under the WADA Code?

Background: Athlete Whereabouts Requirements and The Lee/Kim case

On the 13th of January 2014, two Korean badminton stars were sanctioned to a one-year period of ineligibility from competition for Whereabouts failures2. Lee Yong Dae and Kim Ki Jung are highly decorated athletes: Lee was an Olympic Gold medalist in mixed doubles in 2008 and a Bronze medalist in men’s doubles in 2012. They are consequently part of a Registered Testing Pool (RTP) of players who are required to comply with WADA’s Athlete Whereabouts Requirements, which are setout in clause 11 of their International Standard for Testing (IST)3.
 
By Clause 11.1.4 of the IST, an RTP athlete must, at the beginning of each quarter, provide a specific 60-minute time slot (between 6am and 11pm) for each day of the following quarter where they will be available for anti-doping testing at a location they specify. If the athlete is not available during that slot, it amounts to a “Missed Test” and, consequently, a Whereabouts Failure for the purposes of the Article 2.4 of the WADA World Anti-Doping Code 2009.
 
The above obligation is in addition to the requirement on the athlete under Clause 11.1.3 of the IST to make a quarterly “Whereabouts Filing” with his or her International Federation (IF) or National Anti-Doping Organisation (NADO), which includes the provision of details of where the athlete will be residing on each day, their competition schedule, where they will be working, training or carrying out other regular activities, and the usual time frames in which these occur. A failure to comply with Clause 11.1.3 constitutes a “Filing Failure” and, consequently, a Whereabouts Failure for the purposes of the Article 2.4 of the WADA Code.
 
By Article 2.4 of the WADA Code, it is an Anti-Doping Rule Violation to have accumulated three Missed Tests or Filing Failures (or a combination of both) in an 18-month period, and an athlete may face a maximum period of ineligibility from competition for two years.
 
In the Lee/Kim case, the Badminton Korea Association (BKA) and their players had apparently acknowledged and accepted responsibility for the Whereabouts failures in letters that they sent to the World Badminton Federation (BWF). In light of this, the players were found guilty of an Anti-Doping Rule Violation and sanctioned accordingly. However, the independent doping hearing panel also made a recommendation that the BWF should consider further sanctions against BKA4 for their role in the incident.  
 
The players chose to exercise their right to appeal to the Court of Arbitration for Sport (CAS). However, during the interim period, the BWF disciplinary committee found that: BKA had assumed full responsibility for updating the players Whereabouts; had failed in their responsibility to comply with the Anti-Doping Regulations; and had failed in their duty of care to the two players by allowing administrative failures to lead to the three Whereabouts failures. Consequently, BKA were found to be negligent, fined $40,000 and ordered to refund the cost of the players’ missed tests5.
 
At present, under Clause 11.3.6 of the IST, an athlete in an RTP may choose to delegate some or all of their Whereabouts responsibilities to a third party provided that third party agrees. However, by Clause 11.3.7 the athlete remains ultimately responsible for making accurate and complete Whereabouts Filings and by Clause 11.3.7 it is not a defence to a Filing Failure or a Missed Test that the athlete had delegated responsibility for their Whereabouts but had failed to fulfill their duty. Therefore, pursuant to the IST, even though BKA had assumed administrative responsibility for the player’s Whereabouts, they could not face sanctions under the WADA Code.
 a

 

Under the IST, an athlete is able to avoid a Whereabouts Anti-Doping Rule Violation if they can prove that they were not negligent in accruing three Whereabouts Failures. Such a case would, in effect, be an inadvertent Whereabouts Failure. On April 15th 2014, following the disciplinary committee decision, the doping hearing panel reversed their initial decision. The panel concluded that: the players had chosen to delegate their Whereabouts to BKA; that all communications from BWF in relation to RTP and Whereabouts Failures are sent care of BKA; and that there was no evidence the players had ever received notice regarding their first or second Whereabouts Failures.6 Given the players were not aware of their initial Whereabouts Failures they could not be found to be negligent in ignoring the notices. Therefore, the players’ sanctions were lifted and they were immediately reinstated.7
The Lee/Kim case is not an isolated one. There was a similar CAS Case (Albert Subirats v FINA 2009)8 in which a swimmer, who had delegated the filing of his Whereabouts, to his national federation lodged a successful appeal against his Anti-Doping Rule Violation and subsequent period of ineligibility. During the case it emerged that his national federation had failed to pass on to the swimmer any FINA notifications he had accrued for filing failures until he had accumulated three and was thus no longer in a position to remedy his Whereabouts failures and subsequent anti-doping violation. As CAS Panels are not required to follow previous decisions, it must be acknowledged there can be no guarantee that the Lee/Kim case would have been decided in the same way.
 
However, this article does not seek to comment on the particular merits of these cases, but rather to address the two principal questions introduced at the outset that emanate from them. Those questions are examined below in turn.

Should an athlete be able to delegate the administrative burden of their Whereabouts requirements?

There can be no argument that the increased Whereabouts requirements introduced in 2009 augmented the administrative burden on athletes9. Practically, therefore, the ability to delegate the obligation to another person offers a significant benefit. An athlete’s life is no longer limited to training and competition. There are a growing number of demands on their time ranging from media and sponsors to roles as spokespersons and ambassadors. These demands are not only an important part of their profession but tasks they are unable to delegate.
 
A second argument to support delegation is that, for team sports in particular, centralized and harmonized filing of the time slot is both practical and logical. The person(s) setting training time and locations are best placed to know in advance where all athletes will be located and at what times. Finally, this author would argue it is not the case in all cultures that athletes are autonomous, independent individuals. For those athletes in particular, their daily, monthly and even yearly movements are governed less by their own choices and more by the organisations they are a part of; therefore it is practical that those directing their movements should be responsible for their Whereabouts. This is not a widely appreciated fact in the UK, where our athletes, while still supported by the system, have a much greater freedom to dictate the progress of their own lives. It follows that: to reduce the administrative burden on athletes; and to support team sports and cultural differences, those in charge of the athletes’ timings should have an ability to complete their administrative Whereabouts requirements.
 
However, there is also a line of reasoning that as the ultimate responsibility for complete and accurate Whereabouts filings remains with an athlete then the only way to avoid an inadvertent Whereabouts failure is to ensure they complete their own Whereabouts. Given the possibility for Whereabouts failures by a delegate to lead to sanctions it will always be a gamble for any athlete to delegate the administrative burden. Practically, the ability to delegate also leads to another layer of bureaucracy. WADA offers the facility to update Whereabouts online or via a smartphone app at short notice if necessary. However, where delegation has taken place this could lead to: confusion as to who should be updating the athlete’s Whereabouts; or delay if the delegate is not instantly available to process the changes.
 
Finally, this author would argue that in some cultures there is a danger that the ability to delegate has not, in fact, been treated as something the athlete has a choice over. If that is the case, then there exists a real risk that some athletes are not only handing over full responsibility to their delegates but they are arguably doing so without either party altogether understanding the ramifications.

Should a delegate also face sanctions under the WADA Code if they fail to fulfill their delegated Whereabouts duties?

The second question is perhaps the more interesting and pertinent: should those who have agreed to accept responsibility also face sanctions under the WADA Code for failing to fulfill their role? As a supporter of clean sport I cannot support the idea that a delegate alone should face sanctions. Unfortunately, persistent dopers could exploit this approach to: hide behind a third party; avoid out of competition testing; and continue to compete.
 
However, there is an argument that the delegate could face simultaneous yet separate sanctions under the WADA Code. This would not alter the athlete’s continuing responsibility for their Whereabouts: they would still face a ban if they were found to be partially or wholly responsible for their Whereabouts failures and they would still be able to avoid a ban if they could establish they had not been negligent in accruing the Whereabouts failures. In enforcing such a rule, the anti-doping community would ensure that delegates treated the Whereabouts requirements with the requisite seriousness and fully understood the gravity of a failure to comply. There is a suggestion from both cases discussed above that the respective delegates did not treat their roles with the appropriate care, an eventuality that would likely be avoided in future if delegates themselves faced potential sanctions.
 
There is an interrelated argument regarding an athlete’s entourage. These personnel are often those closest to the athlete and in most instances form an athlete’s support network and are a positive influence. However, in some incidents, there is potential for this position to be abused. This danger has been acknowledged by WADA and sporting stakeholders and the 2015 Code will feature strengthened provisions (see Article 2.10) against athlete support personnel who play an active role in their athlete’s doping10. This author would argue that there is a similar contention to be made regarding Whereabouts sanctions. If an entourage member has agreed, in full knowledge of what their role entails, to be a delegate, then a failure to fulfill that responsibility or actions taken by them to facilitate abuse of the Whereabouts system should lead to consequences.
 
A final argument in support is that it may encourage earlier admission of evidence that could prevent avoidable Whereabouts sanctions for innocent athletes. If at the outset of a hearing the delegate is asked to provide proof that he has fulfilled his responsibilities then this would reduce the likelihood an athlete could be sanctioned where he was not negligent in his duties thereby adding an additional layer of protection for innocent athletes against unnecessary periods of ineligibility. It follows that: to encourage delegates to take their role seriously; to prevent entourage members abusing their position; and to reduce unnecessary periods of ineligibility, delegates should face separate sanctions. While ineligibility from competition is an inappropriate punishment, a fine for the entourage member involved or a period as a prohibited person would go someway to protecting athletes from inadvertent Whereabouts failures.
 
However, an argument against such a provision would be that this would reduce the number of personnel willing to help an athlete with the administrative task. The introduction of disciplinary action for delegates would undoubtedly make such a person think twice before accepting the responsibility. This argument can be countered by the likelihood that remaining delegates would be fully versed on their responsibilities and steadfast in fulfilling them. This would be of benefit to all involved. Perhaps a more pertinent danger would be that a delegate could be asked to take the fall for a cheating or even a negligent athlete by providing evidence that they were singularly responsible for the athlete’s Whereabouts failures. Furthermore, there would also need to be sufficient safeguards in place to ensure that an innocent delegate could not be inadvertently sanctioned. Requiring a delegate to properly document their administrative duties and instructions from the athlete could reduce both dangers. Nonetheless, there is a risk that if the sanction provisions were not fully thought out they could create a loophole for doping athletes to exploit.
 
In conclusion, there are clear arguments for and against delegation. However, in light of the fact that the rule will remain at least until the next Code review, then this author would argue that in the interim period there should be further guidance produced by WADA for athletes, delegates and governing bodies regarding delegation, the role of the delegate and the consequences of failure to fulfill that role. On the proviso that an athlete has a true choice as to whether to delegate and is able to make a proper assessment of the risks in doing so then for the practical reasons outlined above this author believes that the ability to delegate should remain. The more interesting question appears to be whether a delegate should independently face sanctions under the WADA Code for a failure to fulfill their role. Arguably, implementation of such a provision would serve to reduce the number of inadvertent Whereabouts failures through increasing administrator and entourage members understanding of the responsibility. This would be a welcome improvement to the Whereabouts provisions and an important protective measure for innocent athletes. However, prior to any change, a full investigation would need to be carried out assess the level of risk such a provision could create with regard to exploitation by doping athletes.

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About the Author

Emma Mason

Emma Mason

Emma is a trainee solicitor in Squire Patton Boggs’ sports litigation department who has completed seats in corporate, international dispute resolution and a secondment to Chelsea Football Club. During her traineeship Emma has, from a sporting perspective, assisted with the sale of a Championship football club and the provision of advice to various International Federations and Premier League football clubs.

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