“Speak Up”! WADA’s recent reforms to its whistleblowing policies, procedures and systems

Published 15 March 2017 | Authored by: Andrew Smith

Public confidence in the integrity of sport continues to be severely tested, in light of high profile findings of systemic / institutionalised doping violations (see for example the MacLaren Independent Investigation Reports, Part I and Part II[1]) and investigations into the adequacy of anti-doping systems and controls.[2] 

In previous articles on this topic[3], the author has discussed the importance of whistleblowing in sport and suggested practical reforms that could be implemented in order to encourage participants to come forward with relevant information that assists in the fight against doping. Two of those suggestions related to,

  1. the importance of formulating and publishing clear written whistleblowing procedures; and 

  2. ensuring that proper mechanisms are put in place for prospective whistleblowers to report their concerns.

In the circumstances, it is encouraging to see that the World Anti-Doping Agency (“WADA”) has recently implemented two such reforms. Accordingly, this article examines: 

  • The new WADA whistleblower policy; 
  • The WADA “Speak Up!” digital whistleblowing platform; and  
  • Author’s comment – whistleblowing moving forward.

 

The new WADA whistleblower policy 

In November 2016, WADA’s Foundation Board approved a new ‘Whistleblowing Program, Policy and Procedure for Reporting Misconduct" (the “Policy”), which formalises the legal framework and outlines (amongst other matters) what WADA will provide to whistleblowers in terms of support, confidentiality, protection and reward.[4] The Policy is a detailed document which reflects a careful consideration of the fundamental importance of whistleblowing in sport, and the need to encourage / incentivise participants who have relevant information to share that information with WADA. The Policy took effect from January 2017.

Among other matters, the Policy explains the difference between "informants" and "whistleblowers", and how these different statuses trigger different rights and responsibilities. Put simply, any person reporting suspected misconduct to WADA will be considered an informant. With regard to the "elevated" status of a whistleblower, Article 1.1.2 of the Policy provides that “An Informant becomes a Whistleblower, as soon as WADA has granted the person/entity formal Whistleblower status and a Whistleblower Agreement has been signed by the Informant and WADA.” Further information in this regard is provided in Articles 3 and 4 of the Policy – for example: 

  1. Following receipt of a disclosure of alleged misconduct, the WADA Investigation Department will decide whether or not to grant whistleblower status to the informant, having regard to a range of factors including those identified in Article 3.1 (a) – (h) of the Policy.

  2. A Whistleblower Agreement will cover three principal things, namely: (a) the rights and responsibilities of the whistleblower; (b) the nature of applicable whistleblower protection measures; and (c) the nature of applicable whistleblower rewards.

  3. A whistleblower’s obligations will include cooperating with WADA, including by giving interviews and testimony upon request, and maintaining strict confidentiality in respect of the investigation.

  4. A whistleblower’s rights / protection measures may include guarantees of confidentiality, the provision of (and payment for) external legal assistance, and protection against detrimental / retaliatory treatment. In extreme cases, whilst WADA cannot provide physical protection to a whistleblower and/or their family, WADA may liaise with appropriate law enforcement authorities, including INTERPOL, on the whistleblower’s behalf. 

  5. A whistleblower may be entitled to more lenient treatment in respect of their own doping violation(s), under the “substantial assistance” provisions in the World Anti-Doping Code (the “Code”).

  6. Financial assistance and/or a financial reward may also be granted to a whistleblower, in appropriate circumstances. 

  7. There is a working assumption (although no legal presumption) that whistleblowers will be kept updated as to how an investigation is progressing, and be notified of relevant findings at the conclusion of the investigation. 

WADA actively invites and encourages feedback on the Policy, with the objective of ensuring that it "continuously reflects and further defines evolving best practice, especially appreciating that the thinking on and application of whistleblowing channels are evolving quickly across sports and countries.

 

The WADA “Speak Up!” digital whistleblowing platform

On 9 March 2017, WADA announced the launch of “Speak Up!”,[5] which is described as a new, secure digital platform intended for athletes and others to report:

  1. alleged Anti-Doping Rule Violations (“ADRVs”) under the Code;

  2. non-compliance violations under the Code; or

  3. any act or omission that could undermine the fight against doping in sport.

The Director General of WADA, Olivier Niggli, has observed that “WADA’s independent Pound and MacLaren investigations, which were both triggered by whistleblowers, highlighted the importance of these individuals to the Agency and to clean sport on the whole.[6] 

It is intended and hoped by WADA that the provision of a secure, confidential means by which to report suspected doping violations will encourage participants to come forward with relevant information. The key principles / aspects of the “Speak Up!” platform may be summarised as follows. 

  • First, it is accessible via the “Speak Up!” website or mobile app. 
  • Secondly, persons wishing to report suspected doping violations have the option of opening a secure online ‘mailbox’, which is accessed using a unique case number and password, and which facilitates the exchange of information and follow-up queries between the informant and WADA’s Intelligence and Investigation Team.
  • Thirdly and importantly, there is no obligation on the informant to provide their identity or contact information when filing a report, although they may choose to do so. The WADA website provides practical guidance to prospective informants who wish to remain anonymous – for example, by ensuring that their personal details do not appear in the file properties (metadata) of any files that are uploaded as part of their report. 

Whilst seeking to respect the wishes of those informants who do want to remain anonymous, WADA’s Privacy Policy states “We encourage you to provide us with your name”, on the basis that “some national data protection authorities or tribunals disfavour anonymous reporting.”[7] That being said, WADA is at pains to emphasise that if an informant does choose to disclose their identity, the “Speak Up!” system “guarantees whistleblowers that they can report in full confidence; and that their identity will never be revealed beyond WADA’s [IIT] unless you give express and written consent”, or in the event that it is required by law (which WADA describes as being an “unlikely” scenario). 

 

Moving forward 

The developments discussed above are positive initiatives that are to be welcomed. As discussed in the author’s earlier articles,[8] it is vital to ensure not only that appropriate whistleblowing policies and systems are put in place, but that participants are aware of them and properly educated about them. It is incumbent on sports governing bodies and clubs etc., as well as WADA, to ensure that athletes and other participants are aware of these developments and feel confident utilising the whistleblowing resources that are available. 

In introducing the new “Speak Up!” platform, WADA quite rightly emphasises the importance of maintaining confidentiality and the security of its bespoke online system. The high profile and widely reported hacking of WADA’s athlete databases[9] is fresh in the mind of many observers, and it is crucial that the security of the “Speak Up!” platform is not compromised. Any breach of confidentiality has the potential seriously to diminish prospective informants’ confidence in the new platform, thereby damaging its effectiveness as a reporting and investigation tool.

On a more positive note, once the platform has been up and running for a reasonable period of time, one way of publicising the existence, importance and effectiveness of “Speak Up!” would be to publish WADA ‘case studies’ (suitably anonymised), describing how information provided via the platform has caused or contributed to the successful identification of doping violations.

To conclude, WADA’s efforts to formalise its whistleblowing policy and procedure, and to create a secure online and mobile platform for the reporting of doping concerns, are significant and positive developments in the fight against doping in sport. It is to be hoped that their operation will, in practice, serve to promote and protect the interests of those participants who abide by WADA’s motto: "play true".  

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About the Author

Andrew Smith

Andrew Smith

Andrew is a barrister practising from Matrix Chambers in London. He is an employment law specialist, and has a keen interest in sports law and sport generally. His Matrix profile (including Directory recommendations) may be viewed here.

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