A short guide to the changes under the World Anti-Doping Code 2015Paul J. Greene
Since it was enacted in 2003, the World Anti-Doping Code (“Code”) has harmonized anti-doping policies throughout the world. The newest version of the Code (version 3.0)1 took effect on January 1, 2015 (the “2015 Code”). The key changes to the 2015 Code from its previous iteration (the “2009 Code”2) are detailed here.
I. Whereabouts Period Shortened
The period for a whereabouts missed test and/or filing failure has been shortened from 18 to 12 months. Article 2.4 states:
2.4 - Whereabouts Failures
Any combination of three missed tests and/or filing failures, as defined in the International Standard for Testing and Investigations, within a twelve-month period by an Athlete in a Registered Testing Pool.3
II. Prohibited Associations
A new section – Article 2.10 “Prohibited Associations” – prohibits an athlete from associating with another athlete or athlete support person who has previously committed an anti-doping rules violation. This provision is uncharted territory. An athlete has never before been charged with an anti-doping rules violation for merely associating with someone else.
Article 2.10 defines “Prohibited Association” as:
2.10 - Prohibited Association
Association by an Athlete or other Person subject to the authority of an Anti-Doping Organization in a professional or sport-related capacity with any Athlete Support Person who:
2.10.1 If subject to the authority of an Anti-Doping Organization, is serving a period of Ineligibility; or
2.10.2 If not subject to the authority of an Anti-Doping Organization, and where Ineligibility has not been addressed in a results management process pursuant to the Code, has been convicted or found in a criminal, disciplinary or professional proceeding to have engaged in conduct which would have constituted a violation of anti-doping rules if Code-compliant rules had been applicable to such Person. . . . ; or
2.10.3 Is serving as a front or intermediary for an individual described in Article 2.10.1 or 2.10.2.
In order for this provision to apply, it is necessary that the Athlete or other Person has previously been advised in writing by an Anti-Doping Organization with jurisdiction over the Athlete or other Person, or by WADA of the Athlete Support Person’s disqualifying status and the potential Consequence of prohibited association and that the Athlete or other Person can reasonably avoid the association. The Anti-Doping Organization shall also use reasonable efforts to advise the Athlete Support Person who is the subject of the notice to the Athlete or other Person that the Athlete Support Person may, within 15 days, come forward to the Anti-Doping Organization to explain that the criteria described in Articles 2.10.1 and 2.10.2 do not apply to him or her. . . . The burden shall be on the Athlete or other Person to establish that any association with Athlete Support Personnel described in Article 2.10.1 or 2.10.2 is not in a professional or sport related capacity.4
Before an athlete can be charged with an anti-doping rules violation for a prohibited association, the athlete must be notified in writing of the potential consequences of the prohibited association.5 “Association” includes getting training advice, discussing competition strategy or technique and/or obtaining medical advice from a person who has previously been sanctioned for doping.6 An athlete charged with a prohibited association has the burden to establish that the association is not in a professional or sport related capacity.7
III. Testing Methodologies Now “Scientifically Valid”
Under Article 3 of the 2015 Code, analytical methods or decision limits approved by the World Anti-Doping Agency (“WADA”) are now presumed to be “scientifically valid.” Article 3.2.1 states:
3.2.1 Analytical methods or decision limits approved by WADA after consultation within the relevant scientific community and which have been the subject of peer review are presumed to be scientifically valid. Any Athlete or other Person seeking to rebut this presumption of scientific validity shall, as a condition precedent to any such challenge, first notify WADA of the challenge and the basis of the challenge. CAS, on its own initiative, may also inform WADA of any such challenge. At WADA’s request, the CAS panel shall appoint an appropriate scientific expert to assist the panel in its evaluation of the challenge. Within 10 days of WADA’s receipt of such notice, and WADA’s receipt of the CAS file, WADA shall also have the right to intervene as a party, appear amicus curiae or otherwise provide evidence in such proceeding.8
This new standard will make it more challenging for athletes to successfully demonstrate that testing procedures are unreliable such as Estonian cross-country skier Andrus Veerpalu did in 2013 when a Court of Arbitration for Sport (“CAS”) Panel exonerated Veerpalu and found that the WADA’s decision limits for testing hGH were scientifically unreliable.9
IV. Increased Emphasis on Investigations and Passport Findings
The 2015 Code places increased emphasis on “non-analytical positive” evidence to charge athletes with anti-doping rules violations. “Non-analytical positive” evidence is evidence beyond a positive doping test or “analytical positive.” A new section, Article 5.8, articulates the 2015 Code’s heightened focus on investigations and intelligence gathering:
5.8 - Investigations and Intelligence Gathering
Anti-Doping Organizations shall ensure they are able to do each of the following, as applicable and in accordance with the International Standard for Testing and Investigations:
5.8.1 Obtain, assess and process anti-doping intelligence from all available sources to inform the development of an effective, intelligent and proportionate test distribution plan, to plan Target Testing, and/or to form the basis of an investigation into a possible anti-doping rule violation(s); and
5.8.2 Investigate Atypical Findings and Adverse Passport Findings, in accordance with Articles 7.4 and 7.5 respectively; and
5.8.3 Investigate any other analytical or non-analytical information or intelligence that indicates a possible anti-doping rule violation(s), in accordance with Articles 7.6 and 7.7, in order either to rule out the possible violation or to develop evidence that would support the initiation of an anti-doping rule violation proceeding.10
In light of this addition to the 2015 Code, anti-doping organizations must understand the “athlete biological passport”11 program that gathers and collates athlete blood data to monitor possible irregularities that could lead to target testing or a charge of anti-doping without a positive test.12 A number of international federations, including those that govern cycling (UCI), athletics (IAAF), tennis (ITF) and football (FIFA), have already implemented the “athlete biological passport program.”
V. Straight to CAS?
The 2015 Code allows for a first instance hearing before a national anti-doping organization or international federation to be bypassed for a single hearing before CAS. All parties must consent. Article 8.5 states:
8.5 - Single Hearing Before CAS
Anti-doping rule violations asserted against International-Level Athletes or National-Level Athletes may, with the consent of the Athlete, the Anti-Doping Organization with results management responsibility, WADA, and any other Anti-Doping Organization that would have had a right to appeal a first instance hearing decision to CAS, be heard directly at CAS, with no requirement for a prior hearing.13
This new section provides all parties that operate under the 2015 Code with increased flexibility for hearing procedures.
VI. 4 Year Sanction for “Cheaters”
“Intentional dopers” who “cheat” will be sanctioned for 4 years under the 2015 Code.14 Article 10.2.1 states:
10.2.1 The period of Ineligibility shall be four years where:
10.2.1. The anti-doping rule violation does not involve a Specified Substance, unless the Athlete or other Person can establish that the anti-doping rule violation was not intentional.
10.2.1.2 The anti-doping rule violation involves a Specified Substance and the Anti-Doping Organization can establish that the anti-doping rule violation was intentional.15
“Cheaters” are athletes who knew or should have known that they were committing an anti-doping rules violation.16 Athletes who intentionally evade, refuse or fail to submit to testing also face a 4-year ban along with those who traffic or administer banned substances to others.17 One who targets minors with trafficking faces a lifetime ban.18
VII. Lesser Sanctions for “Unintentional Dopers”
“Unintentional dopers” (not “cheaters”) who unknowingly take a banned substance by, most commonly, ingesting an undisclosed substance in a dietary supplement, have greater opportunity for a reduced sanction under the new Code. Under a brand new section of Article 10, an athlete who takes a “contaminated product” can have their sanction reduced to a reprimand without regard for the banned substance – it could be a stimulant or a steroid – if the athlete establishes that the source of the banned substance was a “contaminated product” and that they were not significantly at fault or negligent in their ingestion of the substance contained in the “contaminated product.”19 A “contaminated product” is “A product that contains a prohibited substance that is not disclosed on the product label or in information available in a reasonable Internet search.”20 The range of sanction in contaminated products cases is 0-2 years depending on the athlete’s degree of fault. If an athlete has declared the contaminated product on their doping control form it will weigh in their favor.21
Article 10.5.1.2 “Contaminated Products” (including comment) states:
10.5.1.2 - Contaminated Products
In cases where the Athlete or other Person can establish No Significant Fault or Negligence and that the detected Prohibited Substance came from a Contaminated Product, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and at a maximum, two years Ineligibility, depending on the Athlete’s or other Person’s degree of Fault.
[Comment to Article 10.5.1.2: In assessing that Athlete’s degree of Fault, it would, for example, be favorable for the Athlete if the Athlete had declared the product which was subsequently determined to be contaminated on his or her Doping Control form.]22
The increased flexibility for sanctioning under the 2015 Code marks a concerted effort to distinguish between intentional and unintentional doping.23
VIII. STATUTE OF LIMITATIONS LENGTHENED
The Statute of Limitations has been lengthened from 8 years to 10 years. Article 17 of the 2015 Code states:
Article 17 - Statute of Limitations
No anti-doping rule violation proceeding may be commenced against an Athlete or other Person unless he or she has been notified of the anti-doping rule violation as provided in Article 7, or notification has been reasonably attempted, within ten years from the date the violation is asserted to have occurred.24
The 2015 Code dramatically alters the landscape for those who must comply with it. A complete understanding of it and how its changes affect anti-doping jurisprudence is key for athletes and anti-doping organizations alike.
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About the Author
Paul J. Greene, Esq. is a U.S. based sports lawyer who protects the rights of athletes in disputes, including those charged in anti-doping proceedings. Paul has been recognized by Chambers USA and Super Lawyers as one of America’s top sports lawyers.