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

Published 19 May 2016 | Authored by: Natalie St Cyr Clarke

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.

Whilst there are numerous experts with outstanding credentials who are not within the WADA network, for panels at the Court of Arbitration for Sport (“CAS”), accreditation by WADA is deemed a mark of quality reaching beyond the analysis of activities performed in a given matter, to extend to scientific evidence given in the proceedings.9 Opinions by experts in the WADA-accredited laboratory network may even have a higher evidentiary value by reason of having access to documentation reaching farther than the athlete’s experts.10 Although CAS panels have been adamant that they do exercise some form of control over the experts, in practice the level of control is restricted, limited by the ability of the panel to reconstruct the coherence of the expert’s assessment, rather than just rely on their credibility.11

If the expert chosen by the athlete is unknown and whose reputation is not presumed, these experts, in addition to providing their expert opinion, will have to defend his or her credentials. Criticism that can be expected against a non-WADA-accredited expert is exemplified in a statement published by the International Association of Athletics Federations (“IAAF”) in response to an article in the Sunday Times in 2015. The IAAF stated that the scientists responsible for the article had “no authority to comment on whether or not the IAAF had followed up on suspicious samples because of a lack of knowledge of the IAAF programme and a lack of experience in the field of Athletics generally. It was pure guesswork on their part.12 Such criticism levelled at an athlete’s chosen expert can detract from the scientific evidence put forward to the detriment of the athlete’s case, although an experienced panel should be astute to the value of such criticism.

By not having ready access to a network of scientists whose quality and credibility is presumed, the athlete has the additional hurdle and expense of vetting the quality and credibility of scientists, something which is most probably not within the athlete’s expertise and could be incredibly time consuming. The inherent imbalance in such a system is obvious; if an athlete wishes to prove anything with the testing of products or expert testimony, he or she has to bear the cost, which can run high if the case is complex.13

 

Are panel-appointed experts the answer?

The above considerations could be particularly pertinent in the Athlete Blood Passport (“ABP”) program, where expert evaluation of biological data is a key component of the ABP approach.14 As well as party-appointed experts, the panel may decide to hear neutral experts.15 In addition to making more difficult the task of athletes seeking party-appointed scientific experts, the rule in article 4.1 of the Code of Ethics has the potential to even make the appointment of an expert as a neutral more difficult, to the detriment of the panel as well as the athlete.

Where experts are appointed by the panel, the role of these experts is extremely important because they are supposed to provide a neutral opinion.16 Their view will heavily influence the decision of the panel and scientific stances taken by such experts are often accepted as proof by the rules of the CAS.17 It has been noted that in several cases, the neutral experts were mostly qualified and highly skilled clinical haematologists, but lacked specific knowledge in the area of blood doping, exercise physiology, and the adaptation of the haematological system to physical efforts.18 They therefore testified on topics that were beyond their area of expertise.

It cannot definitively be stated that the appointment of such experts, whose experience and expertise has little encountered sports doping, is down to the rule in the ISL. There are a number of experts who have significant experience evaluating and interpreting biological data on Expert Panels, the second stage of the two-step ABP process,19 and who are not staff members at a WADA-accredited laboratory. There is no explicit mention of Expert Panel members being subject to the ISL, neither in the ABP operating guidelines nor in the ISL itself. It is therefore not clear whether the ISL applies to such experts and, in theory, a panel (or an athlete) should be free to engage them.

However, what is clear is that if a WADA-accredited laboratory staff’s neutral opinion is not in line with WADA’s official position, he or she would most likely decline to testify even as a neutral for fear of questioning the integrity of the anti-doping program.

In any event, the appointment by a panel of a WADA-accredited laboratory staff or Expert Panel member to give a neutral scientific opinion could also be open to challenge by the athlete. According to Swiss jurisprudence, experts are held to high standards and are not impartial if they have some form of dependence on a party.20 Whilst WADA-accredited laboratories are independently funded, without such accreditation, laboratories could not have anti-doping testing authorities as clients.

The laboratories’ indirect financial dependency on their WADA accreditation, and consequently their loose organisational links, could build a financial predisposition and a duty of loyalty towards the organisation.21 However, such organisational ties and an arguable conflict of interest have not been sufficient to undermine experts’ credibility,22 and there is no suggestion on the part of the author that the testimony of WADA-accredited laboratory staff on behalf of WADA or other anti-doping organisations lacks any credibility. Neither is it a reproach that WADA expects its affiliated scientists to support it.

 

Conclusion

There is no doubt that the rule in the ISL is skewed towards laboratory staff members unflinchingly supporting WADA. Athletes, who have the burden of providing a convincing explanation for Atypical Findings in their blood profile or for an Adverse Analytical Finding, are not in the position to readily access the same information and do not have access to the same resources. Given that this could also be true of experts that an athlete engages to represent them, it appears that the athlete is at an inherent disadvantage in mounting a scientific defence against anti-doping charges, which is embodied in article 3.2.1 of the WADA Code.

In sum, an athlete is not restricted per se from access to impartial experts as they can engage impartial experts from outside the WADA-accredited laboratory community. However, when there are competing scientific opinions being proffered, there is the possibility that, by virtue of WADA-affiliated experts having access to certain information, a panel may attach a higher evidentiary value to their testimony over the testimony of experts who are not connected to WADA-accredited laboratories. Article 4.1 of the Code of Ethics, and the resulting foreclosure of WADA-affiliated experts from athletes, could therefore have a significant impact in any given case.

 

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About the 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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Comments (1)

  • Nicolas Parra

    27 November 2017 at 07:50 | #

    Totally agree. Great article.

    reply

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