Funding, independence and effectiveness: Key points from the Government’s Tailored Review of UK Anti-Doping

Published 27 June 2018 | Authored by: Philip Clemo

In January of this year the Department for Digital, Culture, Media and Sport (DCMS) published a document entitledTailored Review of UK Anti-Doping1 (UKAD) with a view to looking at the current state of the UK’s national anti-doping organisation and how it should plan for the future.

This article aims to look at some of the more interesting points that arise from that review. It does not aim to consider every point raised in the report, but rather looks specifically at:

  • Funding

  • Independence

  • Effectiveness

  • Partnerships and intelligence sources

  • Legal team

  • Education and prevention

  • Innovation

Funding

The foreword is written by the Sport and Civil Society Minister, Tracey Crouch MP. She says all the things one would expect about the importance of clean sport and praises UKAD for all it has achieved since its inception in 2009. She also makes the point that assessing the effectiveness of UKAD is not as easy as with other assessments of the investments made into this sector because the nature of their work means that they cannot be assessed merely by medals won or trophies lifted. The minister also says that she “feels strongly that resources allocated to UKAD should primarily focus on elite participants and those on the talent pathway” but recognises that it is imperative that the part-time and amateur games are not overlooked.

All fine words of course but it does not take long for money to rear its head. The minister informs us that a further £6.1m has been secured for UKAD for the next two years. We learn later, in chapter 2, that UKAD received £5.2m of exchequer funding in 2016/17 so the increase is far from negligible. Also, in that chapter the Review states that the aim is eventually to move UKAD towards being “increasingly self-funding” and to reach a “cost recovery position” but that that is an aim that is somewhat down the tracks for the moment and that public funding will be required for several years yet.

It is also noted that the nature of the funding structure at the moment means that that budget has to be spent "in year" and that that the result is that there is a possible disincentive to increase commercial income and to invest such income in the organisation. One of the conclusions of the chapter is that government should examine the granting of flexibilities for UKAD to develop a sustainable commercial model for its contracted work. The Review later goes on to suggest that, if a new model can be agreed upon, UKAD should be set a target to increase its commercial income by at least 15% every two years.

Independence

That is all well and good in theory but does raise certain awkward questions. The independence of UKAD is paramount to its success. That is a self-evident truth but one which is nevertheless repeated throughout the Review and for understandable reasons. An example is in chapter 2 which deals with the “purpose, form and function” of UKAD. When considering the delivery model for UKAD it advocates maintaining the status quo. If UKAD were closer to government or merged with other bodies, the Review concludes, then its independence would be compromised.

That being so, one can readily foresee the problems with moving to a model where it is entirely funded through private consultancy work or similar. The clients for such consultancy would often be the sports that UKAD is involved in regulating. In UKAD’s Strategic Plan 2018-2022 it states that it will seek income from “sport, media sponsors and the anti-doping community” but does not go into details as to planned ratios of that income nor exactly how it would be sought. In chapter 4 the Review deals with commercial activities and notes the concern of some stakeholders that the core functions of UKAD would suffer if its commercial workload were to significantly increase. Such concerns are rather unsatisfactorily swept under the carpet by the Review which simply states that others thought such activities are appropriate. One can safely hypothesise that the concerns of stakeholders would grow with the percentage of UKAD’s income that came from private sources.

When commercial income is one useful string to UKAD’s bow then that is one thing, when they are entirely reliant on that income for their existence it is quite another. At the risk of seeming something of a cynical pessimist, it would surely only be a matter of time before the organisation’s highly prized impartiality was called into question. In the field of anti-doping more than most, reputations for fairness, once lost, are hard to recover. This must be guarded against at all costs.

One must question whether a better end would be to aim for a point where UKAD is better incentivised to seek commercial income streams but that it always has the guarantee of state funding to cover its core functions and that there is no aim for financial independence. Such a model would allow for extra funding for the sort of focussed work in particular areas that the Review touches upon (e.g. education and a committee to consider scientific developments). Indeed, combined with the sort of efficiency savings that could, at least in theory, be gained from the sort of increased cross-departmental cooperation that the Review envisages it might be possible to reduce the cost burden on UKAD, increase revenue and maintain independence.

If such a model was to work then it may even be the case that funding generated by UKAD’s commercial activities could be found for those in the part-time or amateur arena, whom the minister says she does not want to overlook, to have some measure of scientific assistance should they need it when they find themselves accused of an ADRV. Many such athletes often find themselves unable to discharge the burden of proof that is upon them and are left in a position where they are doomed to failure at any hearing. The need for some such scheme has been noted by this author in this publication before.

Effectiveness

The Review also deals with the effectiveness of UKAD. It notes that UKAD currently carries out approximately 10,000 doping control tests annually. It is noted that there is an almost universal desire to see that number rise and the scope of the testing expanded. For example, it is noted that many involved in Paralympic sports would like to see increased testing of guides for visually impaired athletes. The Review recommends that further work be done on “the predicted impact of a significant uplift in testing” and asked UKAD to prepare an “evidence and risk-based proposal” for increasing the testing across sports by April 2018.

UKAD duly obliged in the form of its Strategic Plan 2018-2022 and the result was that it maintained its commitment to at least a 50% increase in publicly funded testing by March 2022. This seems to have been signed off by DCMS so perhaps, after all, it is too soon to worry about the privatisation of UKAD just yet but the two approaches suggest a lack of uniformity of vision at DCMS as to the financial future for UKAD.

Partnerships and intelligence sources

The partnerships that UKAD has entered into are covered at some length. The relationship with Kings College London (KCL) is hailed as mutually beneficial and cost effective. Indeed, the Review recommends that KCL and UKAD continue their work into innovative doping technologies such as dried blood spot analysis which has the potential to make “testing cheaper and more efficient in the long term.

Likewise, the importance of intelligence sources and partnerships is covered by the Review and their importance is emphasised. Statistics are produced that emphasise the importance of tip offs via Crimestoppers or the Report Doping in Sport phonelines (in the year July 16 to July 17 such reporting accounted for 47% of all the intelligence received by UKAD) but it is also noted that there is not always confidence from those who pick up the phone that their tip offs are being actioned. For that reason the report recommends more quarterly publication of information relating to UKAD’s investigatory function and an annual state of the nation report.

The importance of working with sports themselves is also noted at several stages throughout the Review and the need to rewrite the National UK Anti-Doping Policy in 2018 is frequently referred to (and has been subsequently committed to by UKAD in its Strategic Review 2018-2022). It is suggested that that document will help UKAD to delineate its responsibilities more and how it will work with its partners. In this regard the Review also refers to the need to expand the extent of cross-governmental cooperation on the issue of doping in amateur sports so that UKAD can focus most of its resources at the elite level. The Review also recommends that the new National Anti-Doping Policy ought to contain UKAD guidance on data sharing and that cooperation on such matters at the moment ranges from excellent to reluctant.

Legal team

As far as UKAD’s legal team is concerned, the Review notes that they are under resourced and working longer hours than they ought to with all the potential serious knock on effects that can flow from that. It also notes the rise in expenditure on outside counsel in recent years (partly at least as a result of more cases being contested under the 2015 WADA code) and whilst one will no doubt wish to treat with a fistful of salt any assertion made by the government that UKAD has to scrape the bottom of the barrel for barristers who will work at a reduced rate whilst athletes are striding into a tribunal hearing flanked by teams of pinstriped super lawyers, the fact remains that if UKAD’s workload is to increase by 2022 in the manner described above then the Review’s recommendation that UKAD bolster its in house legal team seems to be irresistible. The Review also recommends that there be an annual review of the legal services that UKAD engages with a view to ensuring value for money.

Education and prevention

In relation to education and prevention the Review notes the successes of UKAD and singles out programmes such as “100% me” for particular praise. The principle that sports are best placed to deliver face to face education was accepted but it is stated that UKAD ought to play the role of the independent body which would be required “to set standards and check the quality and timeliness of that delivery”. With that in mind the Review recommends that UKAD considers moving towards an assurance programme which would help governing bodies with varying levels of capacity.

This was a challenge that seems to have been accepted by UKAD in its Strategic Review 2018-2022. In that document UKAD commits to developing, implementing, reviewing and reporting on a new "assurance framework". Furthermore, it commits to working with sports partners through a variety of means (face to face meetings, regional workshops and online resources are named as examples) to help them implement the assurance framework. This is a laudable aim and, if properly executed, should lead to efficiency savings in the medium to long term and increase a greater sense of ownership of the anti-doping agenda by individual sports.

The Review also expresses a desire to see greater peer support between sports supported by digital materials from UKAD and that sports in receipt of public funding be required to publish the details of their anti-doping programmes on their websites in the form of an annual report.

Innovation

The Review also recommends the development of an innovations committee in the first quarter of 2018. The recommendation states that the committee’s remit should be to “signpost new trends in doping and to focus on coordinated opportunities for research funding”. Again, UKAD appears to have answered the Review’s call in its Strategic Review 2018-2022 in which it commits to “Establish an Innovations Commission to identify new trends in doping and pilot new approaches”. Who exactly will sit on this new Innovations Commission and the precise structure and management of that body is less clear from that document and will remain to be seen.

Comment

As has been seen, the Review is not without its failings. The concern over the plans for UKAD’s finances going forward are particularly noteworthy for their lack of particularity. For all that however, the Review does show that UKAD has, by and large, been a success story of a government body in a time when many have struggled. It has been stretched and it is clear that it will stretch no further but the increase in funding and efficiencies will hopefully help to ensure that when we all sit down with our strong coffee in the middle of the night to watch the Tokyo Olympics we will watch Team GB knowing that they have come through a system that is at the forefront in education, research and enforcement in this field and that we are watching athletes who truly are “100% me”.

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About the Author

Phil Clemo

Philip Clemo

Philip is a barrister at St Johns Buidlings. He has a busy sports law practice covering all areas of sports disciplinary work including on field infractions, behaviour off the field of play which brings the sport into disrepute and anti-doping cases.

He has successfully represented the Amateur Swimming Association in ASA v G, a matter involving a match official being abused by a coach. He is currently instructed by the ASA in several cases including an appeal regarding a brutality charge.

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