Investigating systemic doping in sports: How independent commissions are established and run


Published 08 September 2016 By: Kendrah Potts

Investigating systemic doping in sports: How independent commissions are established and run

This is an extract from the ‘Anti-Doping’ Chapter of the Sports Law Yearbook 2015/16 - UK, Ireland and EU, an eBook publication by LawInSport & British Association for Sport and Law.

The Yearbook reviews developing sports law trends in the UK, Ireland and Europe. It contains legal commentary and analysis from over 50 leading sports lawyers and will be of use to students, academics, athletes, coaches, the media, sports business professionals, in-house counsel and lawyers worldwide.

The Yearbook can be downloaded for free by all LawInSport Plus members with an annual subscription. To enjoy all the perks of being a LawInSport Plus member, please register here.

 

In 2015, two high profile reports were published following investigations by independent commissions to address serious allegations of systemic doping practices and related allegations of corruption or mismanagement by the entities responsible for their sports. In March 2015, the Union Cycliste Internationale published the report of the Cycling Independent Reform Commission1 (CIRC) and in November 2015 and January 2016 the World Anti-Doping Agency (WADA) published the first and second reports of the independent commission set up to investigate allegations of systemic doping in Russia (the WADA Commission). 

This extract considers some of the issues that arise when establishing a commission, during the investigation phase and in connection with the final report.

 

Purpose of a commission

The anti-doping framework is well established: WADA acts as the overarching regulator and, in addition to obligations on Sports Governing Bodies (SGBs) to investigate anti-doping rule violations (ADRVs), there is a network of National Anti-Doping Organisations (NADOs), whose purpose is to investigate ADRVs. Given this extensive network, it might be asked why commissions should be necessary at all.

The most obvious answer is that a sport can reach a point where the relevant Anti-Doping Organisations (ADOs) are not competent to investigate. For example, in the case of the WADA Commission, two relevant ADOs (the IAAF and the Russian anti-doping agency, RUSADA) were implicated in the allegations of wrongdoing. In other cases, the relevant ADOs/SGBs might consider that an independent commission is necessary to ensure an objective assessment and therefore to give the investigation credibility (which was a primary concern of the UCI in creating the CIRC). Further, where the allegations involve widespread, endemic, doping practices across different jurisdictions, the relevant ADOs might not have the resources (financially and practically) to conduct the investigation.

Therefore, two of the primary considerations at the outset are how to ensure that a commission will have: (i) credibility; and (ii) adequate resources and powers to investigate fully across jurisdictions.

 

Creation of a commission

Legal status

One of the first questions is how the commission should be set up and what its legal status should be. For example, will the commission be set up as a distinct legal entity or will it operate effectively as a “committee” or otherwise under the umbrella of the relevant SGB2. The structure of a commission3 will have a direct impact on its credibility and the legal rights and obligations that apply to it.

A commission will only be credible if there is confidence that an impartial investigation will be carried out. Commissions often rely on witnesses to provide information and individuals will be far more willing to share information with an entity that they believe is carrying out a thorough, independent investigation. Further, a sport will only be able to use a commission as a starting point to rebuild its integrity if stakeholders believe that all allegations of wrongdoing have been thoroughly investigated.

A distinct legal entity is not necessarily required in order to establish a sufficiently independent commission. Rather, the key is that the entity operates independently, without the risk of interference from interested parties. The difficulty with using existing committees within an SGB structure is that there can be a perception that the SGB ultimately has too much influence over either the process or the outcome. A newly created “commission” that sits outside the SGB might be seen as more independent (whether or not the entity is legally distinct). However, the key, ultimately, is to ensure that however a commission is structured, its terms of reference clearly grant the commission full autonomy over the management of the investigation, use of funds4and resources, and the content of the final report.

The CIRC, for example, was funded by the UCI, which caused some people to question how independent it was in practice. However, the Terms of Reference clearly established that the CIRC had full autonomy in respect of the conduct of the investigation and use of funds. Further, the UCI had no input into the final report. The difficulty for sport is that, in practice, it is unlikely that there will be entirely independent third parties queuing up to fund such commissions; therefore the SGB/ADO must agree terms which ensure that a commission works independently.

In the case of the WADA Commission, the Terms of Reference provided that,

"The IC is free to organize itself as it sees fit, keeping in mind the practical realities of the available budget and the time limits applicable to the investigation… The IC will act independently with assistance from WADA."5 

At the same time, the Terms of Reference provided that the WADA Commission would be assisted in gathering evidence through WADA's Chief Investigative Officer. Regarding the report, the Terms of Reference provided that, "The report will be published in full by WADA. Should this publication not be done within 30 days of the receipt of the report by WADA, the IC is entitled to publish the report itself.

Regarding a commission's legal rights and obligations, two areas that impact directly on its work are data protection and the investigative powers available to it.

Data protection

Data protection legislation imposes restrictions on a commission’s ability to gather and share information. The International Standard for the Protection of Privacy and Personal Information (ISPPPI)6 seeks to facilitate information-sharing relating to anti-doping matters subject to certain conditions.

In particular, the ISPPPI provides that “Personal Information” can be shared with other ADOs where “necessary to allow the Anti-Doping Organizations receiving the Personal Information to fulfill obligations under the Code7. In contrast, sharing data with "Third Parties" is permissible only if required by law, with the individual’s express written consent or where necessary to “assist law enforcement or governmental or other authorities in the detection, investigation or prosecution of a criminal offence or breach of the Code8.

Consequently, it can be an advantage for a commission to operate under the umbrella of an ADO to facilitate information sharing. Where a commission cannot benefit from the information sharing provisions in the ISPPPI, it will be necessary to satisfy conditions set out in national legislation in order to obtain and share information. However, where the commission operates under the ADO/SGB, there is also a possible cause for tension: the relevant SGB, as the data controller, is ultimately responsible for the data, however, assuming the commission is working on a confidential basis, the SGB will find itself in a situation where it has no knowledge of, or control over, data for which is it technically responsible.

Whether a commission technically constitutes part of an ADO can also affect the investigative powers available to it. Many SGB rules oblige the individuals subject to the rules to cooperate with investigations (for example by attending an interview or handing over specific information). It should be considered how a commission can make use of those (contractually conferred) powers of investigation (particularly if a distinct legal entity is created)9.

 

Investigations

The main sources of information that a commission is likely to rely upon are:

  1. Witness evidence;
  2. Intelligence from ADOs and other relevant authorities; and
  3. Documents, such as contemporaneous records held by ADOs and other stakeholders and relevant medical and laboratory data10.

Given the importance of obtaining information from individuals already operating within the sport, a commission will be in a stronger position if those individuals have an obligation to cooperate with the investigation. The position of investigating ADOs was strengthened by the 2015 Code, which provides that athletes and athlete support personnel must cooperate with ADOs investigating ADRVs11. However, the Code notes that a failure to cooperate is not an ADRV in itself, but rather may be a basis for disciplinary action under the SGB's rules. Therefore, the effectiveness of such provisions will ultimately depend on the SGB rules12.

However, even where individuals are required to, for example, attend an interview, the scope of such provisions is limited to individuals who are subject to the rules.

Further, individuals will, of course, be more helpful where they want to cooperate, rather than where they are obliged to cooperate. Therefore, commissions need to consider how to encourage individuals to share useful information. One option is to provide an incentive for individuals to share information. For example, the CIRC was given powers to apply or propose (depending on the circumstances) reductions in the sanctions that would otherwise have been applicable under the Code where the person provided valuable assistance to the commission13.

Individuals with useful information may also be more inclined to cooperate where they are confident that the fact of their cooperation and the information that they provide are confidential. One option is to provide a confidential whistleblower hotline that allows individuals to share information anonymously. However, a commission will prefer, where possible, to speak to the individual. Therefore, a commission’s terms of reference should clearly set out to what extent it operates on a confidential basis and when information will be disclosed (for example, where a commission is required to disclose information by a court of law)14. It is also advisable to reflect these provisions in a “terms of cooperation” agreement signed by the commission and the individual. Where there are related legal proceedings, thought will also need to be given to whether any exchanges of information need to be protected by legal privilege.

A commission will often have a relatively short period of time to investigate and, therefore, it should make use of, and bring together, work that has already been done by other ADOs, SGBs and authorities. As set out above, a commission should, in the first instance, consider how it could benefit from the provisions in the ISPPPI15 or from MOUs on data-sharing that the relevant ADO has in place.

Finally, where contemporaneous documents are to be reviewed, it should be considered whether there are any legal restrictions that could affect the commission’s ability to review and use the information, such as data protection and privacy issues (depending on the jurisdiction in which the documents are held).

 

Publication of the report

In a non-anti-doping context, the negative response to FIFA's refusal to publish the Michael Garcia report in full in 2014 demonstrated that publication of a commission's report is a sensitive issue.

In most cases the commission will provide its report to the relevant SGB, rather than publishing the report itself. Therefore, the decision as to what to publish will usually fall on the SGB. Given that most commissions are primarily created to help to rebuild a sport’s integrity, the starting point is that publishing the full report will be the best way for the SGB to demonstrate that it is acting in a transparent manner.

A commission should not censor its own report with publication in mind, otherwise the integrity and value of the report will be undermined. However, when drafting the report, a commission should give careful thought to the potential consequences of publication in order to mitigate any potential liability to the extent possible. The SGB then has to weigh up the legal risks of publication against the potential PR consequences of redacting a report.

 

The risks of defamation

One of the most significant legal risks resulting from publication of a report is defamation. Given the international and high profile nature of commissions, and assuming that the report is to be published online, it will be necessary to assess the risks of defamation claims in different jurisdictions. It is almost inevitable that a report will contain highly critical comments. 

In England and Wales, the defences of “truth” and “honest opinion” should be of assistance, and the Defamation Act 2013 introduced the new defence of “publication on a matter of public interest16. In order to provide an additional level of protection, a commission would be advised to put any allegations or findings to the relevant individuals during the investigation stage and to reflect their responses in the report17.

In addition to defamation, a report must be assessed for any potential breach of data protection laws, confidence, employer obligations and privacy rights (depending on the jurisdiction). It must be considered whether the commission has the right18 (and needs19) to use all the information referenced in the report.

 

This is an extract from the Sports Law Yearbook 2015/16 - UK, Ireland and EU, an eBook publication by LawInSport & British Association for Sport and Law.

The Yearbook can be downloaded for free by all LawInSport Plus members with an annual subscription. To enjoy all the perks of being a LawInSport Plus member, please register here. 

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About the Author

Kendrah Potts

Kendrah Potts

Kendrah is a Barrister at 4 New Square. 

Kendrah has a broad practice that covers commercial litigation, international arbitration and regulatory and disciplinary matters. She is also recognised in the directories for her disputes practice in the sports sector.