Why WADA 2021’s new ‘Substances of Abuse’ regime needs urgent clarity
In January 2021, the WADA Code changes to allow substantially reduced suspensions for athletes who test positive for ‘Substances of Abuse’. This term is yet to be defined but it is expected to include recreational drugs like cocaine and cannabis, among others (see below).
This article identifies the Substances of Abuse changes and considers what National Anti-Doping Organisations (NADO) and Sports Governing Bodies (SGB) that have incorporated the WADA Code now need to do to prepare.
One important point to highlight at the outset is that the new regime applies retroactively. This means that athletes who are currently serving a suspension for a Substance of Abuse can seek to reduce its term, potentially allowing them to compete again as from 1 January 2021 when the new code enters into force. This article also voices concern that time is running short to put in place provisions and procedures now to allow athletes who are in this situation to resolve / appeal their suspension as soon as the new code takes effect on 1 January 2021. Specifically, it examines:
- Substances of Abuse under the 2021 Code
- Retroactive application
- Reasoning behind the changes
- Potential procedural problems
For an overview of the other main changes under the WADA Code 2021 please see this LawInSport article[1].
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- Tags: Anti-Doping | Dispute Resolution | Substances of Abuse | UK Anti-Doping | WADA | WADA Code 2021
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Written by
Louis Weston
Barrister, Outer Temple Chambers
Louis is a Barrister practising from chambers at Outer Temple. He is expert in corruption and misfeasance in sport.
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Michele Verroken
Great analysis Louis.
would this be an opportunity for NGBs to bring cases together for their athletes in a 'class action' appeal? Is it worthy of sports lawyers to want to bring individual cases?
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Louis Weston
Thanks Michelle,
I think that is a good idea in respect of NGBs who are subject to an NADO's jurisdiction, because the issues are likely to be common and the NGBs/NADO should have records of who is so subject. It would streamline and speed up the process.... But problems are (1) No process identified yet (2) Suspended athletes may not be in touch with NGB and (3) Appeal rights lie with Athlete (4) Would not solve the problem for non-NADO regulated NGBs.
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Michele Verroken
Louis, you identify a more serious problem. Athletes suspended for doping are often completely abandoned by their Governing Body. Where is the Duty of Care? Apart from potential testing during a suspension, most aths/NGBs may not even continue jurisdiction through membership.
NADOs will be responsible for identifying the appropriate standard for rehabilitation - not a reassuring situation!
As for non-NADO regulated NGBs, perhaps this is their leadership opportunity?? Ever the optimist!
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Fabio Giobbi
Congratulations on the article, your critical analysis of the lack of regulation on the retroactive application of the "Substance of Abuse" regime has to be fully supported. I noted there is no mention of Article 27.6 of the 2021 Code, which lays down the non-retroactivity of the changes to the Prohibited List "unless they specifically provide otherwise". Do you reckon that this provision should also be taken into account for the purposes of the possible retroactive application of the S.o.A. regime to bans imposed before the entry into force of the new Code?
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