The WADA Code 2009 - lessons for athletes and their teams

By Patrick Russell, Jonathan Ellis and Rob Pickworth, Charles Russell LLP

The World Anti-Doping Code provides a framework for anti-doping policies, rules and regulations for sports organisations and public authorities. A revised version of the Code came into force on 1 January 2009 (the "2009 Code").

Whilst the majority of its provisions are unchanged, in combination with recent antidoping case-law, it demonstrates the increasing obligations on both athletes and teams. This article examines recent trends in the regulation of doping, and offers practical guidance to teams and athletes.

Strict liability, defences and sanctions

Athletes are strictly liable for the substances found in their bodily specimens, and an antidoping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in a bodily specimen, irrespective of whether the athlete has unintentionally used the prohibited substance, or whether he or she is at fault.

If an athlete can discharge the burden of showing how a substance entered his or her body, the sanctions imposed on him may be modified according to specific criteria.

The doctrines of No Fault or Negligence and No Significant Fault or Negligence are examples of the criteria used to modify sanctions upon athletes. The doctrines are defined in Appendix 1 to the 2009 Code:

1. No Fault or Negligence means the athlete’s establishing that he or she did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he had used or been administered the Prohibited Substance or Prohibited Method.

2. No Significant Fault or Negligence means the athlete’s establishing that his or her fault or negligence when viewed in the totality of the circumstances and taking into account the criteria for No Fault for Negligence, was not significant in relation to the anti-doping rule violation.

Both doctrines can only be invoked in truly exceptional circumstances. There have been only a handful of cases where a plea of No Fault or Negligence has been accepted. By way of example, treatment in an emergency hospital room as part of treatment for heart failure has satisfied the criteria laid out above , but accidentally and inadvertently drinking water from a glass that had previously been used to prepare and consume medication, did not.

Pleas of No Significant Fault or Negligence are also subject to a high threshold. In FINA v Mellouli the CAS Panel refused to excuse an athlete who had taken a pill to keep him awake during an intensive study period whilst at a US college, explaining that;

“Even in a state of stress or fatigue, an elite athlete can never cloud his personal duty to ensure that no prohibited substance enters his or her body”.

Practical guidance

It is clear from the above that the 2009 Code imposes strict duties on athletes. The CAS advisory opinion in FIFA v WADA offers practical guidance by identifying the following non-exhaustive obligations on athletes:

An obligation to be aware of the actual list of Prohibited Substances;

* An obligation to closely follow the guidelines and instructions with respect to healthcare and nutrition of the National and International Sports Federations, the NOC’s and the National Anti-Doping Organisation;

* An obligation not to take any medication or nutritional supplements without consulting with a competent medical professional;
* An obligation not to accept any medication or even food from unreliable sources (including online orders by internet);
* An obligation not to go to places where there is an increased risk of contamination (even unintentional) with prohibited substances (e.g. passive smoking of marijuana).

Does the 2009 Code change things?

One of the key objectives of the 2009 Code is to introduce greater flexibility in the application of sanctions. This is partially in response to the CAS ruling in the case of Mariano Puerta . In that case, the CAS ruled that the application of the Code (as it then was) would lead to a sanction that was neither just nor proportionate. The CAS therefore identified a "gap or lacuna in the Code" which, albeit the result of the exceptional circumstances that Mr Puerta found himself in, the CAS hoped would be filled when the Code was revised.

Accordingly, the 2009 Code provides for reduced sanctions, in particular where an athlete can establish that the substance involved was not intended to enhance performance. Greater leniency is also permitted for whistleblowers - under the 2009 Code, sanctions may be reduced by as much as three quarters where information is provided which leads to the discovery of a doping violation by another person. On the other hand, the 2009 Code provides for increased sanctions in doping cases involving aggravating circumstances (such as an athlete having used multiple prohibited substances or a prohibited substance on multiple occasions).

Whereabouts

The International Standards are mandatory for Code signatories. Perhaps the most controversial change for sportsmen has been WADA’s revision of the International Standard for Testing. Its revised version came into force at the same time as the 2009 Code, on 1 January 2009.

It is generally recognised that out-of-competition testing is crucial to keeping sports free from doping, and that it is therefore necessary to be able to test athletes at all times, without advance notice. Whereabouts is the system used to keep track of athletes.

The Whereabouts system applies to elite athletes, including those who participate in team sports. Professional cricketers, footballers, and tennis players are therefore all affected by the revisions to this System under the new International Standard for Testing. The key provisions of the revised system are that athletes must:

1. Provide Whereabouts and be subject to testing 24 hours a day, 7 days a week, 365 days of the year;
2. Identify their location for each day in the following three months and update it should it change; and
3. Specify one hour each day (between 6am and 11pm) during which they can be located at a specified location for testing.

If an athlete is not where they say they will be, that constitutes a missed test. If an athlete submits incomplete or inaccurate information, that is a filing failure. Both missed tests and filing failures are Whereabouts failures. Three Whereabouts failures in 18 months constitute an anti-doping offence, and consequently may lead to a suspension of a minimum of 12 months, and a maximum of two years. Olympic 400m champion Christine Ohuruogu is an example of an athlete who has been penalised for missing three tests in 18 months.

The Whereabouts system imposes a significant responsibility on athletes. It clearly in team's interests that their athletes do not fall foul of this system, and so it may so teams may wish their players in complying with its requirements.

In fact, WADA has suggested that much of the Whereabouts information filed for team players will be collective “team activity information” and so it is therefore likely that those filings will be made by team officials on a collective basis, rather than players individually. However, WADA has stressed that liability ultimately resides with the athlete and that, therefore, he will not be excused of his responsibilities by blaming the team for filing inaccurate information about his Whereabouts.

As a result, Athletes and teams must be careful in delegating their responsibilities. Should a team supply a schedule listing the players who will be at training, the absence of a player (irrespective of his reasons) could cause him to be banned for up to two years, if testers attended training and discovered his absence.

Conclusion

The revisions contained in the 2009 Code are aimed at bringing about greater flexibility. That said, players have a duty of utmost care and it is becoming increasingly important for teams to assist them in discharging that burden. Failure to do so may result in suspensions which damage both a player's career and reputation, and arguably a team's prospects of success. Whilst it is the athlete who remains ultimately liable, it is now imperative that teams are as familiar with the 2009 Code as they can be.

Article obtained from www.charlesrussell.co.uk, the website of Charles Russell LLP. Article reproduced with their kind permission.

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Patrick Russell, Partner
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Jon Ellis, Solicitor
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