The World Anti-Doping Code - The Fight for the Spirit of Sport - Part 1 | ||||
Introduction1. The World Anti-Doping Code (“WADC”) represents a significant step towards a consistent harmonised approach to the handling of doping violations in sport worldwide. The WADC seeks to preserve what is intrinsically valuable in sport, “the spirit of sport (1)”. This paper outlines the legal nature of WADC, sets out its core provisions and discusses those areas in which the application of the Code seems likely to give rise to legal and practical issues. The nature and key elements of the Code2. The World Anti-Doping Agency (“WADA”) Code seeks to set out the principles which are to apply to anti-doping violations and to bring about agreement to those principles by a wide range of sporting bodies. The Code is not an international convention (although it will have wide international effect). Governments have, however, given their commitment to support the Code by signing the Copenhagen Declaration on Anti-Doping in Sport in 2003 and will further endorse the Code by signing and ratifying the International Convention against Doping in Sport which is being developed by UNESCO and is scheduled to be in force prior to the 2006 Winter Olympics in Turin. The support of governments by the signing of an international agreement binding on State parties will not change the way in which the Code is given effect - by agreements which bind participants in sport and signatories to the Code to a range of obligations. 3. The Code itself is intended to be signed (and has been signed) by a wide range of bodies responsible for major international sporting events and sports internationally (2) . The signatories include the International Olympic Committee, International Federations, the International Paralympic Committee, National Olympic Committees, National Paralympic Committees, Major Event Organisations, National Anti-Doping Organisations and WADA itself. The various national Olympic committees signed to the Code before the 2004 Athens Olympics. Signatories have to adopt anti-doping policies which conform with the Code (3). The idea underpinning the enforceability of the Code is that the obligations it contains will apply in the same way as competition and sporting rules as conditions under which sport is played. Athletes, by reason of their membership of international federations and by participation in events, agree that the Code applies to them. In this way, the Code creates a harmonised set of anti-doping provisions which are binding internationally by agreement. 4. The Code embodies the key general principles which have gradually become a feature of sporting anti-doping regimes worldwide - and have been endorsed by Courts and the Court of Arbitration for Sport (“CAS”). These principles include the concept of strict liability for an anti-doping violation where prohibited substances are found in an athlete’s body and the application of mandatory uniform sanctions for anti-doping violations with two years as the standard sanction for a first offence (subject, under the WADC, to the athlete’s right to eliminate or reduce the period of any ban where he or she can show exceptional circumstances). In the area of the imposition of sanctions, the Code seeks to bring about a more flexible approach which balances the need for an established level of sanctions which will be strictly applied with the right of an individual athlete, in a particular case, to claim that, by reason of absence of fault or significant fault or negligence, there are exceptional circumstances justifying a reduction or elimination of the sanction. Core anti-doping elements5. The Code contains elements which are described in its introduction as “core anti-doping elements”. The signatories to the Code have to adopt policies which contain these core anti-doping elements. The core anti-doping elements are: the definition of doping (Article 1), the list of anti-doping violations (Article 2), the provisions concerning the proof of doping (Article 3), the automatic disqualification of individual results (Article 9), the sanctions on individuals for anti-doping violations (Article 10), the consequences to teams of anti-doping violations (Article 11), the provisions on appeals (Article 13, with the exception of Article 13.2.2 which relates to appeals by national level athletes), the provisions as to limitation (Article 17) and the definitions in the Code. It is seen as critical to harmonisation in the doping area that all signatories to the Code base their decisions on the same list of anti-doping violations, apply the same burdens of proof and impose sanctions for the same anti-doping violations which are based on the same principles. In addition, it is mandatory that International Standards for testing developed by WADA are followed by anti-doping organisations. 6. On the other hand, it is not seen as necessary for effective harmonisation that all signatories use a single common results management and hearing process. The Code acknowledges that there are many different and equally effective processes for results management and hearings within different international federations and national bodies. The approaches adopted in these areas by signatories do not have to be exactly in conformity with the provisions of the Code but, rather, it is expected that they will satisfy the general principles and standards set out in the Code. The Code sets out a standard but provides that signatories can reach that standard in different ways. 7. As noted above, the rules in the Code will be adopted as conditions of participation in sports by the various signatories in the same way as sporting and competition rules and are not intended to be subject to, or limited by, the legal standards applicable to criminal proceedings or employment matters (see Introduction to Code). The idea is that each signatory to the Code will establish the rules and procedures which ensure that all participants under its authority agree to the anti-doping Rules as set out in the Code. This basis for enforcement by private agreement may have significant effects where possible challenges to the Code based on fundamental rights are concerned. 8. The Commonwealth Games Federation has adopted the Code. From a relatively brief survey, it would appear that most Commonwealth countries have adopted the Code within their own national testing regimes by their national anti- doping organisations signing the Code and having national sporting organisations adopt model anti-doping rules which are based on the Code. This process underlines the agreement based method of enforcing the Code. In addition to this, the Commonwealth governments have all signed the Copenhagen Declaration and it is to be anticipated that they will ratify the UNESCO Convention when it has been finalised. The core anti-doping provisions of the Code in more detail9. Under Article 1, doping is defined as the occurrence of one or more of the anti-doping rule violations set out in Article 2.1 to 2.8 of the Code. The range of anti-doping violations in the Code is much broader than the established violations - doping or refusal to provide a sample. Anti-doping violations10. The anti-doping rule violations are, in summary, as follows:
1. See The Introduction to the Code. I thank Margaret Henley, of the Department for Film, Television and Media Studies at the University of Auckland, for her work in producing the video clips from the documentary Dope: The Battle for the Soul of Sport by Alan Erson. |
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Copyright © 2012 Paul David. All rights reserved |
