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Inside Disputes

Doping in Sports
Inside Disputes

Inside Disputes

Author
Kendrah Potts
Date
09 December 2015

In December 2014 the World Anti-Doping Agency (WADA) set up an independent commission to investigate allegations of widespread doping in Russia.


Doping in Sports

In December 2014 the World Anti-Doping Agency (WADA) set up an independent commission to investigate allegations of widespread doping in Russia. The Commission published its first report on 9 November 2015 and confirmed, “the existence of widespread cheating through the use of doping substances” by Russian athletes. The report has already had a significant impact on the world of athletics: one of the most notable consequences being that following the provisional suspension of the Russian National Athletics Federation, Russian athletes are currently not permitted to participate in IAAF events.

This article considers two issues that are of relevance to sport more broadly.

Importance of investigations in sport

For a long time anti-doping organisations (ADOs) relied predominantly on testing samples from athletes in order to identify anti-doping rule violations. However, the number of cyclists, for example, who admitted that they used prohibited substances and yet were never caught provided a clear example of the difficulty of relying on sample analysis alone. The 2015 WADA Code (which replaced the 2009 Code) confirmed a shift towards a greater emphasis on investigations by imposing more onerous intelligence gathering obligations on ADOs. Information is used for two key purposes: (i) to ensure that sample collection is targeted, and therefore more efficient; and (ii) to identify anti-doping rule violations directly.

Investigations are, however, more onerous for sports governing bodies (SGBs) than analytical cases (i.e. based on a positive sample). The Commission, for example, employed cyber analysis, spoke to whistleblowers and analysed athlete biological passport profiles and “thousands of documents”. Non-analytical cases are also more onerous at the prosecution stage. In cases based on a positive sample the strict liability provisions in the WADA Code favour the prosecuting authority. However, non-analytical cases are more akin to corruption and match-fixing cases, and the ADO will have to rely on witnesses and other documentary evidence to prove the rule violation to the "comfortable satisfaction" of the tribunal.

One area that can present difficulties for SGBs in the context of investigations is data protection. SGBs must consider whether they are authorised to process personal data (including sensitive data) and, more importantly, to share the data with ADOs worldwide. Athletes will usually give consent to the use of their data when they agree to the “terms and conditions” of their participation. The position is more difficult in relation to athlete support personnel, who have become an increased focus of investigations under the 2015 Code, and who might not have a direct relationship with the SGB.

Governance in sport

The Commission also found evidence of “corruption and bribery practices at the highest levels of international athletics”. French prosecutors are already investigating former IAAF President Lamine Diack, who is alleged to have been involved in blackmailing athletes to cover up positive tests, and the Commission has sent information to Interpol for further investigation.

Failures in governance at the highest levels have recently been exposed at FIFA and in cycling. Further, the report on cycling published in March 2015 highlighted how inadequate governance structures within the international federation had undermined anti-doping efforts at an operational level.

It is clear that SGBs themselves have a responsibility to implement appropriate governance and compliance systems. The IAAF has already responded, for example, by announcing its intention to create an independent integrity unit. However, some might also question how these practices have gone undetected (or, worse, simply unchallenged) for so long and what can be done to impose better regulation from the outside. In England, for example, SGBs must meet certain conditions in order to receive funding; should international organisations such as the IOC do more to demand better governance? The report has also recommended that WADA, as the entity charged with monitoring ADOs' compliance with the Code, establish an independent mechanism to deal with non-compliance and to ensure that a finding of non-compliance is in fact a deterrent to ineffective anti-doping programmes.

The Report states that in the Commission’s view, “Russia is not the only country, nor athletics the only sport, facing the problem of orchestrated doping in sport”. The report therefore provides a timely reminder to all sports of the critical role that good governance and integrity structures play within sports organisations.