Breves comentários sobre o novo código da WADA para 2021

2021 World Anti-Doping Code Review

 

The World Conference on Doping in Sport in Katowice, Poland, marked the accumulation of the review of the 2015 code, which underwent an extensive 18-month review process involving consultation from an array of stakeholders in the International movement against doping in sport. The Code will be implemented on January 1st 2021.

A monumental announcement made at the World Conference was the long sought after implementation of the Athletes’ Anti-Doping Rights Act. Through the recommendation of WADA’s Athlete Committee, the WADA Executive Committee approved the Athletes’ Anti-Doping Rights Act, which is now included and directly referenced in the 2021 edition of the Code. The Preamble to the document makes clear that the Act is not a legal document, and that Athletes’ legal rights in the context of anti-doping are only those rights that are set forth in the Code and International Standards, regardless of how they are described in this Act. Nonetheless, the prominent articles in the act are:

1.0 – Equality of Opportunity

2.0 – Equitable and far Testing programs

3.0 – Medical treatment and protection of health rights

4.0 – Right to Justice

Athletes have the right to justice, including the right to be heard, the right to a fair hearing within a reasonable time by a fair, impartial and operationally independent hearing panel, with a timely reasoned decision specifically including an explanation of the reasons of the decision. On appeal, an Athlete has a right to a fair, impartial, operationally and institutionally independent hearing panel, the right to be represented by counsel at the Athlete’s own expense and a timely, written, reasoned decision.

5.0 – Right to accountability

An Athlete shall have the ability to report any compliance issue that they believe exists to relevant personnel or to an Anti-Doping Organization.

6.0 – Whistleblower rights

7.0 – Right to Education

8.0 – Right to Data Protection

Athletes have the right to the fair, lawful, and secure handling of their personal information by Anti-Doping Organizations that collect, use and share it, including the right to be kept informed about its processing, to access a copy of it and to request its deletion once it no longer serves an anti-doping purpose.

9.0 – Right to Compensation

An Athlete has the right to pursue damages from another Athlete or other Person whose actions have damaged that Athlete by the commission of an anti-doping rule violation. The pursuit of damages shall be in accordance with any laws or regulations in their country outside of the Code. Any prize money that has been recovered by an Anti-Doping Organization from a sanctioned Athlete shall, subject to the reasonable efforts of the Anti- Doping Organization, be redistributed to Athletes who would have been entitled to it had the forfeiting Athlete not competed.

*This is different from the previous regulations, which merely noted that the forfeited prize money would be re-allocated to the relevant Athletes, but only if the rules of the applicable International Federation provided so.

10.0 Protected Persons Rights

  1. Rights during a Sample Collection Session

When subject to a Sample Collection Session, an Athlete has the following rights:

  1. right to see the identification of the Doping Control Officer
  2. the right to ask for additional information about the Sample collection process
  3. the right to be informed of the authority under which the Sample collection is to be conducted, the type of Sample collection and any conditions that need to be adhered to prior to the Sample collection
  4. the right to hydrate (unless they have provided a Sample that does not the requirement for Suitable Specific Gravity for Analysis)
  5. the right to be accompanied by a representative
  6. the right to delay reporting to the Doping Control Station for valid reasons
  7. the right to be informed of their rights and responsibilities
  8. the right to document any concerns about the process, and
  9. the right to receive a copy of the records of the Sample Collection session.

12.0 – Right to B Sample analysis

As mentioned, although the Athletes’ Anti-Doping Rights Act is not a legal document, it will nonetheless serve as a reference point for all athletes bound by the Code by providing them with a greater understanding of their autonomy when interacting with the Doping control, sample collection and result management process.

Concerning the Code itself, the following sections provide a summary of substantial amendments made to existing Articles of the Code, as well as introducing entirely new Articles, which are set to also be included in the 2021 Code.

Procedures related to split Samples (Article 2.1.2 and Article 6.7).

These Articles, together with the revised International Standard for Laboratories permit a single A Sample or B Sample to be split and used for both initial analysis and confirmation analysis. Where only a single bottle is to be used for analysis, the laboratory and Anti-Doping Organization with Results Management responsibility must attempt to notify the Athlete of the opportunity to observe the bottle opening.

Expansion of Laboratory Reports for Atypical Findings beyond Endogenous Substances – (Articles 2.1.4 and 7.4)

Typically, when a laboratory reports a Sample as an Atypical Finding, it then sends a message to the Anti-Doping Organization that the sample may contain a Prohibited Substance, at which point it is then the duty of the ADO to conduct an investigation to determine whether or not the Sample should be treated as an Adverse Analytical Finding or not. Under the current Code, laboratories may only report test results involving endogenous substances as Atypical Findings. This proposed draft permits WADA to extend the list of Prohibited Substances which may be reported as Atypical Findings and therefore require the ADO to conduct an investigation.

An example provided by WADA as to how this development could be of more assistance to the athlete is when trace levels of clenbuterol are detected in a Sample. There have been numerous cases where trace levels of clenbuterol are present in an Athlete’s Sample, only later to be determined that the presence was due to contaminated meat consumption. This proposed change would first consider a trace amount of clenbuterol as an Atypical Finding, which then would prompt the ADO to investigate the circumstances and resolve the scenario in a harmonized way according to WADA’s new International Standard for Results Management and Hearings.

Article 3.2 Burden Shifting Third Draft

Modifications to Article 3.2.3 make clear that; departures from the International Standard for Testing and Investigations involving Sample collection or Sample handling, or the International Standard for Results Management involving Adverse Passport Findings or Whereabouts failures, or notice to the Athlete of the opening of the B Sample – which could reasonably have caused an anti-doping rule violation – now shifts the burden to the Anti- Doping Organization to establish that the departure did not cause the anti-doping rule violation. A comment to Article 3.2.3 makes clear that an Anti-Doping Organization can satisfy its burden of establishing that the failure to give notice of the B Sample opening did not cause the Adverse Analytical Finding, by having an independent observer witness the B Sample opening. Other violations of anti-doping rules or policies (such as a violation of the International Standard for Education) may raise compliance issues for an Anti-Doping Organization, but may not however, be used as a defense to an anti-doping rule violation.

The Problem of Substances Which are Not Prohibited Out-of-Competition appearing, in Trace Amounts, in In-Competition Samples

The general rule has been that if a substance appears in an Athlete’s Sample in an In- Competition test, it is an Adverse Analytical Finding; it does not matter when the substance was consumed. The consequences of this approach have become increasingly problematic as WADA accredited laboratories have developed the ability to detect evermore minute quantities of Prohibited Substances in an Athlete’s urine in In-Competition Samples. In some cases these substances were obviously used Out-of-Competition and could not possibly have had an In-Competition effect. To address this problem, the WADA List Committee is considering implementing reporting thresholds for those substances that are prohibited In- Competition only, but could also still appear in trace amounts in In-Competition tests.

Comment to Article 10.2.3: Definition of Intentional Third Draft

A new comment to Article 10.2.3 provides that, unless otherwise specified in the Code, “intentional” means that the person intended to commit the act that forms the basis of an anti- doping rule violation, regardless of whether the person knew that such act constituted a violation of the code.

Substances of Abuse – Article 10.2.4

Stakeholders have provided feedback that street drugs are prohibited by the Code only In- competition, and that often the quantity detected In-Competition strongly suggests that the Use occurred out of competition. As such, substantial resources are being spent arguing in hearings over the appropriate length of sanction in Substances of Abuse cases. These resources could instead be utilized towards anti-doping investigations or anti- doping rule violations, which really do affect the level playing field of sport.

In order for this Article to apply, the Athlete must establish that the Use occurred Out-of- Competition and was unrelated to sport performance. If successfully established, the period of ineligibility would be a flat three months with no argument over No Significant Fault, effectively eliminating the need for expensive hearings, and instead placing a priority on the Athlete’s health. Further, where the Athlete can establish that In-Competition Use of a Substance Abuse was unrelated to sport performance then the Use will not be considered “intentional” for purposes of the longer sanctions for Intentional Use provided in Article 10.2.1.

Addressing the Problem of Common Contaminants in Supplements and Other Products

The WADA List Committee is working on an approach that allows for a higher threshold of reporting limits for those Prohibited Substances that are known contaminants. This comes because of an increasing number of cases in which a very low level of a Prohibited Substance

has been detected which is known to occur in Contaminated Products, but the Athlete is not able to specifically identify the specific product which caused the AAF.

Added Flexibility for Sanctioning Minors First Draft

A minor does not need to establish how the Prohibited Substance entered his or her system in order to benefit from a reduced sanction because of No Significant Fault or Negligence (Definition of No Significant Fault or Negligence). Public Reporting in a case involving a minor is not mandatory and, if reported, must be proportionate to the facts and circumstances of the case (Article 14.3.6). When a minor can establish No Significant Fault or Negligence for an anti-doping rule violation involving a non-Specified Substance, the minimum period of Ineligibility imposed is now a reprimand instead of the 1-year minimum applicable to other Athletes.

Introduction of the new definition of “Protected Person”

This definition accounts for both age-based (under 18 except elite level 16 and 17 year olds) and impairment-based (for reasons other than age, the person has been determined to lack legal capacity under applicable national legislation) athletes.

Expansion of the Types of Cooperation which Justify a Reduced Sanction for Substantial Assistance – (Article 10.6.1.1)

Under the current Code, an Athlete or other person who provides Substantial Assistance to an Anti-Doping Organization, criminal authority, or a professional disciplinary body, in relation to anti-doping rule violations may receive a suspension of part of the otherwise applicable sanction. In the First Draft of the 2021 Code, Substantial Assistance credit may also be given for assistance provided in relation to establishing non-compliance with the Code and International Standards and other types of sport integrity violations.

New Category of Athletes – “Recreational Athletes” Permitted More Flexibility in the Imposition of Consequences

International Federations, National Anti-Doping Organizations and Major Event Organizations are required to each identify who is a recreational Athlete, based on their own definitions of International and National-Level Athletes. This definition must adhere to three remaining limitations: that within the preceding five years the Athlete has not met the definition of national or International Level Athlete, has not represented a country in an International Event or has been included with any International Federation or National Anti- Doping Organization whereabouts information pool.

Since the decision to impose anti-doping rules on lower level Athletes is usually made at the national level, this article requires the National Anti-Doping Organization of each country to define what constitutes a “Recreational Athlete”.

Expansion of the Types of Cooperation which Justify a Reduced Sanction for Substantial Assistance – (Article 10.6.1.1)

Substantial Assistance credit may also be given for assistance provided in relation to establishing non-compliance with the Code and International Standards and other types of sport integrity violations.

New Article Entitled “Prompt Admission of an Anti-Doping Rule Violation After Being Confronted with a Violation and Acceptance of Consequences” – Article 10.6.3

In Article 10.8.1, the Athlete is now given 20 days after the B Sample result or notice of the Use or Possession charge to admit the Anti-Doping Rule Violation and accept the sanction reduced by 1 year. Article 10.8.2 allows the Anti-Doping Organization with Results Management, the Athlete and WADA to reach an agreement on the period of Ineligibility to be served in a particular case. A new comment to this Article makes clear that whether this Article is used or not is solely at the discretion of each Anti-Doping Organization, recognizing that there are some countries where only a hearing panel can decide on a doping sanction.

Re-Introduction of the Concept of “Aggravating Circumstances” (Article 10.7)

The Aggravating Circumstances Article has been reinserted in the First Draft to deal with special or exceptional circumstances where an additional period of Ineligibility from 0-2 years is appropriate. For example, where a provisional suspension is violated, however, it does not apply to Anti-Doping Rule Violations where intentional misconduct is already an element of the violation.

Improvements to the Multiple Violation Rules – (Article 10.8)

Firstly, the rule in the current Code is that an Athlete cannot be charged with a second anti- doping rule violation until he or she has been previously notified of a first violation. When a second violation is found while an Athlete is already serving a period of ineligibility, the new period of ineligibility shall only start to run after the current period of ineligibility has been served.

The formula for calculating the period of ineligibility for a second Anti-Doping Rule Violation has been modified to make the result more proportionate. In the 2015 Code, the sanctions for a second violation was twice the amount of time otherwise applicable. In the new Code, the period of ineligibility for a second violation is to be calculated from a range between (1) the sum of the period of ineligibility for the first violation plus the otherwise applicable period for the second violation and (2) twice the period of ineligibility applicable to the second violation treated as if it were a first violation.

Forfeited Prize Money Goes to Other Athletes (Article 10.10)

New language makes clear that Athletes are only entitled to distribution of prize money, which has been effectively recovered by an Anti-Doping Organization, since the Anti- Doping Organizations have no affirmative duty to try to recover prize money. Further, the term “take responsible measures” has been added to this Article and an exception is made where there is an agreement in place between the International Federation and its Athletes as to how recovered prized money should be distributed.

Clarifications Relating to Sanctions for Violation of a Provisional Suspension

An Athlete who has voluntarily accepted a provisional suspension, may, at his/her own discretion, withdraw that voluntary acceptance. Failure to respect a provisional suspension is not a separate anti-doping rule violation. The only consequence of failing to respect a provisional suspension is a loss of all credit for any part of the provisional suspension served.

Delays Not Attributable to the Athlete or Other Person (Article 10.13.1)

The Article now makes clear that the burden of establishing that delays are not attributable to the Athlete or other person, is on the Athlete or other person. A comment has been added noting that in cases involving lengthy investigations, particularly where the Athlete or other person has taken affirmative action to avoid detection, the flexibility provided in this Article should not be used.

Status During Ineligibility or Provisional Suspension (Article 10.14.)

Examples of the types of activities that are not permitted during a period of Ineligibility or provisional suspension have been provided. Additionally, this Article has been modified slightly to make clear that an Athlete serving a period of Ineligibility may also be required to provide Whereabouts information.

Scope of Review on Appeal (Article 13.1.1).

This Article makes clear that any party to an appeal may submit evidence, legal arguments and claims that were not raised in the first hearing, so long as they arrived from the same cause of action or same general facts or circumstances raised in the first instance hearing. An example has been added in the comment to this Article to clarify the point that a different Anti-Doping rule violation charge may be asserted on appeal based on the same underlying facts.

Appeals Involving National Level Athletes (Article 13.2.2.)

The amendment to this Article makes clear that where 18 the structure of the national level appellate body is not fair, impartial and independent, the Athlete or other person shall have the right of appeal to CAS. This Article has been revised to make clear that national level appeals must satisfy the principles of both “operational” and “institutional” independence.

Institutional independence means, among other elements, that the governing body whose rules have been violated may not appoint the members of the appellate hearing body.

Implementation of Decisions (Formerly Mutual Recognition) – (Article 15)

As revised, Article 15 provides that a final decision by a Signatory is automatically implemented by other Signatories following notice of that decision to WADA. The Article provides that mandatory Provisional Suspensions imposed as the result of a Provisional Suspension hearing or voluntary acceptance are automatically implemented. (Provisional Suspensions are “mandatory” when there is an Adverse Analytical Finding for a non- Specified Substance). All provisional suspensions are automatically binding on other Signatories

Article 20.5: National Anti-Doping Organizations Conflict of Interest Policies

Article 20.5.1 requires National Anti-Doping Organizations to be independent in their operational decisions and activities, and to adopt and enforce a conflict of interest policy prohibiting involvement by its board members, directors and officers in the operations of an International Federation, National Federation, Major Event Organization or National Olympic Committee. Certain government positions involved in sport have been added to the list of persons that may not be involved in the operational activities or decisions of National Anti-Doping Organizations.

Definition of In-Competition

The Code now provides a standard definition for In-Competition, which is the period commencing at 11:59 pm on the day before a competition in which the Athlete is scheduled to compete, through the end of such competition and the Sample collection process related to such competition. However, as an accommodation to those sports where there are unique reasons for a different definition of In-Competition, for example sports in which they have a pre-competition weigh-in, WADA may approve a special definition for that sport which will in turn be followed by Major Event Organizations conducting those sports.

International Standard for Results Management (ISRM) was one of the last key areas of the Code, without International Standards provided. The ISRM establishes mandatory minimum standards for NADOs to comply with in respect to the results management and hearing processes of Anti-Doping Rule Violations (ADRVs). They set up general principles related to jurisdiction, confidentiality and public disclosure, as well as timeliness of the disciplinary and adjudication processes. The definition of “results management” was amended to reflect it. As a result, certain areas previously covered by the ISTI were transferred to the ISRM.

In this respect, new articles have been added (Article 2.5, and New Articles 10.3.1.1 and 10.7) regulating the occasion that many Anti-Doping Organizations have already

experienced with Athletes engaging in fraudulent conduct during the Results Management and hearing process. Hence, an additional sanction of 0-2 years Ineligibility may be imposed for this misconduct; or even stronger (4 years Ineligibility) where it rises to the level of Tampering (new Article 10.3.3). In the same sense, the definition of Tampering has been expanded to include fraudulent conduct during Results Management.

Regarding article 7, it has become clear that Anti-Doping Organizations shall not be limited geographically according to their decisions. (new Article 7.5.3). Major Event Organizations make an exception for the Results Management decisions where the Athletes’ only opportunity to appeal the decision by the Major Event Organization is through an in-game expedited process. In addition, Article 7.1 Article has been modified to provide that an Anti- Doping Organization’s refusal to conduct Results Management shall be considered an act of non-compliance and that Results Management may only be assigned by WADA to another Anti-Doping Organization with authority over the Athlete.

In addition, certain amendments were made regarding Article 8 and hearings at the first instance. Specifically, a minimum term of office of two years for hearing panel members was set out, as well as the creation of a wider pool to select Panel members. Measures were also taken to ensure the operational independence of the Panel members, and the right to a public hearing was again echoed.

Furthermore, the requirements in terms of independence of appellate instances under Article 9 were amended in the sense that such instances were no longer required to constitute proper arbitral tribunals, but rather to be institutionally independent from the RMA.

A new Article 11 was included to provide that the results management regime of the ISRM, including the two-step notification process of Articles 5 and 7, should be applicable to violations of a period of ineligibility under Article 10.14 of the Code.

International Standard for Education (ISE) is a new International Standard and it is structured in Article 18 of the Code. The objectives of this Standard are to establish mandatory standards to support Signatories with planning, implementation, monitoring and evaluation of effective education programs. In general, WADA intends to enhance the education of young athletes about Doping, specifically before entering international competitions or leaving their country to compete. In conclusion, WADA opted for describing the minimum requirements for the ISE to allow Signatories to comply with them, instead of exhaustively prescribing the content of them. The main goal of the ISEE is to ensure that the first interaction an athlete has with the anti-doping procedure is through education, rather than through their first Sample collection process. Further, the education programs will be tailored for the local cultural and sporting contexts in which they are situated, all which should be reflected in the requirements of the ISE.

International Standard for Code Compliance by Signatories (ISCCS)

Two new Articles 5.4 and 9.4.3 have been added to give further emphasis to the “principle of last resort”, which stipulates that sanctions against the Signatories in order to conform, shall be considered as “the last resort”. In addition, another Article 7.8 has been added to reflect the concept of “continuous compliance monitoring”, making WADA capable of using various means in order to inspect all the Signatories in general, as well as a specific Signatory individually, if either comply with their obligations or the recommendations made to them respectfully. Furthermore, the list of Critical Requirements (appendix A) has been made exhaustive and amendments did happen regarding the potential consequences included in appendix B.

International Standard for Therapeutic Use Exemptions (ISTUE)

Amendments have taken place regarding ISTUE in order to clarify and structure this section in a more logical way. For example, an athlete may only apply for a retroactive TUE if one of the Articles 4.1(a-e) is satisfied. If accepted as a retroactive application, the submitted file would next be evaluated by the Anti-Doping Organization’s (ADO’s) TUE Committee (TUEC) to ascertain whether it fulfills all of the 4.2 criteria. On the other hand, if an athlete is applying prospectively, Article 4.1 is not relevant, and the process automatically begins at Article 4.2. Some amendments were also made regarding the term “exceptional circumstances”. In addition, it is important to mention that a new inclusion has been made to address situations where, for therapeutic reasons, an athlete uses a substance out-of- competition that is only prohibited in-competition, but there is a risk that the substance will remain in their system in-competition.

Furthermore, in Article 6, a comment was added in order to explain and clarify the guidance for athletes about the application process to obtain a TUE. Also, an apprise in Article 9 explains that ADOs shall communicate any information and data about athletes in accordance to the updated International Standard for the Protection of Privacy and Personal Information (ISPPPI).

International Standard for Testing and Investigations (ISTI)

Due to the establishment of the ISRM, several areas and provisions were removed from this part of the Code, while two new definitions have been added to ISTI. Firstly, the ‘Doping Control Coordinator (DCC)’, has been added to address those organizations that are coordinating any aspect of doping control on behalf of a Signatory but who are not the Testing Authority (TA) or the Sample Collection Authority regulating any organization operating any aspect of the doping control on behalf of a Signatory. Secondly, regarding Testing Authorities (TA), a Signatory may delegate its authority to test to other organizations (i.e. DCC’s), but the TA shall always remain the TA responsible for ensuring that the organization conducting such testing does so in compliance with the ISTI. Any such authorization of testing shall be documented and may be captured in an agreement between the two parties.

Also, enhanced conflict of interest criteria have been added to the Sample Collection Personnel (SCP). Finally, additions have been made to ensure that ADOs should develop and implement policies to facilitate and encourage whistleblowers as outlined in WADA’s Whistleblower Policy.

International Standard for the Protection of Privacy and Personal Information (ISPPPI) have been slightly amended in order to be more harmonious with other International Standards laid out in the Code. Several updates were made to Annex A to bring into line the updates under the Code, reflect evolutions of the Athlete Biological Passport program (ABP), and stakeholder operational needs.

Sources Referenced

1 https://www.wada-ama.org/en/media/news/2019-07/wada-publishes-latest-draft-versions- of-the-2021-code-and-international-standards

2 https://www.wada- ama.org/sites/default/files/resources/files/2021_code_summaryofmajorchanges.pdf