New horizons or deja vue?
15.11.2000By Richard W. Pound
[It reminds me of a story by the American actor and writer, Woody Allen, who described an idyllic situation sometime in the future by saying: "And some day the lion shall lie down with the lamb. But the lamb will probably not get too much sleep."]
Your organizers have asked me to speak on the subject of doping in sport. I have entitled my remarks "WADA: New Horizons or Déja Vue?" since the advent of the World Anti-Doping Agency is the most recent change on the international anti-doping scene. It seems to me to be a fair question to ask and I hope that I can give you some satisfaction regarding the answer to that question.
I propose, therefore, to review some of the background that led to the creation of WADA, examine the particular structure that has been adopted, assess the work that has been done to date and look at the future directions that will be pursued.
The immediate causes that led to the formation of WADA were the events surrounding the Tour de France in 1998. The sight of police arresting athletes and team entourage members was shocking to all sport organizations. [This has now been followed up with criminal trials in France, with possible penal sentences for those involved.] If this could happen to such a high visibility sport in such a high visibility event, everyone thought, then it could happen in their sport. The Tour de France also raised another issue in relation to doping, for which IOC President Samaranch was unfairly criticized, namely whether the banned substances on the anti-doping lists should be limited solely to those substances that may be damaging to te health of the athletes. The question is a perfectly reasonable question, even if the answer may not be undisputed.
The IOC quickly convened an Executive Board meeting in August, 1998, to discuss the situation. We had, for a number of years, been working on the drafting of the IOC Medical Code, which was intended to be adopted by all members of the Olympic Movement, including IFs and NOCs, and was applicable during the Olympic Games. We had recently decided that the document should not try to be, at the same time, one which prohibited certain substances and procedures, on the one hand and, on the other, a document that described acceptable medical treatment for athletes. So the Code became an Anti-doping Code, but was still, on the model we had previously adopted, the IOC Anti-Doping Code. The first thing we decided was that the Code should become generic and be the Anti-Doping Code of the Olympic Movement.
The next matter to be decided was how to improve on the model that was in place for anti-doping within the Olympic Movement. One thing had become clear over the years and that was that the ad hoc approach of having IFs and NOCs accept, or adopt, or integrate the IOC Medical Code into their own rules was not satisfactory. Some had done so, while others had not, or had only partially done so. Some of this was the result of what I call "territorial imperatives" that were intended to demonstrate that the IOC was not in a position to dictate to IFs what their rules should be, even if the IOC proposals made perfect sense. The IOC, for its part, tried to use a combination of persuasion and the leverage of the Olympic Games to bring about adoption of the Medical Code. There was a plethora of different rules, different lists and different sanctions for doping offences, the result of which had been confusion and a general lack of commitment to solving the problem of doping in sport.
We needed something new, that would engage all of the necessary parties and give them some ownership in the solution. My suggestion at the IOC Executive Board meeting was to move in the direction of the governance structure we had adopted for the Court of Arbitration for Sport, namely the ICAS, the International Council for Arbitration in Sport.
Like the matter of doping in sport, in which decisions have to be taken, the CAS had become the principal body within the Olympic Movement for the resolution of sports-related disputes and had been recognized as a serious arbitral body by the Swiss civil courts. The process was made complete by removing the CAS from the direct administrative control of the IOC and creating ICAS (the International Council for Arbitration in Sport), which was governed by a board composed, in equal portions, by the organizations affected, namely the IOC, the IFs, the NOCs and, very importantly, the athletes. No one constituency, nor even two, could control ICAS and, therefore, the CAS itself. The result was an independent body that gained the confidence of all parties.
I suggested the same model to deal with doping matters. We should create an independent anti-doping agency that would be governed by equal numbers of IOC representatives, IF representatives, NOC representatives and athletes. I also thought that we should extend one block of such representatives to governments. I went even farther and suggested that there could be a block composed of representatives of sponsors, the pharmaceutical industry and the sporting goods industry. That would have meant six groups of, say, three or four members each. Again, none of the groups would be in a position to control the new agency, which would have been independent from each of its constituents. I suggested that we commit to paying whatever it would take to have an effective programme in place, but, to show that we were serious, we should identify an initial commitment of $25 million.
The other decision we took at the August, 1998, Executive Board meeting was to convene a world conference on doping in sport early in 1999. The conference was to be held in Lausanne on February 2-4, 1999 and would include delegates from the whole of the Olympic Movement, including athletes, from national governments, regional associations of governments and international governmental organizations. Preparations were put in place during the fall of 1998 to organize the conference. These preparations included meetings with the IFs, to obtain pre-agreement to the concept of a single anti-doping code and harmonization of the many conflicting regulations, as well as to the concept of an independent anti-doping agency. This was generally in place by the end of November, 1998.
Well, as we are all too well aware, December, 1998, brought with it the revelation of the Salt Lake City scandal that became the dominant story in the media for several months. It generated a volume of coverage relating to the IOC that was unprecedented and that was almost universally condemnatory in nature. The condemnation was not limited to the Salt Lake City incident and to the members involved in that incident, but extended to almost every facet of the IOC, its actions, its history, its structure, its members. Nothing went untouched. The World Conference had been scheduled for early February, which was right in the midst of the worst of the media firestorm. We had just held the first of several Executive Board meetings, at which the preliminary report of the ad hoc Commission was presented, and which recommended the expulsion of certain the IOC members. The IOC President and other senior members of the Executive Board had publicly apologized for the unacceptable conduct of the IOC members involved. A special Session of the IOC had been scheduled for March, at which the expulsion recommendations would be considered.
In short, could there have been a worse time to hold a World Conference on Doping in Sport, under the aegis of the IOC? I doubt it. But we were faced with the unenviable position of appearing to fold under the media pressure if we postponed the Conference and of leaving an important problem for the Olympic Movement untreated. We concluded that the Conference should proceed, due to the importance of the subject matter, and that we would just have to try to deal with the media as best we could. It was clear to us, however, that there would not likely be any positive coverage of the Conference, but far more interest in the Salt Lake City scandal, which proved to be true. We also received lectures from many of the participants, including governments, about how untrustworthy the IOC was generally, and, in particular, in relation to the fight against doping in sport. In fact, it seemed as if all doping-related problems in all sports were the IOC's fault.
Leaving aside the posturing that occurred, there were some excellent discussions during the Conference and a strong consensus regarding the establishment of an independent anti-doping agency. The area in which we encountered the most difficulty was in the matter of a standard sanction across all sports in cases of a first serious doping infraction. All agreed, in principle, with the idea of a two-year ban, but three sports, in which there is a highly developed professional structure, were worried about the legal exposure they might face if they were to impose a two-year sanction under the sport rules, but have such a suspension overturned by the civil courts. If the matter were to take two years or more to resolve and a player had been excluded during that time, the IF might face a claim for millions of dollars. If they could be satisfied that the sport sanctions could not be overturned by the civil courts, they had no objection in principle to the two-year proposal.
The other area in which there was some difference was in the role of governments within the independent agency. The IOC proposal was rejected out-of-hand. Governments would not settle for a one-sixth position, but wanted to be equal, in total, to the whole of the Olympic Movement. Frankly, after the posturing we had endured, this was something of a welcome surprise. President Samaranch immediately sent me to negotiate with the European Union representatives who were leading the discussion and I said that I thought we could agree to the 50-50 proposal, but on one condition. What was that, they asked? I said they could have a 50-50 position in the agency, but only if they agreed to assume half of the costs. We did not need, I said, governments to tell us how we should spend our money. The matter of government funding was something of a problem for them, but they agreed that we would work together on a fast track basis to see if an agreement could be reached. This was to be a private sector fast track, not on the usual pace of government actions. One way or another, I told them, we were going to have an independent anti-doping agency, with or without government participation. Doping in sport was too important to let interminable negotiations with governments impede a concerted response from the sports authorities.
Over the summer of 1999, the IOC led a working group that put together the framework, structure and initial mandate of a new organization, to be known as the World Anti-Doping Agency, or WADA. WADA was created by the IOC on November 10, 1999 as a private foundation under Swiss law with its provisional headquarters in Lausanne. There would be equal representation from the Olympic Movement and from the public authorities. The IOC would bear all of the costs of WADA for the first two years of its operations; governments needed two years to determine how they would manage to provide their share. In the interests of having the public authorities involved, the IOC agreed to this financing proposal, but insisted that the WADA statutes provide that if the public authorities did not provide half of the funding, starting January 1, 2002, they would no longer have equal representation on the WADA Board.
Governments meeting in Sydney, Australia, in late November 1999 agreed that they would participate in WADA and support its activities. They would meet separately to determine how to organize their participation, settling eventually on a continental basis and, in due course, would meet to determine how best to manage the financial aspects of participation.
We held the first meeting of the WADA Board in Lausanne on January 13, 2000. It was largely organizational in nature and was the first time that an organization of this nature had ever assembled. The principal difficulty was how such a hybrid organization would function in practice, but the spirit was remarkably cooperative. Within a few months, a pace remarkable for such an international organization, we have become both active and effective in the fight against doping in sport.
I believe that most of you are aware of the work that was done during 2000. We considered that it was important for WADA to become active as soon as possible and to establish itself as an independent agency with a visible presence on the international scene. We were under no illusions that the mere existence of WADA would bring an end to doping in sport. The problem is far too complex to be solved in the short term. But we did want to be sure that there was a beginning and a statement of purpose that would leave no doubt that there is now a change in attitude and focus in the fight against doping in sport. Let me summarize what has been done to date and where I believe we are headed in the short to medium term.
For the first time in history, we have assembled, at the same table, at the same time and with the same objective all of the participants necessary to the solution of the problem of doping in sport: athletes, international federations, national Olympic committees, the IOC and the public authorities af all five continents.
- It is clear that no group on its own has the answers to all the questions or the power to implement a solution to doping in sport, but, together, all of the necessary elements are present.
- There are things that only governments can do, to deal with such activities as trafficking, legislating controls over certain substances, providing access to their territories for purposes of testing and civil or penal sanctions where appropriate. The sports authorities have no such powers or jurisdiction.
- It is important to recognize that most governments have not been active in the field of anti-doping to date, so this is, to some extent, new ground for them.
- Indeed, from the perspective of doping in sport, it is important not to lose sight of the fact that some of the most extensive doping programmes in sport were organized by and implemented by governments or with their full understanding and approval.
- When establishing WADA, the IOC made it clear that significant funding would have to be dedicated to testing, research and education. Our initial commitment, to demonstrate the importance we attached to this, was an initial commitment of $25 million. If it takes more than this, the partners in WADA will make the necessary funds available.
- We negotiated the idea of unannounced out-of-competition tests in the period leading up to the Sydney Games and performed some 2,100 such tests.
- We negotiated and signed contracts with 27 of the 28 summer International federations, to be sure that we could perform the tests on their behalf and that the IFs would be in a position, if necessary, to sanction positive results in accordance with their rules.
- We offered our services as an Independent Observer of the doping control process under the responsibility of the IOC during the Sydney Games and for the Australian ASDA that was operating the accredited laboratory in Sydney and conducting tests on athletes in Australia. This has already proved to be of immense value and has effectively removed any suggestion, however unfounded it may have been in the past, that there has been any manipulation of test results at the Olympic Games. It is a model that should commend itself to other competitions in the future.
- We have continued the commitment to conduct out-of-competition tests in 2001 and the years to follow, again with the active cooperation of the IFs.
- We will be working to have a single Anti-Doping Code applicable across all sports and all countries, that can be applied by sports authorities and public authorities alike. This may sound simple, as well as eminently sensible, but you should be under no illusion that it will be easy to accomplish. It might be relatively straightforward to accomplish within the Olympic Movement, but the involvement of governments and the process of developing intergovernmental consensus and mechanisms will be immensely complex. This is not a question of lack of will. There are 200 countries involved in the Olympic Movement, with differing traditions, legal systems and legislative priorities and the machinery of international enforcement of legal commitments is, to put it at its best, cumbersome in the extreme.
- We will be involved in the accreditation of laboratories and in providing the assurance of minimum standards of analysis and practices, most likely with an ISO designation, so that there will be no variation in testing standards from country to country. The perception of differing standards has been a consideraable problem in the past.
- We approved the EPO testing protocols and will support efforts to extend the reach-back of the tests to make them more effective in future. We recognize that they are of limited value at present, except once we apply them in genuine unannounced out-of-competition tests, when even the few day reach-back may nevertheless be a major deterrent.
- Enforcement of anti-doping rules is not the complete solution to the problem of doping in sport. It is a necessary element, because participants have to have the confidence that there is a system in place that will catch, expose and punish those who cheat. More important, however, in the long run, is to create an understanding across the whole world of Olympic sport that cheating is antithetical to the entire concept of ethical sport. I accept that there may be a generation of athletes that may refrain from doping simply because they are afraid of getting caught. If, for that generation, that is the only reason, that will suffice for the time being, but it is the next generations that interest me even more. We have established an Ethics and Education Committee, the mandate of which is to distill the ethical principles inherent in sport and to develop educational programmes, across the entire social spectrum, that will bring about understanding and endorsement of ethical conduct consistent with those principles. In the long run, it will be the educational programmes that will create the new mindset, just as they have in the matter of drinking and driving.
- We have already established a significant change in attitude regarding doping in sport, a change that may perhaps be fully comprehended only in retrospect, but one that now exists. Doping is inconsistent with Olympic values and will no longer be tolerated. The rules will be given a purposive interpretation, which is to say that they will be interpreted to bring about the objective of the rules - the elimination of doping in sport. Although the rights of athletes will be protected, to be sure that there is a fair process in place so that they are not punished for infractions unless it is clear that there has been a doping infraction, we are no longer going to approach the issue from the perspective of attempting to find every possible excuse to allow a cheater to go unpunished. There have been too many cases in which fatuous excuses have been allowed to prevail in order to allow cheaters to go free and to continue to take unfair advantage of other athletes. [I have in mind, for example, a case in which the so-called \"continuity of possession\" of a sample was held to have been compromised when the sample, taken on the last day of a competition, after the laboratory had ceased to function, was confided, properly sealed, to the custody of an IF official for delivery to an accredited laboratory. The official left the sample in the refrigerator in his hotel room while he went to eat in the hotel restaurant, without a container of urine for company, for an hour or so. This was held, by an arbitration panel, to have broken the chain of custody, with no other evidence of tampering with the sample, and the athlete involved was absolved of the doping infraction. In my respectful opinion, this was an outrageous travesty of justice.] This brings the entire Olympic Movement into disrepute and is simply unacceptable.
This Conference is designed to provide us with an opportunity to have an exchange of views, so I would like to finish this portion with two or three comments and then try to deal with any questions you may have, whether about anything I have said, or anything you may wish to discuss.
- As of now, the empahsis on doping in Olympic sport has changed.
- We have a mechanism in place that is equipped to deal with all aspects of doping, including education.
- We are determined to bring an end to doping in sport.
- We will spend whatever money is required to do so.
- The public and sports authorites have established a unique hybrid organization that has the ability to move quickly and creatively.
- If you cheat, you are not welcome in the Olympic Movement, so be warned.
- We are going to concentrate not on the failure of authorities to catch the cheaters, but on the ethical failure to compete fairly.
- We are going to make the Olympic Movement the leader in promoting and ensuring the foundation of ethical sport that the world hopes and expects it will be.
Thank you for your attention.