The winding road towards a new World Anti-Doping Code

“I don’t see any obstacles; I should make that quite clear.”

This may be a politically convenient understatement of the challenges leading up to a new revised World Anti-Doping Code this year. But talking to Play the Game by telephone from the WADA headquarters in Canada, WADA’s Director General David Howman prefers to focus on “some on-going interesting discussions in a number of areas”.

The new World Anti-Doping Code, which is the internationally harmonised fundament for all anti-doping efforts, will find its final form at the Fourth World Conference on Doping in Sport taking place in Johannesburg, South Africa, in November 2013.

At the conference representatives from the sports movement, governments and other stakeholders will discuss the final draft. The revised code will be formally adopted by the WADA Foundation Board equally composed of representatives from the Olympic Movement and governments after a comprehensive revision process including world-wide hearings. A second draft was published in December and the code is now in its third and final consultation phase.

Howman points out two central discussions that need to be settled before a new code can come into force in January 2015: The new criteria for the prohibited list and the longer sanctions.

The suggested criteria for the list state that a substance or method has to have the potential to be performance enhancing to be considered in the first place. And only then it should be either contrary to the health of the athlete or to the ‘spirit of sport’. Today, all three criteria are accorded equal value.

“That is a significant change and one which I suspect will undergo quite a lot of discussion in the next few months. I also suspect that there could be a possibility of it reverting back to what we have now, which is that to be on the list you have to satisfy two or three of those criteria,” Howman predicts.

This means that a social drug like cannabis is prohibited in competition even if its effects on performance are disputed or rejected. But changing a principle that has been in place since the first code came into force in 2004 is controversial among stakeholders like the IOC and some governments who prefer to stick to the present criteria for health reasons or are reluctant “to fix what ain’t broke”, as Howman puts it.

On the other hand an even longer list of governments, international sports organisations, anti-doping agencies and athlete representatives simply want to stress the sporting purpose of the anti-doping efforts and keep the focus there instead of using resources on testing for non-sporting drugs.

“There are those who have a different, more principled approach who say, ‘Well, look, we’re after people who are trying to enhance their performance, so why don’t we make that a significant part of the criteria?’”

Or maybe just a pragmatic approach asking: “Why should we bust people for using a social drug like cannabis if it’s not having a performance enhancing effect?”

“I think it’s been raised with that in mind, but if you start looking at trying to get rid of one substance on the list and change the whole criteria, then I think you might be making a mistake. You have to look at the code as prevailing principles, not specific examples. So I would hope that the issue of marijuana doesn’t get entangled in that debate, and that those who wish to look at that particular substance think of other ways in which they might deal with it.”

Tougher sanctions for intentional doping

According to Howman, another big issue could be the doubling of suspensions to four years for deliberate use of doping substances like EPO, anabolic steroids and growth hormones.

“I think there will be more talk about sanctions and how the suggestion that sanctions for serious breaches of the rules will lead to a four-year penalty. We are getting opinions to ensure that the four-year penalties will satisfy the rule of proportionality that prevails in the courts in Europe in particular, but also in other parts of the world, and I think there will be quite a lot of discussion about that.”

Some stakeholders argue that a four-year ban could be too inflexible. Why is it necessary to double the sanction length for these standard doping drugs?

“You’re asking me for an opinion which I don’t have, but what has happened is that there are many, many people who have written in saying the penalties should be strengthened and have asked for this. So it’s been put in place for that reason. If somebody uses those substances, they’re the athletes who have taken them intentionally to enhance their performance and defeat the clean athlete.”

Regarding flexibility, Howman refers to the athletes’ option to claim ‘no fault’ or ‘no significant fault’, which can lead to a reduced penalty. He also mentions the new code’s expanded ability to reduce sanctions if the athlete gives substantial assistance in discovering or establishing anti-doping rule violations.

”We’ve just seen that in operation in the Armstrong case and I think that is another area which will be enhanced.”

Isn’t it an issue that you can’t differentiate between the young athlete who is coming into competitive sport and is tempted by people to use prohibited substances and the hard core doper who has been in the sport for many years and who should know what he or she is doing? That would be four years for both of them, wouldn’t it?

“I think that’s an issue that needs to be debated as to whether there needs to be any separate process for minors. You’ll notice that we’ve actually avoided the use of that term now because it’s so differential around the world, and I think that there is a section which deals with young athletes in an appropriate way. If that has to be changed, then I’m sure that those who feel that it ought to be accentuated will make suggestions.”

But it could also be relevant for younger athletes who are over 18-20 years and for athletes at a lower level? In some counties, like Denmark for example, people are tested without being elite athletes, but just recreational athletes doing sport from time to time.

“On that scenario there is discussion, because the code is essentially written for elite athletes. That’s the concept, and it always has been. There are some countries, and Denmark is one, where their national rules and the way in which they are empowered to act, encompass any athlete in the country. There’s opportunity within the code to differentiate. Now the length of that differentiation will have to be examined, I think, in the next round as to whether there should be different tiers. There’s certainly that possibility.”

So you may have to differentiate between recreational athletes and traditional elite athletes in a more clear way?

“Yes, and recognising that some who may start off being recreational make the link to elite. But obviously there are many athletes whom this code is not really all about. We don’t want to get them entangled in rules and processes that are not appropriate. That’s exactly where I think someone’s got to put a suggestion forward. We have never suggested that the code is something that should prevail for every person in each community. That would be ludicrous.”

Full menu analysis

A third significant suggestion, according to Howman, is a new clause in the code which says that samples must be analysed for all substances on the list, unless otherwise approved by WADA. He expects that it could have quite an effect on how WADA and other anti-doping organisations operate.

 “I’m anticipating that many will say, ‘We do not want all of our samples to be analysed for the full menu’ and they will have reasons for that. One of them is cost. My view is that we have to make sure that the system we have put a lot of money into and invested a lot of money in terms of research is actually utilised, and the resource in that area is not wasted.”

“We put millions of dollars of research into EPO analysis and yet very few samples are being analysed for EPO. It just doesn’t make any sense. So those issues in terms of practicable day-to-day operations of a testing agency are going to be interesting.”

In 2011 at the ‘Tackling doping in sport’ conference in London you said that you hoped that the new code would be simpler, more understandable and easier to follow, also for athletes. Some people have said in their contributions to the revision process that they still think that the code is very complicated. Are you satisfied with the simplicity of the new draft?

“Again, it’s not for me to be satisfied, it’s for the world to be satisfied. I’m not part of the drafting team. The drafting team has been asked to do that and I think if they haven’t been able to make things simpler, and I can point to several parts of the code in this current draft where it is much simpler, then I would hope that those who criticise it would come up with some ideas about how it could be simpler.”

What are the problems in making the code much simpler?

“What you have to do is remember that with some of the things that have been in place now for ten years, if you change the wording then you’re going to change the way in which the tribunals and the courts construe them. So you’ve got to be a little cautious in that regard.”

The right to privacy

At the end of the day, the code first and foremost concerns the athletes, and there are athletes who are increasingly worried about their privacy. Apart from being asked to deliver a urine sample under strict surveillance or have a blood test taken, selected athletes must also be ready to report their whereabouts in detail and in principle be available for testing 24/7.

Seen from an athlete’s perspective, one loosening of the new code is that athletes in the whereabouts pools will be allowed to have three ‘missed tests’ within a 12-month rather than 18-month period without being sanctioned. But, fundamentally, the whereabouts system is being upheld despite several athlete representatives – like the EU Athletes, a federation of European players associations and athlete unions – questioning its implications for privacy or its overall effectiveness.

Is there a limit to how much society can disturb athletes in the process of catching cheats in the sport?

“I think everybody agrees with that and the issue is: how can you devise a system that might lessen that privacy attack? I don’t think anybody has come up with any ideas about how you cannot watch someone pee in a bottle – that’s the first privacy issue that is confronted, and that seems to be one that people accept.”

Regarding the debate on the whereabouts system, Howman points at the new draft for testing standards that among other changes asks anti-doping organisations to separate athletes into different ‘tiers’ based on a more deliberate approach to risk assessments and the need for whereabouts information.

“First of all, you don’t put somebody in a whereabouts pool unless you’re going to test them out of competition. Secondly, there are going to be two or three, or maybe even four, tiers of whereabouts information that anti-doping organisations will be seeking. So there’s going to be quite a swing change, if you like, which I would expect will answer some of the criticism,” Howman says.

“I think you have to be acutely alert to those sorts of issues. If you’re not, then you’re not looking after your clean athletes and that would be wrong.” 

Read the first part of the interview "The Armstrong case has given people a significant jolt"  

More about WADA’s code revsion