PtG Article 27.08.2019

WADA president “welcomes feedback” from iNADO after call for a separation of powers

Interview: Sir Craig Reedie says WADA reforms are the first step in an ongoing process with regards to good governance and independence. Two experts in sports governance and sports law explain why it is difficult to separate legislative, executive and judicial powers in both WADA and CAS.

A few weeks ago, chairman of the Institute of National Anti-Doping Organisations (iNADO) Michael Ask, called for a separation of powers in both the World Anti-Doping Agency (WADA), and the Court of Arbitration in Sport (CAS).

“Neither WADA nor CAS is independent. We should clearly look into how we in the future can make the two institutions independent of both interests in sports organisations and political interests,” Ask said in an interview with Play the Game.

“I don’t know how to do it in practice. But as in the rest of society the world of sport should surely apply mechanisms which can separate the legislative power, the executive power and the judicial power,” the current CEO of Anti-Doping Denmark and former detective chief superintendent and Head of Department at the national Danish police force said.

Today, the International Olympic Committee (IOC) and the governments of the world share the power in WADA. And the IOC also has a strong influence on the judicial decision-making in CAS.

When Play the Game asked WADA president and IOC member Sir Craig Reedie to comment on Ask’s call for a separation of powers in two of the world’s most influential sport institutions, Reedie said:

“As always, we welcome feedback from our colleagues at iNADO as we look to further developing a collaborative partnership between our two organisations for the benefit of clean sport. In regard to independence, as you may know, in November 2018, the WADA Foundation Board approved wide-ranging governance reforms which include scope for greater independence and athlete representation within WADA’s existing structure.”

The WADA president argues that among the approved reforms of the agency are an independent President and Vice-President, the addition of two independent seats – with full voting rights – to the ExCo, the formation of an Independent Ethics Board, and one seat each at a minimum for both athlete and NADO representation in all Standing Committees.

“These reforms are the first in an ongoing process that clearly demonstrates WADA’s willingness to adapt and ensure that it has the right processes in place with regards to good governance and independence,” Reedie says.

Very difficult in practive

To professor Roger Pielke Jr., an American political scientist and director of the Sports Governance Center at the University of Colorado in Boulder, the call from the new iNADO chairman is worth listening to:

“The most important thing that it indicates is that even an insider recognizes that there are fundamental structural problems in the regulatory organisations that govern sport,” Pielke says.

Earlier this year, the American professor and his Norwegian colleague Erik Boye stated in a research paper that “WADA systematically falls short of basic standards of scientific integrity in anti-doping regulation” and recommended a number of scientific actions which could easily improve the scientific integrity in anti-doping. But when it comes to a separation of powers in WADA and CAS, Pielke finds it “very difficult”:

“There are multiple possible models that might be followed. My recommendation would be to open up discussions of options, to weigh benefits and risks of each and then have leading alternatives emerge,” he says pointing out that it is essential that athletes have a leading voice in these discussions.

Who should take the first step?

“The iNADO have a good start, but it is essential that leadership is being displayed by existing sports administrators. This is one reason why this is so difficult, as it may not be perceived to be in their interest to do so.”

What are the biggest challenges?

“The biggest challenge is of course the status quo and the incentives for all those who benefit or enjoy the way things are. Institutional change is difficult, and even more so given the ‘netherworld’ status of sports organisations, which are not business, not governmental and not civil society, but a strange amalgamation of all three.”

One argument often used against a separation of powers in the world of sport is that it might have a negative effect on the sports organisations’ interest in solving their problems with doping, match fixing, corruption and other attacks on sports integrity. Do you understand this fear?

 “Sure, I can see this. But it is one of many risks – and benefits – of rethinking sport governance,” Pielke says.

Recently, politicians in countries like the US and Italy have challenged the autonomy of sport. But the American scientist does not see a separation of powers in sport as a first step towards state run sport like in the former Soviet Union and other countries.

“It is a long way from ‘state accountable’ to ‘state run’. In the US for instance, the sexual abuse scandal in USA Gymnastics certainly calls out for greater accountability of the Olympic national governing bodies to the US government, which has provided them monopoly status and a social license to operate,” Pielke argues.

Too big an imbalance

Almost four years ago, Antoine Duval, a senior researcher in European and international sports law at the ASSER Institute in The Hague, called for a separation of powers in CAS and the court’s International Council of Arbitration for Sport (ICAS).

ICAS is responsible for the administration and financing of CAS and is supposed to ‘facilitate the resolution of sports-related disputes through arbitration or mediation and to safeguard the independence of CAS and the rights of the parties’.

In a Play the Game column ‘The rules of the game’, Duval then identified three pillars for a reform of CAS and ICAS: Independence, transparency and access to justice. He also laid forward a roadmap to a reform by introducing 10 proposals in order to reduce the sports organisations current influence in the powerful council (see box).

According to Duval, these recommendations are still valid today, even though some improvements have been made after the recent European Court of Human Rights ruling finding that CAS hearings, if requested by one of the parties, must be open to the public in accordance with the right to a fair trial enshrined in Article 6, paragraph 1 of the European Convention on Human Rights.

“It is not easy to change the structure of ICAS. And there will always be the risk of an imbalance between sport’s stakeholders. But it is important to avoid too big an imbalance like the one currently prevailing to the detriment of the athletes,” Duval argues.

To him, the key challenge to the independence of the CAS lies at the Appeals Division. The division deals with most of the disputes at the CAS and in particular with those related to doping and transfer cases, but also with disciplinary sanctions imposed by the sports organisations.

According to Duval, the main problem is that its president can influence the nomination of the president or single arbitrator of each appeal panel while the other two members are selected by the parties. To Duval, this gives the president of the Appeals Division opportunity to tilt the balance in every appeal case.

Until 2013, the president of the Appeal Division was the long time German IOC member Thomas Bach who is now the president of the IOC. The current president of the Appeals Division is Corinne Schmidhauser. Besides being a lawyer and a former Olympian and World Cup winner in alpine skiing she is the president of a sport school in Bern, president of Anti-Doping Switzerland, former member of the FIS Legal Committee, former head of the Legal Committee of Swiss Ski, member of the parliament in Bern, former CAS arbitrator and former president of the Swiss Lawyer Association.

Lack of internal democracy and accountability

The US is by many seen as a possible counter power to international sports organisations. As a result of the FIFA corruption scandal, American courts have convicted several international football leaders. And the sex abuse scandal surrounding US Gymnastics and the US Olympic Committee has resulted in a bill that, if made law, will allow the Congress to take more political control over American sport.

But in the big picture, Antoine Duval is not impressed by either of these judicial and political actions:

“Yes, a few heads are now rolling in football, but so far the FIFA scandal has not changed the structure of the system. The real issue is the lack of political accountability of the governing bodies and the post-democratic nature of institutions like FIFA and the IOC. If needed, the IOC will fight tooth and nail to defend the autonomy of the Olympic movement. 20 years ago, American politicians also said they would clean up the Olympics after the Salt Lake City corruption scandal – guess what, it did not happen.”

Play the Game has asked the CAS for a comment, but General Secretary Matthieu Reeb did not respond to the request.

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Doping and the state of affairs in anti-doping are among the major topics up for debate at Play the Game 2019, which takes place in Colorado Springs on 13-16 October.

See the preliminary programme for the conference and read more about speakers, registration and prices at the conference website.