Review of the World Anti-Doping Code 2 hearing

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1 The purpose of the World Anti-Doping Code (the Code) and Programs to protect the athlete s fundamental right to participate in doping-free sport and thus promote health, fairness and equality for athletes world-wide, is recognised as the bases for the Anti-Doping Programs. The introduction of respecting the principle of proportionality and human rights is an important statement to be used throughout the Code and Standards. The Code and the Standards is increasingly becoming more complex with detailed wording. The wording is such that the understanding could be reduced. This again may reduce the fundamental rights of any participants in the sports. We urge WADA to simplify the requirements and use guidelines as a method of understanding and increase common practical approach. Anti-Doping Norway s response to the International Testing Standard section 11 is particularly addressing this issue. When making fundamental suggestions of alterations, such as removing the B-sample, we urge WADA to provide the reader, during the hearing phase, an explanation for the suggestion, allowing the reader to understand the reasoning and rationale for the proposal. The following comments are based on the WADC draft v The Code Fundamental Rationale for the World Anti-Doping Code Anti-Doping Norway suggests that the fundamental rationale for fighting doping to a larger extent is explained. The Code should provide and explanation for the principle direction for how anti-doping work should be planned and carried out. We encourage WADA to initiate discussion related to the scope of the anti-doping work, focusing on the fundamental rationale for the World Anti-Doping Code. The Anti-Doping Convention of the Council of Europe states, in its introduction, that sport should play an important role in the protection of health, in moral and physical education and in promoting international understanding. The Convention states its concern by the growing use of doping agents and methods by sportsmen and sportswomen throughout sport and the health consequences of participants and the future of sport. The anti-doping work has been an integrated part of the medical field in NOCs and IFs. The protection of the athlete s health in addition to focusing on the performance enhancing issue has been equally important. The scope of the anti-doping work has been to preserve the Spirit of Sport, characterized by some main values, including the principle of fair play and also the protection of the athlete s health. We believe that the sport movement has a role to play in promoting public health and physical activities. # Side 1

2 The principle of Proportionality - using risk evaluation as a tool Anti-Doping Norway applauds the focus of proportionality identified in the Code v In order to ensure the needed proportionality, an objective risk evaluation should be the basis from which an anti-doping organisation should be carrying out all tasks related to anti-doping, being doping control programs, education programs, science, intelligence programs etc. Strategic focus should be on those sports, disciplines and athletes being identified as a higher risk of doping. Requirements of a risk evaluation are identified in the International Testing Standard, but should be a requirement in the Code encompassing all anti-doping related tasks. Such a physiologically risk evaluation should be as objective and empirically based as possible for each sport. The Anti-Doping Organisation should be responsible for carrying out this evaluation, having WADA responsible for approving the result of the risk evaluation. Alternatively, WADA should be responsible for writing an overall risk assessment for all sports. The principle of subsidiarity allowing details to be planned where they should be carried out Anti-Doping Norway is of the opinion that international rules are an important tool to move towards standardisation in anti-doping, giving a minimum of what must be applied and adhered to. The rules must not be detailed, but allow for several practices and approach depending on the differences where the rules shall be applied. The international rules must be phrased so that there is no misinterpretation or misunderstanding of the intention of the rule, but still leave the practices and details to each Signatory. WADA should monitor the Signatories adaption of the International Rules ensuring adherence to the rules, and give guidance for best practices when implementing the rules. The principle of using comments in the Code The comments today consists of rules, exceptions to the rules, examples and explanations. Such comments must not be part of the rules. Rules or exceptions to the rules must be made part of the actual rule and not identified in a comment. Filing Failures and Missed Test in article is an example where exeptions to the rules are identified as a comment. Examples and explanations should be identified in Guidelines and not in the Code. # Side 2

3 Article 2 RULE VIOLATION Rule Violation Requirement of Intent There should be a requirement of intent for cases related to evasion, refusal, filing failures/missed tests, tampering, posession, traficking, administration, complicity and association, in order to clarify this requirement for these issues. Rule Violation - Prohibited Association (2.10) The last section addressing involvement with doping is unclear. The rule has not set any time frame, leaving this as a lifetime occupational ban. The last section should be deleted. Article 4 - The List of Prohibited Substances The List Committee The List Committee composition, mandate and election of members should be identified and documented. The revision of the List (4.1) The List is one of the fundamental documents in the work carried out by Anti-Doping Agencies. The development and alteration of this List must be transparent and reviewed in a manner that ensures a common understanding to the extent possible. The responses from the consultation process must be made publically available. Arguments for any substantial alterations must be clear and unambiguous, allowing the stakeholders to understand the reasoning behind the alteration. Criteria for including Substances and Methods on the List (4.3) Doping is fundamentally contrary to the spirit of sport. The fundamental rationale for the World Anti-Doping Code particularly references the Spirit of Sport to be the essence of Olympism, the celebration of human spirit, body and mind. The rationale characterizes ethics, honesty, respect and health to be values to treasure. The Olympic Charter has defined the importance of protecting the health of the athletes in its Mission. The purpose of the World Anti-Doping Code and the World Anti-Doping Program is to protect the Athletes fundamental right to participate in a doping-free sport and thus promote health, fairness and equality. The List is the fundamental document dictating the practical direction for which the antidoping work shall pursue. The criteria for including substances and methods on the List should reflect the essence of the Fundamental Rationale and Core Values, in addition to support the athletes health. The 2011 laboratory statistics identifies 7,9 % of reported Cannabis findings This is the third largest substance detected after anabolic agents and stimulants. Cannabis is not a heavy doping substance, but a serious one, and very much Contrary to the Spirit of Sport and also represents a health risk to the athlete. The abuse is high and unacceptable. Our task is to keep our values high by condemning any actions that is contrary to the Spirit of Sport and that is not supporting the protection of the athletes health. In order to carry out this important task we need the means to do so. Many anti-doping organisations applaud the suggested direction of focusing on the performance enhancement, leaving the athletes health and the fundamental rationale of the # Side 3

4 anti-doping code as secondary considerations. They emphasise that the proposed amendment will allow for a focus on athletes trying to cheat and increase the credibility of the fight against doping and also enhance effective testing. We believe that the anti-doping credibility and work will suffer if we remove the use of social drugs from the List, having Cannabis as the third largest unwanted substances detected. In order to catch the cheaters, our testing programs will be effective if using the results of a comprehensive risk evaluation and a good proportion of our budgets for target testing. However, we must also use our energy on the unacceptable use of substances that is contrary to the spirit of sport and a health hazard to the athlete by combining good testingand education programs. We believe that today s practice will maintain our efforts in detecting performance enhancing doping on top level athletes, but also remain as a significant contribution of promoting health in sports. We believe and recommend that the anti-doping work must focus equally on all three criteria, and that the selection of substances and methods to the List include these three criteria as it does today. TUE - Mutual recognition (4.4) There seem to be contradiction between prosesses and responsibilities between this section and 15.4 Mutual Recognition. It must be made clear if a national level athlete with a national TUE need to apply for a new TUE if becoming an international level athlete, or if 15.4 shall apply. Article 5 Testing Independence between sports and testing In order to fulfill an impartial testing program, we believe it should be a clear separation between those responsible for promoting and working for winning athletes and those responsible for managing and operating the testing program. There must be a requirement of independence between those responsible for Sports and top level athletes versus those responsible for planning and carrying out testing and result management. # Side 4

5 Article 6 Analysis Standards for Sample analysis (6.4) Requireing all samples to be analysed for all substances pending the Laboratories ability is in contradiction to the intention of Target Testing and Intelligent Testing, in addition of beiing extreemly costly and inefficient. This is an area where the principle of subsidiarity should prevail. The ADO should be able to give a satisfactory rationale for its priorities. Severeal substances can only be detected given very small windows and will be a waste unless planned particularly for the purpose of intelligent target testing. Several sports will additionally have no potential performance enhancing benefit from several substances that is costly to analyse. It is also unclear if all samples must be blood and urine samples. Anti-Doping Norway has calculated that if such rule should be made mandatory we would need to reduce the number of our sample collections by one third, given our available resources. Such reduction will detriment our testing program to a large extent. Minimum requirements for analysis methods should of course remain. Article 7 - Results Management B-sample The B-sample is a legal safety valve for athletes and laboratories and provide a greater legal weight in several cases. The B-sample is not very costly and is unwise to remove. Article 8 - The right to a fair hearing Disciplinary hearing bodies and disciplinary process (8.1) The athlete s fundamental right to a legal protection and due process must be secured. Legal protection is secured through several means and methods such as ensuring transparent processes, independence and competent Hearing Bodies. The principle of allowing the benefit of the doubt to be in favour of the athlete is a similar protection. The mechanism of the disciplinary process is left largely to the ADO under the Code, provided that the minimum procedural safeguards are met. These safeguards are too vaguely described in the Code and should be strengthened by implementing more specified requirements: Requirements for establishing independent and formalised Hearing Bodies similar as for the Appeal Panels must be identified. Transparency is crucial and should be guaranteed by implementing requirements for public hearing. Judicial competence requirements for members of the Hearing Bodies/Appeal Panels must be identified as a minimum requirement. Some International Federations will often forward possible anti-doping rule violations to their relevant national federation, as the International Federation is only required to provide a hearing process (re WADC). A national federations hearing body will probably seldom be # Side 5

6 independent and will probably often lack adequate competence. International Federations, if having the Result Management, must handle a possible rule violation themselves, ensuring that an independent, formalised and competent body is in place. International Federations that does not have the capacity to establish fair, independent and impartial Hearing Bodies, could allow Sport Accord to establish such Hearing Body to be used by the International Federation. Filing Failures and Missed Tests Each Filing Failure and/or Missed test is liable to be forwarded as evidence should a possible Rule Violation be established. The fundamental rights of the athletes regarding a Fair Hearing should thus be acknowledge also related to the issue of Filing Failures and Missed Tests. These violations must be reviewed and given by independent panels possessing correct competence, including the competence of a top level athlete. Article 10 Sanctions on individuals Rule Violation Whereabouts (10.3.3) The minimum sanction for Rule Violation related to Whereabouts should be 6 month. Some athletes are struggling with reporting their whereabouts correctly for different reasons then neglect or possible evasion. A one year ineligibility period does not appear fair in those circumstances. It should be possible to appeal each Filing Failure and Missed Test. Rule Violation 4 year Sanction (10.2/10.6.1) Anti-Doping Norway is in favour of increasing the existing two year ineligibility period with four years, for non-specified Substances/Methods providing there are no essential and particular arguments and evidence brought forward that speaks otherwise. There should be room for discretionary assessment. The rule should leave the flexibility of two years for lower-level athletes. Return to training ( ) Athletes being given a period of ineligibility from comeptition and training should not be given the right to return to training in order to prepare for a competition. This is unfair to the noncheating athletes, and is in contradiction to fairness. Publication (10.11 and 14) Each country have different rules requireing different type of information to be made public. The principle must be made clear ensuring that those that should know the name and rule violation is given this knowledge for the relevant athlete serving time. It must be left to each country to identify their processes of achieving this principle. Cost Award CAS (10.13) It must be made clear that a rule requiring an athlete to pay cost must be reviewed on a case by case basis in order to make sure that an athlete is not serving an imprisonment of debt. # Side 6

7 Article 14 Confidentiality and reporting Notice of Anti-Doping Rule Violation Decisions and Request for Files (14.6) WADA must make all Decisions, including CAS files, available to Anti-Doping Organisations with Results Management responsibilities, including hearing and appeal bodies in order to achieve an harmonised case law practise. Such files should be made anonymous. Data Privacy Anti-Doping Organisations handle particularly sensitive information (medical and legal). The interpretation of the different rules in each country s, creates a problem relating to data privacy and protection. Requirements for ensuring that the level of security is documented and approved must be established, enabling Antidoping Norway, and other stakeholders, to use ADAMS to all intent and purposes. Requirements should be identified so that all sensitive information is handled in a secure and confidential manner and in accordance with the requirements in the Data Protection laws Article 18 - Education Physicians being an important part of the athletes support personnel should be identified especially ensuring that these persons also receive a minimum of adequate education and information. Several international doping cases have been related to physicians doping athletes. Requiring ADOs to also educate physicians in medical ethics will raise awareness among the medical support personnel(re. CoE Anti-Doping Convention Article 6). Article 20 - Roles and responsibilities of the World Anti-Doping Agency WADA is the only body able to monitor the anti-doping work world-wide. We strongly recommend that WADA has its monitoring role as one of its main focus. Anti-Doping Organizations world-wide posses the competence and expertise necessary to plan and carry out anti-doping programs for the future. We encourage WADA to promote and facilitate this important knowledge and competence to be used in a manner that will benefit the entire anti-doping society. Definitions Minor The new definition identifying a minor below 14 years of age is too strict. The definition must follow each country s rules (normally 18), as previous. # Side 7

8 The International Standard - Testing Anti-Doping Norway has experienced that the requirements in the International Testing Standard are functioning well. Our procedures in the field are reflecting the requirements, and are working well. Section 11 relating to whereabouts is perceived as difficult to read and understand due to the numerous details and repetitions. We strongly recommend a simplification to this section. The comments where originally written in order to ensure a more common approach to administer this system. The level of details should be limited moving explanatory issues to the guidelines. Requirements must not be identified as a comment Athlete Whereabouts Requirements Objective/general principles The section is a summary and a repetition of all the requirements identified in chapter 11. We suggest that this section should only identify the main objective and purpose which should be: Establishing a High Priority Athlete Pool The main principle of a High Priority Athlete Pool (previous Registered Testing Pool) should be to identify those top level athletes that are participating in sports where the risk evaluation, see 4.3.2, has concluded in a necessity of comprehensive OOC testing. Collecting whereabouts for no-advance OOC testing The main principle of collecting whereabouts should be to enable the development and the carry out of an efficient testing plan, for each of those athletes identified in the High Priority Athlete Pool, focusing on the no-advance sample collection for the purpose of OOC sample collection. Identifying and handling Filing Failures and Missed Test The main principle relating to Filing Failures and Missed Test should be to ensure that all handling are fair and reasonable and subject to verifiability and also that the athlete s legal rights are observed at all stages should the Filing Failures and/or Missed Test result in a Rules Violation Requirements for establishing the High Priority Athlete Pool and is addressing the same requirement to a NADO and an IF and should be combined. This section should identify the requirement of using the results from the risk evaluation (se 4.3.2) in order to identify if a sport and the top level athletes participating in that sport should be included in this pool for the purpose of OOC testing. Comment: This Pool should first and foremost be an Athlete Whereabouts Pool and shall only include those athletes where the need for collecting samples OOC as a result of the risk evaluation has been identified. It must be understood that testing should be carried out IC/OOC on all of the top level athletes within the organisations jurisdiction and not only those that are required to provide whereabouts. # Side 8

9 The section should also include the need for develop and regularly review criteria for including a sport and the relevant athletes (review is now written in ). An athlete identified for the Pool will typically be removed from the Pool if the Criteria for that particular athlete are no longer applicable. (now identified in ) Only those athletes that are identified as a top level athlete should be included in this pool if they are serving a period of ineligibility. Other athletes can be included if deemed necessary by the ADO The section should identify requirements for the administration on how to put athletes on and off the pool: written notices training periods for new athletes entering the pool retirement removing an athlete from the pool 11.3 Whereabouts Filing Requirements Section 11.3 and 11.4 would be more accessible to read if 11.3 only identified Filing requirements, moving filing failure and missed test to Requirements relating to ADAMS are identified in the Code, and not necessary to repeat and identifies the minimum filing requirements identify responsibilities and possible delegations for filing whereabouts and should remain in this section (Availability for Testing) Filing Failure and Missed test We suggest that this section describes what constitutes a Filing Failure and a Missed Test , , and identifies responsibilities and what constitutes a filing failure. The wording should be reduced enabling a better understanding of when a Filing Failure should be declared. It is not obvious when a Filing Failure should be declared. The wording and comments should be reviewed ensuring that requirements are identified as a requirement so that there are no requirements hidden in the comments , , , identifies what constitutes a Missed test. The wording should be reduced enabling a better understanding of the requirement. The wording and comments should be reviewed ensuring that requirements are identified as a requirement so that there are no requirements hidden in the comments. # Side 9

10 11.5 Team Sports Team Sport is generally not difficult to test as they would need to organise and coordinate training sessions, time and place. Requirements for including these sports and athletes should be identified separately from the other requirements. Individual reporting should not be a requirement unless so deemed by the ADO as a result from their Risk Evaluation Results Management This section is written as a procedure and not as a requirement. Requirements should be identified leaving the individual procedures to the ADO. An ADO should be required to identify procedures for Results Management relating to Filing Failures and Missed Tests, ensuring that documentation and records will be sufficient pending a Possible Rule Violation as pr the Code. It should be sufficient to require: That an athlete shall be notified in writing, by the responsible ADO, if a possible filing failure or missed test has occurred, within a reasonable time. That an athlete shall be given the possibility of providing comments within a reasonable time. That the ADO shall identify the criteria and requirements for review and decision making process of Filing Failures and Missed Tests, ensuring the athletes legal rights. That any decision with a justification shall be filed and given to the athlete. In fairness to the athlete, there should be a requirement for the ADO to include what type of special circumstances that should be reviewed and which may cause a filing failure or missed test not to be declared. Such special circumstances may be: Acute or severe illness Unforseen incidents Incidents obviously beyond the athletes control Technical problems with ADAMS (if used by the athlete) The athlete should be required to document and prove to the comfortable satisfaction of the review board, if such circumstances should apply. An athlete should be able to file a complaint where a missed test or filing failure has been declared. The complaint should be reviewed by others then those making the review in the first place. It is not clear if the identification of an administrative review ( d and f and d, e and g) is a complaint/appeal possibility for the athlete. In any case these descriptive procedures should be avoided and identifies the same result management process, one for filing failure and the other for missed test. Identifying requirements and criteria and not procedures will allow for a combination and thus a more accessible understanding of the requirement. The Result management Authority must be allowed to identify the detailed procedures themselves Whereabouts Responsibilities of Anti-Doping Organisations The entire section is either identified in the WADC or repeating requirements and should not be necessary. Those requirements not identified else where should be included in the text where it naturally belongs. # Side 10