The following is a guest post by Felix Beulke, a summer intern currently working with Jenny Gesley on research related to the laws of German-speaking jurisdictions at the Global Legal Research Directorate, Law Library of Congress. Felix has previously written on Brexit – What Happens Next?.
The preparations for the 2016 Summer Olympics in Rio were clouded by the Russian doping scandal and the subsequent exclusion of several Russian athletes from the competition. After allegations of doping among the Russian track and field team were reported by a German TV broadcaster in December 2014, the World Anti-Doping Agency (WADA) launched an investigation conducted by a three-person Independent Commission (IC). The IC concluded in its report that there had been widespread doping in Russian sport. WADA also initiated a second independent investigation into allegations of a doping cover-up at the Sochi Olympics which took place in Russia in 2014. The investigation resulted in the McLaren Investigation Report that exposed state-directed manipulations of the doping control process.
As part of the Olympic Opening Ceremony, an athlete from the host country takes the Olympic Oath on behalf of all the other athletes and swears to abide by the rules that govern the Olympic Games. The current version of the Olympic Oath was sworn for the first time at the Opening Ceremony of the 2000 Olympic Games in Sydney and reads as follows:
In the name of all the competitors I promise that we shall take part in these Olympic Games, respecting and abiding by the rules which govern them, committing ourselves to a sport without doping and without drugs, in the true spirit of sportsmanship, for the glory of sport and the honour of our teams.
This blog post will give an overview of the World-Anti-Doping Agency and its relationship to the International Olympic Committee, the legal anti-doping framework, the legal status of anti-doping rules, and the enforcement of these rules.
The Creation of the World-Anti-Doping-Agency
In 1998, the Festina affair, a major doping scandal at the annual multiple stage bicycle race “Tour de France”, revealed the need to reform the current system to create more coherent and coordinated anti-doping mechanisms around the world. On February 2-4, 1999, the International Olympic Committee (IOC) gathered the international community at the First World Conference on Doping in Sport in Switzerland and adopted the Lausanne Declaration on Doping in Sport. The Lausanne Declaration provided for the creation of an independent international anti-doping agency for the Olympic Games in Sydney in 2000. Consequently, the WADA was created in November 1999 as the new main global body in charge of promoting and coordinating the fight against doping in international sports. WADA was intended to bundle resources for research and testing, provide scientific knowledge about substances and methods, and find a joint approach on sanctions.
WADA was incorporated as a Swiss private law foundation in Lausanne, Switzerland and is governed from its headquarters in Montreal, Canada. Its main decision-making body, the Foundation Board, is composed equally of representatives from governments and the Olympic Movement. This results in a close connection between WADA and the IOC since the Olympic Movement acts under the supreme authority and leadership of the IOC. The Olympic Movement encompasses organizations, athletes, and other persons who agree to be guided by the Olympic Charter. WADA is equally funded by governments around the world and by the Olympic Movement that matches dollar for dollar the contributions WADA receives from governments.
The World Anti-Doping Code
The World Anti-Doping Code (Code) was first adopted by sports organizations ahead of the 2004 Summer Olympics and is now accepted by over 660 signatories, including the IOC, International Federations (IFs) and government-funded organizations. It forms the main legal document of the World Anti-Doping Program and harmonizes anti-doping rules and regulations among sport organizations and government agencies.
The Code is complemented by five International Standards, namely the Prohibited List, Testing and Investigations, Laboratories, Therapeutic Use Exemptions (TUEs) and Protection of Privacy and Personal Information. These International Standards contain technical details for implementing the Code and harmonize specific technical and operational parts of anti-doping programs (Code, p.12). As an example, the Prohibited List sets out all substances and methods that are prohibited in- and out-of-competition, and in particular sports.
The Code defines the forms of conduct – anti-doping rule violations – that can be subject to sanctions. Rule violations are the use, possession, or administration of prohibited substances, evading tests, tampering with any part of doping control, or trafficking of prohibited substances (Code, art. 2). Global harmonization is achieved through the “Prohibited List” which is kept by WADA and updated at least annually. The applicable sanctions for the different violations, in particular the imposition of a period of ineligibility of up to four years, are also stipulated in the Code (Id., art. 10,11). Although the implications of anti-doping sanctions can be significant, disciplinary measures under the Code are currently not regarded as criminal in nature.
The Code also contains requirements and obligations regarding the testing of athletes, in particular the “whereabouts system”. It requires top-level athletes to specify one hour each day, seven days a week, during which they can be located at a specified location for testing (The World Anti-Doping Code International Standard for Testing and Investigations (ISTI), annex I, section I.1.1.). Any combination of three failures to provide accurate whereabouts information within a twelve-month period amounts to a doping rule violation that can be sanctioned with a period of ineligibility of two years (Code, arts. 2.4 and 10.3.2). The strict obligations of the whereabouts system imposed by the Code have been challenged in a Belgian court. The lawsuit claimed that the whereabouts system interferes with athletes’ individual human rights, in particular the right to privacy. WADA however stressed that the rule “is backed by athletes worldwide” and that the element of surprise is needed to maximize the chance to catch athletes who use prohibited substances.
The Legal Nature of Global Anti-Doping Rules
The Code’s anti-doping rules are legally binding for the signatories of the Code which include National Anti-Doping Organizations (NADOs), International Federations, or Olympic Movement Organizations like the IOC. Operating as Anti-Doping Organizations (ADOs), the signatories are obliged to ensure that all athletes under their authority are bound by and compliant with the Code’s anti-doping rules (Code, p.16). They implement applicable Code provisions through policies, statutes, rules, or regulations according to their authority and within their relevant spheres of responsibility (Code, art. 23.2.1.). The IOC fulfills that obligation by adopting specific anti-doping rules for current Olympic Games, like the IOC Anti-Doping Rules for Rio 2016.
Governments were not among the signatories of the Code, but most countries bound themselves to the Code by ratifying the UNESCO International Convention against Doping in Sport (Convention). The Convention provides an internationally recognized legal framework to ensure that governments take actions against doping that are complementary to those of national and international sport organizations and provide support for the Code and for other international standards developed by WADA.
Enforcement of Anti-Doping Rules
WADA serves as a custodian of the Code, monitoring its implementation by the ADOs and governments. Its responsibilities also include scientific research, education, and laboratory accreditation. WADA not only conducts investigations on doping-rule violations as mentioned above, but also gives non-binding recommendations to the ADOs on the appropriate sanctions. When the McLaren Report on the doping cover-up at the Sochi Olympics was published on July 18, 2016, WADA asked the IOC to decline all entries of athletes submitted by the Russian Olympic Committee for the Rio Games.
The imposition of sanctions is carried out by ADOs like the IOC, National Anti-Doping Organizations, or International Federations within their spheres of responsibility. Despite WADA’s recommendation, the IOC did not declare a blanket ban on Russia’s athletes, but instead left the decision on the participation of individual athletes to the International Federations of each sport. The IOC did, however, rule that any Russian athlete who had ever been sanctioned for doping, even if he or she had served the sanction, could not participate in the Rio Games.The International Association of Athletics Federations (IAAF) and the International Weightlifting Federation (IWF) each banned the entire Russian athletics and weightlifting team, while several other IFs declared at least partial bans.
The Court of Arbitration for Sport
Decisions that involve international sports events or international-level athletes can be appealed at the Court of Arbitration for Sport (CAS) (Code, art. 13.2.1). The Tribunal is located in Lausanne, Switzerland but also maintains two temporary offices on the site of the Olympic Games in Rio to resolve legal disputes and doping cases. On August 5, 2016, an ad-hoc division of the CAS held that the IOC decision to exclude all Russian athletes who had been sanctioned for doping in the past was unenforceable. The IAAF’s ban on Russia’s track and field team, however, was upheld by the CAS.