A critical understanding of how the legal framework for anti-doping has developed

Paul Dimeo
University of Stirling

Ulrich Haas & Deborah Healey (red)
Doping in Sport and the Law
298 pages, hardcover.
Oxford, Oxon.: Hart Publishing 2016
ISBN 978-1-5099-0588-1

Anti-doping has an unusual, perhaps even unique, approach to the law. The editors call it ‘a mix of public and private regulation’. The World Anti-Doping Code (WADC) is like a legal text, especially in the sections detailing Anti-Doping Rule Violations, the Prohibited List, sanctions and appeals processes. All athletes who wish to compete in the events of their sports (if their respective Federations are Code-compliant) have no choice but to submit to these rules and to the testing system, including the controversial whereabouts system, to be observed when giving a sample, and applying for Therapeutic Use Exemptions if they need a banned medical drug. Their samples are stored for 10 years. They have no choice or negotiation opportunities.

This is essentially a private contract, outside of criminal and civic jurisdictions, meaning that athletes are stripped of their normal legal rights, and any appeal goes to the Court of Arbitration for Sport. The ‘public’ element is that WADA has the support of national Governments and UNESCO. 50% of their funding comes from Governments. On these bases, it’s regulations are supra-national, over-riding any local or national legal systems.

This book offers a critical understanding of how the legal framework has developed, and its implications. It is not strictly a law text, because it discusses the wider context, rather than simply reviewing cases and outcomes.

The first theme is the Evolution of the World Anti-Doping Code and thus lays out a useful foundation by discussing the myth of the level playing field (Deborah Healy) and the WADC (Ulrich Hass). Healy’s chapter offers some summary insights into the over-arching sense of complexity. She highlights that ‘there are already significant shortcomings in the logical basis for both the creation of the level playing field in sport and in the ability of current mechanisms to determine who is actually doping’ (p.8). However, after reviewing some of the reasons for the regulation and the scientific complexities, she also points out that ‘the regulation of doping in sport is particularly complex and difficult. This makes it harder for all to understand the regulation and potentially harder to enforce’ (p.10). In essence, the legal issues are highly problematic and contentious because of the overall ambition of anti-doping aligned with the pragmatic challenges of testing and sanctioning.

The next theme explores how the WADC affects athletes specifically; a theme which is becoming a more widely recognised concern. The focus here is upon the fairness of the Code (Thomas Hickie), how the Code relates to contract law (Alan Sullivan) and human rights issues (Andrew Byrnes).

The third theme is more law focused, dealing with issues of a more procedural nature: the use of non-analytical evidence in cases (Sudarshan Kanagaratnam), cases that have been heard in New Zealand (Paul David), and the role of administrative law (Narelle Bedford and Greg Weeks).

Keeping with specific legal issues the fourth theme is that of obligations and liability, exploring issues relating to the athletes’ legal status under the Code (Joellen Riley and David Weiler) and liability and consent (Prue Vines).

Lastly, the editors offer the reader a sense of the broader circumstances and debates. The final chapters examine governance (Marina Nehme and Catherine Ordway), issues regarding compliance (Jason Mazanov), juridification and criminalisation as relating to the ‘spirit of sport’ (Jack Anderson) and commercialisation factors (Paul J Hayes).

Athletes could be punished for something they did not know was wrong, or were given by a trusted person in good faith, or forced to take by an abusive coach or doctor.

Given the scope of these topics, and the expertise of the contributors, it is clear that the editors have done an excellent job in selecting and explaining important issues. The inter-relationship of ethics, especially the vague concept of clean sport, with the operationalisation of a legal framework which is part deterrence and part punishment, and the use of science, to have evident impacts upon athletes lives and their human rights, is central to the creation and controversies associated with anti-doping. This book offers an insightful exploration of important points for discussion and analysis.

Several issues remain unresolved by the legal and policy systems currently in place, such as the miscarriages of justices and disproportionate punishment of inadvertent use. It is far from clear how ‘athlete’ is defined, how minors are dealt with by the Code, and how the responsibilities of governing bodies appear to have been made less urgent. Athletes could be punished for something they did not know was wrong, or were given by a trusted person in good faith, or forced to take by an abusive coach or doctor. Moreover, it would be really interesting to have a 2nd edition of this collection that included discussion of the fascinating cases of the past 2-3 years: meldonium, Russia, Team Sky, Chris Froome and others. It would also be interesting to read more about the sports law industry. Many of the key firms and individuals seem to ‘represent’ whoever pays: WADA, IOC, or appealing athletes. Perhaps that is normal for sports lawyers, but it does undermine the idea that lawyers can be critical of the system if they are being paid by all sides. For example, Ulrich Haas is currently identified as an ‘external expert’ member of the WADC Drafting Team as part of the 2021 Review Process, and has previously worked as an arbitrator. Arguably, of course, change can only come from the inside and be incremental rather than revolutionary.

Finally, there is a tension emerging in many countries that needs further academic research and policy debate. On the one hand, more countries have criminalised doping or have seriously considered it; yet, many countries are de-criminalising recreational drugs like cannabis or moving towards harm reduction services that have a pragmatic acceptance that people use drugs. As sports organisations increasingly hope to apply the WADC to non-elite and amateur athletes, we need to have a more open debate, that goes beyond WADA and its ‘expert panels’, about what is morally justifiable and how the harms that elite athletes have suffered are resolved and are not extended to other athlete groups. Ideally, discussions for reform and improvement are socially contextualised, not ideological, are pragmatic and fair, and aims to treat all athletes with dignity; this would require influence from beyond the sports law fraternity to include athlete groups, sports managers, coaches, parents, and researchers from science and the humanities.

This book is an excellent platform for understanding these issues, and thus is recommended for anyone interested in anti-doping, sports ethics and/or sports law. It is structured well, covers relevant themes, is balanced and critical while being adequately informed. Since it was published, the world of sport has moved on, yet key texts such as this can help us understanding contemporary and future problems.

Copyright © Paul Dimeo 2018

Table of Content

Part I: The Evolution of the World Anti-Doping Code

  1. The Myth of the Level Playing Field in Sport
    Deborah Healey
  2. Revising the World Anti-Doping Code
    Ulrich Haas

Part II: The World Anti-Doping Code and the Athletes

  1. ‘Do What I Say, Not What I Do’: Is This the ‘Play True’ Reality of the World Anti-Doping Code?
    Thomas Hickie
  2. The World Anti-Doping Code and Contract Law
    Alan Sullivan
  3. Human Rights and the Anti-Doping Lex Sportiva- The Relationship of Public and Private International Law, ‘Law Beyond the State’ and the Laws of Nation States
    Andrew Byrnes

Part III: The World Anti-Doping Code: Procedural Questions

  1. Issues in the Gathering and Use of Non-analytical Evidence to Prove Anti-Doping Rule Violations
    Sudarshan Kanagaratnam
  2. Hearing Anti-Doping Cases in New Zealand
    Paul David
  3. Doping in Sport: What Role for Administrative Law?
    Narelle Bedford and Greg Weeks

Part IV: The World Anti-Doping Code: Obligations and Liability

  1. Modern-Day Gladiators: The Professional Athlete Employment Relationship Under the World Anti-Doping Code
    Joellen Riley and David Weiler
  2. Doping as Tort: Liability of Sport Supervisors and the Problem of Consent
    Prue Vines

Part V: The World Anti-Doping Code as Regulation: Governance and Compliance

  1. Governance and Anti-Doping: Beyond the Fox and the Hen House
    Marina Nehme and Catherine Ordway
  2. The Chimera of Compliance with the World Anti-Doping Code
    Jason Mazanov
  3. The Juridifi cation and Criminalisation of Doping: Time to Revive the Spirit of Sport?
    Jack Anderson
  4. The Commercial Rationale of the World Anti-Doping Code
    Paul J Hayes
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