Initiated sports law review of the WADA Code and its advancement by the elite

Anna Qvarfordt
University of Gävle

One of the latest additions to the Routledge Research in Sport, Culture and Society book series examines global anti-doping work. The author, Lovely Dasgupta, West Bengal National University of Juridical Sciences, deals with sports law, and criticizes in her book The World Anti-Doping Code: Fit for purpose? WADA (World Anti-Doping Agency) regulations for having an elitist orientation and benefiting the rich part of the world.

The book begins with an historical look at the sports world and the emergence of anti-doping work before WADA was formed. Dasgupta shows how the Olympic brand with amateurism as a sacred principle was a catalyst for the work against doping in sports. She highlights the contradiction between amateur demands on athletes on the one hand, and the simultaneous commercialization of the Olympic Games on the other. Amateurism, with ideas about the moral and pure athletes, forms the basis for the author’s analysis of the anti-doping narrative that she still believes prevails. Doping has been seen as a threat to amateurism, as morally reprehensible, and has been portrayed in the anti-doping narrative as a struggle between good and evil. It is problematic, Dasgupta says, that the narrative that prevails today is based on ideological, moral basis. It does not work, she says, in a sporting context that is increasingly commercialized and professionalized and where so-called institutionalized doping also occurs (induced by states, teams, clubs, etc.).

Institutionalized doping is hence the theme of the next chapter, in which “the Russian doping scandal” that came to light with the beginning of the Sochi Olympics in 2014, is described and seen as evidence of anti-doping work deficiencies. Here, Dasgupta performs an analysis of the presumed state sponsored doping programs in Russia, with suspensions and later processes that led to the Russian athletes’ reintegration into the international arena. Reports from the Court of Arbitration for Sport (CAS) and the international football and athletics federations form the basis for the analysis, which together with the decisions of the WADA and the International Olympic Committee, leads Dasgupta to the conclusion that Russia got away too easily. She believes that Russia’s relatively simple and rapid return in various international competitions signals that elite sports nations with power and resources can break the rules without major consequences. At the same time, this means that less resourceful nations and their athletes are disadvantaged, according to the author.

Dasgupta then makes a deeper scrutiny of the regulations for the anti-doping work: the World Anti-Doping Code (WADC). Primarily, the so-called strict liability principle and the regulations for therapeutic use exemption (TUE) are analyzed, and how these can lead to unfair conditions for athletes in different parts of the world. The strict liability principle means that an athlete is held accountable for any prohibited substances in their own body, regardless of intent. It also means that it is the athlete who has to prove his or her innocence (i.e. reverse burden of proof) in a dispute over a positive doping test. Athletes lacking in resources and without sufficient support from for instance their national sports federation, in many cases cannot appeal against a doping sentence. The rule on TUE similarly benefits athletes who have a strong support organization with medical expertise behind them. The author questions whether the strict liability principle and the TUE rule are consistent with the objectives of the WADC to protect the athletes. The system, says Dasgupta, has built-in restrictions for athletes from less resourceful countries.

An overall analysis had raised Dasgupta’s reasoning to another level. In the absence of that, I still think that the fifth chapter of proposed changes functions as the book’s conclusion and that the author could have stopped at that.

Next, the theme of athletes’ conditions in developing countries is deepened, which the author believes is a perspective that is missing in the anti-doping discourse; a discourse that does not take into account developing countries’ difficulties in providing education, information and support, resulting in unfair conditions for athletes. Dasgupta is critical of the basics of the anti-doping policy, saying that “[t]he existing WADA Code exemplifies homogenization at the cost of dismissing all alternative viewpoints on the topic” (p. 109). By excerpts from reports from for example the Indian Ministry of Sports, WADA and CAS she shows how athletes from resource-poor parts of the world are disadvantaged and thereby also, to a greater extent, risk doping suspensions.

This reasoning is further advanced into the fifth chapter, in which Dasgupta points to a direction to include the hitherto secondary perspective of the resource-poor, and thereby alter the anti-doping narrative. There is a need for reform towards more transparency and credibility at several levels, she says. At the grassroots level, education, influence and access to information and technology for all athletes need to be guaranteed, as well as measures to protect athletes from systematic doping. International sports federations form the next level, where Dasgupta points to the importance of leaders and employees having good contact with all athletes and providing support and legal advice in, for example, appeals against a doping judgment. The third level consists of WADA and WADC, where there is a need for decentralization of decisions and specific changes in the rules. The author is critical of the composition of WADA’s decision-making body, and believes that, among other things, the rationale for the burden of proof in WADC and the moralistic basis of the rules and regulations need to be reformed. Dasgupta develops her reasoning constructively and shows how a change in the narrative and the system could level the playing field for the world’s athletes.

The final chapter is headlined Conclusions, which indicates – at least to me – taking a holistic approach to the previous chapters. Unfortunately, this part consists largely of literal repetitions of the conclusions of each chapter. An overall analysis had raised Dasgupta’s reasoning to another level. In the absence of that, I still think that the fifth chapter of proposed changes functions as the book’s conclusion and that the author could have stopped at that.

Unequal conditions for athletes from different parts of the world, for example regarding technology, education, and support, have been described previously (see, for example, Efverström et al. 2016) and the anti-doping work has also been criticized for building on the values and conditions of the Western world (Palmer 2013; Henne 2015; McDermott 2016). In Dasgupta’s contribution to that debate, she makes a juridical/legal analysis from the athletes’ perspective where the empirical material is the protocols and documents of the sports’ governing bodies. This broadens the understanding of the consequences of the global anti-doping system’s implementation. The many examples provided underpin the argument about the need for a reform of the system. However, for the not so legally interested, they seem too many and too voluminous. Extensive accounts from CAS protocols with long quotes will be tiresome in the long run. All of these examples could have been shortened and yet would constitute a satisfactory basis for analysis and argumentation.

In summary, I think Dasgupta, in an informed and constructive way, highlights the need for reform towards an anti-doping system that increasingly takes into account nations of limited resources and their athletes.

Copyright © Anna Qvarfordt 2020

References

Efverström, A., Bäckström, Å., Ahmadi, N. & Hoff, D. (2016). Contexts and conditions for a level playing field: elite athletes’ perspectives on anti-doping in practice. Performance Enhancement & Health, 5, 77–85.

Henne, K. E. (2015). Testing for Athlete Citizenship: Regulating Doping and Sex in Sport. Australian National University: Rutgers University Press.

McDermott, V. (2016). The war on drugs in sport: moral panics and organizational legitimacy. New York: Routledge.

Palmer, C. (2013). Global sports policy. Thousand Oaks, CA: Sage Publications