This year marked the 10th anniversary of the Tackling Doping in Sport conference - held on 8 and 9 March at the Hilton Wembley - the impetus of the event being to help bring sport together to better protect sports and sportsmen and women from doping. The conference welcomed over 320 delegates from over 45 countries and across the sporting disciplines, who were witness to poignant discussions of very topical issues concerning the state of anti-doping in sport. The issues discussed included how to regain confidence in the global anti-doping system, Therapeutic Use Exemptions, the use of sports supplements, protecting athlete data, whistleblowing, athletes’ appeals against doping-related Court of Arbitration for Sport (‘CAS’) awards, a review of the International Paralympic Committee’s (‘IPC’) decision to suspend Russia, and sports governance. Please find below a detailed account of all the sessions that took place during the conference.
A review of Day One:
The first keynote session was delivered by Olivier Niggli, Director General of the World Anti-Doping Agency (‘WADA’) in which he began by stating that anti-doping is at a pivotal time and that clean sport is looking for a way forward. Since the publication of the Pound and McLaren reports, Olivier said that WADA had “shifted from reaction to action” and that the anti-doping community is now mobilised to make the system better and more independent. Olivier then discussed the recommendations being implemented by WADA that he believes represent a “step change in the fight against doping,” which have the backing of athletes, and which include a new whistleblower programme that will be launched by WADA in the coming days. The biggest priority for WADA in 2017 is compliance, explained Olivier, and more specifically ensuring that all signatories have policies that are in line with the Code. Olivier also stressed that work is ongoing at WADA in regards to the need for a sanctions system to support non-compliance by sports organisations that was endorsed by the Foundation Board in November 2016 and which aims to deter organisations from straying into non-compliance. WADA is also focused on studying ways to strengthen its governance structure, explained Olivier, and a working group has been set up to review the laboratory accreditation process. In addition to this WADA is also currently working on the re-compliance of the Russian Anti-Doping Agency (‘RUSADA’), and a full and detailed roadmap has been agreed with RUSADA, which means that “the ball is now in their court.” Olivier added that it is encouraging to see Putin publically acknowledge the doping problem recently, which indicates that the mindset is going in the right direction. Olivier concluded his speech by stating that there will be a world conference in 2019 in which progress will be reviewed and the Code updated following a consultation process that will take place soon. “I am confident that together we will build on 2016 and become better,” finished Olivier.
A panel discussion then took place on how to establish confidence in the global anti-doping system; this involved Olivier Niggli, Nicole Sapstead, CEO of UK Anti-Doping, Sir Philip Craven MBE, President of the IPC and Adam Pengilly, Member of the International Olympic Committee and the WADA Athlete Committee, with questions posed by conference chair Owen Gibson, Head of Sport at The Guardian.
Owen began by stating that confidence in anti-doping has never been lower due to the headlines over the past year and asked what can be done to establish confidence in the system in light of this. Adam responded first by stressing that the focus must be on moving forward and that to establish confidence in the system more cheats need to be caught and sanctioned properly. Sir Philip added that there are only a small number of people that are determined to win at all costs and that sport must unite to repel this threat, stressing the importance of getting back to the passion for sport. Sir Philip added that WADA is doing a good job and that we can fix the issues together. Nicole responded by explaining that not all National Anti-Doping Agencies are in the same place and as such we need to identify those that need help and put the investment where it is needed most in order for us to move forward collectively.
In answer to a question relating to the possible conflicts presented by the need to both promote and regulate sport facing such organisations, Adam stated that athletes have been officially asking for a sanctions structure to be brought in for non-compliance by organisations since 2014 and that such a framework will need a lot of consultation before it is put into place, which needs to be done as quickly as possible. Adam also went on to say that institutional and personal conflicts of interest need to be better managed and reformed, and that on the whole “changes are a bit glacial” and need to be carried out much faster.
When asked how much more funding WADA needs, Olivier stated that WADA is currently working on a proposed budget that would enable WADA to do what is expected and that a refined set of numbers should be ready in September.
Richard Harry, Chief Executive at Sports Resolutions, began the session by providing an overview of the UK National Anti-Doping Panel’s (‘NADP’) recent decisions relating to anti-doping disputes over the past 12 months, which included in detail a review of three key cases. The first case to be focused on involved George Skafidas and Bernice Wilson, in which the issue of jurisdiction was raised. The second case involved Adam Buttifant, which was described as noteworthy by Richard in regards to the focus on the definition of ‘intentional’ under Article 10.2 of the Code. The final case related to Sam Barlow, which looked specifically at tampering.
The final part of the session saw Jeff Benz, London and Los Angeles, 4 New Square and the Agency for Dispute Resolution, share his personal views as a CAS arbitrator on recent cases. Jeff was keen to stress that the views expressed by him did not reflect on CAS at all as an institution. Jeff began by stating that the number of cases referred to CAS increases to record levels year on year, and that although many of those decisions are published by CAS there are lots that are not. Jeff then provided his thoughts on a number of cases that he believed are noteworthy, which included WADA v. Martin Johnsrud Sundby & FIS; Tomasz Hamerlak v. IPC; and Maria Sharapova v. International Tennis Federation.
Jon Heshka, Associate Dean of Law at Thompson Rivers University, took attendees through a presentation focusing on whether the Canadian Charter of Rights and Freedoms would apply to the adjudication of a doping dispute under Canada’s national anti-doping programme. Jon discussed how Canada’s anti-doping system is a Charter-free zone, but that it may not be immune to the Charter. Comparing Canada’s anti-doping structure to a house of cards, Jon explained the judicial history of this area, focusing in particular on the case of Jeffrey Adams, a world champion in wheelchair sports who tested positive for cocaine in 2006. In both the first hearing and the subsequent appeal, Adams argued that the Canadian Center for Ethics in Sport (‘CCES’) was carrying out the policy of the Federal Government, and was therefore a government actor. His claims were unsuccessful as neither tribunal found that the Charter applied to the CCES but the Judge did comment on the Government’s involvement. Jon noted that the case of Adams might not be very helpful anymore, and that the CCES might be subject to a challenge under Section 32 of the Charter, which concerns the application and scope. He went on to explain how the CCES was initially formed by the federal Government to administer an anti-doping programme, and so could be seen as acting for the Government.
Marshall Putnam, Articling Student at Jensen Law Group, then considered the role of the Sport Dispute Resolution Centre of Canada (‘SDRCC’), explaining to attendees how it was created through statute but is not necessarily acting for the Government. Marshall noted that the SDRCC is subject to Canada’s Official Languages Act, which gives French and English equal status. In addition to this, the SDRCC is financially dependent on the Government, which provides 100% of its funding, so one would assume that the Government has some control over it. Marshall concluded the session by explaining the possible grounds challenges to the Charter could arise in the context of anti-doping, and explained that it would most likely come from Section 7, which protects an individual’s right to life, liberty and security, or from Section 8, which provides Canada’s with protection from unreasonable search and seizure.
An interesting discussion ensued led by Dr Rod Jacques, Director of Medical Services at the English Institute of Sport, in which he illustrated that within sport there is a delicate balancing act between what it takes to win and the duty of care and that this balancing act “has to hinge on excellent governance structures.” In addition to the professional code adhered to by all medical practitioners, Rod explained that a governance code is also essential, which should include: contracts; the MDT professional code; lines of reporting; professional autonomy; facilities; patient population and out of hours’ expectations; record keeping; and whistleblowing/safeguarding.
Dr Matthew Perry, Medical Advisor at The Premier League and Club Doctor for Wolverhampton Wanderers, then provided his views and experiences on the matter, explaining that a combination of good clinical practice and corporate governance are essential to getting the balance right within sport. The doctor’s duty of care remains, which involves giving authority to the doctor. Matthew added that football is changing in this regard as is sport more generally, but that such cultural changes take time, the lesson being that sport needs to recognise that the industry is global and needs robust standards and systems in place. The balance must also take into account the need to achieve best practice medically but also within the context of employment. Matthew stated that The Premier League resolution in this regard involved steps for collaboration in order to achieve best practice, concluding by stating that it is the duty of the employer and the doctor to work together on the necessary systems whilst competing for the glories. Overall Matthew commented that doctors within sport need more support to do their job well and that a management structure that provides such support is required.
The second session in Ballroom Three saw Dr David Cowan, Director at the Drug Control Centre at King’s College London, and Dr Marjolaine Viret, Associate at Bird & Bird, provide a detailed look at the workings of the Athlete Biological Passport system (‘ABP’). David began by explaining the difficulties of pseudo-endogenous hormones, where mere presence is not sufficient to constitute a doping violation, with proof of administration required. Using testosterone as an example, David elaborated on the difficulties concerning data, particularly in terms of what constitutes a ‘normal’ range of a substance such as testosterone, explaining that the principle behind the ABP is that comparing an athlete with themselves is much more sensitive than comparing them with the population of athletes.
Marjolaine then shed light on the ABP as a means of evidence, explaining that the adaptive model ‘flags’ abnormal profiles, the expert review allows assessment of the profile under different hypotheses (clean and healthy, medical condition or doping) and the legal panel considers the likelihood of a violation under Article 2.2. of the WADA Code. Marjolaine was careful to point out that what the adaptive model ‘flags’ and what the hearing panel looks for are very different, with the threshold of the adaptive model being 99% and that of the hearing panel being ‘comfortable satisfaction.’
Marjolaine explained how the expert review requires a unanimous opinion based on the ABP that it is likely that a Prohibited Substance or Prohibited Method was used. There is a heavy burden on the experts to identify cases for the abnormality, evaluate competing cases for the abnormality and to transform figures into a verbal scale of persuasion and as such, Marjolaine stressed the importance of the qualifications of the experts and the forensic know-how of interpreting the ABP. Marjolaine then considered the difficulties that have arisen as result of the new wording, particularly in terms of ‘comfortable satisfaction,’ questioning how a legal panel can be expected to judge such a term in practice. The attendees were than taken through an evaluation of the potential challenges of a ‘mature’ ABP, which included the rarifying of flags, where a doping scenario is more difficult to discern and the role of confounding factors gradually clarified through scientific factors. The session concluded with a brief look at the future of the ABP, in terms of monitoring and how to build a case of use.
Attendees were then witness to a presentation from Dr Michael Turner, Medical Director at The International Concussion and Head Injury Research Foundation, and comments from Saskia Clark MBE, Olympic Gold Medalist, Team GB Sailing, who shed light on Therapeutic Use Exemptions (‘TUEs’), which has become a controversial topic since the Fancy Bears hack of WADA’s ADAMS database. Michael began his presentation by stating a disclaimer that none of the opinions he was about to share were endorsed by WADA and that they were entirely personal. Michael provided insight into the workings of the TUE Expert Group within WADA, which ensures that the International Standard for TUEs is maintained and revised as needed, whilst acknowledging the general perception fueled by the Fancy Bears hack that TUEs are a way of cheating. Michael commented that he thinks this perception is really sad and that there is an illusion that WADA controls the TUE system throughout the world, which is not possible. WADA, according to Michael, can only review those TUEs uploaded to the ADAMs database, which Michael estimated to be only about 10 - 20% of the TUEs issued. Michael presented a range of slides on those countries and International Federations not using ADAMS, some of which have their own TUE system in place. Michael explained that only around 20% of Olympic countries use ADAMS and that in addition to this once a country decides that it will begin using WADA’s database it uploads all of its TUEs issued in the past ten years at once, which enormously distorts the data. Michael again stressed that given such a context there is no way that WADA can police the TUE system globally and that in addition to this the issuance of a TUE will be impacted by changing prescribing habits over time and the individual prescribing habits of different countries.
Saskia then shared her personal experiences of being issued a TUE and how TUEs are important to ensure that everyone can participate in sport. She explained that she would not have succeeded within her sport if she had not been granted a TUE and that on the whole she believes that athletes are naïve in general about TUEs.
When asked a question from the floor about how confident WADA is in the security of its IT systems following the Fancy Bears hack of the ADAMS system, Michael responded by stressing that the security of WADA’s systems is extremely good and that a separate portal was created for the Olympics, which was ring-fenced. The attack by Fancy Bears occurred due to a phishing exercise but only allowed the hackers entry into the ring-fenced area of the system and not the mainframe. Michael insisted that WADA is absolutely confident in its systems as the mainframe was not breached but obviously the Fancy Bears hack has undermined the credibility of the system.
A session then followed on the application of Swiss law to athletes’ appeals against doping-related CAS awards and began with Dr Despina Mavromati, Managing Counsel/Head of Research and Mediation at the Court of Arbitration for Sport, explaining the relevance of Swiss law. Despina detailed the case of Essendon Football Club, which concerned the legality of the club’s supplements programme. After the Australian Football League Anti-Doping Tribunal found the players not guilty of a violation, WADA appealed this decision to CAS, to which the players filed objections on the grounds of jurisdiction and scope of the review. CAS overturned the not guilty verdict, and the players appealed to the Swiss Supreme Court on the grounds that CAS had exceeded its jurisdiction in conducting a de novo hearing. The Swiss Federal Tribunal did not allow the appeal, stating that the players had lost their ability to challenge the CAS jurisdiction in appeal as they had not formally challenged it during the arbitration procedure.
Antonio Rigozzi, Partner at Lévy Kaufmann-Kohler, then discussed a number of aspects of the system, including the importance of the independence of arbitrators and the presumption of neutrality. Antonio noted that one must wait for the final decision before it can be appealed, which in many cases, can take a substantial amount of time in what is a time sensitive career. Antonio then discussed how the right to be heard is generally not a problem but there can be issues if the Tribunal ignores an argument, or if the Tribunal decides on an argument not put forward by the party. Antonio then considered a number of cases where Swiss procedural law might be relevant before concluding that whilst there is a relatively limited application of Swiss law to anti-doping, there is increased importance of Swiss law in terms of procedural issues and provisional measures.
In this session, Dr Kelsey Erickson, a Research Fellow at Leeds Beckett University, provided insight into the research being carried out into whistleblowing within sport, especially relating to doping. Currently we have a very limited understanding of what makes someone more or less likely to blow the whistle and there is very limited research on this, explained Kelsey. Kelsey then went on to discuss the recent research she has carried out with student athletes on their thoughts, feelings and anticipated behaviours on blowing the whistle on doping in sport (research that has been published in Volume 30, May 2017, Psychology of Sport and Exercise). Amongst Kelsey’s findings was that whistleblowing within the context of doping in sport presents a “real moral dilemma” involving two equal moral options: the morality principle and the morality of loyalty. The research carried out seems to suggest that an individual’s personal morals do impact their personal use of performance enhancing drugs but that those same morals do not necessarily incentivise those individuals to report others who have used such substances. Kelsey explained that the responses gathered during the research suggest that there are more than two options to address the use of performance enhancing drugs: confront, report to someone, report to the authorities, or ignore, and that when deciding what option to take individuals may consider what their relationship to the individual is and what the potential consequences are for them. The research suggests that many of the respondents would be hesitant to blow the whistle on someone they knew was doping but that they would react in some way. The RE>>ACT Programme has been designed by Leeds Beckett University to help student athletes recognise situations that require an intervention and that there are more options than just whistleblowing.
Kelsey then shared some findings from a colleague’s research into reporting doping in sport (Reporting doping in sport: National level athletes’ perceptions of their role within doping prevention, L. Whitaker, S.H. Backhouse, J. Long, Scandinavian Journal of Medicine & Science in Sports, 2014) in which both rugby players and track and field athletes were asked about whistleblowing. The research gathered suggests that there may be a difference in response to doping if it occurs within a team or an individual sport, with findings that implied that track and field athletes would blow the whistle on others whereas rugby players would adhere to a code of silence.
Kelsey concluded by stressing that “athletes and athlete support personnel need to be supported to do the right thing” in regards to reporting doping and that whistleblowing policy development needs to influence not persuade in order to create a real cultural change. Questions were then posed from the floor, which included whether the term whistleblowing is too negative a term. Kelsey responded by explaining that she never used the term whistleblowing within her research with student athletes for this very reason, as there is a negative stigma around the term.
In the next session of the day, attendees were witness to a presentation on environmental contamination and other anti-doping risks led by Mike Morgan, Founding Partner at Morgan Sports Law LLP. Mike began with the issue of contaminated meat and the substance of clenbuterol, explaining that although CAS was not initially convinced of the risk, it is now recognised, before going on to explain the effects of clenbuterol and considering a number of cases studies.
Mike then talked about nandrolone, which is classified as a threshold substance as it can be produced naturally. In the landmark case of Meca-Medina, the Court didn’t think that eating meat could cause positive tests for nandrolone but it is now increasingly accepted that it can. Mike then discussed the issue of water contamination, noting how even now, this is still met with scepticism. Mike used the case of Canadian cyclist Jack Burke as an example, who tested positive for hydrochlorothiazide and claimed accidental ingestion of contaminated water, and the Court held it to be unreasonable to expect athletes to test all water that they consumed, suggesting that perhaps WADA could set a threshold level for hydrochlorothiazide to prevent further issues arising.
Perhaps a more controversial issue, Mike tackled the subject of bad science as an anti-doping risk, using meldonium as his first example. After being added to WADA’s list of banned substances in January 2016, there were nearly 300 adverse findings between January and May 2016. Mike noted that the substance could remain in the body for several months and varied between individuals, and when the substance was banned WADA admitted that it did not know much about its excretion rate. The second substance subject to Mike’s scrutiny was higenamine, a substance naturally found in some plants and fruits that is known to have fat burning attributes. The substance came to prominence in the case involving Premier League footballer, Mamadou Sakho. Mike pointed out that athletes were still charged for presence of higenamine even though WADA has had difficulties in categorising the substance. The substance remains on the list even though there have been no new studies into its effect on humans as a beta2 agonist.
A session on helping an athlete through a doping offence then followed, involving Kacie Wallace, Athlete Ombudsman at the USOC, Paul Greene, Founder of Global Sports Advocates LLC and Roman Stoykewych, Senior Counsel at the National Hockey League Players’ Association. Kacie kicked off the discussion by explaining the role of an athlete ombudsman in helping to mediate disputes. Paul then shared his experiences of helping athletes facing a doping offence, in which the vast majority of cases he sees involve unintentional doping. Paul explained that the system works better if the athletes are not prejudged and are given the opportunity to be heard. “The Code works both ways,” said Paul: it is also designed to protect the athlete. Paul then mentioned the recent confidentiality breach relating to an alleged doping offence, in which a Mexican athlete missed the Olympics due to a leaked false positive which then turned out to be erroneous, highlighting the importance of confidentiality throughout the entire investigation procedure. Roman then provided insight into his experiences at the NHL Players’ Association, beginning by stating that it is a huge deal for a player to be accused of a doping offence and that the stigma that follows is very real. The anti-doping programme and its operation at the NHL is the product of collective bargaining, which includes harsh penalties for those players found in violation. “Players want a robust system that protects their accomplishments and provides a level playing field both in competition and within the team,” explained Roman. Roman then provided details on the joint administration of the anti-doping programme jointly with the League and the Union, and the highly expedited arbitration process which takes no more than 20 days and aims to maintain the confidence of the player throughout the process.
During the wider discussion, when asked whether the role of the athlete ombudsman is a good one, Paul responded by sharing his thoughts that other countries should consider establishing the ombudsman model as it enables athletes to be better represented and links them to qualified lawyers.
In the penultimate session of Day One in Ballroom Three, Catherine Ordway, Professor of Practice, Sports Management at La Trobe University, treated delegates to a more interactive session, focusing on how the ‘hen house’ of WADA can be rebuilt. Catherine explained how WADA has a two-tier governance structure of a foundation board and an executive committee. However, she noted that the first priority of a member on the foundation board is likely to be to their organisation, not WADA, and this causes problems, leading to a strong argument for an independent board. Catherine suggested that the IAAF’s new Integrity Unit seems to have a good structure, in that it is well defined and clear. From this point on, Catherine turned the session over to the delegates. Delegates were invited to suggest who the stakeholders should be, and those put forward included NADOs, sporting federations and fans, amongst others. Delegates were then split into the stakeholder groups of which they would be a part, and given time to discuss what they would want in a board. Each group was then invited to report back, with notable recurring suggestions including passion for clean sport and independence.
Joseph de Pencier, Founding CEO of iNADO, then evaluated why the IPC was right in its decision to suspend Russia from Rio 2016. Joseph began by running through the process of suspension proceedings of the Russian Paralympic Committee (‘RPC’), noting how quickly the process moved from the first McLaren Report, released on 18 July 2016, to the IPC notice of suspension proceedings to the RPC on 22 July 2016. A number of Russian athletes applied to German courts to seek interim relief against the suspension, but this was rejected in September 2016. On 29 January 2017, the IPC Governing Board rejected an RPC request to enter athletes into qualification events for the 2018 Paralympic Winter Games. Joseph then reviewed the process employed by the IPC in that the RPC was given necessary notice/warning, the right to be heard and was provided with the evidence on which the notice was based. Noting that external circumstances and the imminence of the Paralympic Games impacted both parties in driving towards the deadline, Joseph also reinforced that there was a continuing opportunity for the RPC to rebut the findings of the McLaren Report as this was the factual basis on which the IPC acted, but it did not do so.
As the founding CEO of iNADO, Joseph stressed the importance of national federations and NADOs working together. Both the IOC and IPC accepted WADA’s recommendation to ban Russian athletes, and simply because the IOC delegated the decision to international federations whereas the IPC acted as directed, does not make the IPC decision disproportionate. The IPC contends that the suspension was to send a message that made clear the lack of tolerance in regards to doping. Joseph then discussed the proportionality of the decision, noting that there were no obvious alternatives available and that the suspension was designed to punish past failures and restore public confidence. There was no submission to the Panel of an alternative measure that would have had the same effect.
The final session of the day focused on sports governance, in which Alexander McLin, Executive Director of the Swiss Arbitration Association, Maria Clarke, Principal at Maria Clarke Lawyers, New Zealand, and Chair of the IAAF Working Group on Governance and Integrity Reform and Louise Reilly, Barrister at The Bar of Ireland, discussed sports governance and specifically the reforms being made.
Alex shared the experiences of the work being carried out by the Association of Summer Olympic International Federations (‘ASOIF’) Governance Task Force, which included a detailed overview of the guiding principles established, the key governance principles and the assessment of such principles in order to establish a baseline against which future performance can be measured. Alex then focused on possible governance indicators for anti-doping and stressed that such an approach could be taken to assessing the fight against doping.
Maria then provided delegates with a detailed understanding of the whys and hows of the IAAF’s governance reforms. Maria began by explaining the context surrounding the IAAF’s reforms, which were instigated by a number of high profile issues facing the Federation involving serious allegations of doping and corruption. Maria added that despite the IAAF’s strong anti-doping ethos the entire organisation had been undermined by a small number of people. “The shortcomings were significant,” explained Maria; these included the leadership being able to influence the system unchecked, a culture which saw individuals powerless to question information provided, the unchecked powers of the president, the risk of political interference in decision making, a lack of athlete voices at the top level and a complete lack of transparency. “The walls were too high and the power was held by too few,” added Maria, but this crisis spurred reform and an intense nine-month reform process that aims to ensure that the IAAF never faces such issues again. Maria explained that the governance reforms did not happen in isolation but occurred alongside comprehensive organisational reviews, and that the governance reforms in particular led to constitutional changes within the IAAF. The need for a strong governance programme within the Federation was essential, which would involve wider participation and influence, the separation of politics and power, independent controls and monitoring, transparency and accountability, or in Maria’s words, “the ingredients of good governance.” What the IAAF did following this nine-month reform process was boiled down into seven key areas by Maria - who added that there is a more extensive report available on the IAAF’s website - with those areas being 1) clear responsibilities and roles, structures and process, 2) a mixture of appointed and elected officials, 3) a review of the commissions and committees, 4) the need to have equality in the governance to reflect the equality of participants in the sport, 5) integrity checks, which includes an integrity code of conduct, 6) a new integrity unit, and 7) a new independent disciplinary tribunal. Maria concluded by stating that the IAAF is now in implementation mode.
Louise Reilly then provided insight into the UK’s new Code for Sports Governance that has been drawn up by UK Sport and Sports England to help ensure that the highest levels of transparency, ethical standards and leadership are present across sport in this country and which sets high expectations for any sports organisation seeking public funding. Louise provided details on the five core principles that form the “spirit” of the Code and discussed the difficulties in creating a governance model that works for all sports organisations, large and small. Louise then commented that the tiered approach taken in the Code is a good way to tackle those differences to ensure that the Code works for different bodies, but that obviously how the Code will work in practice is as yet unknown. UK Sport and Sport England have confirmed that they will issue further guidance on the Code and how it will be implemented.
Following the individual presentations, the panelists were then asked questions by Owen Gibson, whose first question centred on how you can change the culture within an organisation. Maria responded that cultural change is all about doing it in practice. Alex agreed and added that doing things publically was also important to changing the culture as it raises the bar and public expectations so that the organisation is held to a higher standard.
A review of Day Two:
Day Two opened with a live interview style discussion with Toni Minichiello, Athletics Coach to Jessica Ennis-Hill, led by The Guardian’s Head of Sport, Owen Gibson, who was chair of the sessions held in the main Ballroom. Owen began the discussion by asking Toni whether he believes that we are coming to a level playing field in athletics now. Toni responded by looking back to 1984, when doping came to a head in response to the allegations facing sprinter Ben Johnson, but commented that the public reaction was that the situation with Johnson was a one off. In regards to athlete performances over time they are “pretty consistent if they’re clean” explained Toni, if there are peaks and troughs then that is an indication that they might be using performance enhancing drugs. “I am not that sympathetic,” said Toni, “cheats are thieves, they steal medals, sponsorship and the aspirations of children.” “To a certain extent athletes in sport have become a commodity,” added Toni, “you are expendable.” In that way the aim is not simply to go faster, the aim now is to get funding. Toni then described the push towards sports science in athletics and that in some ways coaching has been a bit marginalised.
Toni then went on to stress the importance of a level playing field in athletics and the importance of capturing the public’s imagination by saying ‘this is clean sport’ and the athletes have all been through rigorous procedures to guarantee that level playing field. “What Britain has got really good at,” commented Toni, “is the appetite of the British public to go and see live sport.” The awful thing about doping is that it dominoes right down to the roots of sport, so way down the track there are sportsmen and women that lost the opportunity to follow their dream because someone doped, explained Toni.
A question was then posed from the floor, about what national anti-doping agencies can do to help coaches do something about doping. Toni shared his opinion that athletes are most focused on themselves and how they are doing and that because doping and suspicion of doping are difficult to quantify it makes it a complex issue. If doping and buying and administering prohibited substances was made a criminal act in sport it would be much clearer, added Toni, which would also mean that it would be dealt with by other bodies rather than anti-doping agencies, which do not have the budgets to properly tackle the problem.
Day Two in Ballroom Three began with a look at the benefits information sharing has had for animal sport investigations. Hilary Forde, Director of Racing and Governance Compliance at the Irish Greyhound Board, began by introducing delegates to the Management of Intelligence and Drugs Action in Sports (‘MIDAS’), of which members include Horse Sport Ireland, the Irish Greyhound Board and the Irish Turf Club. Hilary explained how MIDAS covers anti-doping medication control, whistleblowing and data protection, amongst others, and that the main challenges faced include disclosure, development of international links and consistency of judicial advice.
Dr Louis Reardon, Veterinary Inspector, Special Investigations Division, Department of Agriculture, Food and the Marine, then discussed the importance of interaction with sports regulatory bodies, and a relationship that is based on trust and understanding of other parties’ processes and requirements and shared intelligence and access to scientific expertise. Louis took delegates through some of the substances, before noting the overlap between human and animal doping/medication control, through substances such as caffeine and cocaine, reinforcing the importance of out of competition testing. Notable cases included John Hughes, a vet supplying nitrotain, where a large amount of intelligence was recorded and the authorities were able to identify many of those to whom the substance was being supplied.
Enda McCabe, Integrity & Welfare Officer at the Irish Greyhound Board, then explained the process of the joint investigation into a licensed greyhound trainer. Enda described the investigation file, cover report and target testing that was used, which resulted in the trainer’s licence being revoked, a disqualification order being issued and a fine being imposed, before being presented to the police as an offence under the Animal Remedies Regulations 2007.
The session was concluded by Dr Lynn Hillyer, Chief Veterinary Office/Head of Anti-Doping at the Turf Club, who stressed the huge responsibility that comes where animals are concerned, as they do not have choice in the same way that humans do and how, like human doping, these cases significantly damage sport. Lynn noted how there is a large amount of crossover between horse and greyhound issues and that they need to continue to work together to develop shared best practice. In terms of the challenges faced, Lynn admitted that there are issues of transparency and conflict of interest as Ireland is so small and independence can be hard to find and they can also be hampered by lack of powers. Sanctions must be proportionate and enough to deter the behaviour, and must be applied by the State and the individual regulatory authorities. Lynn concluded by stressing the importance of MIDAS as a key to identifying shared challenges.
Delegates were then witness to a session from journalist Hajo Seppelt of ARD German Broadcast Television, who has reported and produced numerous documentaries on the allegations of widespread doping in Russia. The session began with a clip from Hajo’s most recent documentary in which whistleblowers within Russia make allegations that coaches banned for participating in doping are still active. Hajo discussed that the first priority is to protect whistleblowers but that there needs to be real support for whistleblowers within Russia, who are speaking up and placing themselves at risk in the belief that the only way to solve the doping problem in Russia is to speak out publically. Hajo stressed that from his point of view he does not believe that there is a real desire to change in Russia and that Russia only reacts due to pressure rather than because of a real desire to change. Putin’s recent move to publically admit that there have been some failings in the Russian anti-doping system was mentioned by Hajo, but he went on to stress that he believes that it is an issue what was not said regarding the doping system in place. Hajo went on to share his opinion that it would have been very easy for the IOC to ban the entire Russian team from the Olympics due to two paragraphs in the Olympic Charter and it was a “huge missed opportunity” not doing so. Hajo added that such a ban would not be levelled solely against Russia but that if any country does not implement the WADA Code, in Hajo’s view this undermines the integrity of competition and the country should not be allowed to compete. Hajo added that WADA needs to be in a position to sanction countries and federations that do not follow the rules and suggested that if WADA had been allowed to do so in the past then maybe the doping problem would not be so big now.
Owen Gibson then asked Hajo what he thinks WADA needs to do now. Hajo responded by explaining that from his point of view he thinks that WADA must enforce the rules and police the industry in regards to doping, as it does not make sense that countries that are non-compliant suffer almost no consequences. In addition to this, Hajo commented that athletes must have more independence and power as sport would not work without them. Athletes need a truly independent union as they have not had much influence. Hajo then went on to discuss the Fancy Bears hack of the WADA ADAMS database, expressing that in his opinion it was a clear attempt to draw moral parallels between TUEs and doping. Acknowledging that there is a lot of misuse of TUEs and that this must be addressed, Hajo stated that the abuse of TUEs is not however on the same scale as an alleged systematic system of doping. Hajo stressed that there should be a clear message sent to all countries that if they operate a system of doping they will not be allowed to compete.
Hajo was then asked whether the situation in regards to doping is worse than ever before, and Hajo responded by stating that he does not think so. “Some federations have been forced to do what is necessary,” said Hajo, “the difference is that now people have a better understanding of doping as the scale of the problem has been made public.” The situation is not worse than ten or even twenty years ago, explained Hajo - the state run doping system seen in Germany was different because the public were less aware of it. Owen then asked whether the sporting world needs to do more to protect whistleblowers. “Whistleblowers face huge potential challenges,” said Hajo “so there needs to be much bigger support for whistleblowers.”
Delegates were then part of an interactive session on cyber risk and how to protect athlete data, led by a panel of experts which included Gary Rice, Partner at DAC Beachcroft. Gary began by discussing how cyber risk is clearly a very real issue when it comes to anti-doping before presenting delegates with a scenario in which a NADO was subjected to a ransomware attack. The panel said that this could more than likely happen to a NADO and although it is not illegal to pay a ransom in the UK, as NADOs are funded by public money, they would need to know their obligation in relation to this; Richard Campbell, Managing Partner at CNC Communications, observed how bad this could look from a reputational perspective.
The next stage of the scenario saw the ransom being paid and systems restored but the NADO faced with a new threat of confidential and sensitive athlete data being released. Hans Allnutt, Partner at DAC Beachcroft, stated that there would be a wide variety of legal obligations here, including IP and contract issues, but the main aspect related to data protection, and the NADO would need to notify the regulators and maybe the individuals too. Richard added that one would assume that once law enforcement and those affected by the breach have been notified, news of the breach is more than likely to get out and so it might be wise for the NADO to release a public statement.
As the scenario developed further, the delegates were told that the NADO had informed law enforcement but nobody else. A reporter has been tipped off and has published an article, and law enforcement have arrested somebody. David Hallam, Commercial Director at NCC Group, said that the key is to educate staff to try to prevent such issues happening in the first place. Richard expressed his opinion that a public statement should have been made as soon as the journalist made contact. An interesting point was then made by Raf Sanchez, International Breach Response Manager at Beazley, who noted that one of the benefits of having insurance is having immediate access to a panel of experts as the breach is not an existential crisis, but mishandling a breach would be.
The session ended with Gary asking the panel what one takeaway NADOs should take from this session. Hans suggested that they start with one of the exercises that the delegates had been witness to, which David agreed with. Richard said that they should be prepared for a breach so that when one does happen, they would know what to do and Raf agreed with this, stating that NADOs should assume that it will happen and then decide how to mitigate.
Dr Audrey Kinahan, Chair of the WADA prohibited List Expert Group, then discussed the prohibited list in detail. Audrey began by explaining that the List is based on a number of factors, including science, ethics, intelligence and current practice, and that there is strict criteria for inclusion dictated by the WADA Code. The List Expert Group (‘LiEG’) is composed of 13 scientific and medical experts who meet three times a year - once in January to plan for the year ahead, once in April to produce the Draft List and a Draft Explanatory Note, and once in August to discuss stakeholders’ comments, prepare the final List for recommendation, the Explanatory Note and a summary of modifications. As the session progressed, Audrey took delegates through the List of banned substances and methods, including the threshold approach for exceptions and how they are developed. Audrey noted how the List must change in response to changes in medical practice, and tries to pre-empt developments.
The session was concluded with a look at what is next for the List, including the exploration of a unique list where certain substances are prohibited at all times, removal of alcohol in 2018, more scientific research and continued interaction with stakeholders. Having opened the floor to questions, Audrey was faced with answering whether the List is now, in fact, too complex. She answered by saying that maybe it is, but that is how it has to be - medicine is very complex before you even begin to look at the anti-doping element.
The final session before the break for lunch saw Hilary Findlay, Associate Professor in the Department for Sport Management at Brock University, tackle dealing with doping as criminal fraud. Hilary began by looking at various different national approaches to doping, including by countries such as Germany, Italy, France and Spain, where doping is a Criminal Act, noting however that WADA does not believe that doping should be made a criminal offence for athletes. Hilary then considered how countries can use existing criminal sanctions to combat doping, such as viewing of the results of doping as a type of fraud. Hilary concluded by comparing doping as an administrative law matter and doping as a criminal law matter, noting that the burden of proof is significantly different, with administrative being ‘comfortable satisfaction’ and criminal being ‘beyond reasonable doubt.’ There are also evidentiary issues as a criminal trial often takes a long time, and an administrative trial will usually have to wait until after criminal proceedings. However, Hilary did suggest that the criminal justice system seems to be more successful in purging doping.
The second part of the session saw Dr Lars Mortsiefer, Member of the Executive Board, Director of the Legal Department, NADA Germany, evaluate the challenges and goals of Germany’s new Anti-Doping Law. Lars began by stressing that the new Law has come about after a long process, and walked delegates through the history of the Law. The essential changes that can be seen in the Anti-Doping Law are: the bundling of legal provisions in a consistent law; doping substances and doping methods are recorded, marking the first time this is all on the same page; prohibition of self-doping subject to punishment in top athletes who are recorded in a test pool (NADA) or athletes achieving considerable income from sport; punishable possession “from the first gram”; and authorisation of state governments to focus the anti-doping criminal proceedings in certain courts.
Discussing the risks and challenges faced by the Law, Lars said it has received criticism from top athletes claiming it would make them more vulnerable but Lars was very clear in stating that this is not what the Law aims to do; the aim of the new Law is to protect athletes. Risks include that sports law is generally not an effective tool to punish doping offenders, that there needs to be improvement of cooperation with investigative authorities and that athlete values of fairness and equal opportunities are not protected by criminal law, so joint action of sport and criminal law is crucial. Concluding by opening the floor up to questions, Lars was asked whether any human rights issues arise as a result of the new Law, to which he said that there is an awareness of the potential for issues but we will have to wait and see when cases arise.
A two-hour session on sports supplements followed in which the need for standards, the risks and the relevant principles in anti-doping litigation were discussed. Terence O’Rorke, Director of Business Development at Informed-Sport, began the discussion by providing an overview of the sports supplements industry and by commenting that the voice of the anti-doping industry is very small compared to the $10 billion sports supplements industry. In 2012, 44% of positive doping tests were caused by prohibited substances in sports supplements explained Terence, who questioned whether the anti-doping industry is doing enough to acknowledge the risks and providing enough guidance to athletes. Terence then shared his view that he believes the messaging across sport is inconsistent in regards to supplements, with some sports telling athletes not to use supplements and then striking up commercial deals with such companies for example. “There should be a discussion about minimum standards,” added Terence, “and we must certify products. A set of minimum standards would reduce the incidence of inadvertent doping as a result of supplements.”
Dr Gregory Ioannidis, Senior Lecturer in Law at Sheffield Hallam University and an Academic Associate at Kings Chambers, then provided insight into anti-doping litigation relating to supplements and the principle of ‘no significant fault or negligence.’ Gregory began by applauding WADA for the 2015 revisions to the Code and the new principle of ‘no significant fault or negligence,’ which has clarified some ambiguities relating to the previous version of the Code. Gregory then walked delegates through the thresholds of the principle and the sanctions applicable, as well as a number of recent CAS cases that illustrate the inconsistencies in the application of the principle within anti-doping litigation. Gregory commented that in his opinion, “there are big differences between the decisions of the different panels,” and that “athletes must be educated on what steps they need to take before taking supplements.”
The final perspective on supplements was provided by John Travis, Senior Research Scientist at NSF International, who shared his work on ensuring that products are tested and some findings. “There needs to be a regulatory framework that creates consistency and certainty,” commented John, which includes a definition as to what a supplement is, as this differs from country to country. John concluded his insight by stating that sport needs to acknowledge that athletes use supplements and that athletes need to be informed about the risks.
Brent J. Nowicki, Managing Counsel at the Court of Arbitration for Sport, then provided his experiences of working in the CAS Anti-Doping Division at the Rio Olympics. Brent explained that the Division dealt with 28 cases, 16 of which related to the eligibility of Russian athletes. The typical disputes brought before the Anti-Doping Division are ADRVs allegedly committed during the Olympic Games period added Brent, and the sanctions determined are limited to the Games. The athlete’s results management in regards to the sanction beyond the Games in question are then referred to the relevant international federation. Brent then concluded the session by discussing the Rio decisions that he believes are notable, which included IOC v. Silvia Danekova; IOC v. Xinyi Chen; and IOC v. Izzat Artkov. Following questions from the floor, Brent commented that there will be a permanent CAS Anti-Doping Division in the future that will be developed and improved in the short and longer term.
The penultimate session in Ballroom Three saw Dr Moni Wekesa, Professor of Law at Daystar University in Nairobi, present the achievements and challenges of anti-doping efforts in Kenya. Moni explained how despite Kenya being a sporting powerhouse doping was only thought to be a problem in developed countries. For about 50 years, there were no anti-doping structures in place, no anti-doping law and testing was sporadic. However, since 2016, Kenya has achieved a massive amount: an anti-doping law, anti-doping rules and the establishment of its own NADO, the Anti-Doping Agency of Kenya (‘ADAK’). Moni then elaborated on some provisions of the Anti-Doping Act 2016, including Section 42, which criminalises doping activities and also applies to recreational sport.
Moni then discussed the challenges Kenya still faces, including the slow pace of recruitment based on the due process required by law. However, the main challenge is it that the only two laboratories in Africa are no longer compliant and so ADAK has to incur more expenses sending samples to other laboratories.
An interesting session followed that provided insight into the specific measures being taken to manage anti-doping within USA Track and Field. Norman Wain, General Counsel and Chief of Business Affairs and Talia Mark, Associate Director of Anti-Doping and Community Programs, of USA Track and Field, discussed at length the measures being taken to communicate and educate athletes in regards to anti-doping. Talia explained that regular webinars are carried out to communicate important information to athletes, coaches and agents, newsletters are sent out to their member base and the website is constantly updated to ensure that all those involved with the federation are kept up to date. Targeted education programmes are carried out and there is a focus on social media, in order to get the anti-doping message out across all the platforms. “Direct athlete communication provides guidance on best practices,” explained Talia. USA Track and Field focuses on proactive education and being a transparent IF. Norman then went on to explain the whistleblower program in place for athletes.
Molobe Ikenna Daniel, Co-founder and Director of Unified Initiative for a Drug-Free Nigeria, began the session by explaining that a recent study was carried out to investigate awareness and knowledge of drug abuse in Nigerian sports and consisted of 345 participants from a wide range of sports and with a varied level of education. Presenting the results, Molobe concluded that better education would help prevent doping in Nigeria. Molobe explained that 56% of respondents said they felt that most sporting records are due to drug use, with the wrong attitude and beliefs being seen as a reason for doping. Molobe identified that more research is needed to develop an effective prevention strategy. Recommendations made by the study include that an anti-doping education and training programme should be continuous and mandatory for those in the sporting community; such education should be aimed at young people to prevent doping becoming the “norm” and Government and private sectors should fund and promote anti-doping research. Molobe stated that in order to support the advocacy programme in Nigeria, more research needs to be carried out. The Government previously did not see doping as a problem in Nigeria, but Molobe said that he hoped this study would change their view. When asked if the research had received any feedback, Molobe replied that there had been feedback from the national sports commission but that it has also been submitted to the Government, and they were trying to push it harder to gain more recognition.
The final session of the conference was a riveting discussion on anti-doping within US sports between representatives of Major League Baseball and the National Football League. Kevin Manara, Senior Labor Relations Counsel at the National Football League, kicked off the discussion by providing insight into the performance enhancing drugs policy within the NFL and the testing and treatment programme for athletes for recreational drugs. The aim of both policies is to ensure a competitive balance, safeguard the integrity of the game and ensure clean sport, explained Kevin. The League carries out a significant amount of testing, both in and out of season and on a random basis. “The system of discipline is designed to punish players who test positive, whilst also deterring other players from engaging in such conduct,” said Kevin. The NFL has a strict liability policy that does not factor in intent.
Jon Coyles, Vice President, Drug, Health and Safety Programs at Major League Baseball, then discussed the progress made within the MLB in regards to anti-doping ten years on from the Mitchell Report which investigated the illegal use of steroids and performance enhancing substances by players within the MLB. Jon said that he is proud of the changes made since the Mitchell Report, which have increased the integrity of the sport. The buy in and support from athletes is what makes the anti-doping programme strong and effective at the MLB, explained Jon. Every year all the statistics relating to anti-doping, including the number of TUEs issued by the MLB, are made public. Jon explained that the MLB are not signatory to the WADA Code but they do model the MLB’s prohibited list on that of WADA. Testing has increased by 800% and Jon believes that the MLB has the strongest sanctions in professional sport. The fact that the details of positive tests are announced publically at the final stage of any investigation “is the strongest repellant as athletes don’t want that press,” said Jon. At the MLB both the athletes and the union are coming up with ideas to further anti-doping which includes a supplements provision programme that features NSF certified supplements.
This provided a nice segue into contribution from Brian Jordan, Technical Manager, Certified for Sport, Dietary Supplements at NSF International, who provided insight into the relationship that NSF International has with the NFL and MLB, a relationship that he described as “unique.” Athletes needed options in regards to supplements, which is why the Certified for Sport programme at the NSF was developed. Athletes see value in supplements but they don’t understand the risks, so NSF carried out testing and certifies such products.
Tackling Doping in Sport is an annual conference organised by World Sports Advocate (formerly World Sports Law Report) - a monthly publication dedicated to providing expert analysis on the evolving legal and regulatory landscape for sport.
March’s issue of World Sports Advocate features a special article written specifically for the conference by Richard Pound, in which he shares his personal opinion on the state of anti-doping and what he believes is lacking in that fight. If you would like a complimentary copy of March’s issue or are interested in subscribing to World Sports Advocate please contact Conor Molloy on +44 (0) 2070121387 or email email@example.com