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FOR FUCH’S SAKE: DOWNSIDES OF WADA’S NEW OUT-OF-COMPETITION SUBSTANCE ABUSE PROVISIONS




The post has been authored by Jesse Jacob.


  • Jesse Jacob is a fourth-year, B.A. LL.B. student at The National University of Advanced Legal Studies, Kochi.


INTRODUCTION


On 16th June, the World Anti-Doping Agency (“WADA”) published the final version of the 2021 World Anti-Doping Code (“WADA Code”) which had a few pertinent amendments. One of the key features of the amended WADA Code is the inclusion of ‘Substances of Abuse’. These substances are included in the list of prohibited substances as they have a high probability of being socially abused outside the sports context. In the cases involving these substances, the athlete will be subjected to a less severe sanctioning regime if the ingestion occurred out-of-competition and was not related to sports performance. The sanctions can be reduced to 1 month if treatment is carried out.


However, on 11th June, a boxer was found to be not at fault by the US Anti-Doping Agency (“USADA”), owing to the finding that the substance of abuse was ingested through sexual intercourse. This novel legal development in the anti-doping law scenario seems to be pointing at a seemingly unnoticed downside of this newest version of the anti-doping code since this new factor remains out of its purview. This article examines the unresolved ambiguity in the relevant provisions of the code, in the backdrop of this case.


WORLD ANTI-DOPING CODE 2021: AGENCY, CODE, AND THE REVIEW PROCESS

The WADA, initiated by the IOC, has been instrumental in the fight against doping in sports ever since its foundation and the creation of the WADA Code in 2004. WADA has been tasked with overseeing activities in several key areas including compliance monitoring, research, and anti-doping co-ordination. The WADA had initiated three-pronged consultation processes in 2006, 2011, and 2017 to review the code.


The 2021 Code is the third revision of the Original Code. The three-pronged Code review was initiated by the WADA’s foundation board in the year 2017, two for the related Standards and one for the Athletes’ Anti-Doping Rights Act (previously known as the Anti-Doping Charter of Athlete Rights). The review spanning two years involved a three-phased stakeholder consultation and re-drafts; over 2000 comments were received within this period of two years. Post the review process, 70 stakeholders took up the opportunity for public intervention on the proposed Code at the Agency's Fifth World Conference on Doping in Sport. The final draft of the Code was approved by the board and the executive committee after its presentation and consideration at the above-mentioned conference, which took place in November 2019. The newest version, which was finally published on 16th June 2020, has certain minor changes compared to the draft approved in this meeting.


One of the relevant changes to the Code, as explained above was the inclusion of ‘Substances of Abuse’ and a stipulation for a lesser degree of punishment post the successful establishment that the substance of abuse was detected out-of-competition. From the general point of view, out-of-competition doping tests too certainly need to attract ineligibility and is an important doping deterrent since it could be done at any point in time. This significance is owing to the fact that certain substances are detectable only for limited time periods in the athlete’s body while maintaining the performance enhancement for long. However, Virginia Fuchs's case, albeit technically involving a positive result for an out-of-competition doping test, does seem to point at specific unexplored case-scenarios.


VIRGINIA FUCHS ANTI-DOPING CASE


Virginia Fuchs, an American boxer, was tested positive for doping. As amusing as it sounds, she blamed it on the sexual intercourse, she had with her partner. However, astonishingly, USADA found her claims to be true. The substances were found to have been ingested while having sex; furthermore, products possessed by her partner being tested positive with therapeutic amounts of the metabolites sealed the case in her favor. The USADA declared that she won’t be facing ineligibility as her sample was collected out of competition and there are no competitive results to disqualify; the USADA also cited her lack of fault or negligence to back their decision to not slap her with ineligibility. The Chief Executive officer of the USADA commented that albeit the WADA Code required to consider this a violation, they strongly believe that under such specific cases, the athletes need to be freed of allegations and ineligibility, owing to a lack of intentions. The remarks made by the officer seem to be calling out an important loophole which might even amount to a bona-fide anti-doping agency having to turn their backs on athletes’ rights.


THE JUXTAPOSITION: EXPOSING UNEXPLORED LOOPHOLES


It is pertinent to note, as mentioned above, that such a lack of fault or negligence does not come under the WADA Code’s ineligibility criteria which follows a strict-liability standard. This could be justified on one hand owing to the bottlenecks of proving intention in doping cases. On the other hand, the provisions remain insensitive to the potential losses of opportunity, reputation, form, and morale of a well-intentioned athlete under such specific case scenarios. The Code does not contain provisos which could create a safe leeway for athletes who might potentially get swished aside for no fault of theirs. The USADA, however, took a defiant yet sensitive stance, calling out the loophole and advocating for amendments to the WADA Code so that where there is neither intent to cheat nor any performance benefit, the concerned athlete(s) will not be subjected to ineligibility and public shaming. The principle of strict liability was being followed by the International Olympic Committee (“IOC”) anti-doping code as well as the pre-existing anti-doping rules; the same principle was inserted in the 2004 WADA Code as well, pursuant to the wishes of the stakeholders. However, this case raises a legitimate question of balancing compliance and athlete rights.


BALANCING A PRAGMATIC COMPLIANCE APPROACH AND ATHLETE PARTICIPATION RIGHTS


It could be ridiculous to imagine that stuffed tortellini pasta might end up resulting in a dope positive test; however, pasta was enough to bring an end to the career of Sara Errani, who, according to the evidence submitted, had inadvertently ingested letrozole from her mother’s pasta. Subsequently, intentions weren’t taken into consideration and despite the ITF tribunal accepting the argument, she still received a two-month ban in 2017. Consequently, in 2018, the Court of Arbitration in Sport extended the ban to 10 months. Opinions suggest that, since the true extent of doping is still unknown, we can’t say for sure that WADA has done a good job. Furthermore, research shows that one among the scenarios which contribute to the major share of the positive doping test results involves inadvertent use of banned substances.


This establishes the reality that such inadvertent use of doping substances needs to be protected from bans and the consequent unsolicited media attention which ruins the reputation, morale, and even alternative sources of income (such as intangible assets and endorsement agreements) of the athletes.


It could very well be argued that having to consider intentions would render the Code and compliance action ineffective since proving lack of intention might as well become an easy task for sinister athletes who attempt doping. Despite this lacunae, handing over punishment in case scenarios such as that of the Fuchs’s case, even to a lesser degree, seems grossly unfair.


Contrarily, it also needs to be noted that convenience can never be a fair explanation for stripping a well-intentioned athlete of her right to ‘due process’ and a ‘free and fair sporting environment’, adopted by IOC under the Athletes’ Rights and Responsibilities Declaration.


BOTTOM-LINE: WHAT COULD BE DONE?


The WADA Code and the allied Code compliance has in cases of inadvertent use of prohibited substances quickly turned from well-intentioned doping prevention to absurdity. The interests of the stakeholders need to be included but in light of the obligations undertaken by the IOC as per the Athletes’ Rights and Responsibilities Declaration as well. However, unintentional use of doping could also result in undue advantage to the concerned athlete.


The balancing act would be the inclusion of an additional scheme for countermeasures, where the athlete is faced with a precautionary ‘sit-out’ period rather than an ‘ineligibility’. A flexible ‘sit-out’ period on a case to case basis, replacing fixed ‘ineligibility’, could cancel out any such undue advantage while minimizing the impact on the limited career spans and protecting the athlete from unwarranted media highlight. Conclusively, the review process for such additions is unclear as of now; expedited code review processes need to be brought into the picture for the addition and thereafter quick implementation of protective provisions as such cases emerge, lest the prospects of the athletes involved be imperiled.


The author can be reached for comments on his email at jessejacobv@gmail.com


Cite as: Jesse Jacob, For Fuch’s Sake: Downsides Of Wada’s New Out-Of-Competition Substance Abuse Provisions, Extra-Cover: The Sports Law Blog of India (17th Jul 2020), Accessed at https://www.extra-cover.org/post/for-fuch-s-sake-downsides-of-wada-s-new-out-of-competition-substance-abuse-provisions [Date of Access].


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