In this latest edition of ‘Spotlight’, which aims to inform stakeholders of the daily activities being carried out around the globe by the World Anti-Doping Agency (WADA) team and its partners, we look at the extensive work being carried out by the Agency’s Legal Affairs Department as it reviews, strengthens and upholds the World Anti-Doping Code for all athletes of the world.
Behind every well-run organization of a certain size is a professional and diligent legal affairs department that upholds the ideals of justice and the rule of law. WADA is no different. The Agency’s Legal Affairs Department – which is made up of nine experts from specialties such as litigation, privacy and data governance, contract law and corporate law – is involved in almost all of the organization’s activities, ensuring that everything is carried out legally as WADA fulfills its mission for doping-free sport. From governance to compliance, from corporate legal questions to science, medical and investigations, Legal Affairs is at the heart of the organization, providing support and guidance.
Legal Affairs’ main activity is within the results management process of the Global Anti-Doping Program that WADA oversees and, every year, the Department compiles an Anti-Doping Rule Violation Report (ADRV) that the Agency publishes. The ADRV Report is a set of statistics that illustrates doping offences committed under the World Anti-Doping Code (Code) in global sport during the 12 months in question. It indicates how many ADRVs occurred, which nationalities and sports were involved, how many of them came from Adverse Analytical Findings and how many from ‘evidence-based intelligence’ non-analytical findings.
Legal Affairs reviews every single decision rendered by Signatories of the Code worldwide, and files appeals where appropriate to ensure harmonization in the sanctions and an equal treatment of all athletes, regardless of where they come from or what sport they play. The decision to appeal the decision of a Code Signatory is based on whether the decision in question conforms with the relevant applicable anti-doping rules and related case law and, ultimately, the Code itself.
As an example, in 2019:
- WADA reviewed 3,054 decisions rendered by Code Signatories
- 16 appeals were filed
- Six were upheld
- One was withdrawn
- Nine are still pending before the Court of Arbitration for Sport or relevant national appeals tribunal.
WADA Director of Legal Affairs, Julien Sieveking, said: “We do not take the decision to appeal or not to appeal lightly. Before doing so, we scrutinize the decision closely to see if it complies with the rules. The Code is there to ensure that there is consistency no matter the sport or the country – that is the whole point of the Code and why WADA was formed in the first place back in 1999. If we feel a decision is inconsistent with the Code, we do not hesitate in appealing, regardless of which Anti-Doping Organization or athlete is involved. The rules must be applied fairly and equally.”
Under the Code, Legal Affairs is also responsible for dealing with other Results Management-based cases. These include retired athletes returning to competition, the application of mitigation when a suspended athlete provides substantial assistance, and what happens when an athlete admits to an ADRV. In addition, Legal Affairs assists Signatories in their Results Management activities by providing support and advice, which can amount to more than 2,000 Signatory queries per year.
2021 Code and International Standard Review
One of WADA’s key strategic priorities – a mammoth and vital task that Legal Affairs has been leading in recent years – is the development and implementation of the 2021 Code and related International Standards (Standards).
In December 2017, WADA initiated the third Review Process of its kind since the first Code came into force in 2004. The Review Process consisted of three distinct consultation phases for the Code, two for the related Standards and one for the Athletes’ Anti-Doping Rights Act (Act) – the latter that was developed by WADA’s Athlete Committee in consultation with thousands of athletes and stakeholders worldwide. During this time, stakeholders and any other interested party had multiple opportunities to contribute and make recommendations on how to further strengthen the Global Anti-Doping Program. The Process concluded in November 2019 when the Code, Standards and the Act were approved during the World Conference on Doping in Sport, in Katowice, Poland for entry into force on 1 January 2021.
The Code is at the heart of WADA’s mission. It is the core document that harmonizes anti-doping policies, rules and regulations within sporting organizations and among public authorities around the world. It is therefore key that this document remains fit-for-purpose in a fast-evolving field. WADA has managed to do this by reviewing the Code and adapting it to latest best practice around such matters as:
- Good governance
- Development of sample re-analysis strategies
- Service providers
The Code works in conjunction with six Standards that harmonize anti-doping practices among Anti-Doping Organizations in various areas:
- Therapeutic Use Exemptions (TUEs)
- The List of Prohibited Substances and Methods
- Protection of privacy and personal information
In addition to these six Standards, two new Standards will enter into force in January 2021, namely the International Standard for Results Management and the International Standard for Education. It is necessary, every time the Code undergoes a revision, that the Standards follow the same path to ensure that they are consistent.
Legal Affairs coordinated the work of all the Code and Standards Review drafting teams, ensuring consistency and harmonization among the different documents and, crucially, a member of Legal Affairs was part of each drafting team.
Mr. Sieveking said: “It has been a huge task and an impressive WADA team work to bring this revision through the various consultation phases with the key help of international experts, managing to consider all the feedback we received from across the globe. With just a few months to go before implementation on 1 January 2021, we see the finish line approaching. Stakeholder feedback, including from athletes, has been overwhelmingly positive and we are confident that this revised set of rules will be beneficial to the entire anti-doping community and to sport as a whole.”
The work of Legal Affairs does not stop here.
Litigation: The Department spends a significant amount of time involved in litigation. Last year alone, it ensured that the interests of WADA and the wider Clean Sport community were duly defended in 13 legal cases before State courts in France, Spain, Italy, Switzerland, Canada, the United States and the United Kingdom.
Compliance monitoring: Legal Affairs is also heavily involved in the compliance monitoring aspect of WADA’s mission, with members of the Department participating in on-site audits of Code Signatories followed by the review of hundreds of corrective actions that arise from those, particularly as they pertain to results management and data protection.
Science and medicine: Legal Affairs manages WADA proceedings in relation to accredited laboratories for non-compliance with the International Standard for Laboratories and assists in cases where the WADA TUE Expert Group decides to overturn a decision rendered by a Signatory. The Department also provides expert advice to the Prohibited List Expert Group.
Agreements: Legal Affairs has a key role to play in the drafting and review of each and every agreement passed by WADA across all facets of the organization.
Intelligence and Investigations: Legal Affairs provides regular support to members of WADA’s Intelligence and Investigations Department on any legal question they may face in the context of their investigation and is also responsible for reviewing the investigation and whistleblower policies that are in place.
Data protection: Legal leads WADA’s privacy management program, ensuring the protection and appropriate treatment of personal information in WADA’s anti-doping activities. This includes maintaining WADA’s policies and procedures, training staff, responding to athlete questions, supporting and advising departments, and monitoring legal developments in privacy and data protection. Moreover, Legal creates educational content, guidelines, and templates to assist stakeholders in their implementation of the International Standard for the Protection of Privacy and Personal Information and provides them with direct support and advice.
In addition, Legal Affairs has been central in the development of WADA’s new governance regulations, the revision of the Agency’s Statutes, as well as a set of draft ethics rules that will be introduced in due course.
Ultimately, WADA’s Legal Affairs Department are on the frontline, defending the global anti-doping system, protecting the Agency’s interests and upholding the rights of athletes to compete on a level playing field wherever the Code is in force.