On 21 January 2021, the World Anti-doping Agency introduced its new code. The 2021 code introduces landmark changes for protected persons including minors.
On 1 January 2021, the fourth version of the World Anti-Doping Agency (WADA) Code (the ‘2021 Code’) came into force along with revised international standards (including a new standard for education) that supplement the 2021 Code. Due to the postponement of the Tokyo Olympic Games and Paralympics, the 2021 Code will now apply to the games’ athletes.
While there are many changes reflected in the 2021 Code, below are some of the key changes that athletes should be aware of:
- In-competition period
Under the 2021 Code, in-competition is defined as the period beginning at 23:59. on the day before a competition in which the athlete is scheduled to participate, through to the end of the competition and the sample collection process related to the competition.
- New violation (whistleblowing)
Whistleblowing, or reporting information to authorities, is now protected under the 2021 Code. More specifically, it is a violation to threaten, intimidate, or discourage a person from reporting information to authorities about doping violations or non-compliance with the 2021 Code, or to retaliate against another person for doing so. Athletes, athlete support personnel, and all those subject to anti-doping rules who attempt to obstruct whistleblowing activities may receive a sanction ranging from two years to lifetime ineligibility, depending on the seriousness of the violation.
- Substances of abuse
WADA has identified a category of substances called ‘substances of abuse’, which are substances that are both prohibited in-competition and frequently abused in society outside of sport.
The 2021 Prohibited List identifies the following as substances of abuse: cocaine, diamorphine (heroin), methylenedioxymethamphetamine (MDMA/ecstasy), and tetrahydrocannabinol (THC, the psychoactive chemical in natural cannabis products).
Positive tests involving substances of abuse will be subject to specific rules under the 2021 Code. For example, if an athlete can establish that the use of a substance of abuse was out-of-competition and unrelated to sport performance, then the period of ineligibility is an even three months with no need to further analyse the degree of fault. The sanction may also be further reduced if the athlete successfully completes a substance abuse program.
- Categories of athletes
Athletes will be categorised under the 2021 Code based on their level of competition:
- International level – athletes who compete on the international stage.
- National level – athletes who compete at a national level.
Under the 2015 Code, relaxed obligations and sanctions were introduced for minors i.e. those below the age of 18. One such relaxation is the ‘no significant fault’ or ‘negligence’ rule, where minors are not required to prove how the prohibited substance entered his or her system. The 2021 Code takes the same approach but for a broadened category of ‘protected persons’ and ‘recreational athletes’:
- Protected persons - minors or athletes who, for other reasons, lack legal capacity, have been afforded greater protection and are now classified as protected athletes. Although they are still liable to violations, penalties are less severe compared to athletes of other categories and the identities of protected athletes will not be made public. Penalties range from a warning to a maximum ban of two years.
The key points to note are that minor athletes have been reintroduced into the definition of protected persons. Pertinently, it does not include 16 and 17-year-old elite athletes who have competed internationally, so as to ensure equality at the topmost level of sport.
- Recreational athletes – includes athletes who within five-years prior to any anti-doping violation, have participated in any international or national level competition, or have been part of any registered testing pool or other whereabouts pool of the relevant international federation (basically, lower-level athletes). This definition is problematic because each international federation may have different criteria for who might be a part of their ‘whereabouts pool’. Hence, one may be a recreational athlete in one country, but not in another.
When it comes to the classification of recreational athletes, the 2021 Code intends to separate them from professional athletes, predominantly because they are unlikely to have received adequate anti-doping educational opportunities.
The reduced sanctions for protected persons and recreational athletes under the 2021 Code (as they are for minors under the 2015 Code) include:
- Sample tampering - a minimum reprimand or no period of ineligibility, up to a maximum ineligibility period of two years (Article 10.3.1).
- Where the person proves no significant fault or negligence - a minimum reprimand or no period of ineligibility, up to a maximum ineligibility period of two years (Article 10.6.1.3).
- No requirement to prove how a prohibited substance entered the body, while contesting a no significant fault or negligence dispute.
- Public disclosure of anti-doping violations by the concerned anti-doping organisation is not mandatory (Article 14.3.7). This relaxation is extended to 16 and 17-year-old elite athletes.
- Non-participants
Non-participants in a sport (including board members, executives and high-performance staff) are not subject to testing for banned substances but will be subject to, and liable for, rule violations for tampering, trafficking, administration and complicity.
- Testing changes
Not all substances (or methods of use) are banned at all times. Some substances are only banned ‘in competition’ (that is, commencing at 23:59 the night before an athlete is competing and concluding at the end of the sample collection period for that competition). For example, some recreational drugs or ‘substances of abuse’ such as cocaine are only banned from in-competition use.
Whereabouts information is an important tool in anti-doping testing. Athletes must advise authorities of their whereabouts (sometimes months in advance) to enable unannounced testing to occur. The extent to which an athlete must provide information depends on their level of competition.
New international standards under the 2021 Code
Along with the 2021 Code, WADA also requires compliance with a set of international standards. These supplementary standards lay down rules for testing and investigations, therapeutic use exemptions, protection of privacy and personal information, laboratories, and code compliance by signatories.
In order to streamline the 2021 Code better, a new international standard for, ‘education’ has been included.
- The International Standard for Education seeks to act as an initial preventive remedy against doping and thereby promotes the principle of a clean sport. Education is defined as “the process of instilling values and developing behaviour that foster and protect the spirit of the sport, and to prevent intentional and unintentional doping”.
The International Standard, along with the 2021 Code and the ‘Guidelines for Education’, provides minimum standards for the organisation of educational programs. Under this standard, sporting bodies are required to establish an education pool and an approved education plan which targets athletes and support personnel who require mandatory education, including those who have had previous anti-doping violations.
Conclusion
Clearly these changes are the result of substantial consideration by WADA which will hopefully provide a greater level of protection and fairness for athletes at all levels in the fight against doping. However, the gravity of any violation, including by those around the athletes, should not be underestimated. For athletes, the proper expert advice and informed response strategy can make a significant difference in any potential sanction, which could ultimately be career threatening (both on and off the ‘field of play’ when considering impact on commercial relationships). For governing bodies, compliance with the 2021 Code as far as anti-doping policies are concerned is of paramount importance.
Brabners has extensive experience of working with both athletes and governing bodies in relation to integrity and welfare matters. This includes anti-doping. If you would like more information on our experience and services, please contact Lydia Edgar or Catherine Forshaw.
