The 2020 Tokyo Olympic Games is officially scheduled to commence on 23 July 2021. While these Olympic Games will be different from those of the past because it will be occurring during a global pandemic and with empty stadiums, something that will not change is that doping matters will be at the forefront of the sports world in the run-up to the games.
The Russian Federation will be excluded from participating in these Olympic Games following the 2-year ban for its anti-doping agency failing to comply with the World Anti-Doping Code (“the WADA Code”). Individual Russian athletes who will be competing in Tokyo will be doing so as neutral athletes without the Russian flag being displayed or the anthem being played.
Doping in sport, whether through the use of prohibited substances or through the use of prohibited methods, has existed for many years. It threatens the integrity and fairness of the sport and throughout the era of the modern Olympic Games, a number of well-known athletes have been banned for using prohibited substances. Some of those were amongst the biggest names in sport like Ben Johnson (1980s) and Marion Jones (2000s).
Measures were put in place to identify doping from the 1960s, however, these measures were largely ineffective. The prevalence of doping in the 1998 Tour de France was eventually the catalyst for the International Olympic Committee ("IOC") to establish an independent international anti-doping agency to deal with the problem of doping in sport.
There are numerous tools used to ensure doping is both identified and prevented, and this article will discuss the athlete’s responsibility as it relates to one such tool, whereabouts.
World Anti-doping Agency, the WADA Code and the International Standards
On 10 November 1999, the World Anti-Doping Agency (“WADA”) was established in Lausanne (Switzerland) to fight doping in sport. One of their key activities is to monitor and implement the WADA Code which is a document setting out the anti-doping rules for all sports and for all countries. The WADA Code has been accepted by the entire Olympic movement and is recognised by more than 185governments through the UNESCO Convention against Doping in Sports. All signatories to the WADA Code are bound by the Code and have established anti-doping programmes in their countries based on the WADA Code.
Figure 1: How the anti-doping system operates
The WADA Code works in conjunction with 8 international standards that aim to ensure consistency among anti-doping organisations. These international standards were developed by WADA in consultation with the anti-doping community as well as athletes. The implementation of these standards is mandatory for all signatories.
The International Standard for testing and investigations describes how anti-doping testing and investigations must be conducted by anti-doping agencies. It is in this document that we find the provisions regulating whereabouts (the location of the athlete). Whereabouts is one of the anti-doping tools which are used to pre-emptively identify athletes who may be doping. It is also a measure to dissuade athletes from doping as the unannounced random nature of the testing means that the athlete can be tested at any time.
Whereabouts
As explained, whereabouts information is a tool that allows anti-doping organisations to locate athletes at any time and to conduct tests with no advance notice. Testing of the athletes must be conducted by either International Sports Federations or National Anti-Doping Organizations.
Athletes are placed into different pools for testing through a tiered approach. The athletes who have been identified for testing will be notified of the following:
That they have been included in a registered testing pool from a date determined by the International Sports Federation or the National Anti-Doping Organization;
What whereabouts requirements they would need to comply with; and
The consequences of failing to comply with those requirements.
Athletes who are selected for testing must provide information on a quarterly basis on their whereabouts which is captured on the Anti-doping administration and management system “ADAMS” (a digital application where the scheduling and location information is captured and stored in a database).The information is confidential and is only available to WADA, International Sports Federations, and other Anti-Doping Organizations.
The whereabouts information that the athlete is required to provide would include:
the full address of the location where he or she would be living,
the full address of each location where the athlete would have their regular activities such as training, work or studies, and
where the athlete would be competing.
The information that the athlete provides must be correct and in as much detail as possible to ensure that should a doping control officer need to conduct a test, the athlete can be located easily.
The athlete must further identify a 60-minute time slot (between 5:00 am and 23:00 pm) and a location, where he or she will be available to be tested everyday for that quarter. If there are any changes in the athlete’s whereabouts information, it must be updated on the whereabouts application as soon as possible, so that the information is accurate.
An athlete will be removed from the registered pool and not be subject to the whereabout requirements:
If the athlete has been notified by the relevant anti-doping organization that he or she is no longer part of the testing pool; or
The athlete has retired from competitive sport and has given the relevant anti-doping organization that placed the athlete in the pool, the required written notice.
If an athlete does not comply with the whereabouts requirements of the anti-doping rules [1], this could constitute a whereabouts failure i.e., a filing failure [2] or a missed test [3].
Article 2.4 of the WADA Code states that, “any combination of 3 missed tests and/or filing failures… within a 12-month period by an athlete in a registered testing pool” will constitute an anti-doping rule violation. This can therefore lead to the athlete being sanctioned and can potentially result in a 2-year ban from the sport. Athletes can however appeal to the Court of Arbitration for Sport (“CAS”) to challenge the decision and the sporting ban for example Christian Coleman (“Coleman”).
In the case of Coleman, the American 100-meter World Champion was found to have committed an anti-doping rule violation under article 2.4 of the World Athletics anti-doping rules for 3 whereabouts failures within a 12-month period. He was therefore banned for a period of 24 months by the Athletics Integrity Unit. Coleman challenged both the decision as well as the sanction by appealing to the CAS. The CAS confirmed that Coleman had indeed committed an anti-doping rule violation under article 2.4 but reduced the ban to 18 months.
Delegation and liability
Under Article 4.8.14.3 of the International Standards, an athlete may choose to delegate the task of the whereabouts filings (and/or any updates thereto) to a third party, such as a coach, a manager, or a national federation, provided that the third party, agrees to such delegation. Delegating the task, however, does not remove the responsibility of the athlete from ensuring that the whereabouts filings (and/or any updates thereto) are accurate and complete on the whereabouts system. Therefore, the athlete remains responsible and cannot shift the liability to the third party if the whereabouts requirements are not complied with [4].
Conclusion
Although this is an inconvenient administrative task, these selected athletes are required to comply with the whereabouts regulations to maintain the integrity of sport and to ensure for a fair competition in all sporting codes. The whereabouts process of unannounced testing is required and remains a necessary preventative measure in the anti-doping management system.
[1] Article 2 of the WADA Code lists various anti-doping rule violations while Article 2.4 of the WADA Code deals with whereabouts failures by an athlete.
[2] The International Standard for testing and investigations defines a filing failure as, “a failure by the athlete (or by a third party to whom the athlete has delegated the task) to make accurate and complete whereabouts filing that enables the athlete to be located for testing at the times and locations set out in the whereabouts filing or to update that whereabouts filing where necessary to ensure that it remains accurate and complete….”).
[3] The International Standard for testing and investigations defines a missed test as,” a failure by the athlete to be available for testing at the location at a time specified in the 60-minute time slot identified in their whereabouts filing for the day in question…..”.
[4] The personal responsibility of the athlete has been confirmed by the CAS in CAS 2015/A/4210 and CAS 2011/A/2499.
*WADA images obtained from https://www.wada-ama.org/
The contents of this article are for informational purposes only and do not constitute legal advice.