WADA Publishes Athletes’ Anti-Doping Rights Act With Its Challenges To Governance

The Athletes' Anti-Doping Rights Act - Photo Courtesy: WADA

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The World Anti-Doping Agency (WADA) has published the final designed version of the Athletes’ Anti-Doping Rights Act (Act), which WADA’s Athlete Committee developed over two and half years in consultation with thousands of athletes and stakeholders worldwide.

The purpose of the Act, which is based on the 2021 WADA Code and its related International Standards that take effect on 1 January 2021, is, says WADA, “to ensure that the rights of all athletes worldwide to participate in doping-free sport are clearly set out, accessible, and universally applicable.”

In the 17 rights set out in the act, three are “recommended athlete rights in part two do not exist universally within anti-doping and are not rights under the Code or International Standards”. Athletes are encouraging anti-doping organizations to adopt and implement those three rights ” to further enhance the fight against doping, the integrity of the system, and athlete rights within that system”. All three present a challenge to the governance of Olympic sport in that they call for:

the right to participate in training and competitions that are free from doping-related corruption or any other form of doping-related manipulation that could affect the outcome on the field of play or in training.
the right to participate in governance and decision-making
the right to legal aid

The document was approved by WADA’s Executive Committee on 7 November 2019 during the World Conference on Doping in Sport in Katowice, Poland.

In a statement, WADA notes: “Developed by athletes, for athletes, the Act provides an outline of rights provided by the 2021 Code and International Standards in terms of equality of opportunity, fair testing programs, medical treatment, justice, accountability, education, data protection and more.

“It also makes recommendations around athletes’ rights to be part of a system that is free from corruption, that they are appropriately represented in terms of governance and decision-making, and that they have a right to legal aid.”

WADA Athlete Committee Chair Ben Sandford said: “We are incredibly grateful to all the athletes and other stakeholders who contributed to developing the Athletes’ Anti-Doping Rights Act.

“It is vital that athletes and anti-doping organizations know what rights athletes have, how to access them, and where to go for remedy. We hope that the Act will become a valuable resource for athletes and contribute to making sport cleaner and fairer. We call upon the anti-doping community worldwide to support its implementation and its promise.”

WADA President Witold Bańka, who is a former international-level 400m runner, said: “WADA is an athlete-centered organization and everything that we do is to protect athletes’ right to access Clean Sport. I applaud the Athlete Committee’s efforts in developing the Anti-Doping Rights Act, which helps ensure that athletes are aware of their rights and can exercise them, which is vital to the success of Clean Sport.”

The Athletes’ Anti-Doping Rights Act is made up of two parts. Part one sets out rights that are found in the Code and International Standards. Part two sets out recommended athlete rights, which are not found in the Code or Standards but are rights that athletes recommend that anti-doping organizations adopt for best practice.

Below are the 17 rights set out in the Athletes’ Anti-Doping Rights Act, with phrases highlighted in burgundy where the words present a direct challenge to current rules and/or practices applied in swimming, including some pertinent to the recent Sun Yang case, that have been questioned by athletes demanding a right to Fair Play and doping-free sport:

What poisons the water – Image Courtesy: SwimSketch

Extracts From The Athletes’ Anti-Doping Rights Act

1. Equality and Opportunity

Athletes have the right to equal opportunity in their pursuit of sport to perform at the highest level in both training and competition, free of participation by other athletes who dope, or athlete support personnel, or other persons or anti-doping organizations that otherwise violate anti-doping rules and requirements. (Code, International Standards)

2. Equitable and fair testing programs

Athletes have the right to equitable and fair testing programs implemented in a manner that ensures that all athletes in all countries are tested in compliance with the Code and International Standards. (Code, International Standard for Testing and Investigations, International Standard for Code Compliance by Signatories)

3. Medical treatment and protection of health rights

Athletes have the right to be free from any pressure that jeopardizes their health, be that physical or emotional, through doping.
Athletes have the right to obtain a therapeutic use exemption (allowing athletes with a medical condition to use a prohibited substance or prohibited method) in accordance with the Code and International Standard for Therapeutic Use Exemptions. (Code Article 4.4)

4. Right to justice

Athletes have the right to justice, including the right to be heard, the right to a fair hearing within a reasonable time by a fair, impartial and operationally independent hearing panel, with a timely reasoned decision specifically including an explanation of the reasons of the decision.
On appeal, an athlete has a right to a fair, impartial, operationally and institutionally independent hearing panel, the right to be represented by counsel at the athlete’s own expense and a timely, written, reasoned decision. (Code Articles 8 and 13, International Standard for Results Management)

5. Right to Accountability

Athletes have the right that any anti-doping organization that has jurisdiction over them will be accountable for its action or omissions through the applicable compliance systems, and an athlete shall have the ability to report any compliance issue that they believe exists to relevant personnel or to an anti-doping organization. (Code, International Standard for Code Compliance by Signatories)

6. Whistleblower rights

Athletes have the right to access an anonymous or confidential mechanism to report any potential doping behavior by athletes, athlete support personnel, and other persons, or any non-compliance by anti-doping organizations.

Athletes have the right to report potential anti-doping rule violations or non-compliance through a whistleblower mechanism and not be subjected to threats or intimidation designed to discourage them from reporting in good faith, and they have the right not to be retaliated against for providing such evidence or information in good faith. (Code Article 2.11)

7. Right to education

Athletes have the right to receive anti-doping education and information from anti-doping organizations. (Code Article 18, International Standard for Education)

8. Right to data protection

Athletes have the right to the fair, lawful, and secure handling of their personal information by antidoping organizations that collect, use and share it, including the right to be kept informed about its processing, to access a copy of it and to request its deletion once it no longer serves an antidoping purpose. (Code Articles 5.5 and 14.6 and International Standard for the Protection of Privacy and Personal Information)

9. Rights to compensation

An athlete has the right to pursue damages from another athlete or other person whose actions have damaged that athlete by the commission of an anti-doping rule violation. The pursuit of damages shall be in accordance with any laws or regulations in their country outside of the Code. (Code Comment to Article 10.10)

Any prize money that has been recovered by an anti-doping organization from a sanctioned athlete shall, subject to the reasonable efforts of the anti-doping organization, be redistributed to athletes who would have been entitled to it had the forfeiting athlete not competed. (Code Article 10.11)

10. Protected persons rights

Athletes that are defined as protected persons under the Code shall have further protections because of their age or lack of legal capacity, including in the assessment of their fault, and mandatory public disclosure shall not be required. (Code Article 14.3.7)

11. Rights during a sample collection session

When subject to a sample collection session, an athlete has the right to see the identification of the doping control officer, the right to ask for additional information about the sample collection process, the right to be informed of the authority under which the sample collection is to be conducted, the type of sample collection and any conditions that need to be adhered to prior to the sample collection, the right to hydrate (unless they have provided a sample that does not meet the requirement for suitable specific gravity for analysis), the right to be accompanied by a representative, the right to delay reporting to the doping control station for valid reasons, the right to be informed of their rights and responsibilities, the right to document any concerns about the process, and the right to receive a copy of the records of the sample collection session. (International Standard for Testing and Investigations)

12. Right to B sample analysis

An athlete has the right, when analysis of their A sample results in an adverse analytical finding, to request analysis of their B sample as provided in the Code and International Standards. (Code Articles 2.1.2, 6.7 and 7.2, International Standard for Results Management, International Standard for Laboratories)

Where the B sample analysis does not confirm the A sample finding, the athlete who was provisionally suspended is allowed, where circumstances permit, to participate in subsequent competitions during the event, and depending upon the relevant rules of the international federation in a team sport, if the team is still in competition, the athlete may be able to take part in future competitions. (Code Article 7.2 and 7.4.5 and International Standard for Results Management)

13. Other rights and freedoms not affected

An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Act or is included only in part.

14. Application and standing

Nothing in this Act shall change in any way the application of the Code or International Standards, or the standing of athletes under those documents.

Recommended Athlete Rights

The recommended athlete rights in part two do not exist universally within anti-doping and are not rights under the Code or International Standards. However, they are rights that athletes encourage anti-doping organizations to adopt and implement within their own organizational structures to further enhance the fight against doping, the integrity of the system, and athlete rights within that system.

15. Right to an anti-doping system free from corruption

Athletes should have the right to participate in training and competitions that are free from doping-related corruption or any other form of doping-related manipulation that could affect the outcome on the field of play or in training.

16. Right to participate in governance and decision-making

Athletes should be consulted in the creation and modification of the anti-doping rules to which they must comply, and it is fair and right that athletes shall also have a voice and the right to participate in the governance of any anti-doping organizations that they are subject to.

17. Right to legal aid

Athletes should have the right to access legal aid for hearings and appeal process in doping cases.

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