Few countries have developed comprehensive sport policies. Fewer still have focused on a policy framework for the regulation of performance-enhancing substances and methods. The fact of the matter is that not many countries have perceived the issue as one that needs to get to the top of a national agenda. Where the issue has become national, it tends to have been as the result of the embarrassment caused by an athlete found guilty of a doping offence and any resulting policy has tended to be reactionary in nature. Even among those countries that have considered the issue, there has been remarkably little effort to develop a concerted international consensus. Apart from the European-based Anti-Doping Convention, in which a few other countries participate, and the occasional bilateral relationship, there is nothing in place on an international scale to deal with a problem that is growing in importance as a danger to the healthy and humanistic practice of sport.
There is no country in the world and no sport that is immune from the risks of performance-enhancing drugs and methods. The practices, usually referred to as “doping” in the international lexicon, range from isolated experimentation by individual athletes with stimulants or nutritional substances to concerted teams of sports officials and scientists working clandestinely to “beat the system.” During the 1970s and 1980s, some of the most sophisticated doping programmes were organized by and implemented by governments. While much of the focus has been on the German Democratic Republic, as East Germany was called, there can be little room for doubt that many other countries, especially within the Warsaw Pact, had similar programmes in place. In other countries, governments may not have been as interventionist, but were certainly complaisant or wilfully blind to what was occurring. There was, strangely, a marked reluctance on the part of governments to acknowledge the evident fact of doping, even if only on the part of others, despite persistent media reports and athletic performances that clearly exceeded statistical expectations.
The sport community did little better, especially considering its primary responsibility for the governance of sport. It is true that, until the Olympic Games became profitable, there was not a great deal of money available within the Olympic sport system to develop testing programmes and to fund the research required to devise scientifically reliable tests to detect the burgeoning list of substances being used. An additional difficulty was the covert nature of the practices and the paucity of data available for analysis. The International Olympic Committee (IOC) was the first major organization to establish clear rules, publish a list of prohibited substances and to lobby for increased testing. Its particular difficulty was that it had only one event under its control, the Olympic Games, which occurred for approximately two weeks every four years. During the rest of each quadrennium, the athletes fell within the jurisdiction of their national sport authorities or the international sports federations governing each sport. Although it attempted to use the moral suasion of the Olympics to persuade the different sports to become more active in the fight for drug-free sport, the IOC’s success was limited and, to be objective, its will to use the leverage of excluding from the Olympic Games those sports that did not comply was less than resolute.
The failure by the sports movement as a whole, including the professional and university components, and governments to act firmly once it became clear that drug use was expanding, especially in the 1980s and 1990s, has allowed the phenomenon to spread. Many sports federations did not have the resources to undertake anti-doping activity on a scale sufficient to operate as an effective deterrent. Others were entirely equivocal about drug use and may well have been content to watch the improving performances and not to question how they were being achieved, while uttering the occasional platitude about sporting principles and the health of the athletes. Much work was being done to improve competitive facilities and equipment to help achieve better results, so why not work, they asked, on the human body as well? Besides, the science was not sufficiently reliable to be certain that drugs had been used and there were legal risks inherent in disqualifying an athlete in such circumstances. If a wrong decision were to be taken, the likelihood of having to defend a legal action and being exposed to substantial damage awards was a major disincentive to firmness of action.
Although it may appear somewhat facile to blame the legal system for lack of vigour on the part of sport authorities to act, it is a factor that is nevertheless important. Part of the problem, at least at the outset, was that many sport authorities had no rules that enabled them to test for drugs and had only the most rudimentary sense of a process that ensured athletes could obtain a fair and impartial hearing when confronted with possible disqualification. If deprived of procedural safeguards, athletes had no alternative but to resort to the state courts for the purpose.
Despite the fact that these courts had none of the specialized knowledge of sport and doping techniques, they represented the only recourse for athletes and were prepared to substitute their judgement for that of the sport authorities as to what was appropriate where they viewed the actions of those authorities as arbitrary and their system of rules as incomplete. Most sport organizations responded by adopting more comprehensive rules and being more disciplined in following those rules. In the result, the state courts are becoming more confident that due process is available and are more willing to say to a complainant that he or she has had a fair hearing. But even the threat of legal action and exposure to the costs of defending against spurious claims have been inhibiting factors and remain so today.
The event that provided the impetus for a genuine international response to drug use in sport occurred during the 1998 Tour de France, when French police found performanceenhancing drugs in the possession of some of the teams and athletes in the race. The sight of athletes and others being taken to jail in the middle of the night was a wake-up call of great significance. Sport authorities were faced with the prospect that sport, which has its own rules for fair competition and which should be fun, risked becoming criminalized. If such treatment could happen to cycling, one of the most popular European sports, in the course of its marquis event, it could happen to their sport as well.
The IOC took advantage of this occasion to call for a World Conference on Doping in Sport in February, 1999 and proposed the creation of an independent agency to be charged with co-ordinating the fight against doping in sport on an international basis. Its governance structure would be a board composed of an equal number of representatives from the sport movement, including athletes, and from governments. It was clear to everyone that neither the sport authorities, acting alone, nor the governments, acting alone, could achieve a complete solution to the problem of doping in sport.
The tangible outcome of the Conference was the creation of the World Anti-Doping Agency (WADA) in November, 1999. WADA was established as a hybrid organization, the members of which were, on the one hand, governments and, on the other, private sports organizations and individuals, as a foundation under Swiss law, with provisional headquarters in Lausanne, later changed to a permanent seat in Montreal. WADA has been formally recognized as an international organization by the Swiss and Canadian governments and accorded the related tax and other status.
It is the establishment of WADA that provides the opportunity for a coherent and integrated policy framework.
Within an international sport system, it is important that everyone be subject to the same rules. From a policy perspective, there should not be different rules that apply in some countries, but not in others. There have been examples of cyclists in road races being subject to five or six different testing regimes in the course of a single event. The policy response is the creation of a uniform World AntiDoping Code (Code) that will apply in all countries and across all sports. The objective is to have the Code applicable in time for the 2004 Olympic Games in Athens. It is an ambitious timetable, which, after an intensive period of international consultation, will call for a World Conference in Copenhagen in early March 2003 to establish the consensus necessary to proceed. This will be followed by adoption of the Code by stakeholders during the balance of 2003, so that the Code will apply as and from January 1, 2004.
The Code will contain the basic elements, including the definition of doping, testing protocols and procedures, sanctions in case of doping infractions, resolution of disputes and the procedure for adhering to or withdrawing from application of the Code. Within the sports movement, adoption of the Code is a fairly simple process and mechanisms such as congresses provide the legislative authority for such actions. The process is more complicated for governments, who must first agree that they will accept the Code and thereafter make it part of the domestic law. Were the matter of doping in sport one that fell solely within the purview of governments, the obvious answer would be an international instrument or convention, to which governments could subscribe and thereafter ratify with domestic legislation. Such a process would, however, be years in the making and all stakeholders agree that the problem of doping in sport is too serious to be allowed to drag on indefinitely. The interim solution proposed by governments is to execute a series of memoranda of understanding, pursuant to which they will agree to adopt the Code and which will, in addition, regularize their relationships with the hybrid WADA in such matters as membership and financial obligations. There is no reason why proceeding in such a manner should create conceptual problems for governments who are sincere about the need for harmonization of anti-doping rules.
Undoubtedly the most important aspect of the proposed Code is that the sport aspects of doping will be dealt with by the sports authorities and doping infractions will not become criminal in nature. There may, nevertheless, be criminal sanctions for such activities as trafficking or possession for the purposes of trafficking or, perhaps, civil penalties for medical doctors who provide prohibited substances for non-therapeutic purposes such as performance enhancement.
The system of appeals established in the Code, with ultimate resort to the Court of Arbitration for Sport, will provide the protection of due process needed by athletes and others subject to its application and, while no one can stop someone from resort to the courts, once the Code is in place and becomes included in domestic legislation, provided its rules have been properly applied by the sports authorities, the courts are unlikely override decisions taken in that context. In addition, the Code will provide that decisions taken by sports authorities in good faith will not give rise to civil responsibility, even if they prove to have been incorrect.
It is essential, in any system that is designed to promote drug-free sport, that there be a mechanism for testing athletes, both in-competition and outof-competition (OOC). Unannounced, no-notice OOC testing is the most likely deterrent, but for this to be effective, it is necessary that athletes provide continuous information as to their whereabouts and for officials charged with OOC testing programmes to have unhindered access to the athletes. It is during times when the athletes cannot be found for periods of two or three weeks that the greatest risks of doping will occur. Governments will need to agree on a policy that will allow (and oblige) them to provide entry visas on short notice or to provide multipleentry visas to authorized WADA officials. Athletes and sport officials will be required to provide continuous notice as to the location of the athletes. Failure to do so will have the same effect as a refusal to submit to a test. Standards and procedures for testing must be uniform and of specified quality. Ethical frameworks must be developed with respect to access to and provision of information on athletes who have been tested.
There should be relatively little difficulty in reaching agreement as to the applicable standards for conducting tests, laboratory standards for analysis and reporting requirements for purposes of results management, since these are technical in nature and capable of objective measurement. For purposes of the Code, such matters will not require a revision of the Code each time there are changes to reflect best practices. Wherever possible, international standards such as ISO will be used and for advanced technical matters, it is likely that one or more laboratories will be designated as reference or benchmark laboratories.
The existence of WADA provides the first opportunity to co-ordinate, and to help fund, scientific research with the specific objectives of identifying performance-enhancing substances, developing reliable tests and ensuring the publication of research results since the issue of doping in sport became an international concern. Part of the problem experienced to date has been the largely clandestine nature of experimentation and the deliberate failure to publish the resulting data. In addition, because many of the substances used for doping have been developed to meet genuine therapeutic needs (e.g., EPO), the basic biochemistry is known, so that what is required is a form of reverse engineering to demonstrate whether or not that substance is in the athlete’s system or not. As substances come closer and closer to endogenous, indirect tests may be required.
WADA has been established on the basis of a model that calls for equal sharing of the costs of producing a drug-free culture in sport between the sports movement and the public authorities. Each has a particular interest in the outcome. For sport, it is the promotion of an activity that is fair and wholesome; for the public authorities, it is the promotion of a society that recognizes the values of a physically and mentally healthy population and participation in a society that respects the rights of its members to equal treatment.
Deterrence has its place in sport, in much the same way as it does within society as a whole, where elements of the population persist in flouting the applicable rules. There must, in the final analysis, be a means of compelling compliance with the norms determined by society, through the police and judicial systems, or, as it relates to doping in sport, by the recognized and freely-accepted rules. Sport has the additional distinction of being voluntary: no one is obliged to participate. But, if one agrees to participate, then it is implicit that the rules be observed.
Because doping has become a significant phenomenon in sport, however, in the long run the solution to the problem rests in creating a change in the mental set of those who would cheat, counsel cheating or condone cheating. This must result from a greater understanding of both the moral and health risks involved. It was not fines and suspension of drivers’ licenses that made fastening seatbelts in automobiles virtually secondnature, but the realization, through education, that it was reckless and foolish to drive without one. Policies are needed to define the content of the knowledge to be imparted, the means of its dissemination and the populations to which it should be directed. Nor should the educational materials be restricted to athletes; the general public, parents, teachers, coaches, doctors and all those who have influence over the development of young people need the same education.
Over the past century, sport has become a universal activity””a veritable right, rather than a privilege. Its application and effects are no longer limited to domestic theatres of operation, although the basic building blocks remain local in nature. Thus, domestic policy is important, but no such policy can be effective unless it is harmonized throughout the world. The integrity of sport itself depends on the application of standardized rules. If any particular country or sport ignores the rules, the competitions are rendered meaningless. The need for the development of the policies necessary to ensure international recognition and acceptance of a single set of rules is obvious. Less obvious are the means to achieve such rules and to enforce them.
