The World Anti-Doping Agency is the international institution responsible for promoting, coordinating, and monitoring anti-doping in sport. The World Anti-Doping Code (WADA Code) is well-known as the anti-doping rules of sport around the globe. It is also widely known that the WADA Code prohibits athletes and/or their support staff from using and trafficking prohibited substances, administering prohibited substances to others, and tampering with samples and anti-doping investigations.
However, there are other anti-doping rule violations (ADRV) that are less well known. In many cases, the athletes charged with, or found guilty of, breaching these rules may not have had any contact with prohibited substances at all. That is what makes these ADRVs so unique. These ADRVs include:
- whereabouts failures;
- prohibited association;
- evading, refusing, or failing to submit to sample collection; and
- discouraging and retaliating against others for reporting to anti-doping authorities.
This article provides an overview of these lesser-known ADRVs, and discusses some strategies that sports organisations and athletes can use to avoid breaching them.
Recently, top 50 male tennis player Mikael Ymer was suspended for 18 months after the International Tennis Federation accused him of committing breaches of his whereabouts obligations. Under the WADA Code, athletes in a Registered Testing Pool or National Testing Pool must be available for testing at a given location during an allotted period of time. If they miss a test because they failed to make themselves available at the specified location and time, they will commit an ADRV.
These athletes are required to provide their whereabouts information in advance on a quarterly basis each year. They must keep this information updated throughout those quarters. For each day of a quarter, an athlete will be required to schedule an allotted period of 60 minutes during which they must be available for testing at a specified location the athlete nominates. The specific location nominated by the athlete must be readily accessible to Doping Control Officers, with accurate details provided to them so that they can locate the athlete.
If an athlete fails to be available for testing at the specified location during the allotted period of time on any given date, they will be given a warning for the first two times it happens in any given year. If it occurs for a third time in a year, then this will be considered an ADRV and the athlete may be sanctioned by their sport. Generally, the maximum penalty imposed by a sports body for a whereabouts failure is two years. However, there have been cases where the sports body has imposed longer suspensions for such breaches.
A further recent example of whereabouts failures is the case of Stéphane Houdet v. International Tennis Federation (CAS 2022/A/9031). In this case, wheelchair tennis champion Stephane Houdet was found to have committed three whereabouts failures over a period of twelve months. Houdet argued that he was not at fault for two of the three whereabouts failures:
- On one occasion, Houdet provided his whereabouts information as his home address in Paris, and his allotted time as being between 10.00pm and 11.00pm. However, he was in fact in Costa Rica at the time. Houdet tried to change his whereabouts information by accessing his Anti-Doping Administration and Management System (ADAMS) portal. The portal required Houdet to input a two-factor verification code which would be provided to him via text message. Unfortunately for Houdet, while he had WI-FI access, he did not have mobile service. Consequently, he could not receive the verification code and so he believed he could not change his whereabouts information.
- On the other occasion, Houdet provided his whereabouts information as his home address between the times of 10.00pm and 11.00pm. Houdet was home at the time, but did not hear the Doping Control Officer ring his doorbell. He alleged that the doorbell was either malfunctioning so it did not ring, or it was ringing at a reduced volume. He provided that as the reason why he did not hear it.
Houdet argued that he was not guilty of the two instances of whereabouts failures. However, he was eventually suspended from tennis for 15 months.
On the first occasion, the Court of Arbitration for Sport (CAS) held that Houdet should have emailed the changes to his whereabouts information given that he had Wi-Fi access. The email sent to him by tennis doping authorities had provided him with an email address to contact should he require assistance.
On the second occasion, CAS found that it was possible for Houdet to hear the doorbell when the Doping Control Officer rang it. Further, the officer also attempted to call Houdet’s phone in the last five minutes of the allotted time, but Houdet did not hear the calls as his phone was on silent. This and the fact that Houdet admitted to being in his room, with the television on that he was probably dozing on and off in that period meant that he was presumed negligent in his conduct and that the officer had taken reasonable steps to contact him. CAS rejected Houdet’s argument that the officer was required to contact his neighbours to provide the officer with access to the building, stating that it was not reasonable to expect that officer to do this given the time of day of his allotted time.
The Houdet case demonstrates that whereabout failures can be judged quite harshly, and could be considered burdensome on athletes as they must continually ensure they provide (and are able to provide) updated information to doping control authorities. They must also make themselves available for testing at their specified location at the allotted time in the vast majority of circumstances – even if some circumstances are outside of the athlete’s control.
For sports organisations, we recommend that it provides all athletes with relevant education on the WADA Code. This is important so that athletes know and understand their obligations with regards to doping protocols. Education may come in the form of seminar, and quizzes which athletes are required to pass in order to be allowed to participate in the sport.
Likewise, sports bodies can introduce training for athletes to help them establish processes to ensure they provide ongoing and accurate whereabouts information to doping authorities. The training can involve a discussion of relevant strategies for the athletes to heed so that they do not breach their whereabouts obligations. Possible strategies could be for the athletes to set relevant reminders or alarms on their phone or smart devices to update their whereabouts information on a quarterly basis or to be at a specified destination at a particular period of time. Athletes could also ensure that they keep their phone ringtone on to ensure that they can hear and are available to take a call from a Doping Control Officer at their allotted time.
In 2015, the WADA Code was amended to introduce an ADRV for circumstances where an athlete associated themselves with a prohibited athlete support person.
A prohibited athlete support person can be any person who works with, treats or assists an athlete in their preparation or participation in a sports competition. This includes, but is not limited to, a coach, manager, team staff member, doctor, or the athlete’s parent. Generally, an athlete support person may be placed on a list of prohibited persons if they have been suspended for an ADRV, or they have committed a criminal offence which could otherwise be deemed a breach of the WADA Code. For example, as of September 2023, Stephen Dank is on the list of prohibited athlete support persons. Mr Dank was the sports scientist at the centre of the Australian rules football drug scandal at the Essendon Football Club, in which he allegedly devised the program for injecting the athletes with a prohibited substance.
In order to establish that an athlete has committed an ADRV, the anti-doping authority must prove that the athlete knew that the athlete support person was in fact a prohibited person. Once the anti-doping authority proves this, it is up to the athlete to prove that any association was not professional or sport-related. For example, in 2018, two New Zealand weightlifters were threatened with a two-year suspension if they attended training clinics run by Sonny Webster, a weightlifter who had been suspended for four years for testing positive to the prohibited substance ostarine, while Webster’s ban was increased by a further three years for coaching while suspended.
Like all other doping violations, sports bodies can prevent their athletes from breaching prohibited association provisions of the WADA Code by providing adequate training so that athletes become aware of their obligations. Sports bodies should ensure that the athletes are aware of the list of prohibited persons on the WADA website and provide them with a hyperlink on where they can access this list. Furthermore, sports bodies should also provide athletes with periodic updates when new persons are added to the list. This will give the athletes an improved suite of tools to help prevent a breach of these obligations.
Evading, Refusing or Failing to Submit to Sample Collection
It is an ADRV for an athlete to evade a doping test, or refuse or fail to submit a sample for testing. The maximum penalty for an ADRV relating to this is the same as that which could be applied if the athlete submitted a sample containing a prohibited substance.
There are many circumstances in which an athlete could commit an ADRV. Probably the most famous case of this is Sun Yang of China, who in 2020 was found guilty of refusing to give a sample and tampering with a doping control test. He was initially given an eight-year ban, but following an appeal in 2021 and re-trial this was reduced to four years and three months (see CAS 2019/A/6148 WADA v. Sun Yang & FINA). He is unlikely to return to swimming at the top level given the length of the ban.
One less well-known example is illustrated by the case of Sarah Klein v Australian Sports Anti-Doping Authority and Athletics Australia (CAS A4/2016). In that case, Australian long distance runner Sarah Klein was in a hurry to get to the Hobart airport for a flight to Melbourne. Klein was at the Domain Athletics Centre, and intending to leave for the airport after finishing the event she was competing in, when she was asked to provide a sample for testing. Klein was initially willing to provide a sample for collection. First, she suggested that the Doping Control Officer accompany her to the airport where she would provide the sample. However, when this request was refused, she went to the toilet to provide the sample. However, she was unable to produce a sufficient sample for testing purposes. She again desperately urged the Doping Control Officers to accompany her to the airport where she would provide the sample. The Doping Control Officers explained to her that they could not do that, urged her to provide the sample several times, and warned her that she could be committing an ADRV if she failed to provide a sample. However, Klein eventually left for the airport without providing a sample. CAS found that Klein had committed an ADRV in these circumstances because she had left the doping control station and failed to provide a sufficient sample for testing. Klein was initially in line for a maximum penalty of a four-year ban, but this was reduced to two years after an expensive legal battle in CAS. She has since returned to the sport, running the marathon for Australia at the World Championships in 2022 and 2023.
Sports bodies should ensure that their athletes are educated on their obligations in providing sample collections in any situation where required to do so by the WADA Code, and the strict liability application of those rules that can lead to harsh penalties. They can provide training on strategies for athletes to avoid breaching these provisions. A possible strategy could be using alarms and/or a diary to ensure that they will be at any scheduled events on time, and allowing for any leeway with travel which may need to be given in case a Doping Control Officer requires a test before or after the scheduled event.
National Sports Body staff should also regularly remind athletes of these duties and audit or check in on recent compliance.
Reporting Protections (Discouraging and Retaliating)
In 2021, WADA introduced a new ADRV into the WADA Code. A person will now commit an ADRV if they discourage or retaliate against another person for reporting information regarding doping activities.
As of the date of this article, there have been no breaches of these new provisions. However, a possible example would be Athlete A’s coach making threats of violence against Athlete B after the coach finds out that Athlete B witnessed Athlete A injecting an unknown substance and wants to report this to the national sports body.
If or when these breaches are subject of a real case, more light would be shed on how sports bodies can best deal with such breaches. However, education courses for athletes and officials about ADRVs and the consequences of breaching them would be important as an obvious preventative measure against breaches.
Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought.