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The Headlines
WADA Conference and the Adoption
of 2021 WADA Code Amid Calls for Reform
On November 5-7, WADA held
its Fifth World Conference on Doping in Sport where it faced a busy schedule,
including the adoption of the revised 2021 World Anti-Doping Code and the
election of a new WADA President and Vice-President by the Foundation Board. Concerning
the latter, Witold Bańka, Poland’s Minister of Sport and Tourism, was elected
as WADA President and Yang Yang, a former Chinese speed skater, elected as
Vice-President, replacing Sir Craig Reedie and Linda Helleland respectively. As Helleland leaves her position, she has expressed
some strong views on the state of sport governance, particularly that ‘there is an absence of good governance,
openness and independence in the highest levels of international sports’. Helleland was not the
only one to recently voice governance concerns, as Rob Koehler, Director
General of Global Athlete, also called for a ‘wholesale
structural change at WADA’, which includes giving ‘independent’ athletes a vote
in WADA’s Foundation Board, ensuring a greater ‘separation of powers’ and
ensuring greater protection of athletes’ rights.
In the midst of the calls
for reform, the amended 2021 WADA Code and the amended International Standards were also adopted after a two year, three stage code
review process. Furthermore, a major milestone in athletes’ rights was
achieved with the adoption of the Athletes’ Anti-Doping Rights Acts (separate from the WADA
Code), which enumerates certain basic rights to help ‘ensure that Athlete rights within anti-doping are
clearly set out, accessible, and universally applicable’. On the other hand,
the Act ‘is not a legal document’, which clearly circumscribes some of the
potential effects the Act may have. Nonetheless, athlete representative groups have
‘cautiously welcomed’ some of the changes brought by the 2021 WADA Code, such as
the ‘modified sanctions for substances of abuse violations’.
Sung Yang’s Historical Public
Hearing at the CAS
After much anticipation,
the second public hearing in CAS history occurred on November 15 in Montreux,
Switzerland in the Sun Yang case (details of this case were discussed in August and September’s monthly report), which was livestreamed
and can be seen in its totality in four different parts (Part 1, Part 2, Part 3, Part 4). This was an extremely unique opportunity, which hopefully
will become a more common occurrence, to see just how CAS hearings are
conducted and perhaps get a taste of some of the logistical issues that can
emerge during live oral hearings. One of these problems, accurate
translations, rapidly became apparent as soon as Sun Yang sat in the
witness chair to give his opening statements. The translators in the box seemed
to struggle to provide an intelligible English interpretation of Sun Yang and
other witnesses’ statements, while Sun Yang also seemingly had trouble understanding
the translated questions being posed to him. The situation degenerated to such
an extent that ultimately one of WADA’s officials was called to replace the
translators. However, the translation drama did not end there, since during Sun
Yang’s closing statements an almost seemingly random person from the public
appeared next to Sun Yang who claimed to have been requested from Sun Yang’s
team to ‘facilitate’ the translation. Franco Frattini, president of the panel, questioned
the identity of the ‘facilitator’ and explained that one could not just simply
appear before the court without notice. Interestingly, Sun Yang’s legal team also
rapidly intervened claiming that it had not been made of aware of the inclusion
of the supporting translator, further complicating the matter. In the end, Sun
Yang concluded his statements with the translation from the WADA official.
While it was Sun Yang’s
legal team that had provided the original translators in the box, it still raises
the question as to how translation at CAS could be improved to ensure a certain
standard of translators. After all, quality translation is critical to the parties’
right to be heard under Article 6 (e) ECHR. Regardless, in the end,
neither parties made an objection that their right to be heard was violated.
Russian Doping Saga
Continues: WADA Compliance Review Committee Recommends Strong Sanctions
As was already discussed
in August and September’s monthly report, WADA uncovered numerous
inconsistencies concerning data taken from the Moscow Laboratory. After further
investigation, WADA’s Compliance Review Committee has recommended that the Russian Anti-Doping Agency (RUSADA)
be found non-compliant with the WADA Code. Accompanying the recommendation, the
Compliance Review Committee also suggested several sanctions, which include prohibiting
Russian athletes from participating in major events like the Olympic Games and ‘any
World Championships organized or sanctioned by any Signatory’ for the next four
years unless they may ‘dmonstrate that they are not implicated in any way by
the non-compliance’. It would also see an embargo on events hosted in Russia during
the same period. However, these sanctions did not go far enough for some, like Travis Tygart, chief executive
of USADA, who wishes to prevent a repeat of Rio 2016 and PyeongChang 2018 ‘in
which a secretly-managed process permitting Russians to compete – did not work’.
On the other hand, the IOC has advocated for a softer,
individual based approach that pursues ‘the rules of natural justice and
respect human rights’. In the midst of these developments, the Athletics
Integrity Unit also decided to charge several members of
the Russian Athletics Federation (RusAF), including its President Dmitry
Shlyakhtin, after a 15 month investigation for ‘tampering and complicity’
concerning a Russian athlete’s whereabouts violations.
Following many calls for
strong consequences, the WADA Executive Committee met on December 9th
and adopted the recommendations of the Compliance Review Committee. Athlete
representatives have expressed their disappointment with
the sanctions, calling the decision ‘spineless’ since it did not pursue a
complete ban on Russian participation at events such as Euro 2020 and the 2020
Olympics. At this point, RUSADA has sent notice to WADA that it will be disputing
the decision of WADA’s Executive Committee’s decision at the CAS.
Major International Sports Law Decisions
Court of Arbitration for
Sport – Sun Yang Public Hearing Part 1, Part 2, Part 3, Part 4
Court of Arbitration for
Sport – CAS 2019/A/6110 Liam Cameron v. UK
Anti-Doping Limited (UKAD)
Court of Arbitration for
Sport – CAS 2018/A/5989 IAAF v. Qatar
Athletics Federation & Musaeb Abdulrahman Balla
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