Implementing the World Anti-Doping Code through National Legislation

Not from a Code compliance perspective. Signatories are required to adopt and implement anti-doping rules which conform with the Code and International Standards; the relevant obligation for National Anti-Doping Organizations (NADOs) is set out in Code Article 20.5.2. Signatories meet this obligation either through anti-doping rules (private law regulations) or government decrees and/or national legislation (public law), or a combination of both.

Therefore, depending on the specific needs, political decisions, and legal system in each country, the Code can be implemented through a variety of legal instruments. However, it is not mandatory to adopt legislation in order to implement the requirements of the Code and International Standards. A minority of countries in the world have anti-doping legislation, however we have seen an increase in recent years, particularly in certain regions. Therefore, following the guidance in this Q&A should make the process as seamless as possible and avoid potential compliance interventions by WADA.

Yes. It is clear from the Code and International Standards that national anti-doping related legislation, when adopted, is required to be consistent with the Code (see, without limitation, Code Articles 24.1.12.4(a) and (b), as well as Articles 7.1.1, 7.4.1.5 and Annex A.3(a) of the International Standard for Code Compliance by Signatories (ISCCS)). The reason for this is evident as in case of inconsistencies between national legislation on one hand, and anti-doping rules, regulations, or government decrees on the other, legislation will in principle take precedence over the latter, not least based on the legal doctrine of the hierarchy of norms. Furthermore, it is also clear from the ISCCS and in particular Article 8.4.3.1 thereof, that it is neither an excuse nor a mitigating factor for a NADO to claim that a non-conformity is caused by an act or omission of a governmental or public authority.

By virtue of Code Article 24 and ISCCS Articles 7.1.1 and 7.4.1.5, a key component of WADA’s Compliance Monitoring Program consists of ensuring that a Signatory’s rules, regulations and related legislation (when applicable) comply with the Code.

As part of this monitoring program, and pursuant to ISCCS Article 8.2.1, when WADA identifies and determines that anti-doping legislation in force in a given country is not compliant with the Code, it shall give the relevant NADO written notice of the non-conformity as well as a three-month timeframe to correct it through a Corrective Action Report (CAR). 

As with other identified non-conformities with critical requirements under ISCCS Annex A.3 (which must also be corrected within a maximum timeframe of three months as per ISCCS Article 8.2.2.1), the above-mentioned three-month timeframe notably stems from ISCCS Annex A.3. a), according to which the adoption of rules, regulations and/or legislation that satisfy a Signatory’s obligations under Code Article 23.2 (Implementation of the Code) is considered a critical requirement in the fight against doping in sport.  

Per ISCCS Article 8.3.1, should the non-conformities still be pending at the expiration of the three-month deadline contained in the above-mentioned CAR, WADA can give another timeframe (of up to three months) to resolve such non-conformities.

In light of this process, WADA has, on many occasions in the past, issued CARs to NADOs where national legislation was inconsistent with the Code and, in certain cases, some NADOs were subsequently declared non-compliant as a result. The Compliance Review Committee (CRC) and WADA’s Executive Committee have consistently endorsed this approach when such cases have been brought to their attention in the framework of compliance procedures.

It has to be noted that, once legislation is adopted, WADA monitors its practical implementation. If it appears from such monitoring activity that edits to the legislation are required, WADA liaises with the relevant Signatory in order to ensure that the required edits can be implemented within a reasonable timeframe.

In order to avoid potential situations of non-compliance as described above, when new legislation or amendments to existing legislation are in the process of being developed, it is critical that WADA be provided with the draft legislation or amendments for review before the adoption process begins. We strongly recommend that the adoption process be initiated only after the final version of the draft has been considered by WADA to be fully in line with the Code and International Standards. In many cases we have witnessed that when non-compliant legislation is adopted by a country it can be difficult, politically, to amend it within a reasonable timeframe. That is why it is critical that only legislation that has been reviewed and approved as Code-compliant (in writing) by WADA be adopted.

In terms of the content of the legislation, where other legal instruments such as for example NADO rules are in place in the country, we recommend avoiding duplication with the NADO rules, not least in order to ensure that the legislation does not need to be amended every time a new version of the Code and / or of an International Standard enters into force. As an example, if the NADO rules already contain provisions on what constitutes an anti-doping rule violation, or reproduce the definitions of the Code or provide the list of consequences of anti-doping rule violations, it is unnecessary and discouraged to reproduce such provisions in the legislation. A reference to the NADO rules could suffice. The same recommendation applies to other mandatory areas of the Code and in particular to the provisions listed in Code Article 23.2.2.

The advantages of legislation being general in scope and only covering certain topics such as:

• independence of the NADO from the local sport movement and public authorities,
• automatic jurisdiction of the NADO over all national federations,
• mechanism for the NADO to receive adequate financial and human resources,
• cooperation of the NADO with local law enforcement authorities such as customs agencies. 

are twofold: the legislation will not have to be amended every time a new version of the Code or an International Standard enters into force and the country can use more flexible and lower-level legal instruments to quickly adapt its legal framework to the constantly evolving needs of the fight against doping in sport, whilst having the key principles anchored in the legislation.

As for criminal legislation, it falls outside the scope of the implementation of the Code and will not be reviewed by WADA in the framework of the compliance monitoring exercise.

If any changes are proposed or implemented during the adoption process, after WADA has approved the original draft legislation as being in line with Code and International Standards, then the revised draft must be sent back to WADA for review to ensure that the changes do not have an impact on its compliance with the Code. Moreover, WADA always requests an official version of the legislation once it has been adopted to ensure that it is still in line with the Code and International Standards.

WADA recommends that you first discuss legislation with the relevant WADA Regional Office or alternatively contact WADA’s Compliance Unit at compliance@wada-ama.org. We are always available to assist and look forward to providing stakeholders with any guidance or support that may be required in this process.

WADA recently hosted a webinar, "Anti-Doping Legislation: Keys to Success," of which you can find the recording here and the presentation here.