17 November 2011

WADA responds to BOA criticisms

In a presentation to the International Federations Forum in Lausanne on Nov. 15, Lord Moynihan, Chairman of the British Olympic Association (BOA), was highly critical of the World Anti-Doping Agency (WADA). WADA Director General David Howman responds to those criticisms below:

1. Lord Moynihan conveniently neglects that the significant advance against doping in sport was undertaken by the IOC in hosting the first World Conference on Doping in Sports in Lausanne in February 1999. In fact the BOA attended that conference. The result was the formation of the World Anti-Doping Agency, a 50-50 partnership between the Sports Movement and the public authorities of the world. A unique organization and one entrusted with the task of harmonizing all of the rules in place, either within Sport or within countries through governments.

2. Lord Moynihan neglects to mention the unanimous acceptance of the World Anti-Doping Code, drafted by WADA and accepted unanimously as a set of rules and regulations harmonizing anti-doping rules throughout the world. The BOA was in attendance at the second World Conference on Doping in Sport held in Copenhagen in 2003 when this was approved.

3. Lord Moynihan neglects to mention that the BOA was a signatory to the Code from the outset. In being a signatory the BOA accepts the Code and the accompanying rules and agrees to abide by them. It also agrees to abide by the compliance report and review that is mandated to be undertaken by WADA and reported on a regular basis.

[Article 20.4 of the Code sets out the Roles and Responsibilities of National Olympic Committees. 20.4.1 states: “To ensure their anti-doping rules and policies conform with the Code”]

4. The World Anti-Doping Code was revised following a lengthy consultation period and a number of drafts which were available for review and further consultation. The BOA was one of the signatories consulted. The revised Code was again unanimously accepted by a World Conference convened in Madrid in November 2007. The revisions came into effect on 1 January 2009.

5. Lord Moynihan neglects to mention that the revisions to the Code, accepted and implemented by all signatories (including the BOA) included changes to the sanctions and allowed signatories to impose 4-year sanctions in cases of aggravated doping. Since January 1, 2009 only a few such sanctions have been imposed by signatories. This is not a “tougher” line taken by some international federations. It is a line taken by WADA and available to all to implement.

6. Lord Moynihan suggests the baton has been handed over to lawyers. The baton is firmly held by all the signatories to the World Anti-Doping Code, both all the governments of the world and all the sporting federations of the world. On the sports side, that includes all of the national Olympic committees.

7. Lord Moynihan suggests that it was not WADA but law enforcement agencies that broke Balco, and exposed Marion Jones. He neglects to comprehend that WADA is composed of all of the world governments and that governments have through their law enforcement agencies worked with WADA. WADA initiated the introduction of evidence in many cases where that evidence has been obtained by law enforcement agencies. Lord Moynihan neglects to remind himself that such evidence was used by the International Olympic Committee at the Winter Olympic Games in Turin in February 2006, where evidence gathered by the Italian police was used by the IOC to sanction Austrian athletes and coaches, after information gathered by WADA was passed to the police.

Lord Moynihan neglects to state that the Balco operation involved USADA and was not just law enforcement. USADA prosecuted a number of athletes as a result of information it received from Balco. USADA also targeted testing as a result of the information received. Lord Moynihan might like to remind himself that Dwain Chambers was actually tested by USADA and his consequent positive result prosecuted and sanctioned through a partnership USADA had with the IAAF.

8. Lord Moynihan neglects the fact that the Court of Arbitration for Sport in its ruling in early October 2011 indicated that the International Olympic Committee Rule 45 was not in compliance with the World Anti-Doping Code. It was specifically stated by the Court in this particular case that the World Anti-Doping Agency has full global responsibility for anti-doping rules and in signing to the Code, all signatories have delegated and designated the Code as being the set of rules they have agreed to accept and implement. To go beyond the rules is to go beyond the Code and to become non-compliant. That was not the intention of signatories when seeking WADA to write a set of rules that applied to every athlete in the world, no matter his or her country, or his or her sport.

9. Lord Moynihan in his address neglects to mention that WADA specifically wrote to him, in his capacity as President of the BOA, on October 7, 2011 pointing out that the Court of Arbitration for Sport decision might have implications for the BOA rule and suggesting that the BOA might like to address it in an appropriate way. Lord Moynihan neglects in his address to indicate that he has not yet responded to WADA. In his speech, he indicates that in his view the BOA rule does not constitute an additional sanction. He is entitled to his personal view but that does not mean it is accepted or legally acceptable.

10. The BOA rule has apparently implicated 32 athletes to date. Twenty-nine of those athletes have been excused from the application of the rule. The fact that they can be excused through an appeal process, indicates itself that there is some form of penalty or imposition of punishment against which an athlete can appeal. The penalty that each one of the 29 athletes has appealed against, and succeeded in, has been removed for those 29. Three athletes have not been successful. Is that proportionate? As Lord Moynihan says “it is important to keep this issue in perspective”.

11. A great portion of Lord Moynihan’s address could be seen as a submission to be given to WADA when the Code is once again reviewed next year. That submission is invited and will be received appropriately.

12. Lord Moynihan refers to the entourage. The governments of the world, through the International Convention on Anti-Doping in Sport, under the auspices of UNESCO, have agreed to look at ways and means of ensuring that members of the athlete entourage responsible in one way or another for an athlete committing a rule violation should be sanctioned. Most governments have in place the ability to do that and Lord Moynihan in his former position as a cabinet minister will be only too well aware of the ways and means in which governments can regulate the behaviour of professionals such as lawyers and doctors, of individuals such as coaches and trainers and so on. This is a governmental responsibility and one which will be exercised by governments provided complaints are made in the right way. WADA has encouraged and persuaded governments to so act.

13. Lord Moynihan introduces further countries as having the same spproach as the BOA. Upon analysis those countries have simply ensured they had a rule that was compatible and consistent with IOC Rule 45. Consequent upon the IOC indicating that this Rule was null and void as a result of the decision in CAS, WADA is certain that the countries who introduced it to be compliant with the IOC Charter, will now discard it. Denmark has already done so. Pursuant to its responsibility to ensure that its members are IOC Charter compliant, WADA is certain the IOC will advise its members accordingly.

14. Lord Moynihan suggests that WADA has been “unable to achieve its own, well-intentioned objectives”. Among its achievements over the last 10 years, WADA has:

1)  Written and had accepted unanimously the World Anti-Doping Code pursuant to the mandate that it had to harmonize the anti-doping rules of the world

2) Revised the World Anti-Doping Code in a complete, transparent and consultative fashion with revisions coming into effect in 2009

3) Assisted the governments of the world in a world record drafting exercise in respect of the international convention

4)  Assisted the countries of the world in ratifying that Convention, again in world record style with now 162 countries of the world having ratified the International Convention on Anti-Doping in Sport

5) Collected its annual dues, 50% from the Sports Movement and 50% from world governments annually. Over the past five years, contributions have reached 98% on average. That is better than any UN body

6) Exercised its right of appeal in many cases to ensure consistency of penalties prevail globally

7) Partnered with Interpol

8) Partnered with the World Customs Organization

9) Issued Protocols on how evidence and information gathered by law enforcement agencies can be properly shared with national anti-doping agencies and international federations

10) Run a research program now totalling $50 million in advancing anti-doping research

11) Run an educational research program in social science

12) Prepared educational programs for the athletes and young athletes of the world, and made them available to all signatories free of charge

13) Run Outreach programs at multi-sport events since 2002 and made those programs available free of charge to all signatories.

And much more.

Finally, WADA is a body composed of its signatories. The signatories have made the rules and have unanimously accepted them. The sanctions are part of those rules. Naturally there are some that would like the rules to be different. Some want softer penalties, some want harsher penalties.

During the Code review, all submissions will be carefully considered, and weighted according to the laws, according to funamental human rights, according to the principle of proportionality. That has been done before and will be done again.