Last updated 16 August 2016
The World Anti-Doping Code (Anti-doping Code), with over 193 countries and 570 sporting organisations as signatories, is administered by the World Anti-Doping Agency (WADA) and attempts to harmonise anti-doping policies and practices across all sports and countries by ensuring that athletes are treated the same and that similar penalties apply for breaches of the Anti-doping Code.
In Australia, the federal government is responsible for implementing national anti-doping arrangements that are consistent with the principles of the Anti-doping Code. To achieve this, the Australian Sports Anti-Doping Authority (ASADA) has developed a comprehensive anti-doping program encompassing deterrence, detection, enforcement and education activities. The authority’s powers and functions are contained in the Australian Sports Anti-Doping Authority Act 2006 (Cth) (ASADA Act) and the Australian Sports Anti-Doping Authority Regulations 2006 (Cth), which includes the National Anti-Doping Scheme (Anti-doping Scheme). The Anti-doping Scheme largely mirrors the most recent Anti-Doping Code. The Australian Sports Commission has also developed an anti-doping model for national sporting organisations.
Drug testing of competitors in Australia is the responsibility of ASADA. The term ‘athlete’ is broadly defined under s 4 of the ASADA Act, and the athletes able to be tested are listed in the Anti-doping Scheme. The Anti-doping Code also catches support persons who work with or treat an athlete participating in, or preparing for, sporting activities.
Professional sporting organisations such as the Australian Football League, the National Rugby League, the Australian Rugby Union and Cricket Australia include clauses within standard player contracts requiring players to submit from time to time to drug tests and provide biological samples at the request, expense and under the direction of those organisations. These sporting organisations then provide for penalties for failure of a drug test by ASADA. The penalties must be consistent with the penalties set out under the Anti-doping Code, although the period of ineligibility may be reduced or eliminated on exceptional circumstances, including cooperation with ASADA. If a national sporting organisation wishes to receive Australian Sports Commission funding, then they must have developed an anti-doping policy which conforms to the commission’s anti-doping policy standards and is compliant with the Anti-doping Code.
For amateur sport and local and suburban sporting organisations, the response to doping is no less important. Whilst there may be limited resources to regularly test players, it is incumbent on officials, coaches and players to ensure that their sport is drug free.
Each year, WADA produces the ‘Prohibited List’ International Standard, which lists the prohibited substances and prohibited methods. Some substances are banned at all times (e.g. drugs having an effect on growth or recovery, such as anabolic steroids) while other substances like stimulants are only banned in competition periods as their performance-enhancing effect is short lived.
There are a number of different types of anti-doping rule violation, including:
- presence of a prohibited substance
- use, or attempted use, of a prohibited substance or method
- evading, refusing or failing to provide a sample
- whereabouts failure
- tampering with doping controls
- possession of a prohibited substance or method
- trafficking, or attempted trafficking, of a prohibited substance or method
- administration, or attempted administration, of a prohibited substance or method
- complicity (e.g. aiding, abetting) in any of the above
- prohibited association with people who have violated the Anti-doping Code.
Only ‘Presence of a prohibited substance’ is established by testing of the athlete’s blood or urine samples according to the International Standard for Testing and for Laboratories.
Other violations can be proven with any reliable means (e.g. documentary evidence, witness testimony). The standard of proof used is to the ‘comfortable satisfaction’ of the tribunal, which is described as more than balance of probabilities but short of proof beyond reasonable doubt.
It is important to realise that doping violations are offences of ‘strict liability’, which means that there is no need for an athlete to be shown to have acted intentionally, recklessly or negligently. Depending on the substance, a first offence would normally result in a period of ineligibility from all Anti-doping Code-compliant sports for two or four years. Appeals are usually unsuccessful as an athlete is solely responsible for what they are taking and for their choice of support staff, so merely following a coach’s advice on supplements does not amount to ‘no significant fault or negligence’. Cooperation with a doping authority may constitute an exceptional circumstance which reduces the period of ineligibility.
The Australian Sports Anti-Doping Authority is a testing authority and does not act as a disciplinary body. Where a violation is suspected, ASADA refers the case to an independent statutory authority, the Anti-Doping Rule Violation Panel, whose function is to determine if a possible violation has occurred. Their decision can be appealed to the Administrative Appeals Tribunal. If it is found that a possible violation occurred, the athlete is then brought before a tribunal in their sport (as established in the sport’s anti-doping policy) for a determination of guilt and appropriate sentence. Depending on the particular sport’s policy, it may be possible to appeal to an appeals tribunal within the sport or to the Court of Arbitration for Sport (CAS) (for more information see the ASADA website).
The onus of proof is on ASADA to establish that an anti-doping rule violation has been committed to the ‘comfortable satisfaction of the tribunal’. If the athlete wishes to argue that an exceptional circumstance exists, they must prove this on the balance of probabilities.
If an athlete is required to take a prohibited substance to control their health problem, they can apply for a therapeutic goods exemption and if tested positive will not have breached the Anti-doping Code.