Last updated 25 October 2021
Anti-doping bodies and framework
The World Anti-Doping Code (WAD 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 WAD Code. The most recent version of the WAD Code commenced in 2021. International sporting federations must have an anti-doping policy that complies with the WAD Code.
In Australia, the federal government is responsible for implementing national anti-doping arrangements that are consistent with the principles of the WAD Code. To achieve this, Sport Integrity Australia (formerly known as the Australian Sports Anti-Doping Authority (ASADA)) is established by the Sport Integrity Australia Act 2020 (Cth) (Sport Integrity Australia Act) to be Australia’s national anti-doping organisation. It has developed a comprehensive anti-doping program encompassing deterrence, detection, enforcement and education activities.
Under the Sport Integrity Australia Act, Sport Integrity Australia is empowered to make a National Anti-Doping Scheme (NAD Scheme). The NAD Scheme is contained in sch 1 of the Sport Integrity Australia Regulations 2020 (Cth) and largely mirrors the most recent WAD Code, with additional sections to support domestic investigation and enforcement.
The term ‘athlete’ is broadly defined under s 4 of the Sport Integrity Australia Act as ‘… anyone who has competed in sport in the last 6 months …’ if that sport has an anti-doping policy. If a national sporting organisation wishes to receive Sport Australia funding, they must have developed an anti-doping policy that is compliant with the WAD Code and NAD Scheme. The rules on doping are not confined to just professional athletes, however, as a matter of practical enforcement, such athletes are the focus of testing efforts. Support persons who work with or treat an athlete (e.g. medical staff, coaches, advisors) are also bound by sections of the WAD Code and NAD Scheme.
While all athletes competing at international and national events will definitely be subject to WADA and Sports Integrity Australia testing (both in and out of competition), some professional sporting organisations, such as the Australian Football League and the National Rugby League, also 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.
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 World Anti-Doping Code International Standard Prohibited List, 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, such as stimulants, are only banned in competition periods as their performance-enhancing effect is short lived.
There are 11 different types of anti-doping rule violation under the WAD Code and NAD Scheme, with the most common 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 failures.
Only ‘presence of a prohibited substance’ is established by testing of the athlete’s blood or urine samples according to WADA’s International Standard for Testing and Investigations and International Standard 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 a reasonable doubt.
It is important to realise that doping violations of ‘presence’ and ‘use’ 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.
Sanctions and mitigating factors
Any violation committed in competition automatically results in disqualification from the event and the forfeiture of any medals, prizes or points. Depending on the type of substance involved, a first doping offence would result in a period of ineligibility from all WAD Code-compliant sports for either two or four years.
This period can be reduced through the athlete establishing ‘no fault or negligence’, which is exceptionally difficult to do (an example given in the WAD Code is where the violation occurs through deliberate sabotage from a competitor) or ‘no significant fault or negligence’ (articles 10.5 and 10.6 of the WAD Code). Where an athlete seeks to argue these in relation to a ‘presence’ violation, they must then also satisfy the decisionmaker of how the substance did enter their system. For example, it is not enough to speculate that contamination of vitamins or meat may have been the cause, but rather to prove this on the balance of probabilities.
A different route to reducing the sanction is for the athlete to establish that the violation was not intentional (article 10.2 WAD Code). While this looks similar to no fault, it does not require an athlete to establish the source of how a substance entered their system. This difference was upheld in the case of Australian swimmer Shayna Jack, who in 2021 successfully had a four-year ineligibility reduced to two years on the grounds that the presence of a prohibited substance in her system was not intentional. She had spent considerable amounts of money in trying to establish the actual source, but had ultimately been unable to pinpoint it. However, the Court of Arbitration for Sport (CAS) accepted that she had not intentionally ingested what was a very small quantity of the prohibited substance.
Athlete pleas for reduction are not often successful, as an athlete is solely responsible for what they are taking and for their choice of support staff. Merely following a coach’s or doctor’s advice on supplements does not amount to no significant fault or negligence.
Prompt admission of wrongdoing or cooperation with a doping authority may constitute an exceptional circumstance that reduces the period of ineligibility.
Sport Integrity Australia is a testing authority and does not act as a disciplinary body. Where a violation is suspected after a Sport Integrity Australia test or investigation, there is a process that is followed. This process will be governed by anti-doping policy of the particular sport. Since 2021, many sports have agreed to adopt the National Anti-Doping Policy, which is a standard template policy created by Sport Integrity Australia for consistency across sports. At the time of writing, 96 national federations have transitioned to this option. However, even for those sports who retain their own anti-doping policies (current examples include AFL, Rugby League, Cricket and Football), there will be some level of consistency, as these policies must be consistent with the NAD Scheme, which itself is consistent with WADA documents, including the International Standard for Results Management.
Initially the CEO of Sport Integrity Australia, if satisfied an anti-doping rule violation has occurred, will issue an assertion to the athlete as well as notifying the athlete’s international and national federation. The athlete is provided with information about the violation and the sanctions being recommended. Should the athlete wish to contest this assertion, a hearing will be convened.
Many sports have their own internal doping tribunal, either at national or international federation levels. Other sports in Australia may choose to utilise the National Sports Tribunal as the first-instance decisionmaker. This body is the default provided for the sports who utilise the standard National Anti-Doping Policy. Where a violation occurs at an international meet or event, the relevant international federation may have chosen to use the anti-doping division of the CAS as their independent panel. Ultimately, it is up to the anti-doping policy of the relevant sporting organisation, however, all options require the athlete to receive a fair hearing (article 8 WAD Code).
The decision of the initial tribunal may be appealed depending on the anti-doping policy of the sport in question. Such appeals may be to an internal appeals tribunal, to the appeals division of the National Sports Tribunal or the Appeals Division of CAS. Sometimes an appeal can be made more than once. WADA reserves the right to appeal any decision to CAS in order to protect the consistent application of anti-doping rules around the world.
It should be noted that many prescription medicines contain prohibited substances. If an athlete is required to take such a prohibited substance to control a health problem, there is process to apply for a therapeutic use exemption. Such an exemption protects an athlete from an anti-doping violation resulting from the standard use of that product.