[Introduction]
- One of the most fundamental values in sport is fair play and the prohibition of doping. Since ancient times, sport has always been presented as a system of values, where the stadiums are decorated with busts of offenders as proof of the shame of acting against the sporting spirit. However, the fight against doping has always been a chase where anti-doping bodies, like in poker, call, and cheats, while keeping their straight faces show cards which surprisingly are all jokers. In this race, both the World Anti-Doping Agency (WADA) and the national anti-doping organisations have regrettably been left behind, because the fight against doping is more like an arms race where the end justifies the means. The rules of the game are constantly changing and evolving. Science and money play first fiddle, while values are for idealists.
- In consequence, whistleblowing has become an indispensable tool in the fight against doping, especially since the states have joined the game and doping is becoming more sophisticated and harder to detect.
[Be more like Grigory Rodchenkov]
- In 2015, the case of Grigory Rodchenkov[1] showed that the GDR sports model had come back from the dead. In 2014, during the Winter Olympics in Sochi, Russia created the conditions for doping athletes through „assistance, encouragement, aiding, abetting, conspiracy, cover-up or any other form of intentional complicity”. Doing so opened a new chapter in a sport where states play a major role in doping. In 2016, WADA announced the Whistleblowing Programme Policy and Procedures for Reporting Misconduct (’Programme’)[2] to encourage the reporting of doping. WADA’s idea was to 'support’, 'trust’, 'protect’ and 'reward’ athletes and others as whistleblowers, and to grant them whistleblower status. [3] In 2015 and 2021, WADA amended the World Anti-Doping Code (Code)[4] to embody the above ideas.
[2015 WADA Code amendments]
- In 2015, WADA was given greater discretion to agree suspensions of periods of Ineligibility where Athletes and other Persons subject to the Code provide assistance that results in anti-doping proceedings against others. [5] Article 10.6 provides that periods of Ineligibility may be reduced for reasons other than fault: (…) providing 'substantial assistance’. This provision was intended ‘to provide an incentive, in the form of a reduced or suspended period of Ineligibility, for those who have committed anti-doping rule violations to provide information and evidence that leads anti-doping organisations, criminal authorities or professional disciplinary bodies to initiate anti-doping rule violation proceedings, criminal charges or professional disciplinary charges’.[6] However, the ‘reward’ was limited to informants who provided substantial information to the authorities, with two caveats: (1) value of information, and (2) discretionary power of using the information.
[Between value and usage]
- The value of information has been enlightened in the CAS award in CAS 2011/A/2678 IAAF v. RFEA & Francisco Fernández Peláez where it was ruled that 'assistance is not considered substantial unless and until it actually leads to the discovery or establishment of an anti-doping rule violation by a third party, or unless and until it actually leads to the discovery or establishment of a criminal offence or a breach of professional rules by a third party.’ Nevertheless, the information provided did not lead to the successful institution of anti-doping rule violation proceedings (discretionary power of using the information).
- In high profile cases, reduction amount of between 18% to 50% suspension of the period of ineligibility applied. By way of comparison, Lilya Shobukhova – whose evidence was instrumental in pursuing the cover-up of doping cases by persons affiliated to the IAAF (e.g. Papa Massata Diack)[7] and the sophisticated doping scheme in Russian Athletics involving Head Coach Melnikov and Dr. Portugalov[8] (both of whom have now been banned for life) – received a suspension of only seven months of her period of ineligibility of three years and two months (or 18% suspension of the period of ineligibility).[9]
[New 2021 WADA Code]
- The new 2021 WADA Code includes a provision to protect a whistleblower’ against retaliation. [10] Article 2.11.1 of the Code created a new ‘anti-doping rule violation for acts by Athletes (or other persons) to dissuade, by threats or intimidation, Athletes from reporting anti-doping rule violations to the authorities or from seeking revenge (reprisals) against the authors of such reports.’ [11] The whistleblower is required to ‘report in good faith and does not protect persons who knowingly make false reports’.[12]
[Conclusion]
- Whistleblowers are game changers and bring hope that the devolution and erosion of fair play will stop. The ‘carrot and stick’ policy seems to be a fair and just response to the new dares of the world of anti-doping in sports. However, being a 'snitch’ is still ethically and morally ambiguous, as a reward for injustice is always burdened with the guilt of relativising wrongdoing. Nevertheless, the world of values is under enormous pressure, especially in sports, where you are only as good as your last result. In a perfect world, sins should be paid for. That is why whistleblowing is more like purgatory than heaven.
References:
[1] https://www.wada-ama.org/en/news/wada-statement-independent-investigation-confirms-russian-state-manipulation-doping-control/.
[2] https://www.wada-ama.org/sites/default/files/whistleblowingprogram_policy_procedure_en.pdf; see also Speak-Up online platform.
[3] Article 3.2 Program.
[4] https://www.wada-ama.org/sites/default/files/resources/files/2021_wada_code.pdf.
[5] David, P. (2017). Overview of the Code and the World Anti-Doping Program. In A Guide to the World Anti-Doping Code: The Fight for the Spirit of Sport , pp. 67
[6] David, P. (2017). Articles 9 and 10 of the Code: Sanctions for Anti-doping Rule Violations. In A Guide to the World Anti-Doping Code: The Fight for the Spirit of Sport pp. 437.
[7] https://www.worldathletics.org/news/press-release/ethics-board-diack-balakhnichev-dolle-melniko.
[8] SeeCAS 2016/O/4575 IAAF v. ARAF & Dr Sergei Nikolaevich Portugalov;CAS 2016/A/4480 IAAF v.ARAF and Vladimir Kazarin;CAS 2016/A/4486 IAAF v. Ekaterina Poistogova;CAS2016/A/4487IAAF v. Alexey Melnikov; and CAS 2016/A/4655 IAAF v. ARAF & StanislavEmelyanov.
[9] https://www.wada-ama.org/en/media/news/2015-08/wada-statement-regarding-liliya-shobukhovas-sanction; cf. case WADA v. POLADA & Sebastian Krawczyk & Kacper Falon & Piotr Smołuch & Marcin Kozłowski & Tomasz Margol & Aya Diouf (Appeal Brief – point 59 and 60).
[10] See Article 8 Recommendation on the Protection of Whistleblowers in the Context of the Fight Against Doping in Sport.
[11] Jean-Paul Costa, Legal opinion 2019 (expert opinion) on the World Anti-Doping Code (26 September 2019), pp. 14 (https://www.wadaama.org/sites/default/files/resources/files/avis_2019_code_mondial_en.pdf)
[12] Comment to Article 2.11.2.
