HOW THE WORLD ANTI-DOPING CODE’S BAN ON RECREATIONAL DRUGS AND WHEREABOUTS SYSTEM INFRINGE ON ATHLETES’ BASIC HUMAN RIGHTS SUCH AS THE RIGHT TO PRIVACY AND THE FREEDOM TO TAKE PART IN A TRADE OF CHOICE

DOPING IN SPORTS:

In January 2004 the World Anti-Doping Agency (WADA) rolled out a new World Anti Doping Code popularly referred to as the Code. Among other areas covered by this Code include the mandatory testing for non-performance enhancing recreational drugs[1] and the whereabouts system that requires athletes to set aside at least 60 minutes of their time for random testing seven days a week.[2] This code has since been extensively applied in making a number of legal decisions by the Court of Arbitration for Sport as well as international, regional and national anti-doping bodies across the world. Nevertheless, these two requirements have been regarded as legally controversial. As a matter of fact, their application has generated fierce legal battles pitting athletes, international, regional, and national sporting bodies on one side and WADA on the other.[3]

This paper discusses how these two legally controversial requirements infringe on basic human rights such as the freedom to take part in a trade of their choice. The paper will argue that though the Code is a positive way towards of addressing the escalating issue of doping in sports,[4] the whereabouts system and the testing for non-recreational drugs requirement infringe on their freedom to take part in a trade of their choice.

1. The Testing for Recreational Drugs

In January 2004, WADA increased the number of substances contained in the Prohibited List of the World’s Anti-doping Code. The revised Code included among other substances, non-performance enhancing drugs such as cannabinoids, glucocorticosteroids, alcohol, stimulants, narcotics, and beta-blockers.[5] Specifically, Article 4.3 of the Code provides what is evidently, a broad criteria governing the inclusion of prohibited substances and methods in the Prohibited List. Arguably, this Article justifies the notion that the line between performance enhancing and non-performance drugs is blurred as a result of the high place that drugs have come to occupy in the contemporary society. As a matter of fact, Houlihan in his earlier work argues that drafters of anti-doping policies rely heavily on opinion gathered from contemporary medical practitioners who are convinced that the modern man has moved from over-reliance on magic to over-reliance on medicine.[6] Precisely, the Article (4.3) stipulates that:

4.3.1. A substance or method shall be considered for inclusion on the Prohibited List if WADA determines that the substance or method meets any two of the following three criteria:

4.3.1.1. Medical or other scientific evidence, pharmacological effect or experience that the substance or method has the potential to enhance or enhances sport performance;

4.3.1.2. Medical or other scientific evidence, pharmacological effect, or experience that the Use of the substance or method represents an actual or potential health risk to the Athlete;

4.3.1.3. WADA’s determination that the use of the substance or method violates the spirit of sport described in the Introduction [section of] … the Code.

From a broad legal perspective, it is arguable that the spirit and in extension, the letter of the Code upholds the high standards that underlie the beauty of sports. This is in line with the notion that sports should enhance the “celebration of the human spirit, body and mind.”[7] According to Fridman, Davies and Amos, this has to do with the core ethos of “fair play and honesty; health; excellence in performance; character and education; dedication and commitment; respect for rules, laws, self and other participants.”[8] To this end, it is clear that WADA and like-minded sporting bodies are of the view that recreational drugs dent the spirit of sports as they have a negative impact on an athletes’ health.

1. The Whereabouts System

The whereabouts system was included in the revised World’s Anti-doping Code released in 2009. This requirement demands that athletes should set aside at least 60 minutes of their time for testing in a seven-day week. Throughout the year, athletes are expected to communicate their whereabouts as testing officials can visit at any time of the year to conduct tests. To enhance compliance, the policy clarifies that athletes who fail to turn up for three abrupt tests will be considered as guilty of anti-doping rule violations. Precisely, Article 2 of the Code partly stipulates that anti-doping rule violations include:[9]

2.3 Refusing or failing without compelling justification to submit to Sample collection after notification as authorized in applicable anti-doping rules, or otherwise evading sample collection.

2.4 Violation of applicable requirements regarding Athlete availability for Out-of-Competition Testing, including failure to file required whereabouts information and missed tests which are declared based on rules which comply with the International Standard for Testing. Any combination of three missed tests and/or filing failures within an eighteen-month period as determined by Anti-Doping Organizations with jurisdiction over the Athlete shall constitute an anti-doping rule violation.

The idea behind the whereabouts policy was the escalating cases of doping where athletes secretly consume prohibited substances when they are out of competition and avoid them during competition.[10] Proponents of the system believe it is the best way for testing authorities to easily locate athletes who may be engaged in drugs. Specifically, the sporting community felt that in-competition testing is not enough to curb doping as some drugs are hard to detect especially when taken during holidays. As a matter of fact, athletes in collaboration with their trainers have been noted to engage in “systematic” doping where certain performance enhancing drugs are consumed in concealed phases when testing is unlikely.[11] It was therefore reasoned that testing athletes when they are out of competition at a time when they least expect to be tested would reduce cases of doping by a large margin. Specifically, the accompanying sanction of a minimum of one year and a maximum of two years is seen as deterrence to athletes who may be tempted to cheat system as may be determined by the nature of athlete’s violation.[12]

III. The Legal and Ethical Essence of the Two Requirements

Historically, sporting organizations were concerned about the escalating cases of performance enhancing drugs in sports. This prompted bodies such as Federation of International Federation Associations (FIFA), International Olympics Committee (IOC) and the International Amateur Athletics Federation (IAAF) to prohibit athletes from using certain drugs scientifically believed to have a positive impact on performance.[13]

However, it was soon realized that the line between performance enhancing drugs and recreational drugs was very thin. Fridman et al argue that this was because the use of performance enhancing drugs among elite athletes taking part in major sporting competitions such as Olympics, near elite athletes aspiring to take part in major sporting competitions, and participants in sport-related activities such as health fitness overlapped with recreational drug use.[14] Consequently, the use of recreational drugs such as cocaine, alcohol and marijuana during competitions was banned, though informally.

Fridman et al link this situation to the fact that “we are an increasingly drug obsessed society where pharmaceutical solutions are sought not simply for medical complaints, but also for situations and activities that are normal part of social life.”[15] For instance, the average individual will today use drugs in solving non-medical conditions such as jet-lag, excessive weight, and birth control. Consequently, it is has become very difficult to expect athletes to voluntarily shun drugs (whether recreational or otherwise) when the society they live in has embraced the same drugs as the sole solution of choice even to non-medical conditions.[16]

Arguably, it is based on this evidence that in 2004 WADA banned the use of recreational drugs among athletes. When determining the nature of drugs and methods to put in the Prohibited List, WADA and other stakeholders went beyond the ability of a drug or a method to enhance performance – they were guided by the core pillars of the spirit of sport which are ethics, fair play and honesty, health, excellence in performance, character and education, fun and joy, teamwork, dedication and commitment, respect for rules and laws, respect for self and other participants, courage, and community and solidarity.[17]

This was in tandem with the mandate granted to WADA. As the preamble of the World’s Ant-Doping Code reads, WADA is mandated to prevent athletes from cheating, protect their health and most importantly, to preserve the good image of sports.[18] This provision justifies the decision by the organization to impose tests on recreational drugs. In any case Fridman et al clarify that recreational drugs have been on the radar of the anti-doping policy given that other drugs considered to be performance enhancing have been in use outside sports setting as recreational drugs.[19]

To ensure that the testing for recreational and performance enhancing drugs are carried out perfectly, WADA introduced the whereabouts system in 2009. Historically, the whereabouts system dates back to late 1990s. Specifically, the IAAF implemented this policy beginning from 1997 as part of its broad attempts to curb the runaway doping issue among elite athletes taking part in major sporting competitions.

1. How the Two Requirements Infringe of Basic Human Rights

This section will argue that the two legally controversial requirements infringe on athletes privacy and freedom to take part in a sport of choice in two ways. These ways are the inconsistent application of the Code across sporting disciplines and bodies and the inconsistencies in the length of ban slapped on athletes who test positive for drugs. These arguments will be based on the core values of equality and fair play as stipulated in the Code.[20]

According to Buti,[21] many problems experienced when implementing anti-doping laws emanates from procedural issues. In most cases, athletes’ arguments are based on faulty collection, security, privacy, and scientific procedures involved in the testing for prohibited drugs. Due to differences in legal systems as well as proficiency in scientific testing, arguments may be raised on the validity of tests carried out in foreign lands. For example, according to a ruling made by the Australian High Court, most challenges to the implementation of ant-doping laws involve the application of the rule of natural justice.[22] This scenario was witnessed in Diane Modahl, a British 800-metre runner who was subsequently exonerated from her four-year ban after her lawyers found flaws in the testing procedures.[23] Similarly, the ban on the use of recreational drugs is not applied within the same legal procedures in all jurisdictions. For example, the IRB applied a two-year ban on Jayson Keyter,[24] a former United States Rugby Union Star while an EPL player, Shaun Newton received only a seven-month suspension that also allowed him to train, get his earnings, and access rehabilitation yet Keyter could not even train with his club.[25] Clearly, the application of the Code denied Keyter the right to make a living as professional rugby player.

Many stakeholders agree that it is a good thing to make laws that discourage athletes from engaging in performance enhancing drugs. This almost unanimous position is advised by the immense growth witnessed in the performance enhancing drugs markets across the world.[26] However, how the Code is applied across the board has left many stakeholders divided. For example, Joseph Blatter, the FIFA President, has expressed his dissatisfaction in the whereabouts system by terming it prejudicial and intrusive to athletes’ privacy and rights to engaging in recreational activities when not taking part in active competitions.[27] Like other international sports bodies, FIFA believes that this policy holds athletes guilty of doping unless they regularly make themselves available for both out of competition and during competition testing.[28]

From a regional standpoint, it is arguable that the application of the whereabouts requirement undermines the principle of equality, a core pillar of the spirit of sports.[29] For instance, athletes from western countries can easily update their whereabouts through the use of the internet and other modern forms of communication however this is not possible for athletes from developing countries that lack a good coverage of the modern forms of communication. For example, an athlete from a remote part of Kenya’s Great R.............