2021 CODE REVIEW

HISTORICAL BACKGROUND

The Code is the fundamental and universal document upon which the World Anti-Doping Program is based. Its purpose is to advance the anti-doping effort through universal harmonization of core anti-doping elements. It is intended to be specific enough to achieve complete harmonization on issues where uniformity is required, yet general enough in other areas to permit flexibility on how agreed-upon anti-doping principles are implemented. The Code has been drafted giving consideration to the principles of proportionality and human rights.

In January 2003, the first Code was approved in Copenhagen, during the Second World Conference on Doping in Sport. At the time, WADA committed to ensuring that the Code would be a living document, subject to periodic review. In keeping with that commitment, in February 2006 and November 2011, WADA’s Foundation Board initiated Review Processes with amendments being incorporated within the 2009 and 2015 Codes respectively.

TODAY’S 2021 CODE REVIEW PROCESS

On 16 November 2017, WADA’s Foundation Board initiated the 2021 Code Review Process, which will also involve simultaneous review of the International Standards. In short, the Process entails:

• A two-year, three-phase, stakeholder consultation as summarized in the 2021 Code Review Process: Schedule below;
• Circulation of multiple drafts of proposed Code amendments; 
• A final draft Code being presented for consideration and approval at the fifth World Conference on Doping in Sport, to be held in November 2019 in Katowice, Poland; and
• The revised, 2021 Code, entering into effect on 1 January 2021. 

2021 CODE DRAFTING TEAM

As in the past, the 2021 Code Review Process will be driven by a small Code Drafting Team comprised of senior WADA staff and external experts; namely:

• Richard Young (Attorney, main drafter);
• Ulrich Haas (Professor of Law);
• Liz Riley (Attorney);
• Ben Sandford (Attorney and Member of WADA Athlete Committee);
• Tim Ricketts (WADA Director, Standards and Harmonization);
• Julien Sieveking (WADA Director, Legal Affairs); and
• Benjamin Cohen (WADA Director, European Office and International Federation Relations).

The Code Drafting Team’s goal is to solicit stakeholder feedback; and, incorporate the best feedback into successive working drafts of the 2021 Code. In the past, as a result of stakeholder consultation/dialogue, the Team has been successful in building consensus on the best stakeholder feedback. Where there is no consensus, WADA’s Executive Committee, acting as the steering body for the Team, decides which diverging stakeholder views should be incorporated within the successive drafts.

LIMITED SCOPE OF REVIEW

Before addressing the scope of the 2021 Code Review Process, we think that it is important to acknowledge that the current 2015 Code has been very well received by all Stakeholders and is highly regarded as being a fair and effective document to advance the anti-doping effort in sport. The rules that the current Code sets forth have consistently been upheld by the Court of Arbitration for Sport (CAS) and other courts; and, there is broad support for most of its basic principles; for example: the concept of strict liability; the ability to prove doping through evidence without an adverse analytical finding; the four-year sanction for intentional doping; and, recognition that some mitigation of sanctions based on the degree of fault is appropriate.

There are however a few principles, which have been hotly debated twice since the first version of the Code, where consensus has not been reached; for example: whether the potential to enhance performance should be a mandatory criteria for placing a substance on the Prohibited List. Rather than attempt to revisit old ground, it is understandable that WADA’s Foundation Board has directed the Code Drafting Team to limit the scope of the review (as compared to the previous reviews) and focus primarily on new views and arguments, which will make the Code more effective. Of course, as in the past, the Team will carefully consider all stakeholder feedback.

In anticipation of the 2021 Code Review Process, WADA has been compiling a running list of stakeholder feedback related to the Code which has come about through a variety of means. For example, as part of its regulatory oversight responsibility, WADA reviews all legal decisions by Anti-Doping Organizations and CAS in application of the Code (approximately 2,500 / year); and therefore, has a good understanding of the Code provisions that are subject to misinterpretation or misapplication.  Also, WADA has taken due note of suggestions submitted by stakeholders and solicited Code amendment suggestions from its ad-hoc legal committee and other lawyers that are regularly involved in advising clients and arguing cases applying the Code. 

Based on all this, we would draw your attention to the document "2021 World Anti-Doping Code Review: Questions to Discuss and Consider", which summarizes questions that we currently consider should be addressed. It is intended to generate stakeholder feedback; yet, it is not intended as exhaustive nor to exclude other good views as to how the Code could be improved.

TO SUBMIT FEEDBACK 

WADA is soliciting a first round of stakeholder feedback, which must be received by 31 March 2018 in order to be considered for inclusion in the first draft of Code amendments to be tabled at WADA’s 16-17 May 2018 Executive Committee and Foundation Board Meetings.

As in the past, WADA is asking stakeholders to submit their feedback via WADAConnect, the Agency’s online consultation platform. Easy to use, WADAConnect will prompt you to create a user account and input your comments regarding articles or other aspects of the Code that are of particular interest to you.

For more information related to WADAConnect, please refer to the user guide.

You will note that WADAConnect has been structured to categorize feedback by:

1. Specific questions on particular Code articles that have been identified as potentially requiring amendment as outlined in the document "2021 World Anti-Doping Code Review: Questions to Discuss and Consider";
2. Four other subjects that do not fit neatly under specific Code articles namely: Compliance, WADA Governance, Independent Anti-Doping Service Providers and Protection of Whistleblowers; and
3. Other suggestions.

We encourage you to, as much as possible, provide ‘proposed wording’ in your submissions.

It should be noted that, in the interest of transparency, WADA will be publishing all comments on its website at the end of each Phase; and that, stakeholder credentials -- such as user name, organization and organization type -- will be posted along with the comments unless WADA is otherwise notified.

We look forward to receiving your feedback during this first phase; and, in response to the subsequent drafts that will be circulated throughout the 2021 Code Review Process. The high quality of stakeholder feedback that was collected during the 2009 and 2015 Code Review Processes was instrumental to ensuring that the Code is strengthened over time in protection of clean sport.

FOR MORE INFORMATION

We look forward to receiving your feedback. If you have any questions about this process, please contact: code@wada-ama.org