This Month in Journals: With 2015 WADA Code on Horizon, Compliance with 2009 Code Remains Uneven

The World Anti-Doping Agency (WADA) put their revised Code (which you can read here) into place in 2009, and most of the federations in the world – both national and international – agreed to it. But then what happened?

That’s the question asked in a new paper in the academic journal Sport Management Review. Barrie Houlihan of the Loughborough University in the United Kingdom and the Norwegian School of Sport Sciences in Oslo concludes that adherence and enforcement of the code has been far from perfect worldwide.

“The major problem facing WADA is that implementation is not compliance and that treating simple adherence and formal implementation as evidence of compliance is misleading,” Houlihan writes.

This comes despite the number of federations which signed on – and the speed with which they did so. The UNESCO Code against doping was the fastest-ratified agreement in United Nations history. 123 countries went on to establish National Anti-Doping Organizations (NADO’s). One problem is that not all of them were created equally.

Notable differences in implementation between national federations and international federations include the size and monitoring of a registered testing pool, the rigor in examining applications for therapeutic use exemptions, and how to handle missed tests and whereabouts information.

There are a variety of reasons for this. In some countries, NADO’s simply do not have the monetary or other resources to be effective. In others, they must bow to more powerful partners for whom anti-doping may not be the biggest priority. Politics play a role at the government level, for example during the Cold War power struggles. Anti-doping efforts may be casualties of a government’s desire to prove its superiority.

And what is their incentive for doing better? Houlihan writes that anti-doping efforts are perhaps pursued only to the extent where fandom feels comfortable with sport, and where NADO’s can earn approval. At the moment, the public is not rabidly anti-doping, so there’s no reason for NADO’s to go further. If the public demanded more, then organizations would push harder to comply with those desires.

There’s also considerable variation between international sports federations. For instance, the International Ski Federation (FIS) and the International Biathlon Union (IBU) both govern nordic sports, but have significant differences in how they battle doping. The two federations periodically claim that they are doing better than each other.

At the moment, they are tentatively moving towards “harmonizing” their anti-doping programs so that testing is uniform across the nordic sports, particularly at Olympic Games.

Efforts are also hampered at international events. The Independent Oberver report from the 2012 Tour de France gave anti-doping efforts a passing grade, yet recommended 57 areas of improvement. And yes, cycling is looked down upon as a doping-heavy sport – but they weren’t the only ones who showed a concerning lack of commitment to clean sport. The 2011 Pan-American Games were criticized by Independent Observers for a variety of infractions, and even the widely-supported 2012 London Olympics and Paralympics received substantial criticism.

While the public is not necessarily strongly engaged in doping issues, there is always outcry following positive tests. This means that many event organizers may find incentives to avoid having these positive tests – even if the easiest mode for accomplishing it is, rather than cleaning up sport, to test less than rigorously.

And finally, one ongoing point is the lack of positive tests in many professional sports. Houlihan does not discuss this, but take the National Football League, which has battled WADA for the past several years as it tries to avoid drug testing. Or look at FIBA, the international governing body for basketball. Over the course of four championship events this summer (senior and U-17 championships for men and women), the federation collected 300 samples.

“The scale of the anti-doping programme we had in place in 2014 was bigger than ever before and shows our ever-growing commitment to keep this game as clean as it always has been and hopefully always will be,” FIBA secretary general and International Olympic Committee member Patrick Baumann asserted, according to Inside The Games.

Really? That hasn’t been the case in other pro sports. Major League Baseball periodically has performance-enhancing drug scandals, while a major blowup occurred in Australia this year when several rugby teams were found to be cesspools of doping, sometimes with horse drugs.

This highlights the unevenness of antidoping efforts to fans watching on television or in person. Most sports fans don’t follow just one sport – they follow many. So why is it that track and field has a good reputation, but many doping cases; cycling is universally assumed to be full of dopers, but not everyone is caught; and the NFL has no substantial testing program, so people assume that the athletes are probably using steroids, but it doesn’t seem to be as distasteful?

Part of the issue is in the design of the Code. Among the suggestions of the Code are to ensure that athletes and support personnel adhere to antidoping regulations, and to share information with other organizations in the march towards clean sport. While the Code is legally binding, at the same time the language is somewhat vague and does not lay out “binding obligations”.

Houlihan writes:

“On a spectrum of obligation that runs from unconditional obligation to expected norms the Convention is closer to the weaker end probably best illustrated by the escape clause in Article 39 which states that ‘Any State Party may denounce this Convention’ within six months of giving notice. In terms of ‘precision’ the Convention allows broad areas of discretion and in terms of ‘delegation’ to specified third parties to implement the Convention the text relies more heavily on bargaining and normative pressure than on recourse to the courts. In summary, the Convention creates weak obligations to deliver imprecise objectives through a vague implementation framework.”

There are also few ways to punish countries which do not comply with or enforce the Code. Both UNESCO and WADA investigate this possibility; in 2011, UNESCO concluded based on a self-reporting survey that 20 of 105 countries were non-compliant. WADA has stricter standards, finding that 48 of 203 countries were noncompliant.

But once these findings were published, there wasn’t much to do. WADA in general simply provides more support to allow these countries (like Brazil, Argentina, and Morocco) catch up – but if the political will isn’t there, international help can only go so far. The ongoing weakness of the International Cycling Union (UCI) provides a discouraging example of what happens when a federation ignores a WADA rebuke: nothing.

The future of the Code may be quite different than its present or its past. A 2015 Code is set to roll into place in January. It contains some significant changes, as outlined in a nine-page WADA explainer.

Among other changes, the 2015 Code provides guidance for when to apply longer bans, as a first doping offense only carries a two-year ban under current regulations – which is too short and allows cheaters to return to competition, according to many athletes and proponents of clean sport. There will also be more emphasis on catching support personnel who assist in doping.

Another change is the further encouragement of using non-analytical means to catch dopers. The language seems to predict that more cases will resemble the Lance Armstrong doping saga, for instance spelling out how athletes who provide “Substantial Assistance” in an investigation can receive lesser sentences themselves.

And the statute of limitations on doping cases will be extended from eight to ten years: “Recent events demonstrate that sometimes it takes a long time before sophisticated doping schemes can be uncovered.”

All of these changes will be lauded by followers of the anti-doping movement, but the new Code does not seem to include many changes relating to compliance. Increasing bans from two to four years is great, but if half the organizations are not catching dopers anyway, then it only goes so far.

And indeed, a consensus statement by an ad hoc working group for implementation of the 2015 Code focuses on the rule changes, not the compliance challenges. Rather than talking about resources at NADO’s, for example, the group discusses analytical challenges, sample storage, and athlete biological passports.

So will compliance with the 2015 Code be better than that of the 2009 Code?

Only time will tell.