Towards A New Anti-Doping Approach, Part V

In the previous post, I took a brief look at what the World Anti-Doping Agency’s role should be in the fight against doping in sports. At the end, I made what some might take as a radical statement. That is, that WADA should not be the agency charged with enforcing anti-doping rules, and also that they should not be the agency charged with defining and running the judicial system that determines an athlete’s guilt or innocence, along with any punishment that should be meted out, should the athlete be found guilty of a doping offense.

Why is it that WADA shouldn’t play these roles? In part, because a system in which too much power is concentrated in too few hands is often less than just. Separation of powers is a good way to keep the various players within the system in check. Take a look at most democratic forms of government and you’ll likely see that power is separated between several branches. Where power is concentrated in a few hands or in a single branch of the government, you’re likely to find that the system is less representative of the people’s will, and more focused on the ideas and wishes of those who are ruling the people. I believe the same concept holds true for the anti-doping world.

More to the point, WADA’s one-size-fits-all system is not capable of putting doping offenses into the context of a given sport. It’s not designed to do so, and I don’t believe that any amount of modifications to the existing design will be able to make that goal a workable reality. If we’re going to treat doping as a sporting offense which falls into the spectrum of rules violations for a given sport, I believe that it’s incumbent on the people who know the sport best to define what the penalties should be.

This really gets at one of the fundamental questions in regards to doping. If doping is cheating (and I don’t know anyone who doesn’t believe it is), and if it’s just another way of gaining an unfair advantage over one’s competitors or it’s a matter of breaking the rules of the game, how is it that this particular form of cheating is so unique that it requires it’s own separate agency, making its own separate rules, which then leads to disciplinary actions decided outside the usual dispute resolution process for each sport? To me, it doesn’t make sense from a logical point of view. I can find other reasons why the current system exists, but from the point of view of actually addressing the problem of doping from within each sport and addressing doping as cheating or breaking a given sport’s rules, the current setup doesn’t really work.

Just as there may be different drugs that are performance enhancing for someone who competes in archery versus someone who competes as a cyclist, and just as the responsibility should fall on each sport to define their own list of banned substances, so should each sport be defining the punishments for using those banned substances. And the people who should be doing so are the international governing bodies, so that the rules will be the same for every participant, no matter where he or she lives and competes.

Once that is all done, the next question is who should prosecute doping cases, and who should design the judicial system under which these cases are heard. Let’s start with who should prosecute any doping violations. In the system I envision, it would fall on the governing body for the sport in the accused athlete’s home country. Because the rules would be the same (flowing down from the international governing bodies), it shouldn’t matter where the case is heard, at least as far as the punishment that would be handed out. An athlete caught doping in Toronto would be subject to the same penalties as another athlete in the same sport caught doping in Timbuktu. With international competitions, such as the Olympics, the Tour de France, the World Cup and so forth, in order to make it easier for the athlete to mount his or her defense, conducting cases where the athletes live is a reasonable choice. The rules and penalties would be the same everywhere. The international federations make the rules for the sport, and their local affiliates enforce the rules. Makes sense, doesn’t it?

That leaves the matter of who’s designing the judicial system and how that system should function. This is one place where having an international standard makes sense. The rules for a given sport may take into account different factors, but the structure for enforcing those rules should be the same, regardless. This ensures that those who compete in archery, or the biathlon, or cycling, or football (soccer to those of us Stateside) all have the same rights of due process.

Currently, it’s WADA that designed the rules for trying doping cases. I believe, however, that the proper venue for creating the rules and procedures should be centralized elsewhere, to ensure separation of power. At the moment, the logical existing structure seems to be the Court of Arbitration for Sport. I have some misgivings about using an arbitration model as the method of justice for doping offenses, but the CAS is the current body that settles other types of sporting disputes involving rules, contracts, and so forth. They have some experience here.

As for what kind of structure, I believe that it needs to a bit different than the way it’s currently run. I agree with what Mike Straubel said in an interview here and in a paper he published in a law review some time back. The structure should be such that there is a central, superior body, much like the Supreme Court, which has the final say and which settles contradictory rulings from the lower bodies.

Part and parcel of that structure would be a set of full-time, permanent judges/arbitrators who would only serve in that role. Under the current system, we have individuals whose roles shift from case to case. And because the pool of arbitrators is limited, it can occur that a prosecutor like Richard Young may on a different occasion be an arbitrator serving with some of the very people who will decide the case he’s currently prosecuting. And the vice-a can be versa, as the saying goes. It may be that those who are judging a case today may be prosecuting one that Young or some of the others panelists are judging tomorrow.

It’s a too cozy relationship that, while there may be no wrongdoing going on, presents some natural conflicts of interest. The system should not be polluted by such potential conflicts, however. So those who prosecute or defend doping cases should not be those who, on a different day, may be judging others.

In the system that I envision, there would be at least two, and probably three levels of “court.” There would be those who serve in a national or regional capacity, those who serve on a more continental (as in European-wide, North/Central American, South American, African, Asian, and Australian/Oceanian) capacity.

And then, there would be the final authority, the Supreme Court of Sport (or whatever you want to call it), which would have the last word, and whose judgments would take precedence over the rulings of the lower courts. That’s the final point I’ll make about the system that should emerge — at least today, anyway.

Precedence. In theory, no national-level or CAS panel is bound by the precedents and rulings of other panels. In practice, some decisions (like the Quigley decision) are cited as a precedent for how other cases are determined. We need to be realistic. Whether precedents exist in an official sense, they exist in a practical sense. So the system should be set up to recognize that, and that’s a reason why there should be one central panel, made up the same members for all decisions, whose rulings set precedents over all other panels.

The system needs to be predictable, as Mike Straubel told me. By establishing precedence within the process, greater predictability exists for everyone on all sides of a case.

Now, there’s still a number of questions to be dealt with, including how to deal with more organized doping efforts. Up to now, I’ve been looking primarily at the problem from the perspective of individual cases. But, as we’ve seen with the Festina affair in cycling, and with a number of other scandals and stories, doping is not confined to individuals. What should be done with more organized cases, where an entire team or organization has an overall doping program for some, or all, of their athletes? That’s going to be the topic of the next post.