Posted 15/07/2013 by Jaan Murphy
The previous
FlagPost in this series examined countries that have criminalised doping in sport. This FlagPost examines who is bound by the
World Anti-Doping Code (Code),
National Anti-Doping Scheme (NAD) and various
anti-doping policies in Australia. Is it just athletes and coaches, or are other people, such as
sports scientists, also bound?
The legal basis for the enforcement of the Code in Australia
The Code operates as an agreement that is binding on its
signatories, which includes
various Olympic-movement and
non-Olympic movement affiliated international sporting federations as well as
Government-funded organisations such as
ASADA.
In Australia, the Code is adopted and implemented under the
Australian Sports Anti-Doping Act 2006 (Act) and the
Australian Sports Anti-Doping Authority Regulations 2006 (Regulations), which contains the
NAD.
The
NAD requires certain sporting organisations to have in place, maintain and enforce
anti-doping policies and practices that comply with the NAD and the Code. This ensures that Australian sporting organisations must provide
ASADA with assistance in a range of areas including
testing,
results reporting and the
investigation and the prosecution of Anti-Doping Rule Violations (
ADRVs).
In turn, the
anti-doping policy of each sporting organisation applies to all its members, players, officials and employees by virtue of the contractual relationship between the sporting organisation and the relevant person.
Viewed as a whole, the legal basis for the enforcement of the Code rests in a complex and inter-connected network of contractual arrangements between a range of bodies including international sporting federations, national sporting organisations, and individuals associated with sport. The content of those contracts is largely determined by the Code, Act, Regulations and NAD.
This means that the ability to enforce sanctions for the
ADRVs contained in the Code is based on the contractual relationship between an individual and a specific organisation, and the content of its anti-doping policy. This was highlighted in the evidence presented to the
Inquiry into the
Australian Sports Anti-Doping Authority Amendment Bill 2013:
Senator BERNARDI: Why aren't the codes required to punish or penalise people or athletes who are under their regime or imprimatur, whether they be professional or amateur, who do not cooperate with ASADA?
Mr Eccles: …The key issue around that really is that, if we are to rely solely on the contracts that codes have with players, officials, sports scientists and others… It is reliant on everyone who has access to an athlete being part of a contracted arrangement with the club, and that is clearly not the case.
As a result, the enforcement of the Code is reliant upon an individual agreeing to be bound (by virtue of being a player, competitor, employee or member) by the relevant anti-doping policy of an international sporting organisation, national federation, national sporting organisation, or an event organiser which recognises the Code and NAD.
Are sports scientists bound by the NAD?
In addition to binding athletes, players and officials, the NAD states that it applies to ‘all persons who are involved as support persons in a sport with an anti-doping policy and such persons are subject to the NAD scheme’. The NAD states that a ‘support person’ is a person who:
…works with or treats 1 or more athletes… or any other person who works (as a volunteer or otherwise) with, or helps, an athlete subject to the NAD scheme to participate in, or prepare for, sports competition.
This would appear to include sports scientists who are working directly with athletes.
However, even if a person comes with the jurisdiction of the NAD, the enforcement of ADRVs established by the Code is reliant on the person being contractually bound to a sporting organisation’s anti‑doping policy at the time of the alleged ADRV.
Are sports scientists bound by sporting organisations anti-doping policies?
Anti-doping policies are generally regarded as
binding on players, athletes and support personnel by virtue of the contractual relationship between the individual and relevant sporting organisation. One of the requirements imposed by the NAD on sporting organisations is that their anti-doping policies apply to ‘support persons’. An example of such a policy is the
AFL Anti-Doping Code, which states that it applies to ‘officials’, defined as:
a coach, trainer, manager, agent, team staff, official, medical or paramedical personnel, parent or any other Person working with, treating or assisting a Player participating in or preparing for the AFL Competition.
As a result, the AFL Anti-Doping Code would arguably apply to a sports scientist as they could be considered to be a person ‘working with, treating or assisting a player participating in or preparing for the AFL competition’.
The
Leagues Anti-Doping Policy (which applies to the NRL, NSWRL, QRL and CRL and affiliated organisations) and
Basketball Australia Anti-Doping Policy (which applies to the NBL and WNBL) contain similar provisions that apply to Athletes and Athlete Support Personnel (as defined by the policies).
How long are sports scientists bound by an anti-doping policy?
The NAD provides that action may be commenced against an athlete or support person in relation to an alleged breach of the applicable anti-doping rules in force at the time up to eight years after the breach occurred, even if they are no longer a member of, employed by or otherwise ‘associated with’ a sporting organisation. This is replicated in all Code compliant anti-doping policies.
For example, rule 25 of the
AFL Anti-Doping Code allows action to be commenced against players or ‘other persons’ up to eight years after an alleged ADRV.
It therefore appears unlikely that any person involved in an alleged ADRV who was, at the time, contractually bound by a sporting organisation’s anti-doping policy would not be subject to the Code, NAD and relevant anti-doping policy, even if they
no longer have
any contractual relationship with the sporting organisation.
However, until a court provides a ruling concerning the application of the NAD and an anti-doping policy to persons who previously had (but no longer have) a contractual relationship with a relevant sporting organisation, it appears that the issue will remain a contentious one.
In the meantime,
ASADA was provided with investigatory powers in June 2013 which will enable it to compel people to attend interviews and provide documentary evidence, regardless of the existence (or lack of) a contractual relationship between the individual and a sporting organisation. In effect, the amendments to the ASADA Act extend the operation of the NAD (at least in relation to information gathering) beyond individuals and organisations currently bound by the existing system of contractual obligations.