Posted by Editoress on 03/3/03
The UCI's Perspective on the World Anti-Doping Code
The UCI welcomes the World Anti-Doping Code.
The Code is the meeting point of all the world's opinions, know-how and determination in the fight against doping, if not in the Code itself, then at least in the comments on the Code that were made by many stakeholders.
The Code is the result of the hard work of the Code Drafting Team and of all those - known and unknown - who studied the drafts, sent their comments and participated in some way in the drafting process. The UCI congratulates and thanks them all.
Regardless of whether one agrees with its contents, the Code will be the standard for all anti-doping regulations, not only as a norm which should be complied with, but also as a standard of quality.
The Code brings greater harmonisation between the anti-doping regulations of the IOC, the International Federations and other organisations. The rules according to which each of them must work will be basically the same and therefore known to all. The Code also imposes the sharing of information and the need for cooperation.
In doing so, the Code creates more transparency and makes everyone aware that the actions - or inaction - of all are known and monitored. Hopefully, this will be a stimulus for each stakeholder to do as well as all the other stakeholders.
The Code is an important step forward in the fight against doping. More important still, it marks a point of no return. The UCI has recognised this as from the beginning and has been fully dedicated to the Code project. The UCI made a substantial contribution in examining the many drafts, writing comments and making proposals. If the UCI has in any way contributed to the quality of the Code, it will be very proud of that fact.
The UCI's dedication to the Code project also includes some points of concern.
The Code is what it is. Each article reflects an option or a preference that might have been different, for example if the Code had been written in another tradition and language than those of North America, or if there had been explanations as to why the proposal of one stakeholder was accepted while the proposal of another was not. In fact, except for some explanations in the comments included in the Code, only the Code Team knows the answer, as the choices were made by the Code Team and not by the collective stakeholders.
The documentation that WADA sent round underlines that intense consultation with stakeholders took place. While recognizing the opportunity for sending comments, which the UCI did, the UCI feels that it was not consulted so intensively as that. Only after UCI, an International Federation with far from the least experience in the field of anti-doping and which attracts WADA's full attention at other times, made this remark, a meeting between WADA and UCI was organised.
It is the view of the UCI that the comments and demands of the International Federations have not been taken into account to a degree that would be entirely justified by the interests of their athletes.
The main purpose of the Code is harmonisation. The UCI feels that an important aspect of harmonisation has not been achieved to the extent that the Code allows athletes of the same sport to be subject to the rules of national anti-doping organisations all over the world, organisations which, one might add, have no authority for doping control under the Olympic Charter. The rules of these national organisations may vary from country to country, especially in the area of results management and disciplinary procedures. Together with the associations of Summer and Winter Olympic International Federations, the UCI requests that these matters are regulated by the international federations on a worldwide level, in the interest of the legal safety of the athletes.
It is also the view of the UCI that the Code, including the clauses on the clearing-house, does not prevent multiple out-of-competition testing by different organisations on the same athlete in the same period, which is inefficient and causes unnecessary costs and conflicts.
It is well known that the UCI does not agree with a two-year ban that applies regardless of the consequences of the sanction for the athlete. Depending upon the circumstances (that may be in relation with, e.g., professional or amateur status, individual sport or team sport, age, length of career, etc.) a two-year ban is too severe or not strict enough. A two-year ban is too harsh if, for example, it puts a de facto end to an athlete's career. The UCI's view is that all humans make mistakes and that even one who commits a serious offence such as an anti-doping violation must have the opportunity to repent and to be reinstated at a time when he has a chance to compete at a comparable level. The UCI thinks that this is part of civilisation, or at least of the tradition in "old" Europe. It is reflected in criminal law and also in the doping law of some countries, such as France and Belgium, where there is no minimum or a very low one, and a maximum limited to two or three years. These laws have been adopted by democratically-elected parliaments.
The UCI has no wish to be soft on doping, but seeks to be just in sanctions. Justice is also the concern of all those who have spoken out against a uniform two-year ban: the IOC, the Conseil de PrÃƒÂ©vention et de Lutte Contre le Dopage (France's national anti-doping organisation), the Dutch National Olympic Committee, the Advisory Group on Legal Issues of the Council of Europe's Anti-doping Convention, , Judge Mbaye, ASOIF President Denis Oswald,Ã‚Â the late Alexandre de Merode, etc. Their opinions are well-reasoned and have nothing to do with softness.
The UCI has also made elaborate efforts to explain the arguments behind its position. These arguments were never answered by WADA. Mr. Pound said only that there was an "overwhelming majority" in favour of such a two-year ban, but where is that majority and how overwhelming would it be if there were no risk of being qualified as a "softy"? The IOC itself has asked in its comments to consider others factors for reducing the two years period, such as the athlete's age and the sport he or she is participating in. Also the Associations of Summer and Winter Olympic International Federations asked to consider the different effect that sanction have on different athletes. In a further effort to be as objective as possible, the UCI suggested that advice be sought from three high-ranking judges from different continents. This request was also made by the associations of Summer and Winter Olympic International Federations. The UCI learned that WADA consulted three professors of Law in Geneva, whom delivered their opinion only on the 26th of February. The UCI will study it carefully. The UCI is well aware that its positions are not per se right or acceptable for all, but it would have appreciated some more response on this key issue. More importantly, it is clear that the scale of sanctions in the Code will be contrary to legal and even constitutional rights (e.g. in France) that are guaranteed to citizens and that cannot be denied to athletes, even when the Code is in place.
At least at this stage, harmonisation of sanctions does not extend to the legislation in different countries. Governments are not bound by the Code, and it remains an open question how many governments will accept the Code and its sanctions, and when they will do so, if ever.
The sports federations are virtually obliged to accept the Code and apply its sanctions, even though they will have to do so in a legal environment that might sanction them for it.
Furthermore, it is rather odd that the Code will be adopted by the WADA Foundation Board, where governments have half of the votes and will decide on a Code that applies, at least for the first years afterwards, only to the other partner in WADA, namely the sports movement.
Another important consequence of this situation is that the Code will not apply to the athletes who are not under the authority of the sports movement, such as those of the professional leagues like the NBA and NHL in the United States. Those athletes would be subject to the Code only if the public partner of WADA accepts it and imposes it upon them. The result will be patent discrimination between professional athletes that are members of International Federations and athletes of the professional leagues. In the event of a positive test, the former will be sanctioned for two years, the latter not. Yet the Code provides for the possibility that professional league athletes participate in the Olympic Games, World Championships and other major competitions, regardless of the fact that, if they test positive, they will be excluded only from this type of competition and may return to their league competition and continue to earn their fancy incomes with their sport. For their part, the professional athletes of the International Federations will lose their livelihood for two years. In its comments on the second version of the Code on 10 December, 2002, the UCI argued specifically that the professional league athletes should be subject to the Code as the others. That would be fundamentally in line with the principles of harmonisation and fairness that the Code seeks to promote.
The UCI is happy to see that its view is now shared by others who will certainly help to avoid this discrimination.
Even if the UCI is not happy with a number of options that are taken in the Code, the Code is a fundamental tool in the fight against doping. The Code does not have to be perfect in the eyes of everyone for it to be indispensable and, with the governments not being asked to step in before 2006, there will be plenty of time for amendments, if necessary.
Yet, however important the tool might be, even more important is the action for which it must be used. The fact that the Code is there will not by itself reduce doping. Doping is not in the first instance reduced by rules, strong declarations or sanctions on paper, but by action in the fields of prevention and testing.
The UCI had proposed that besides the minimum sanctions, also a minimum number of doping tests be imposed in all sports. The UCI believes that the chance of being caught is more of a deterrent than the threat of sanctions, for example. Even if this option was not accepted in the Code, WADA must take care to ensure that effective doping testing programmes are implemented in all sports and all countries.
WADA will also have to see to it that, now that the authority to test has been spread over different organisations, there is no useless concentration of tests in certain areas and too little testing in others.
The Code is like a new house. It is an architectural masterpiece that is attractive and creates enthusiasm by itself. But only time will tell how practical and comfortable it will be to live in for all stakeholders.
The UCI feels quite confident and will, in the interest of its sport and its athletes, use all opportunities that the Code provides to improve, wherever possible, its own doping and health control system that still stands as a recognised example for many.
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