By Andy Brown
Revisions to the World Anti-Doping Code and education of athletes are key in the fight against doping, heard delegates at Tackling Doping in Sport, a two-day summit at rugby’s Twickenham Stadium near London. The 250 delegates from over 30 countries held a lively round-table discussion on contentious areas of the new version of the Code, with suggestions to be submitted to the World Anti-Doping Agency (WADA) as part of its Code Review process this month.
“WADA needs to evolve with the Code”, said Andy Parkinson, Chief Executive of UK Anti-Doping in his opening address. “Should WADA have investigative powers? Yes, but it should investigate uninvited countries and sports that are not correctly implementing the Code. We want WADA to be more than just a service provider.”
The audience was split over whether the standard two-year ban for a first time offence under the 2009 Code should be increased to four years, as proposed in the 2015 Code. John Ruger, Athlete Ombudsman for the US Olympic Committee, highlighted that between 40% and 60% of US doping cases are inadvertent. “Most athletes have made silly mistakes and for those that have not, penalties can be upscaled”, said Athlete Lawyer Howard Jacobs. “A four year default ban places the burden on the athlete to prove they are not an intentional doper rather than on the IF to prove intentional doping”.
Brett Clothier of the Australian Football League showed that while the Australian Crime Commission’s report into doping in Australian sport had highlighted the involvement of organised crime in doping, it has also revealed a number of other issues. These involved the role of anti-ageing parlours in the supply of drugs into the Australian market; and how Australian sport has been using drugs not regulated under the Code, such as drugs not yet tested on humans.
Rob Koehler, Director of Education and Program Development at the World Anti-Doping Agency (WADA), highlighted that while the Code places emphasis on testing, very few anti-doping organisations are carrying out education programmes. He revealed that WADA will attend a May meeting with the International Olympic Committee (IOC), international federations, UNESCO, International Fair Play and more on educating young people about anti-doping. This problem was further highlighted by Stephen Watkins of the Rugby Football Union, who raised significant issues regarding supplement use amongst young rugby union players.
Europe pledges to tackle match-fixing
The European Commission has pledged to ‘all it can’ to help tackle match-fixing and corruption in sport, it announced on 18 March. The Commission is the executive body of the European Union responsible for upholding the treaties between States that allow the European Union to function. The Commission’s pledge follows a 6 February announcement from European police organisation Europol, that 425 match officials, club officials, players and criminals from over 15 countries are suspected of being involved in attempts to fix over 380 professional soccer games. The connected crime operation generated over €8 million in betting profits and involved over €2 million in corrupt payments.
It is understood that bets were arranged by Eastern European gangs betting into illegal Asian gambling syndicates, rather than through regulated European gambling operators. Since then, it appears that match-fixers have targeted lower-profile competitions. The governing body of English soccer, the FA, announced a probe into suspicious betting patterns in the Conference South on 15 March. The Conference South is a soccer division five leagues below England’s Premier League.
As well as funding five educational programmes aimed at raising awareness of match-fixing amongst athletes, the Commission has also asked to be involved in the development of a Council of Europe Convention on the manipulation of sports results by 2014. The Convention would be binding on European Member States and current proposals involve a requirement to make the manipulation of sports results a criminal offence, reporting requirements on match-fixing approaches and the withdrawal of public financial support of sports involved with match-fixing.
Data regulators warn WADA over Code
The Article 29 Working Party, a body representing the European Union’s data protection regulators, has written to the World Anti-Doping Agency (WADA) warning that proposed revisions to the World Anti-Doping Code (the ‘Code’) do not respect European data protection law. ‘In the context of the third and final stage of the public consultation organised by WADA, the Art. 29 WP would like to express a number of observations and concerns with regard to these documents, particularly the latest modifications’, reads a 5 March letter to the World Anti-Doping Agency (WADA). ‘The Art. 29 WP feels that WADA’s proposals do not strike the necessary and proportionate balance between WADA’s aims and the respect for fundamental rights’.
One of the main objections concerns the international transfer of data to countries outside of the EU such as Canada, where WADA is based. The Art. 29 WP states it is ‘out of the question’ that non-EU requests for disclosure of personal information relating to doping are complied with, unless prescribed by the national legislation of the anti-doping body concerned. This could cause serious issues if not resolved.
In a 13-page annex to the letter from its Chairman Jacob Kohnstamm, the Art. 29 WP outlines its objections to the latest revisions to the Code; WADA’s International Standard for the Protection of Privacy and Personal Information (ISPPPI); its use of the Anti-Doping Administration and Management System (ADAMS); its International Standard for Therapeutic Use Exemptions (ISTUE); and its International Standard on Testing (whereabouts).
“The Article 29 Data Protection Working Party is an advisory body established under the EU Data Protection Directive 95/46/EC”, said Dominika Kupczyk, a Privacy Advisor with Field Fisher Waterhouse LLP. “The Group’s opinions are not binding but, as previous cases have shown (e.g. Google Street View), they are highly influential in view of the action the regulators might take”.
Third-party investment in soccer players
Soccer’s international federation (FIFA) and its most powerful confederation (UEFA — European football’s governing body) have been arguing over whether third parties should be able to own an interest in a player. The practice is common in Latin America and involves a third party — often a player agent — owning an interest in a soccer player. Say, for example, an agent owns 50% of a player. If a club wishes to transfer that player, they must buy out the 50% not owned by the agent.
Currently, some countries prohibit the practice, but others do not. Obviously, it is cheaper for clubs to buy players in nations that allow the practice, as they do not have to buy 100% of all players as the agent can retain an interest. This has led to accusations of unfairness, as clubs in countries which allow the practice have more purchasing power than clubs in countries which outlaw it.
UEFA has called for third-party ownership to be banned. “We must protect the integrity of sporting competition,” said its General Secretary Gianni Infantino in UEFA Direct, the body’s official magazine. “What happens when the same corporation or fund owns the economic rights in many players in different teams? There is an obvious risk of conflicts of interest. The danger of manipulation of results is something that UEFA must guard against, now more than ever.”
FIFA rules do not currently prohibit third-party ownership, but its Article 18bis reads ‘No club shall enter into a contract which enables any other party to that contract or any third party to acquire the ability to infl uence in employment and transfer-related matters its independence, its policies or the performance of its teams’. FIFA will debate whether a ban is appropriate at its Executive Committee meeting, 20-21 March.
European Commission investigates ‘illegal State aid’ to three Spanish soccer clubs
It is reported that the European Commission has opened a formal investigation into whether Spanish government authorities have offered illegal State aid to three soccer clubs (Valencia, Hércules and Elche), after it bailed them out of financial difficulty. The European Commission is concerned that the bailouts could constitute illegal State aid under the Treaty on the Functioning of the European Union (TFEU).
Under Article 107 TFEU, illegal state aid is considered ‘any aid granted by a Member State or through State resources…which distorts or threatens to distort competition…insofar as it affects trade between Member States’. If the Commission decides that the bailouts constitute illegal State aid, the clubs could be forced to pay the money back, which could lead to their demise.
Valencia is a regular qualifier for Europe’s top soccer club competition, the UEFA Champions League, where it competes from other clubs from around Europe. If it is found that the club received illegal state aid, it almost seems like a foregone conclusion that this aid would ‘distort competition…between Member States’, as Valencia would have received a financial advantage from that aid.
Andy Brown is the editor of World Sports Law Report: http://www.e-comlaw.com/world-sports-law-report/
