23 February 2016 Is the WADA code well-suited to professional team sports? It may be time to reconsider.

By Tom Johnston, Senior Associate


The recent decision on the "Essendon 34" handed down by the Court of Arbitration for Sport (CAS) has had a devastating impact on the players. 

But should individual players really shoulder the blame for a team practice? 
And is it time to reconsider whether the World Anti-Doping Authority (WADA) code is well-suited to professional team sports?

The Problem

For some time now, WADA has been trying to impose itself on team sports in national sporting leagues around the world.  Those rogue individual athletes have been easy: cyclists, check; sprinters, check; rowers, check.  And sure, there has been the odd group of players from largely amateur teams in national football associations or wrestling teams

But there has not, in recent times, been a prosecution so squarely aimed at a team.  Make no mistake that, despite the fact that WADA pursued the "Essendon 34" as individuals, this was as much a case against the collective maladministration of a team and a club.
Further, it was not just any club in any global sport – it was a high profile club in a peculiar indigenous league played by half a country at the bottom of the world.  It was a victory for WADA that showed the full extent of its reach.  The problem is, the club had no part in the proceedings.  The players were the ones left to solely shoulder the blame.
It may be time to reconsider whether the WADA code is well-suited to professional team sports.

The Law 
There is no question that the decision handed down by the CAS has had a tremendous impact on 34 players, their professional careers and reputations.  Many of these players have been chaperoned from junior footy to seniors and put their trust in the club's administration, including their coach, James Hird.  These young players signed consent forms guaranteeing the legality of the very practice that ultimately brought them undone.  These young players appear to have participated in a program which was supervised, uniform and, to their mind, part and parcel of training at Essendon.

Whilst WADA continues to note that "athletes are responsible for what they take", that adage fails to deal with the complexity of the team environment, including the pressures on young players, and the culpability of those making decisions that affect these vulnerable players.

Those who have played professional sport in a team environment will attest to the pressure to 'fit in' or not rock the boat.  Parents and junior or amateur coaches know all too well how impressionable their kids are – kids wide-eyed at the thought of even speaking to the likes of James Hird, let alone being coached by him.  These people entrust their kids to the clubs and the professionals who run programs in those clubs, on the understanding that their kids will be looked after, mentally and physically, on their path to professional sport.  However, under the WADA code, when there is a breach, the players are solely responsible for their actions. 
Adding to the players' misery, the CAS decided not to provide discounts on account of the “no significant fault or negligence” provision of the code in circumstances ripe for its application. 

The reported evidence suggests the players (or at least some of the players) questioned both Stephen Dank and James Hird on the injections, conducted their own internet searches on Thymosin (which, we must remember is all they were told they were using) and then further questioned the process with more senior officials, which finally brought the 'program' to an end.  

As many stakeholders have noted, not least the AFL Players Association, what more could the players have done?  The CAS labelled their "lack of curiosity…fatal" but that type of reasoning seems to fail to account for any number of extenuating factors, namely the relative power imbalance between those young players and the presumably strong-willed and experienced staff making decisions on their behalf. 

The Alternative
So, is there an alternative to WADA?  In short, yes.  Independent, specific anti-doping codes which are applicable to team sports.  Anti-doping codes which take into account the complexity of the particular sport as well as the nature of the team environment.  Anti-doping codes which have been rigorously prepared with input from the actual stakeholders in the respective sport – the administrators, clubs and players unions.

Some of the world's largest professional team sports have their own independent anti-doping codes, which have been agreed between the sports and their respective player unions and stakeholders.  Currently, the players' unions have no say in the process under WADA.  The players unions are at the coalface of player relations and are best placed to ensure the health and safety of their respective players.  This is certainly the case in Australia, where the players unions are strong, capable and well organised.
It is important to remember that the players do not enter contracts with WADA.  They enter contracts with their clubs and the governing body, in this case the AFL.  But, by virtue of their sport's alignment with the WADA Code, the players are answerable to WADA and its one-size-fits-all approach of strict liability.
And this will remain until the administrators of sporting codes, in concert with players unions (and perhaps, wishfully, elements of Government) sit down and work out whether being aligned with WADA is the best fit for their specific sporting product, their teams and their young players.

That said, there are huge hurdles to anyone ever breaking away from WADA.  Sports rely on significant government funding, which in turn requires that those sports sign up to the WADA code.  The AFL, with its new media rights deal, increased revenue and strong players' union, may be the first to consider standing alone. Don’t hold your breath though.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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