First Consultation: Questions to Discuss and Consider
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WADAConnect Page 1 of 263 2021 Code Review - First Consultation: Questions to Discuss and Consider Showing: All (637 Comments) Article 2 - Fraudulent Conduct (29) ITTF SUBMITTED Françoise Dagouret, Anti-Doping Manager (Switzerland) Sport - IF – Summer Olympic Indeed this could be addressed in ADRV Art. 2.5 subject to deletion of "with any part of Doping Control" in the title.The above suggestion could be added as follows:".... providing fraudulent information or documents to an Anti-Doping Organization or during an investigation or a results management process, or intimidating, etc......." World Rugby SUBMITTED David Ho, Anti-Doping Manager - Compliance and Results (Ireland) Sport - IF – Summer Olympic We consider that some amendments are needed to this clause in order to assist with cases where a player or representative may attempt to intentionally mislead a panel. For example lying under oath would be fraudulent conduct. Is there a way to put the onus on the athlete to make sure that the case is not fabricated? We understand this may already fall under tampering however we have proposed the following wording: 2.5 Tampering or Attempted Tampering with any part of Doping Control Conduct which subverts any part of the Doping Control process but which would not otherwise be included in the definition of Prohibited Methods. Tampering shall include, without limitation, intentionally interfering or attempting to interfere with a Doping Control official, providing fraudulent, misleading and/or deceptive information, statements and/or documentation and/or calling an expert or witness who provides fraudulent, misleading and/or deceptive information, statements and/or documentation to an Anti-Doping Organization and/or hearing body and/or intimidating or attempting to intimidate a potential witness. Tampering: Altering for an improper purpose or in an improper way; bringing improper influence to bear; interfering improperly; obstructing, misleading and/or engaging in any fraudulent and/or deceptive conduct. Union Cycliste Internationale SUBMITTED Union Cycliste Internationale Union Cycliste Internationale, Legal Anti- Doping Services (Switzerland) Sport - IF – Summer Olympic Doping control is defined in the Appendix 1 “Definitions” as follows: All steps and processes from test distribution planning through to ultimate disposition of any appeal including all steps and processes in between such as provision of whereabouts information, Sample collection and handling, laboratory analysis, TUEs, results management and hearings. https://connect.wada-ama.org/print-report-toscreen.php?qs=tRrHWJwAbWBhhUMZdF12H... 6/1/2018 WADAConnect Page 2 of 263 Therefore, in the UCI’s view, “doping control” includes the RM process and most probably the investigation phase. The latter could be mentioned in the definition for the sake of clarity. Article 2.5 itself also expressly states that an example of Tampering is “providing fraudulent information to an Anti-Doping Organization” – however WADA could consider widening the scope by not only referring to ADOs. In general the UCI agrees that art. 2.5 could be fine-tuned. With that said, in furtherance of the decisions CAS 2013/A/3080, CAS 2015/0/4128 and UCI ADT Decision, UCI v. Mr. Jure Kocjan, 28 June 2017, not all conduct akin to “lying or submitting fraudulent documents” qualifies as Tampering and this should be distinguished. Conduct that falls within the boundaries of legitimate defense does not qualify as an ADRV as per 2.5 and it is important to take into account the statement of the Panel in CAS 2015/0/4128 that “the CAS jurisprudence displayed reticence when treating an athlete's procedural behaviour as an aggravating behaviour, since the sword of Damocles of an increased sanction in a case where a panel is not prepared to accept the athlete's subrnission would render his or her defence and, thus, access to justice disproportionately difficult”. The UCI understands that on the basis of this jurisprudence it is accepted that tampering occurs where the threshold of legitimate defense is trespassed, such as committing a criminal offence with a view of obstructing justice (by recording a phone call without consent or forgery). As pointed out in the abovementioned decisions, subversive conduct qualifies under 2.5 “only where the administration of justice is put fundamentally in danger by the behavior of the athlete”. Be it in under article 2.5 itself or in its comment, the distinguishing elements or levels to be met to fall within the ambit of Tampering in this sense could be clarified. In any case, to include “lying” in the definition may be a step too far – an athlete is not required to admit to an ADRV and has the right to put the ADO to its proof (see CAS 2013/A/3080) yet any athlete whose explanation is eventually not accepted could been deemed to have “lied” during the process. International Paralympic Committee SUBMITTED Vanessa Webb, Anti-Doping Manager (Germany) Sport - IPC ◾ ◾ Agree that this should be addressed explicitly as a violation. It could be dealt with as part of the definition of “Tampering” and Article 2.5. At least the presumptive 4-year period of ineligibility set out in Article 10.3.1 should apply, if not a more severe consequence. ◾ Note: the current definition of “Doping Control” already includes the results management process so the suggested amendment need not include lying or submitting fraudulent documents during the results management process. Guatemalan Olympic Committee SUBMITTED Gustavo Rehwoldt, Legal Affairs Director (Guatemala) Sport - National Olympic Committee https://connect.wada-ama.org/print-report-toscreen.php?qs=tRrHWJwAbWBhhUMZdF12H... 6/1/2018 WADAConnect Page 3 of 263 In the case of an athlete who tested positive, he argues that since he lives in another place where the notification or preliminary hearing will not be able to attend. Adducing that he does not have money to transport himself and that if he wants the national anti- doping agency he reaches where he is Canadian Olympic Committee SUBMITTED Robert McCormack, CMO (Canada) Sport - National Olympic Committee It is important to also address tampering outside the doping control process, for example, during a hearing or in the TUE process. Australian Government SUBMITTED Dean Ebejer, Drug Analyst (Australia) Sport - Other The application of a maximum four-year sanction encourages some athletes to provide misleading information to delay the anti-doping rule violation process. It is recommended that WADA consider the reintroduction of a clause like the old Article 10.6 to provide an additional sanction for aggravated circumstances. Sport New Zealand SUBMITTED Sam Anderson, Senior Advisor (Legal) (New Zealand) Public Authorities - Government Article 2 We support the suggestion made in WADA’s 2021 World Anti-Doping Code Review: Questions to Discuss and Consider document that fraudulent conduct which does not involve “doping control” is a potential gap that should be addressed in the Code. Council of Europe SUBMITTED Council of Europe, Sport Convention Division (France) Public Authorities - Intergovernmental Organization (ex. UNESCO, Council of Europe, etc.) Article 2.5 – Tampering The Council of Europe has identified at least two issues: a) Tampering is ‘conduct which subverts the Doping Control process’. Although ‘Tampering’ is defined in the Code Glossary, there are a number of areas in which the nature of the Anti-Doping Rule Violation needs to be made clearer. These include introducing some precision as to what ‘subvert’ means. ‘Subverting the Doping Control process’ is a pre-condition for Tampering: is this necessary? One of the issues with this is that an Anti-Doping Organisation has to prove both that a person has behaved in a way that falls within the definition of Tampering, but also that that behaviour ‘subverted’ the process. This is not of itself objectionable: there has to be a connection between the behaviour and the process. But https://connect.wada-ama.org/print-report-toscreen.php?qs=tRrHWJwAbWBhhUMZdF12H... 6/1/2018 WADAConnect Page 4 of 263 some clarity as to whether this is an objective standard (the person did not mean to tamper but that was the effect of the behaviour) or a subjective standard (the person meant to tamper) would be helpful. The definition of Tampering includes (as does Article 2.5) references to ‘fraudulent’ conduct, which carries a high burden of proof. But some aspects of Tampering do not require proof of ‘fraud’ – meaning that there is a disparity in the burden of proof. This is not a simple curiosity: if there is a difference in standard of proof, there is an implicit difference in the seriousness of the violation. Violations involving fraud are more serious than other violations because they involve an intention to deceive: but they all receive the same sanction. b) It would assist if Tampering included an express reference to the bribing or attempted bribing of Doping Control Officials: and some measures that should be applied to Doping Control Officials that are found to have taken bribes. Doping Control Officials are not Athletes or Athlete Support Persons and so cannot be ‘banned’ from sport, but it would assist if some guidance was provided to Anti-Doping Organisations as to what action should be taken, and if a register of such Doping Control Officials was maintained. ONAD - Colombia SUBMITTED Isabel Giraldo Molina, Abogada - En representación de los Abogados ONAD de América del Sur (Colombia) NADO - NADO Comment - Group of South American Lawyers from NADOs:"In relation to the term ”complicity”, it is suggested that the expression should be also understood as a degree of participation in the violations, that is to say: author, accomplices or accessories, without prejudice to the conduct described in the Article 2, paragraph 2.9 of the Code". AEPSAD SUBMITTED AGUSTIN GONZALEZ GONZALEZ, Manager Legal affairs departament (Spain) NADO - NADO It is intended to extend the scope of the ‘fraudulent behaviour’ in an Anti-Doping Organization, reflected in article 2.6, beyond doping tests, in which such behaviour is already classified in article 2.5.