Where is the Anti-Doping Process Failing Us? Fix the Code, Not the Court.

Though a small minority have fallen on the side of the Brazilians in their now-infamous doping scandal, a majority (or at least a very vocal crowd) feel that they were let off too easy.

This harkens back to what happened after Albert Subirats’ year-long suspension was announced for three failed whereabouts filings. The vast majority didn’t think that the punishment fit the crime.

Of course, what’s largely ignored in both cases is that the language of the World Anti-Doping Code made the decisions in both cases very clear-cut. Instead, the CAS and FINA are being attacked with barbs of “dangerous precedent,” though if anything this ruling proved that precedent doesn’t matter nearly as much as people want to believe it does in relation to the anti-doping code (a precedent of no precedent?).

The reason for this is that the anti-doping code is much more specific than the rules that govern the court systems that we are all much more familiar with (through personal experience or TV dramas), which is the US constitution, that leaves for a lot of interpretation.

So the big question becomes why are the written rules not accomlishing what we all want to see, which is to eliminate doping in our sport? Why does the rule not recognize the opinion that we all seem to share, which is “athletes take supplements at their own risk, and if they accept all responsibility for what’s in them”?

What the Code Says

(To read the code in full, download it here in PDF format. Section 10.5 is the one that is pertinent to Cielo’s case.)

In Cielo’s case, it clearly offers a suspension of zero time for a case of accidental conatmination in a certain list of banned substances (a list that doesn’t include HGH and stimulants, for example). In Subirats’, the code specifically says that a third-party’s failure to submit their whereabouts filings cannot be used as a defense. Period. No wiggle room.

Theres good reason for the rules to be as specific they are, though in the two hallmark cases we’ve discussed the reasons are quite different.

The reason why precedent is largely ignored in the Cielo doping case is because precedent would allow for countries to game the system. Imagine if one of the world’s seedier, less-transparent federations wanted to take advantage of precedent. They might manufacture evidence of accidental contamination in a meaningless, National Team athlete, and then give them a four-year suspension and pay them off to not appeal to CAS. Then, precedent would dictate that when other countries’ stars test positive for accidental contamination, they also earn a four-year ban. In doping cases, each situation is so vastly different, specific rules are needed.

In Subirats’ case, the elimination of any wiggle-room is clear. They offer up several warnings before a ban is given, and this eliminates a case where an athlete hides-out for a year, but is in collusion with his federation to not submit the whereabouts filings to FINA/WADA. Not that this is what Subirats did, but this third-party issue would be implicated in every failure-to-file, just as “accidental contamination” is implicated in every doping suspension is now.

We want FINA, WADA, and the CAS to follow the rules, because every federation has agreed to those rules. Once you start breaking the specific rules one direction, you can break them the other direction just as easily.

So Where’s the Disconnect?

Back to the issue posed in the title. If what we’ve heard the past few days is an indication of the larger feelings of the swimming population as a whole, then FINA and the CAS are absolutely the wrong people to attack. They are only following the rules as our agents (the national federations) have submitted to them.

I’ve been accused of “missing the bigger picture” and “being a Brazilian apologist” many times, but that couldn’t be further from the truth. I think that Cielo should have been handed a suspension. However, I don’t think the current rules are sufficient for giving him one, and that’s the key. Before everyone realized what the rules said, they all wanted to claim that Cielo needed a suspension because “rules are rules”. Now that they now, rules aren’t mentioned anymore and it’s all about precedent. How can such a change in attitude come so quickly?

The only way for these identical situations to result in different outcomes would be to change the Anti-Doping Code. If the athletes truly feel that they are unhappy with what the results of these situations are, then the Federations need to recognize that and change the codes. Of course, they have to still ask themselves if the changes they make are going to result in the desired outcomes either.

I think that some sort of mandatory suspension for Cielo will, though eliminating it in the whereabouts-filing case will not.

But the hateful rhetoric towards FINA (which really doesn’t make sense, given that they were the ones who appealed the warning) and CAS just don’t make any sense to me. I still have not heard a counterpoint that confirms that the CAS making the wrong decision, other than those where people wanted the CAS to ignore the rules. Rather than ignoring the rules, simply changing them seems to be a multi-fold superior solution.  The complaints should all be directed at one thing: the World Anti-Doping Code. It may be easier when you have a person you can blame (the Code’s feelings won’t be hurt, so why blame it?), but sometimes it just isn’t the case.

The Anti-Doping Code has changed since it’s inception, beginning in 2006 (two years after it was enacted), WADA began a process of revising the code by “Building on the experience gained in the application of the Code.” It was a very transparent process in which they pulled in feedback from anyone who was willing to give it. This is what needs to happen if we want to see real change. Attacking FINA and the CAS doesn’t produce real change. Instead, we need to attack the root of the problem (the rules) rather than simply combating the symptoms (the CAS).