The big story in the anti-doping world over the last couple of weeks has been the allegations of a systemic failure to comply with the World Anti-Doping Code by the National Anti-Doping Organisation of Spain (CELAD). If you haven’t read about the allegations yet, you can read my summary of them here.

In the aftermath of the allegations, WADA released an initial statement to journalists confirming that CELAD had been non-compliant with the Code and that steps were being taken to resolve the issue. The significant part of the statement for this article reads as follows: “there are a number of outstanding corrective actions that need to be addressed by CELAD as a matter of urgency. Failure to do so will result in a compliance procedure being initiated against it, as per the usual Code compliance process.”

In this article, I’ll take a look at what the “usual Code compliance process” in more depth. What actually is it, how is it enforced, and does it work? Compliance is integral to the coherency of the entire anti-doping system – how WADA respond to national-anti doping organisations (NADOs) and international federations (IFs) that fail to comply with the Code tells us whether the anti-doping system is a level playing field globally.

Non-compliance by NADOs

We know from the most prominent scandal of recent years, that of the Russian Anti-Doping Agency (RUSADA), that non-compliance by NADOs can be a serious threat to clean sport. After the 2014-16 reveal of Russia’s major doping discretions, WADA recognised that the Code lacked the tools to deal with state-sponsored doping. They therefore introduced the International Standard for Code Compliance by Signatories (ISCCS), declaring RUSADA non-compliant and suspending them for four years (later reduced to two by CAS).

The 2021 WADA Code requires anti-doping proceedings to be conducted “in a timely manner”, with the process from anti-doping rule violation notification to first instance hearing taking less than 6 months. This 2021 guideline came as a response to particularly slow progress by some NADOs. For example, the Jamaican anti-doping agency (JADCO) have in the past been criticised for its slow handling of cases – after sprinters Sheron Simpson and Asafa Powell tested positive for banned substances in July 2013, it took until April 2014 for an 18-month ban to be announced for both. A subsequent appeal to the Court of Arbitration for Sport (CAS) reduced the sanction to just 6 months, creating a significant issue whereby the athletes had now been suspended for longer than the final ban. Capacity and resource limitations played a clear role in this delay for JADCO – the organisation’s annual budget from 2015-16 was just £81,000, dwarfed by UK Anti-Doping’s £5.4 million. Hence when looking at non-compliance, we must be careful not to instantly link it to malicious intent – countless NADOs worldwide are under resourced, a problem that must be addressed by WADA and state-level funding.

Checking compliance with the WADA Code

WADA has, in theory, a robust compliance monitoring programme. This programme is made up of four distinct areas, which I will set out below.

Firstly, WADA’s ‘rules review’ monitors the anti-doping rules, regulations and legislation put in place by each of the Code’s signatories to ensure that they are in line with the code.

Secondly, every few years WADA utilises a detailed code compliance questionnaire (CCQ). The CCQ is intended to follow amendments to the Code or significant changes in WADA’s list of International Standards, and has only been used twice so far for this reason. The first CCQ came in 2017 to measure compliance with the 2015 updated Code, whilst the second came in 2022-23 to measure compliance with the 2021 updated Code. Beyond NADOs, the CCQ is also used for Major Event Organisers (e.g. Olympic hosts), so that mistakes can theoretically be fixed prior to the event beginning.

Thirdly, WADA employees and external anti-doping experts conduct regular audits on NADOs and IFs. Audits appear to be the most rigorous of WADA’s four monitoring methods, as they require in-person visits from officials to verify the work of NADOs and IFs. However, the work required for each audit means it is relatively rare for any individual NADO or IF to be audited: 2021, 2022 and 2023 saw 13, 9 and 10 total audits respectively (a total of 21 for NADOs and 11 for IFs over three years, numbers dwarfed by the total of 207 NADOs and 122 IFs that are signatories to the Code).

Fourthly, WADA uses a continuous monitoring programme to complement the CCQ and the audits, recognising that more regular monitoring should take place in some form whilst the organisation lacks the budget to audit any more NADOs and IFs. The continuous monitoring programme is based around monitoring testing activity, results management and TUE management. WADA can issue mandatory information requests to NADOs and IFs over any areas of concern.

Sanctions for non-compliance with the WADA Code

This is the section that really matters. It is all very well WADA having a strong CMP to determine which IFs and NADOs are complying with the Code, but if these organisations cannot be appropriately sanctioned then the system falls apart.

The sanctions available for non-compliance with the WADA Code seem fairly weak compared to the gravity of the crime. The sanctions available are discussed in WADA’s 2021 International Standard for Code Compliance by Signatories (ISCCS). It describes the aim of sanctions as to “motivate full Code Compliance by the Signatory in question, to punish the Signatory’s non-compliance, to deter further non-compliance by the Signatory in question and/or by other Signatories, and to incentivize all Signatories to ensure they achieve and maintain full and timely Code Compliance at all times”. Most significantly, the ISCCS say that: “above all else, the Signatory Consequences imposed should be sufficient to maintain the confidence of Athletes, other stakeholders, and of the public at large, in the commitment of WADA […] to do what is necessary to defend the integrity of sport against the scourge of doping”. The furthest that the ISCCS says that WADA can go in terms of sanctions is the exclusions of a signatory’s athletes from international events (most famously seen in the exclusion of Russian athletes from the 2016 Rio Olympics and further events since then).

Clause 10.2.6 of the ISCCS makes a key contention that I would disagree with regarding neutral athletes. It says: “if it is clear that allowing them to compete in the Event(s) in a neutral capacity (i.e., not as representatives of any country) will not make the Signatory Consequences that have been imposed less effective, or be unfair to their competitors or undermine public confidence in the integrity of the Event(s) (e.g., because the Athletes have been subject to an adequate Testing regime for a sufficient period) or in the commitment of WADA and its stakeholders to do what is necessary to defend the integrity of sport against doping, then such a mechanism may be permitted”. It was this clause that allowed Russian athletes to compete as ‘Authorised Neutral Athletes’ in the 2017 World Athletics Championships and more recent events. It is difficult to see how the inclusion of nineteen Russians in the 2017 Championships, and twenty-nine in the 2019 World Athletics Championships, does not make the sanction “less effective” in some way. Although these athletes had all passed a drug test outside of Russia (as imposed as a requirement by WADA), referring to them as ‘neutral athletes’ does little to hide the fact that the twelve medals won across the two championships were won by athletes from a banned federation.

Clause 10.2.7 says that consequences of non-compliance “should include cessation of the Signatory’s non-compliant Anti-Doping Activities”. The ISCCS states that this should happen to ensure “that there is no gap in the protection offered to clean Athletes”, with no mention made of catching athletes that are cheating!

Thus, the non-compliance sanctions listed by WADA in the ISCCS have the potential to be effective, but do not go far enough. The banning of athletes from a non-compliant state is significantly weakened when plenty are allowed to compete anyway under a different banner, whilst the cessation of non-compliant areas (e.g. testing) does not appear to be especially rigorous or clearly planned.

Checking for compliance with the UNESCO Convention Against Doping in Sport

Whilst the Code is the most commonly referred to document with regards to anti-doping, another area for compliance consideration is the UNESCO Convention Against Doping in Sport (UCADS). The UCADS was introduced in 2005 to ensure that states could be bound by WADA rules alongside athletes, NADOs and IFs (states cannot be bound by the Code as most states cannot be bound by a non-governmental document).

The system of checks for state compliance with the UCADS is built around the Anti-Doping Logic (ADLogic) questionnaire, requiring each state to submit information about anti-doping legislation, policies and practices every two years. The survey aims to recognise good practice whilst also ensuring all states can hit the minimum threshold regardless of their financial or human resources.

Sanctions for non-compliance with the UCADS

Whilst WADA’s sanctions are not great, the system of sanctions for non-compliance with the UCADS can only be described as pathetic, and even this perhaps gives it more credit than it is due. Non-compliant states are ineligible to bid for and host major events, and cannot hold any offices or positions within WADA.

Perhaps most incredibly, states that are deemed non-compliant on the basis of not responding to the ADLogic compliance survey are ineligible to receive funding from the Fund for the Elimination of Doping in Sport. Yes, you’ve read that correctly – states that don’t comply with the UNESCO anti-doping convention cannot receive funding to help fight doping. Good job everyone.

These are extremely weak sanctions for non-compliant states, preventing them from being involved in the anti-doping movement or major events hosting, but not limiting their participation in major sporting events or their relationship with their own state’s NADO.

How can Code and UCADS compliance be improved beyond monitoring?

Based on the above, stronger sanctions for non-compliance is a clear step that could be taken to improve compliance by all involved parties. Such sanctions could include significant fines to financially punish organisations that are not committed to clean sport. WADA could also go much further with the cessation of parts of non-compliant organisations, for example by committing to always hand over testing and investigation to the International Testing Agency (ITA) where a non-compliant NADO or IF has been handling this internally. This would allow the organisation to be run within the bounds of the Code and the UCADS, and would also give a chance for those within the IF or NADO in question to see what is required to improve compliance, hopefully resulting in an improved compliance performance after WADA returns control to the organisation in question. N.B. this assumes that both WADA and the ITA have a level of competence and willingness to support clean sport, which I personally think is true. Those of a ‘WADA is a corrupt conspiracy that has no interest in supporting clean sport whatsoever’ persuasion may wish to ignore the above suggestion.

Beyond stronger sanctions, there are other methods of improving compliance. Commitment to stronger legislation against the manufacture and trafficking of drugs commonly used to dope in sport is one clear way in which states can support NADOs and IFs. Furthermore, a commitment to more financial support for NADOs and IFs in anti-doping is key to improving compliance. Finally, domestic lobbying to improve the link between state governments, NADOs and IFs in terms of testing, intelligence and information sharing will allow compliance with both the WADA Code and the UCADS to become much more consistent. Anti-doping resources are relatively hard to come by, with states simultaneously reluctant to commit too much money to their NADO but eager for everybody else to follow the rules. Information sharing between different organisations of suspected doping activity (such as doctors providing banned substances and training locations of athletes who are doping) will improve clean sport outcomes for all involved.

So…what does all this mean for the CELAD case?

WADA has committed to investigating CELAD’s actions, and it seems likely that CELAD will be declared a non-compliant NADO by WADA. On the basis of the points above, this should allow WADA to take over parts of the testing and results management system from CELAD, although it is currently unclear to what extent this will occur. What we do know from WADA’s latest statement is that they have taken three Athlete Biological Passport cases away from CELAD and passed them on to the relevant IFs, highlighting WADA’s level of mistrust in CELAD’s compliance levels. We can expect further public statements from WADA in the coming weeks to confirm CELAD’s compliance status, statements that will hopefully focus on the actions CELAD will take to return to compliance with the Code and improve future performance.

Is the overall outlook on tackling compliance issues at all promising?

The short answer, in my opinion, is yes. Although more cynical/sceptical (delete as appropriate) readers will see WADA lurching from scandal to scandal and say that it can’t possibly be an organisation fit to handle the vast problem of doping in sport, I believe there is no doubt that progress is being made. However, I argue that there are three few key changes that must be made to improve rule compliance and the prospect of clean sport worldwide.

Firstly, the sanctions listed by WADA in the ISCCS for non-compliance with the Code must go further. In particular, the secession of parts of the anti-doping process from non-compliant organisations to WADA or connected bodies must be more structured and consistently enforced, helping to quickly resolve cases of non-compliance.

Secondly, more must be done to encourage states, IFs and NADOs to work together in the pursuit of clean sport. If we are to assume that the vast majority of organisations involved in anti-doping really are committed to clean sport, then each of these organisations must do everything in their power to support each other and lighten the financial and investigative burden taken by individual groups. Doping rarely occurs in isolation – there are often links across different sports and national borders, and a more cohesive anti-doping system would help to clamp down on these issues.

Thirdly and finally, there must be a greater financial commitment made in pursuit of anti-doping, and conversely a rapid withdrawal of financial support for those who are non-compliant. The financial burden of testing, administrative work and investigations is huge, and it is up to both states and private organisations (e.g. event sponsors) to support this. A commitment to clean sport is meaningless without providing NADOs and IFs with the tools to achieve it.

With tougher sanctions for non-compliance, greater collaboration and a larger financial commitment, there is hope for the anti-doping movement. The journey to clean sport is neither short nor easy, but it is achievable.