Most of the news out of last month’s Third World Conference on Doping in Sport in Madrid centered on who would replace outgoing WADA President, Dick Pound. We now know that former Australian Finance Minister John Fahey will take over as the organization’s president on January 1, 2009. While this changing of the guard is important, it is too early to tell what it means for the future landscape of anti-doping enforcement.

As one of several interested attorneys attending the conference as observers, I focused primarily on the less-publicized, but potentially more significant actions, namely the amendments to the World Anti-Doping Code.

Even though the revised Code will not take effect until January 1, 2009, some of the key amendments offer a glimpse into how WADA will approach anti-doping enforcement in the post-Pound era.
With its unfortunate history of high profile doping cases, several amendments are sure to have an impact on our sport of cycling.

Passports – Monitoring Profiles of Individual Athletes
Two revisions to the Code relate directly to UCI’s recently announced “biological passport” program, which proposes to monitor individual cyclists’ blood profiles and track changes that could be the result of doping.

First, the new Code will allow testing for the specific purpose of establishing DNA, genomic and other profiles of individual athletes. Second, these profiles can be used to target specific athletes for testing.

Other factors that could direct target testing include dramatic improvements in performance over short periods of time, and affiliation with coaches who have trained other athletes that have tested positive for doping. Although many would argue that WADA and the UCI always had authority to do these things, the new Code spells out this authority much more clearly.

Aside from the biological passport program, these amendments have significant implications for cycling. Several cyclists in the past have been suspected of doping, despite never having tested positive, because of relationships with controversial trainers. The new WADA code will allow the UCI and anti-doping organizations to target suspected riders for testing based solely on those relationships.

Proof – Tougher Burden on Athletes
The new Code will make it more difficult for cyclists and other athletes to challenge positive test results by arguing, as Floyd Landis did, that the lab did not follow International Standards for Laboratories (ISL).

Under the current Code, if an anti-doping agency introduces enough evidence to prove a violation, the athlete can show that the laboratory did not follow ISL. The burden then shifts back to the anti-doping agency to prove that the ISL violation did not cause the positive test result. Under the new Code, the initial burden remains with the anti-doping agency. However, the athlete will need to show that the lab departed from ISL, and that the departure was serious enough to have caused the positive result. Only then will the burden of proof shift back to the anti-doping agency.

This amendment brings to mind the case Euskatel-Euskadi rider Iñigo Landaluze, who argued that the lab violated ISL because a lab technician was involved in analyzing both the A and B samples. Landaluze won despite not presenting any evidence that this ISL violation actually caused his positive test result. His win came largely because the prosecution – in his case the UCI – was required to show that the error did not cause the result.

Attorneys for the UCI, however, simply stated that the error had no impact, but failed to provide evidence to support that assertion. Reviewing the decision, it’s clear that the Court of Arbitration for Sport felt that because the UCI failed to meet its burden it had no choice but to rule in Landaluze’s favor.

Early drafts of the Code amendments show that WADA was going to increase the burden of proof on the athletes to show a “significant” departure from ISL. The Landaluze case may have prompted WADA to clarify what “significant” means. That will leave the burden on the athlete to show that the departure from procedure is what could have caused the positive result.

Penalties – More Flexibility
At the same time WADA is making some aspects of the Code tougher, it is also increasing flexibility to issue less severe penalties against athletes who admit to doping, athletes who test positive but can show that they did not intend to enhance their performance, and athletes who help authorities uncover other doping offenses.

In some circumstances, an athlete can receive a reprimand, without a suspension, instead of the standard two-year suspension. However, WADA will also be able to issue suspensions of up to four years when certain “aggravating circumstances” – like participating in a larger doping scheme – come into play.

The Message to Athletes
A couple themes stand out when looking at these three aspects of the new Code. First, the revisions that permit monitoring of biological profiles and target testing show that WADA will only get more aggressive, particularly against athletes with suspicious race results or professional relationships. Second, an increased burden of proof on athletes and greater flexibility in imposing sanctions is likely to encourage athletes to come clean and cooperate, while discouraging costly and lengthy litigation.