On the Efficacy of WADAs Whereabouts Policy: Between Filing Failures and Missed Tests

This study explores a controversial aspect of the new World Anti Doping Agency Code, which requires athletes in registered testing pools to submit accurate data concerning their whereabouts for one hour every day, three months in advance, to allow effective year round testing. In particular, the policy is designed to heighten the effectiveness of out-of-competition testing and close the loophole on athletes who have sought to use remote locations to avoid doping control officers. If an athlete misses three tests or records three filing failures they are deemed to have committed a doping offence, leading to a ban of up to two years. We present data from 20 National Anti Doping Organizations and 1 International Federation (cycling) regarding similar data. They reveal substantial variations in filing failures across organizations. We argue that the fairness of the system, however, is potentially vulnerable to variable interpretations of compliance, and to inaccurate and non-transparent administration regarding filing failures and missed tests. We conclude that there is a need for greater communication between anti-doping organizations and harmonization of interpretation and compliance of the rules.

Key  Words: Anti-Doping,  whereabouts,  out  of  competition  testing,  fairness  in sports.

Diese Studie untersucht einen umstrittenen Aspekt des neuen World Anti-Doping Agency Codes, der von Sportlern in eingetragenen Testpools jeweils erfordert, genaue Daten ihres Aufenthaltsortes, drei Monate im Voraus, für eine Stunde pro Tag  bereitzustellen.  Ziel  ist  es,  ganzjährig  wirksame  Tests  durchzuführen.  Insbesondere  ist  der  Grundsatz  dafür  entworfen,  die  Wirksamkeit  von  nicht  wettkampfmäßigen Tests zu erhöhen und die Lücke bei Athleten zu schließen, die versucht haben, entfernte Standorte zu nutzen um Dopingkontrolleure zu umgehen. Wenn  ein  Sportler  drei  Tests  verpasst  oder  drei  "missed  tests"  verzeichnet  werden, wird dies als ein Dopingvergehen angesehen, welches zu einem Verbot von bis zu zwei Jahren führt. In der Untersuchung werden Daten aus 20 nationalen Anti-Doping-Organisationen  auf  und  einem  internationalen  Verband  bezüglich ähnlicher Daten angeführt. Die Daten zeigen beträchtliche Unterschiede bei den Ausfallanmeldungen in den Organisationen. Es wird angenommen, dass die Gerechtigkeit des Systems, potenziell anfällig für unterschiedliche Interpretationen der Einhaltung und zu ungenauer und undurchsichtiger Handhabung in Bezug auf  Ausfallmeldungen  und  verpassten  Test  führt.  Darau  lässt  sich  folgern,  dass eine bessere Kommunikation zwischen den Anti-Doping-Organisationen und der Koordination der Auslegung und Einhaltung der Regeln notwendig ist.

Schlüsselwörter: Anti-Doping, Aufenthaltsort, Dopingtest außerhalb des Wettkampfs, Fairness im Sport.

During  the  May  2010  WADA  Foundation  Board  meeting  an  interesting problem was raised by the Belgium Minister of Sport regarding  the  punishment  of  two  Belgium  tennis  players  who  recorded three failures to file correct whereabouts information, which is obligatory under WADAs new 2009 Code (WADC). He said that no other athletes are punished because of filing failures. Based upon this supposition the athletes went to Civil Court to protest against an alleged violation of their rights to privacy. The response of the general public was a strong one: in one day alone more than 500 e-mails and letters were sent to the Belgian Minister of sport.
What is the background to this apparent controversy? The revised International Standards for Testing (IST) came into effect on January 1, 2009 along with the revised WADC (1). Two major changes in relation to Whereabouts information and missed tests were introduced: (i) the requirement for top-level athletes included in the Registered Testing Pool (RTP) of either their International Federation (IF) or National Anti Doping Organisation (NADO) to specify 1 hour each day (between 6a.m. - 11p.m.) during which they must be available at a  specified  location  for  testing;  and  (ii)  the  harmonization  of  antidoping rule violations in relation to Whereabouts and missed tests, and subsequent sanctions. Any combination of 3 missed tests (either NADO or IF) and/or failures to provide accurate Whereabouts information within an 18-month period could now bring about disciplinary proceedings by the Anti Doping organization (ADO) with jurisdiction over the athlete. Sanctions now range between 1 and 2 years depending on the particular circumstances of the case. Previously sanctions were at the discretion of ADOs, who worked within a suggested range of between 3 months and 2 years.
Critics  of  the  new  rules  immediately came  from  several  high  profile  professional athletes and players, as well as FIFA medical committee  chairman  Dr.  Michel  D'Hooghe, who  complained  that  the  system  was  both impractical and/or an invasion of an athletes’ right  privacy.  D'Hooghe  who  called  the  new rules  an  "inquisition",  while  UEFA  President Michel Platini railed against the players being available  365  days  a  year  for  testing  (2).  In Belgium,  65  athletes  have  started  court  proceedings  against  the  system,  citing  Article  8 of the European Convention on Human Rights (EHCR).  In  response,  the  World  Anti  Doping Agency  (WADA)  was  prompted  to  observe that it had taken enough legal advice to make sure the rules fell within the provisions of the EHCR (3).
At November 2009 the International Tennis  Federation  announced  that  two  Belgian players, Yanina Wickmayer and Xavier Malisse,  had  committed  an  Anti-Doping  Rule  Violation.  The  Vlaams  Doping  Tribunal  (VDT) ruled that they violated Article 2.4 of the 2009 WADC  (Athlete  Availability  for  Out-of-Competition  Testing  having  three  times  failed  to submit  accurate  information  in  an  18-month period.  As  a  member  of  the  Flanders  (Belgium) Registered Testing Pool (RTP), they were required  to  provide  accurate  Whereabouts  in accordance with the mandatory requirements of WADC. A suspension of 1 year was recommended,  commencing  on  5.11.2009.  National Anti-Doping Organisation Flanders, on whose behalf VDT heard the case, is a signatory to the WADA Code, and in accordance with Article Q.1 of the Tennis AntiDoping Programme, the ITF recognized the decision of VDT, and took steps to enforce it (4, 5).
Nevertheless,  only  a  month  later  the  ITF  lifted  the  bans  saying: Following the appeal by Belgian tennis players Xavier Malisse and Yanina Wickmayer against the suspensions imposed on them by  the  Doping  Tribunal  of  the  Flemish  National  Anti-Doping  Organization (NADO Flanders) for the commission of three Whereabouts failures in an eighteen-month period, a Belgian civil court has ordered NADO Flanders that the suspensions be lifted pending further  appeal.  As  a  signatory  to  the  WADA  Code,  the  ITF  is  required (under article 15.4 of the Code) to give wider recognition to decisions  within  the  authority  of  other  signatories.  NADO  Flanders is also a signatory to the Code, and accordingly the ITF has removed both Mr. Malisse and Ms. Wickmayer from the list of suspended players, and both are eligible to participate with immediate effect (6).
Given that their actions are contrary to WADC the question is raised as to why such an intervention (via a national civil court) should  be  sought  and  what  political  implications  arise  thereby. Given that so many elite athletes and their medical and scientific entourage are now bound by WADC, this about turn raises a range of ethical and legal issues concerning compliance, fairness, governance, and transparency. The present study is limited to an attempt to explore the state of play regarding the whereabouts policy, with particular reference to filing failures and missed tests.

To establish whether this challenge to WADAs Whereabouts policy is based on idiosyncracies or structural problems we surveyed a  range  of  NADOs  to  see  whether  there  were  other  bans  arising from filing failures. At the time of sending out questionnaires there were 54 NADOs. A simple questionnaire was distributed to heads of international communication of 54 NADOs and 17 International Federations  (IFs)  under  the  Association  of  National  Anti  Doping Organizations  data  sharing  arrangement,  with  five  questions  requesting data on the amount of filing failures, missed tests, as well as number of the athletes in RTP.
Some  words  of  explanation  are  required  before  the  data  are discussed. Despite the presence of a data sharing agreement between  ADOs,  the  process  of  collecting  data  from  different  ADOs was not straightforward. Nevertheless, the majority of the sample replied in few days. It also proved difficult to secure responses to all the questions raised. This point is discussed in detail below. It is notable that the Armenian, Austrian, Croatian, Cypriot, Estonian,  Japanese,  Latvian,  Polish,  and  Romanian  ADOs  reported  that no athlete had 3 or 2 filing failures given that they had a combined RTP of 1003 athletes. Among these it is noted that the Polish return was a 0 for all categories. The German ADO, with the highest national RTP in the table (631) registered a total of 22 such failures. Moreover, the German return for athletes with one filing failure (266) was approximately equal to the sum of all other (19) countries of the  sample  who  returned  data  for  the  same  (277).  This  may  lead the naïve to think that administrative tardiness was a national elite athletic trait.
Other notable data points are that among the second largest recorded testing pool (n=370) the Japanese ADO record a very low one failure datum (n=3.78%) while the Germans were the largest (42.16%). That the absence of missed tests among is distributed among  smaller  nations  (Armenia,  Croatia,  Cyprus,  Korea,  Latvia, Poland, and Romania) is also noteworthy. Two exceptions to this norm are Japan (RTP=370) and Italy (no RTP data supplied) who also register no missed tests

20 NADOs and 1IF responded. Of the 20, 17 NADOs completed all questions. Data from 4 NADOs were incomplete (marked with asterisk*). All data returned, including incomplete returns, are included in the table 1 below.

Some  words  of  explanation  are  required  before  the  data  are discussed. Despite the presence of a data sharing agreement between  ADOs,  the  process  of  collecting  data  from  different  ADOs was not straightforward. Nevertheless, the majority of the sample replied in few days. It also proved difficult to secure responses to all the questions raised. This point is discussed in detail below. It is notable that the Armenian, Austrian, Croatian, Cypriot, Estonian,  Japanese,  Latvian,  Polish,  and  Romanian  ADOs  reported  that no athlete had 3 or 2 filing failures given that they had a combined RTP of 1003 athletes. Among these it is noted that the Polish return was a 0 for all categories. The German ADO, with the highest national RTP in the table (631) registered a total of 22 such failures. Moreover, the German return for athletes with one filing failure (266) was approximately equal to the sum of all other (19) countries of the  sample  who  returned  data  for  the  same  (277).  This  may  lead the naïve to think that administrative tardiness was a national elite athletic trait.
Other notable data points are that among the second largest recorded testing pool (n=370) the Japanese ADO record a very low one failure datum (n=3.78%) while the Germans were the largest (42.16%). That the absence of missed tests among is distributed among  smaller  nations  (Armenia,  Croatia,  Cyprus,  Korea,  Latvia, Poland, and Romania) is also noteworthy. Two exceptions to this norm are Japan (RTP=370) and Italy (no RTP data supplied) who also register no missed tests.

First, it even this small survey reveals wide variations among the size of the RTP of different countries. Secondly, complex statistics are not necessary to see that smaller countries with smaller RTPs have a tendency to report little or no filing failures or missed tests. This may prompt questions as to the volume of data captured by the smaller NADOs and the volume of testing controls. Thirdly, it is clear that UK NADO reported only total filing failure data and responded that UK Data Protection laws prevented the sharing of individual data. How this fact corresponds with the data sharing agreement across anti-doping organizations that exists across global anti doping is not clear.
Data  is  obtainable,  however,  from  other  sources.  Thus,  from Canadian Centre for Ethics in Sport we received information that there were two athletes with 3 filing failures. Likewise, from an Australian Sport Anti Doping Authority (ASADA) media release we ascertained knowledge of the punishment of 1 baseball player due to 3 filing failures.
Italy, like the UK, responded with only total data for filing failures. The UK response noted above is, however, contrary to the Code and the International Standard for Testing (IST). Since Article 11.2.2 of the IST requires the publication of (i) the amount of athletes in the RTP, and (ii) the name(s) of the athlete(s) included in the RTP. The requirement of article 11.2.2 IST should be interpreted to mean that this information will be available to those who legitimately request it in order to ensure appropriate and efficient coordination of anti-doping activities. Specifically, any other ADO who may be entitled to test the athlete and/or include them in their own RTP may  be  entitled  to  such  information.  Moreover,  IF/NADO’s  must publish the list of the athletes who meet the criteria and who are thus included in its RTP (Article 2.27.). Clearly some resolution of general legal requirements on data holders and sports anti-doping governance requirements is necessary.
A  serious  complication  arises  from  the  fact  that  IFs/NADOs may not share data that might enhance the effectiveness of antidoping policy. So, for example, there may be duplication of testing by both parties. Conversely, a person withdrawn from a testing pool may end up being tested when they should not be. It is necessary to  ask,  then,  what  level  or  form  of  data  must  be  withheld  for  lawful reasons of privacy (and therefore what level or form of data may be shared across IFs/NADOs? Our survey has showed that the problem of filing failures was clearly an issue for Anti-doping organizations, since 15 NADOs out of the sample (72%) have registered 1  filing  failure,  while  9  (45%)  register  two  failures,  with  a  similar number of missed tests (35%) and similar number of NADOs (6) reporting combined filing failure and missed tests (30%). At one level, then, it can be said that the system appears to be working since so many NADOs are reporting missed tests.

WADA data on RTP, filing failures and missed tests
Comparing  our  data  with  the  numbers  announced  by  WADA  at its Foundation Board in May 2010 and revisited in personal communication with a WADA senior manager, some important discrepancies emerge. Moreover, the data presented by WADA in May reflect data collected from NADOs in 2009 whereas our data are from May 2010. It is important to note that our sample covered a period of 17 months whereas the WADA table below covers only the preceding 12 months. The differences in the sample sizes and duration make  complex  comparisons  problematic.  Nevertheless  we  draw out some important points of contrast below (Tab. 2): First, it is difficult to understand how the average testing pool size is 441 as WADA announced, since our analysis has showed that all NADOs except German (631) have a smaller number of athletes in their RTPs. The presence of 3087 USA athletes in the 2009 RTP does not alone explain the difference. Nor is it easy to explain how the data reporting of filing failures (50 or 11.33%) in WADAs survey is to  be  reconciled  with  ours  (30  or  14.92%),  where  a  smaller  sample taken over a longer period produced a higher frequency. Can the German NADO figures have skewed our data to an extent that would have explained the difference? It is of course possible. But this would not explain, however, the discrepancy between WADA data and our survey regarding missed tests (17 or 3.85%) compared to (5 or 2.49%), where WADA data present notably higher values. How these data are related to absent mindedness or evasion is of course a further pressing issue for IFs and NADOs but there is no obvious  way  to  determine  this  on  a  large  scale.  Nor  is  it  obvious how  the  variations  between  NADO  RTPs  are  to  be  interpreted. While beyond the scope of this study it seems an obvious question to raise in light of the data discrepancies.

The issue of which data are more credible is difficult to determine. This difficulty is compounded by the fact that they come from similar sources It is not clear how this is to be explained without further and more precise data being available. However, taken at face value, even an average number of 30 NADO athletes with 1 filing failure and 5 with 1missed test (in our survey) suggests that the problem of compliance is not limited to Belgian athletes. Given that athletes, IFs and Sports Politicians have reacted strongly to the whereabouts system, questions as to the efficacy of its operation are vital to its credibility and justification. In a climate of suspicion and mistrust, questions are always likely to arise about the efficacy of  whereabouts  and  integrity  of  ADOs.  We  believe  that  the  data for RTPs, filing failures and missed tests should be made public on an annual basis, and analyzed and distributed among NADOs without omission. This is important for issues of equity, harmonization and transparency.
Finally, we consider the only data in our survey returned by an IF. UCI returned data with a very large RTP (1040). It is notable that only 6.35% of the RTP have registered one filing failure. The context to this datum is worth dwelling on. Historically, the first athlete who is punished because of 3 filing failures is Danish cyclist, Michael Rasmussen, in the latter stages of the Tour de France. The CAS panel of three lawyers said Rasmussen violated the sport's anti-doping rules by repeatedly trying to avoid testing teams from the Danish Anti-Doping Agency. Following his expulsion, Rasmussen argued successfully that his team knew he was actually in Italy and  France  (7).  His  assertion  was  later  upheld  in  a  Dutch  court of law in Utrecht, where his Team Sponsors were required to pay substantial compensation for wrongful dismissal (8).
That was not, however, the first successful prosecution within professional cycling arising from the whereabouts policy. Spanish Cyclist,  Carlos  Roman  Golbano,  who  challenged  the  legitimacy of  the  Whereabouts  system  since,  he  alleged,  it  was  contrary  to individual privacy rights guaranteed by the Spanish Constitution. The provincial court in Almería, Spain, rejected the appeal by Golbano (9). It is unclear whether this low incidence is a function of the  strong  anti-doping  posture  adopted  by  professional  cycling’s international body and key event organizers; a sea-change in cycling  culture;  or  inconsistencies  across  NADOs.  That  the  cases here arise in the geo-cultural context of north-western Europe is noteworthy in political terms since EU legislation has had broader impacts with respect to sports governance where it has often allowed professional sports, notably football, to be something of an exception (10).

Recent European challenges to Anti Doping governance and other international cases
Recently 65 Belgian athletes decided to challenge the legitimacy of the Whereabouts policy under the European Convention on Human Rights. Eleven months later the two Belgian professional tennis players: Malisse and Wickmayer have been punished for 3 filing failures in successive trimesters. It may be reasonable to surmise that this is not random. Whether this is the product of a more significant – though implicit – response to excessive surveillance or intrusion is unclear. Norwegian and UK studies suggest that some of  their  elite  athletes  see  the  surveillance  regime  as  a  necessary evil (11, 12). Notably these surveys come from countries whose NADOs are thought to be leading best practice. Moreover, data from Denmark and the UK with elite athletes suggest a form of sporting xenophobia  where  athletes  from  other  countries  are  thought  to escape  compliance  to  whereabouts  measures  (13, 14).  According to Belgian political officials, it is the general public that have been concerned  about  the  issue  not  simply  sports  politicians  (15).  If WADA  cannot  secure  public  legitimation  for  their  Whereabouts policy in Europe (where the case is still pending) there will be serious consequences for WADAs global harmonization agenda.
Whether the Belgian case represents a more concerted effort (whether legal, social, or purely athlete-driven) is a moot point, and  one  worthy  of  further  consideration  by  anti  doping  policy makers. Nevertheless, WADA and NADOs may see the challenge of the European athletes as a potential threat to their legitimacy. Indeed, at an international level it may be a symptom of problematic relations between EU (sports) politicians and WADA. Yet, if there is political motivation by EU (sports) politicians antithetical to WADAs global governance aspirations, this raises questions as to the stance of those nation states who have signed the Copenhagen  Declaration,  UNESCO  convention  and  many  other  antidoping policy developments.

It seems reasonable to suppose that acceptance of the new Whereabouts system will become a more widely accepted part of elite sporting  life,  after  initial  skepticism  regarding  its  intrusiveness  and  problems regarding standardization and compliance. Nevertheless, two points  are  worth  highlighting.  First,  nothing  is  likely  to  undermine support for the whereabouts system than the perception that some athletes are being subjected to more stringent interpretations or standards of compliance. Our survey data suggest that there are significant differences in reported data concerning filing failures and missed tests than is widely known and, perhaps, reasonably accepted. These discrepancies  deserve  wider  and  transparent  reporting.  The  skepticism regarding the efficacy of the Whereabouts policy has generated intense communication between WADA, IFs, and sports politicians. In the Belgian case that we have highlighted, it may well be the case that the Whereabouts policy is serving as a foil for larger political and legal disputes. This matter does nothing if not highlight further the need for greater education of athletes, IF/NADO officials, and elected Ministers  with  responsibilities  for  sports.  Moreover,  the  case  highlights  the  need  for  WADA  to  work  more  closely  with  States  parties to press further their harmonization goal. The UK’s Data Protection Act and its apparent tension with WADA data sharing agreements is a specific case in point. This general point holds true despite the fact that more than 130 countries have signed up to the 2009 WADC (16). It also begs the question of what signing up to the Code actually binds States’ parties to and whether variations in compliance and interpretation are leading to a somewhat uneven playing field for athletes and their medical and scientific support teams at an international level.

All  responsible  for  data-collection  are  acknowledged:  Anne  Brown (CCES  –  Canada),  Michael  Mader  (NADA  Austria),  Michael  Petrou the efficacy of WaDas Whereabouts policy  originalia328  Deutsche Zeitschrift für sportmeDiZin  Jahrgang 62, nr. 10 (2011)(CYADA  –  Cyprus),  Minnie  Kim  (KADA  –  Korea),  Una  May  (Irish Sports  Council),  Marco  Steiner  (Antidoping  Switzerland),  Steven Teitler  (Anti-Doping  Authority  Netherlands),  Kyle  Barber  (UK  AntiDoping), Marlene Klein (NADA Germany), Kristina VAVROVA (SADA –  Slovakia),  Francesca  Rossi  (UCI),  Michał  Rynkowski  (Polsh  AntiDoping Agency), Petr Jelínek (Czech Anti-Doping Committee), Kristel Berendsen (Estonian Anti-Doping Agency), Stefania Terenzio (Italian NADO), Chika HIRAI ( JADA – Japan), Areg Hovhannisyan (AntiDoping Service Republican Centre Armenia), Liene Kozlovska (Sports Medicine State Agency of Latvia), Graeme Steel (Drug Free Sport NZ), Damir Erceg (CROADA – Croatia) and Graziela Vajiala (RANAD – Romania). Further thanks to Aled Jones for his advice on the presentation of the data.
McNamee’s contribution was funded by a Grant from the European Union Framework 7 grant. EPOCH: Ethics in public policy making: the case of human enhancement The grant number to the manuscript acknowledgement of the EU project is: 266660.

Dikic is Head of the Anti-Doping Agency of Serbia and Member of CAHAMA. Samardzic Markovic is the Minister of Youth and Sports in Serbia and also Member of the WADA Foundation Board.