How athletes’ rights can be better protected when it comes to retroactive Therapeutic Use Exemptions

Abstract

Therapeutic Use Exemptions (‘TUEs’) provide athletes a route to take prohibited substances for medically supported therapeutic reasons without violating anti-doping rules. They were instituted for the purpose of protecting an athlete’s right to medical care; however, the current retroactive TUE policy under the World Anti-Doping Program fails to uphold this right. In order to obtain a retroactive TUE, athletes are required to prove not only that they meet the criteria for obtaining a prospective TUE (i.e., their use of a prohibited substance or method is medically necessary and will not enhance their performance above a normal state of health) but also that their circumstances fall into one of four ‘exceptions’. The ‘fairness provision’—the last of the four exceptions—is the ‘catch-all’ provision that permits athletes to receive a retroactive TUE only if both the World Anti-Doping Agency (‘WADA’) and the relevant Anti-Doping Organization agree that fairness requires the grant of a retroactive TUE. Since its inception, this ‘fairness provision’ has been narrowly interpreted by TUE Committees, thus preventing athletes from avoiding anti-doping rule violations even in instances where they have met the test to obtain a prospective TUE. The Ultimate Fighting Championship’s (‘UFC’) TUE Policy, in contrast to WADA’s policy, more broadly permits athletes to obtain retroactive TUEs, in the end helping them avoid getting caught up in the anti-doping system. As the fourth edition of the WADA Code will be approved in the next year, we believe WADA stakeholders should consider a broader and more equitable use of the ‘fairness’ provision or adapt its policy to better protect all athletes’ right to medical care.