Time is of the essence for athletes during anti-doping proceedings for a number of reasons. First, a matter of months or years can be career ending from an athlete’s perspective, especially given the relatively short period of time that elite athletes can perform at their peak.Footnote 85 To this end, undue delay in anti-doping proceedings can result in an athlete serving a longer sanction than that ultimately handed down by the panel,Footnote 86 leading to irreparable harm to the athlete’s career. In addition, procedural delays can result in substantive unfairness to the athlete, especially where such delay leads to difficulties in bringing certain types of evidence before the panel. It has, for example, previously been argued that delay in notification to an athlete of an adverse analytical finding may result in the athlete no longer being able to prove the source of the prohibited substance (that is, how the substance entered into their body).Footnote 87 Due to the importance of timeliness, strict time limits have been imposed by the Code and various national regulations, including the NADA Rules. The most recent amendments to the Code in 2021 provide timeliness as a guiding principle. In particular, the ISRM provides that
In the interest of fair and effective sport justice, antidoping rule violations should be prosecuted in a timely manner. … Anti-Doping Organizations should be able to conclude Results Management (including the Hearing Process at first instance) within six (6) months from the notification [of the ADRV to the athlete].Footnote 88
Despite the importance of timeliness in anti-doping disputes, there have been systemic delays in anti-doping disputes in some jurisdictions, including in India. In India, cases required an average of 235.5 days to be resolved from the time of sample collection. 97 percent of cases required more than 3 months to resolve, and 10 percent of cases required more than 1 year to resolve. Even using the new ISRM timeliness mandates as a benchmark, 8.59 percent of Indian cases required more than six months to be resolved from the date of notification of the athlete. In fact, the longest case in India required more than 1000 days to be resolved from the sample collection to the decision by the first instance panel.Footnote 89 There was no explanation provided within the award of this case for the extended delay, including the 1.5-year delay between the notice of the athlete’s B sample to the constitution of the panel. While this case is an outlier, there were 20 cases that required two years or more to resolve from the date of sample collection.
While there does not appear to be a correlation between the number of ADRVs and the time taken to resolve cases, further empirical research would be beneficial to understand why delays were considerably longer in 2011 and 2012 (276 and 290 days respectively) than 2013 and 2014 (204 and 167 days, respectively). The number of and relative experience of arbitrators may intuitively impact the timeliness of dispute resolution as one would logically assume that a larger number of arbitrators can dispose of a higher number of cases and that more experienced arbitrators can resolve complex procedural issues more efficiently. However, researchers have argued that this is not necessarily the case in civil disputes.Footnote 90 Accordingly, it would be valuable to calculate the impact of the number of arbitrators listed during these years, and the relative experience of these arbitrators. In addition, insights into how case management approaches differ between different jurisdictions would be valuable. However, such data is not publicly available. In any event, further capacity building and training of arbitrators about case management and the importance of time limits in anti-doping disputes would be valuable in the Indian context.
Ostensibly, compliance with the 2015 NADA Rules improved significantly when compared to compliance with the time limits under the 2010 NADA Rules. However, the time limits imposed on panels were relaxed significantly under the 2015 version of the rules, to be more consistent with the procedural standards under the Code. Therefore, while compliance did improve, there is no evidence of structural or policy changes in India to incentivize more efficient procedures. To further understand the reasons for non-compliance with the prescribed time limits under the NADA Rules, further primary research could be conducted in the form of surveys or interviews of former arbitrators of the ADDP, or legal counsel involved in hearings during the Data Collection Period.
Consistent with the hypothesis that there is a lack of harmonization in the implementation of anti-doping procedures between developed and developing countries, first instance anti-doping cases take longer to be resolved in India than in Canada and New Zealand. While almost 60 percent of cases took longer than six months to resolve in India from the date of sample collection, in Canada (37.8 percent) and New Zealand (9 percent) far fewer cases required more than six months to reach a final decision on an athlete’s ADRV. There are a number of possible reasons for the extent of the delay in India as opposed to the relatively speedy dispute resolution systems of the other countries. Further empirical research is required to understand what causes these delays in India, as such research could inform positive reform in India’s dispute resolution process.
Strict procedural timelines and compliance
The Code and the regulatory rules of each of the jurisdictions studied emphasize the importance of timeliness in the results management process and the panel hearings. However, compliance with these timelines varies across jurisdictions. Under the applicable rules in New Zealand, the importance of timeliness is at the heart of the dispute resolution process. The Rules of the Sports Tribunal of New Zealand expressly provide for a “just, speedy and inexpensive determination of any proceeding” and further provide that the tribunal has the power to make orders “… as it considers to be consistent with the just, speedy and inexpensive determination of the Proceeding.”Footnote 91 David has noted that the tribunal has generally delivered on their aim to produce reasoned decisions in a timely and cost-effective manner, and the data in this study reflects this.Footnote 92 Conversely, as discussed above, the NADA Rules in India relaxed the previously strict time limits in 2015, presumably due to the high non-compliance in the vast majority of cases under the previous versions of the rules.
Revisions under the 2021 version of the Code have further enshrined these timelines as mandatory procedural guarantees.Footnote 93 However, as commentators have noted, it is important that WADA, the CAS and NADOs properly implement the existing strict timelines to ensure efficiency and fairness in the process.Footnote 94 While sanctions for non-compliance may be one solution, the importance of education and capacity building is critical, especially amongst NADOs in developing countries. Accordingly, the appointment and training of tribunal members are critical in ensuring that the integrity and efficiency of the dispute resolution process are maintained.Footnote 95 It can be argued that better trained and more experienced arbitrators can identify and resolve complex substantive and procedural issues more efficiently.
Local legal culture and delay
It is important to note that while timelines and other procedural safeguards are ostensibly harmonized under the Code, the implementation of such safeguards will inevitably vary given the different cultural, legal, economic and institutional contexts within each jurisdiction.Footnote 96 Compared to New Zealand and Canada, India has a much larger population, and its dispute resolution culture is notorious for its slow litigation procedures, within the context of both civil and criminal law.Footnote 97 Galanter and Krishnan (2004) argued that Indian courts and tribunals are “beset with massive problems of delay, cost, and ineffectiveness”.Footnote 98 As such, the relative delay in proceedings in anti-doping disputes cannot be viewed in isolation. Scholars have argued that a cultural paradigm shift is required to ensure speedy dispute resolution in India,Footnote 99 and this same argument can be extended to anti-doping procedures. However, regardless of local legal culture, WADA’s quest for a harmonized approach to anti-doping requires it (as well as the respective NADOs) to promote timeliness, justice and procedural fairness irrespective of jurisdiction.
The role of technology in dispute resolution
Perhaps one of the reasons for New Zealand’s efficiency and speedy process, as compared to India for example, is the accessibility and use of technology. In New Zealand, the use of technology (such as teleconference or videoconference) is accepted practice.Footnote 100 David (2016) notes that this practice has generally worked well and that
… this method of hearing proceedings has been driven primarily by the logistical difficulties in arranging urgent hearings involving parties from around New Zealand and the considerable cost savings for all parties and, in particular, athletes.Footnote 101
Under the applicable law, New Zealand permits hearings (and pre-hearings) via telephone to ensure a speedy dispute resolution procedure.Footnote 102 In practice, 81.4 percent of cases conducted hearings via telephone. In Canada, the doping panel is required to “convene a preliminary meeting of all parties by teleconference to settle procedural matters”.Footnote 103 The full oral hearing may be conducted by video or teleconference.Footnote 104 In practice, a total of 29.7 percent of disputes had full hearings via teleconference in Canada.
This is in stark contrast to hearings in India where no cases were recorded as having telephone hearings, despite panels having discretion under the NADA Rules to permit telephone and video conferencing to be used for parties to present evidence, including the right to call and question witnesses.Footnote 105 However, in more recent times, in particular, during the COVID-19 pandemic, proceedings have been conducted using technology across jurisdictions, including in India. The move to completely online hearings was experienced globally during the pandemic, with some jurisdictions being able to adopt more quickly as a result of prior practices and infrastructure.Footnote 106
Any policies that incorporate technology into dispute resolution systems, however, need to acknowledge the inequalities with respect to access to technology, especially for athletes in rural areas. As such, traditional hearing options, as well as technology hubs where virtual hearings could take place in closer proximity to such athletes ought to be considered among any reform measures. Other procedural rights, such as the athlete’s right to an interpreter (under Article 8 of the Code), must continue to be respected in online hearings, especially given the language barriers that exist in multilingual countries such as India.
Scale: number of anti-doping rule violations (ADRVs) and efficiency of panels
Traditional theories of courtroom delay focus on “large caseloads thrust upon mismanaged and inefficient courts”.Footnote 107 While conventional wisdom suggests that delay is more complex than just large caseloads, it is logical that judges or arbitrators with a high volume of cases may prima facie take longer to resolve them on average. During the Data Collection Period, there were far more anti-doping cases before first instance panels in India (594), than in Canada (37) and New Zealand (43). Indeed, India is consistently ranked as one of the worst doping offenders in the world, according to WADA reports.Footnote 108 Information with respect to the number of panel members who were appointed by each of the domestic first instance panels during the Data Collection Period is not publicly available. Further research to compare the number of arbitrators in each jurisdiction, the number of cases heard by each arbitrator and their overall capacity to hear cases would assist policymakers in better understanding the impact that the caseload of each arbitrator has on delay of cases in the respective jurisdictions.
Role of lawyers and delay
In India, cases in which a legal representative was present required on average 333 days longer to resolve than cases where athletes were unrepresented, whereas in Canada cases required an average of 57 additional days to resolve where an athlete was represented by a lawyer. While this seems to be a significant trend, there is again likely to be an inherent bias in this data given that more complicated cases, where athletes wish to adduce evidence of their innocence, may require much longer than cases where an athlete concedes guilt. Similar questions of the impact of lawyers on dispute resolution systems have been examined by scholars previously, with Lederman and Hrung (2006) noting that while the presence of a lawyer increased the time to trial, it had “no significant effect on the time elapsed between filing and trial”.Footnote 109 Further empirical research would be valuable to examine why cases involving counsel required longer to resolve, and which stages of the dispute resolution process took longer. Qualitative research could be conducted by coding the full-text judgments to understand the types of evidence (and arguments) brought by the athletes in cases where they were represented by counsel, and whether this differed from unrepresented litigants. For instance, coding these awards to ascertain whether an athlete concedes guilt, or argues their innocence, or that they inadvertently consumed a prohibited substance, to examine whether there is any association between perceptions of guilt with legal representation and delay. Since cases involving alleged inadvertent doping present a whole new level of evidential complexity, with an onus of proof on the athlete, we hypothesize that such cases will inevitably take longer to resolve.
Access to justice
While the Code requires that athletes are provided access to legal representation at their own cost, it is clear that a significant majority of athletes in India, and a large minority of athletes in Canada and New Zealand did not have legal representation for their anti-doping proceedings. As a result, many domestic anti-doping panels around the world have introduced pro bono panels or financial aid for athletes.Footnote 110 The same is true for the CAS. While in India, the NADA Rules provide that each party has the right to be represented at a hearing at their own expense,Footnote 111 there is no additional financial aid or institutional infrastructure to support or promote a list of pro bono lawyers, as has been the case in other jurisdictions.Footnote 112 As a consequence, many athletes are without counsel when they appear before the anti-doping tribunal in India.
Despite the dearth of literature on the importance and the impact of legal representation for athletes in anti-doping disputes, empirical research does exist on the impact of lawyers in civil disputes. As discussed above, research suggests that access to lawyers significantly increases the chances of success in civil courtsFootnote 113 and other types of disputes.Footnote 114 This is logical, given the complexities of navigating the justice system,Footnote 115 and as a consequence, research suggests that self-represented litigants often make “elementary errors”.Footnote 116 Not only are counsel (particularly experienced counsel) likely to have better knowledge of the procedural nuances of the dispute resolution system, but they are also likely to find and better argue arguments in favor of their clients. This is consistent with a study of the Wisconsin Tax Appeals Commission which found that lawyers succeeded in reversing the Department of Revenue’s determination in 36 percent of cases, while unrepresented taxpayers were similarly successful in only 20 percent of the cases.Footnote 117 Another study of decisions of employment arbitrations before the American Arbitration Association showed that an employee represented by a lawyer succeeded in 22.9 percent of cases, whereas self-represented employees succeeded only 18.3 percent of the time.Footnote 118 These studies confirm the theory that the presence of counsel has a significant impact on the final outcome of such cases. In fact, a review of the empirical studies on the impact of legal representation suggests that “… lawyer-represented focal parties are more than 5-times more likely to prevail in adjudication than self-represented litigants, and 40% more likely to prevail than parties represented by non-lawyer advocates”.Footnote 119 Studies also suggest that “the complexity of the law and procedure involved play significant roles in shaping lawyers’ impact on how cases turn out”.Footnote 120 The anti-doping framework is complicated. The procedural nuances and scientific complexities which are required to interpret testing laboratory reports, for example, are almost prerequisites to adequately defend an alleged ADRV in an anti-doping dispute. Accordingly, it follows that legal representation is likely to have a significant impact on the outcome of anti-doping proceedings. This was reflected in the data which showed that athletes were significantly more likely to receive a favorable outcome if they were represented by a lawyer in anti-doping disputes, across all three jurisdictions. This is particularly concerning in India given the large number of unrepresented athletes and the lower levels of literacy when compared to the other jurisdictions. These findings have clear policy implications, especially with respect to the procedural rights of athletes. It follows that if legal representation of athletes is not improved in India, it is even more important that athletes are educated about their procedural rights and provided direct assistance by tribunal members throughout the process. NADOs and federations have a responsibility to create and implement education programs which ensure that athletes are aware inter alia of their rights and responsibilities under the Code.Footnote 121 There is little evidence to suggest that this is taking place in India, and further research is required to assess athletes’ knowledge of their procedural rights under the Code.
As a result of an imbalance of resources and experience, Galanter (1974) suggests that the stronger party is most likely to prevail in a dispute, and as such institutional litigants often succeed more than individuals.Footnote 122 This is particularly true in anti-doping where the WADA and NADOs are “repeat players”, whereas athletes are “one-shotters” and therefore inevitably have less experience in navigating the dispute resolution system.Footnote 123 It is, therefore, unsurprising that athletes who are represented by legal counsel are more likely to succeed than self-represented athletes with no experience in the system. This is also consistent with empirical research conducted on taxation disputes which suggests that “… some combination of attorneys’ greater expertise, experience, and familiarity with the Tax Court and its judges improves the outcome for the taxpayer”.Footnote 124 Further research into the impact of a legal counsel’s experience in anti-doping on the impact of the outcome of the sanction would be a worthwhile addition to the future research agenda. While it is expected that experience and outcomes are positively correlated, no empirical evidence has established this in an anti-doping context to date.
Further analysis is required to ascertain whether athletes choose to be self-represented across all countries, or whether their lack of legal representation is due to institutional shortcomings. The relatively lower levels of legal representation in anti-doping disputes in India may also be a reflection of the legal culture and access to justice barriers that exist in each of these countries, even outside of anti-doping, with high costs of legal representation evident in India despite the relatively lower socio-economic profile of many respondents.Footnote 125 Conversely, legal reform in Canada and New Zealand in recent years has led to the vast majority of athletes being represented by lawyers. Through institutional reforms such as the creation of pro bono counsel lists or legal aid options for athletes,Footnote 126 athletes who have been accused of an ADRV in New Zealand and Canada now have far greater access to lawyers. As a consequence, if this study were to be repeated using data from the past three years, the percentage of athletes represented by counsel will be significantly higher. Such reforms which have been adopted by the CAS as well as other developed countries have led to an increase in legal representation in anti-doping disputes. Indeed, data from Sport Resolutions UK suggests that since 2017, more than 96 percent of athletes have been represented, with more than 60 percent of all athletes having been represented by counsel on a pro bono basis.Footnote 127 However, similar reforms which adopt pro bono lists or legal aid funding have not been adopted in India and as such it is likely that the majority of athletes continue to be self-represented in anti-doping disputes. While access to anti-doping awards in India are not publicly available, if access was to be provided by the Ministry a longitudinal analysis would be valuable to ascertain whether access to legal counsel has improved in recent years.
While it is logical to assume that given the complexity of anti-doping law, athletes would benefit from legal representation in such disputes, there is no previous empirical evidence to date that suggests that legal representation will result in a more favorable outcome. However, according to the data in this study, an athlete is more likely to receive a more favorable outcome (a reduced sanction or no sanction at all) if they are represented by a lawyer, regardless of the jurisdiction of the dispute. However, as has been noted by scholars assessing the impact of legal representation in employment disputes, “… there is likely to be a selection effect in which counsel can identify in advance cases where the employee is more or less likely to be successful”.Footnote 128 Similarly, athletes are more likely to engage a counsel where they believe they have a higher chance of receiving a reduced sanction. Therefore, similar to Colvin’s (2011) study of employment arbitration, “[t]he cases in which employees do have representation by counsel are on average those in which they have a greater chance of success...”Footnote 129 The association between legal representation and a favorable outcome, while significant, shows a correlation, rather than causation. However, given that athletes were 20 percent more likely to receive a favorable outcome if they were represented by a lawyer in Indian anti-doping disputes (and similarly 18.19 percent and 34.21 percent more likely in New Zealand and Canada, respectively), further research is warranted. Interestingly, while there is a statistically significant association between legal representation and hearing outcome in India and Canada, there is not a statistical difference between having legal representation and hearing outcome in New Zealand. This is perhaps due to the fact that a large proportion of athletes who are self-represented are still awarded a reduced sanction at first instance in New Zealand (55 percent), which is not the case in India (10.09 percent) and Canada (15.79 percent). Therefore, while athletes in New Zealand are still 18 percent more likely to receive a more favorable outcome if they are represented by a lawyer, the relative impact of a legal representation is less than in the other jurisdictions. This may be because of “procedural rules which are simple … and can be flexibly applied” in favor of justice and efficiency, as well as a tribunal composed of “a significant number of experienced lawyer members”.Footnote 130
In any event, policy reforms which have taken place in developed countries that promote legal representation of athletes enhance the legitimacy of the anti-doping system. If athletes have access to, and can afford, legal representation in anti-doping disputes, they are more likely to have their procedural rights protected. As set out in WADA’s Athlete’s Anti-Doping Rights Act, it is recommended that all “Athletes should have the right to access legal aid for hearings and appeal process in doping cases”.Footnote 131 However, it should be acknowledged that while resource constraints may prevent some countries from adopting the highest of standards in anti-doping procedure,Footnote 132 such as financial aid for accused athletes, there are numerous practical measures that NADOs and domestic panels can adopt to ensure that all athletes have access to legal representation. For instance, the creation of institutionalized pro bono lists of lawyers and awareness programs would be of immense value for accused athletes and a minimal cost to resource-poor NADOs and panels.
Further research would provide a more granular understanding of why the association between legal representation and reduced sanction is occurring and would offer further evidence to inform policy changes. One approach would be to survey athletes or athletes’ counsel on their perspectives of the anti-doping process to calibrate the “hard data” from this study. Athletes’ counsel can be a useful resource in designing future research because while athletes are typically “one shotters” in anti-doping disputes, there are numerous lawyers with significant experience in anti-doping matters and they can play an important role in informing a more balanced debate on understanding whether athletes’ rights are adequately protected in anti-doping disputes as well as proposing appropriate recommendations for procedural reform. Interviews with NADOs and first instance panel members are also likely to provide rich qualitative data on why challenges of delay and access to counsel exist. Such data would be useful in informing our understanding of the unique nuances of different legal cultures and provide a valuable tool for promoting institutional reform across jurisdictions. Another research approach could adopt a more thorough content analysis of the awards published by panels, as this would help researchers ascertain whether an athlete claims that they unintentionally or unknowingly consumed the prohibited substance – this would allow researchers to code which cases an athlete has attempted to put forward a “defense” to seek a reduced sanction, and whether representation by a lawyer has impacted the outcome of these disputes in particular. While outside the scope of this paper, such research would be a valuable contribution to the question of access to justice in anti-doping disputes.
There are a number of limitations to this study. Since NADA does not publish cases handed down by domestic panels, the authors have relied on the Ministry of Youth Affairs and Sport for access to the awards. Despite requests from the researchers, access to cases handed down after August 2016 has not been provided by the Ministry due to administrative and resource constraints. Although the central tenets of procedural fairness have remained largely unchanged under the Code until the recent amendments in 2021, only limited data were available since these amendments came into force on 1 January 2021. To this end, when further data become available, further empirical research would be beneficial. Such research may take the form of a longitudinal study that analyzes the impact of the amendments to the minimum procedural guarantees enshrined under the 2021 Code and the ISRM, in comparison with the earlier (less stringent) protections under the earlier versions of the Code. In addition, access to cases wherein an athlete has successfully defended their ADRV have not been shared by the Ministry on the grounds of confidentiality. The limited availability of the case law, while an issue of access to justice and transparency in itself,Footnote 133 is an inevitable challenge in data collection in anti-doping disputes across most jurisdictions. Indeed, the challenge of empirical research with respect to arbitral awards is not unique to anti-doping disputes. Lindholm (2019) noted that “[t]he confidentiality of the proceedings and the awards is a major methodological challenge when studying arbitration tribunals, particularly when conducting quantitative research that requires a representative data sample”.Footnote 134 However, as discussed above, the sample still equates to 95 percent of all anti-doping violation cases in India during the Data Collection Period. Despite these limitations and as a result of the absence of full-text awards in the public domain, the analysis of more than 600 awards across three jurisdictions contributes significantly to our understanding of compliance with procedural safeguards at first instance tribunals.
Another limitation is the lack of access to proceedings of the disputes and the briefs of the parties.Footnote 135 An additional study that surveys athletes’ lawyers and representatives, may be able to fill this void, and while outside the scope of this paper, this project is proposed in the future research agenda. The researchers observed during the coding process that there were eleven awards with incomplete data due to incomplete scanning or missing dates due to clerical errors by NADA. To this end, the researchers note that one limitation of this study is that it relies on the panels accurately recording whether the athlete was represented by counsel.
Finally, an analysis of other sporting jurisdictions such as Australia, the United States of America, Russia, China and the United Kingdom would have been useful from a comparative perspective. However, these jurisdictions have not published anti-doping awards online to the same extent as New Zealand and Canada.Footnote 136 In addition, the authors acknowledge that the current data set is from common law countries, and as such, further research should focus on data collection from civil law jurisdictions. In particular, this study should be extended to European countries to analyze whether there are any consistent trends in first instance disputes and whether the jurisprudence of the European Court of Human Rights with respect to fair trial rights and procedural fairness has had an impact on such tribunals. Accordingly, it is acknowledged that further studies could be conducted with respect to these other jurisdictions in the future, should this data be made publicly available.
There is scope for reform to promote procedural fairness for athletes in anti-doping disputes, with a specific focus on access to legal representation and timeliness.
With respect to timeliness and delay, NADOs and first instance tribunals need to focus on strict implementation of the procedural safeguards which are now prescribed under the ISRM and the Code. WADA itself acknowledges that monitoring NADOs for compliance is a central responsibility of WADA to ensure harmonization so that “athletes know what to expect from the anti-doping system no matter where they are from or where they are competing”.Footnote 137 However, sanctioning non-compliance with time limits is not the only option. Scholars have previously suggested that capacity-building programs may be much more effective. Müller (2017) suggests that NADOs could be required to cooperate with other NADOs to facilitate exchange programs and to enhance quality and harmonization.Footnote 138 For instance, countries with a strong track record of timely dispute resolution could facilitate knowledge transfer and capacity-building programs in collaboration with developing countries, to encourage reforms which may reduce delays in proceedings. The Indian and Australian NADOs, for example, entered into a 2-year MOU in 2016 to “ensure India implements a more effective anti-doping program that is fully compliant with the [Code]”.Footnote 139 Such agreements ought to be systematically promoted and monitored by WADA, and these collaborations should include capacity building for implementing best practices in case management. Under the NADA Rules, panel members of the ADDP are typically a mix of professionals from law, medicine and sport. This is generally consistent with the composition of other domestic anti-doping panels. Regardless of their professional background, members of such first instance panels may benefit from capacity-building programs, especially when procedural reforms and changes take place when the Code is revised (typically every 6 years). In addition, efficiency and timeliness should be central to proceedings, as is the case in New Zealand. The use of technology has been used effectively during the COVID-19 pandemic, across jurisdictions, and telephone and videoconferencing options should be available at the option of the parties to improve the efficiency of proceedings. Even prior to the pandemic, there have been shifts towards using electronic case management systems to improve efficiency and promote procedural fairness. Even the most “basic electronic case management systems” can enable courts and tribunals to “track cases, introduce process improvements based on facts, communicate better with other authorities and be better accountable to society”.Footnote 140 As such, while some domestic anti-doping bodies have embraced technology more than others, jurisdictions such as India would benefit from electronic case management which would allow milestone planning, capacity allocation, workflow management, as well as tracking and tracing of cases.Footnote 141 This would act as an early warning system to NADOs and independent panels whether (and at what stage) cases are being delayed and will allow domestic panels to make administrative decisions in real-time to improve the efficiency and effectiveness of their dispute resolution procedures.
With respect to access to legal representation, legal aid and pro bono counsel lists have proven effective in several countries.Footnote 142 WADA acknowledges that “Athletes should have the right to access legal aid for hearings and appeal process in doping cases,”Footnote 143 yet many jurisdictions have not adopted policies that support athletes when they are faced with an ADRV. In addition, there are various mechanisms whereby athletes could be made aware of pro bono lists and financial support, for instance through the creation of an athlete’s ombudsman,Footnote 144 or through sharing the list of available support and pro bono counsel attached with the athlete’s notice of charge. As has been suggested by scholars, providing all litigants with lawyers “would be one way to level the playing field”.Footnote 145 Some jurisdictions have gone as far as ensuring mandatory representation for accused athletes – for instance, in Brazil it is mandatory for any athlete accused of an ADRV who requires representation to be provided with a public defense attorney unless they choose to be unrepresented.Footnote 146It should be noted that in October 2021, the WADA Athlete Commission proposed the establishment of an Athletes’ Anti-Doping Ombuds which would “establish a neutral or impartial dispute resolution practice whose major function will be to provide confidential and informal assistance to athletes bound by anti-doping rules under the World Anti-Doping Code”.Footnote 147 WADA should implement this proposal, and in doing so create regional or domestic institutional ombudsmen to ensure that local and cultural nuances are respected. In addition, the simplification of procedures and other forms of institutional support would enable athletes to better navigate anti-doping procedures. Targeted institutional reform such as the establishment of a national sports tribunal in India might go some way to improving such procedures. The publication of awards should also be encouraged by national panels to promote transparency and accountability.
While it is not uncommon for WADA to revoke accreditation from testing laboratories for non-compliance with testing procedures and standards, there are often little or no consequences for national doping tribunals which fail to protect athletes’ procedural rights. In addition, the CAS typically does not investigate procedural shortcomings of first instance tribunals (since it has a de novo right of review, the CAS takes the stance that it can remedy any procedural failures at first instance on appeal).Footnote 148 Unfortunately, this fails to remedy the fundamental issue of the failure to protect procedural rights in first instance disputes. The CAS has in these cases, therefore, missed an opportunity to set a precedent of what constitutes a violation of procedural fairness at first instance (and consequently what tribunals should be doing to protect such rights in the future). The amendments to the Code and the introduction of the ISRM have enshrined minimum procedural safeguards – however, in the interest of providing autonomy to NADOs and domestic panels, WADA has not provided a roadmap or “best practice” guidelines for doping tribunals in the same way that they have for testing authorities. Given the importance of protecting the procedural rights of athletes, coupled with the empirical evidence of systemic procedural failures at first instance, a mechanism for further accountability and institutional reform is necessary. WADA, with the input of NADOs, could prepare an international standard of doping tribunals that sets out “best practice” procedures and processes for first instance doping panels (whether conducted by federations or domestic bodies). This document would be more detailed than the broad requirements of the Code and the ISRM. It could, for example, include details of best practices in case management, milestone planning, and institutionalized support for athletes to remove access to justice barriers (including pro bono lists, or legal aid). While there would be challenges with revoking accreditation in the same way as testing labs (removing local first instance tribunals may actually increase access to justice barriers further), WADA could monitor and identify first instance tribunals that are consistently falling below these best-practice standards, and work with them to improve their procedures and protect procedural safeguards. The establishment of these “best practices” would show that WADA takes the rights included in the Athlete Anti-Doping Act, 2021 seriously, and acknowledge that there needs to be further investment in first instance procedures to ensure procedural consistency and the protection of athletes’ rights.