2012/1-2
3
1. Introduction
Doping is as old as sport itself and the modern phenomenon of doping
emerged as soon as modern sport emerged in the nineteenth century.
Initially doping seemed to be an acceptable and even necessary element
of sport.
However, as reports of side-effects on the psychological, phys-
ical and physiological well-being of athletes began to surface, a steady
call for measures to redress the problem began to arise. The International
Amateur Athletics Federation
was the first International Federation to
address the problem of doping in sport when it adopted a simple rule
against doping in 1928.
However, the fight against doping only truly
gained momentum after the deaths of cyclists Knut Jensen at the 1960
Olympic Games and Tommy Simpson during the 1967 Tour de France.
In 1967 the International Olympic Committee (IOC) established a
Medical Commission and approved a ban on doping the following year,
in time to conduct the first tests on athletes at the 1968 Winter- and
Summer Olympic Games.
However, because of the inconsistency in
measures to deal with doping from one sport to the next and from one
country to the next, the World Anti-Doping Authority (WADA) was
established in 1999 to harmonise and strengthen anti-doping actions
and rules across all sports and countries.
This resulted in the adoption
of the World Anti-Doping Code (the Code) in March 2003.
The legal
status of WADA and the Code was elevated with the adoption of the
International Convention against Doping in Sport 2005 (the
Convention), which expressly refers to WADA and the Code.
The result is that athletes are now subject to the doping control meas-
ures of WADA and the terms of the Code on at least two grounds. In
the first instance, any athlete participates in sport on the basis of a con-
tractual relationship,
the terms of which are derived from the consti-
tution, laws, rules and regulations of the various bodies, unions, asso-
ciations and federations which govern the particular sport. Secondly,
in view of the express recognition which the Convention accords to
WADA and the Code and the adoption and/or ratification of or acces-
sion to the Convention by most countries affiliated to the IOC, com-
pliance with the Code and the authority of WADA also becomes mat-
ters of national and international law. In addition, many countries have
adopted legislation to deal with the issue of doping in sport as envis-
aged in article 5 of the Convention. This also brings compliance with
the Code and the authority of WADA into the sphere of national law.
This article provides a critical analysis of article 4.3 of the Code and
questions whether the Prohibited List can be challenged on the grounds
that one or more of the substances or methods have been inappropri-
ately classified in terms of article 4.3 and should therefore not be includ-
ed on the Prohibited List. This article does not address issues relating
to the prudence or desirability to include or not to include any partic-
ular substance or method on the Prohibited List. It merely highlights
flaws in the drafting of article 4.3, warns of a potential basis on which
WADA and the Prohibited List can be challenged and proposes ways
to deal with this risk.
2. Prohibited List
In terms of the Code
WADA must now revise and publish the Prohibited
List of substances and methods which are prohibited as doping. A sub-
stance or method is considered for inclusion on the Prohibited List if
WADA determines that it meets two of the following three criteria:
a It is performance enhancing.
b It is dangerous to the athlete’s health.
c It is contrary to the spirit of sport.
A substance or method can also be added to the list if WADA deter-
mines that it has the capacity to mask the use of other prohibited sub-
stances or methods.
In particular, article 4.3 provides:
4.3 Criteria for Including Substances and Methods on the Prohibited
List
WADA shall consider the following criteria in deciding whether to
include a substance or method on the Prohibited List.
4.3.1 A substance or method shall be considered for inclusion on the
Prohibited List if WADA determines that the substance or method
meets any two of the following three criteria:
4.3.1.1 Medical or other scientific evidence, pharmacological effect or
experience that the substance or method, alone or in combination
with other substances or methods, has the potential to enhance or
enhances sport performance;
4.3.1.2 Medical or other scientific evidence, pharmacological effect
or experience that the Use of the substance or method represents an
actual or potential health risk to the Athlete;
4.3.1.3 WADA’s determination that the Use of the substance or method
violates the spirit of sport described in the Introduction to the Code.
4.3.2 A substance or method shall also be included on the Prohibited
List if WADA determines there is medical or other scientific evidence,
pharmacological effect or experience that the substance or method
has the potential to mask the Use of other Prohibited Substances or
Prohibited Methods.
4.3.3 WADA’s determination of the Prohibited Substances and
Prohibited Methods that will be included on the Prohibited List and
the classification of substances into categories on the Prohibited List
is final and shall not be subject to challenge by an Athlete or other
Person based on an argument that the substance or method was not
a masking agent or did not have the potential to enhance perform-
ance, represent a health risk or violate the spirit of sport.
WADA publishes a revised version of the Prohibited List at least once
per annum. The 2012 Prohibited List contains an elaborate list of sub-
stances and methods across 15 categories.
To act lawfully and be compliant with article 4.3 of the Code,
WADA must, in deciding which substances and/or methods should
be included on the Prohibited List, apply its collective mind to the
matter and in good faith make a determination which meets the stan-
dards set in the Code.
This means that in respect of each substance
* This article is based on a paper presented
at a conference on Doping in Sport host-
ed by the South African Institute for
Drug Free Sport at the South African
Doping Control Laboratory in
Bloemfontein on 7 May 2012.
** Professor in Private Law, Director of the
Centre for Intellectual Property Law and
Co-director of the Centre for Sports Law,
Faculty of Law, University of Pretoria.
1 Sheehan “Doping in Sport - A Deadly
Game” The Athlete (available at
http://www.theathlete.org/doping-in-
sport.htm accessed on 2 May 2012).
2 Woodland Dope: The Use of Drugs in
Sport (1980)
3 As it then was. Now it is the
International Association of Athlectics
Federations.
4 Brown (ed) IAAF Medical Manual (2009)
chapter 15.
5 “History of Performance Enhancing
Drugs in Sport” available at http://sport-
sanddrugs.procon.org/view.resource.php?
resourceID=002366 accessed on 2 May
2012.
6 Brown (2009) ch 15.
7 Idem.
8 Idem.
9 Jockey Club of South Africa v Transvaal
Racing Club 1959 1 SA 441 A 446F, 450A;
Turner v Jockey Club of South Africa 1974
3 SA 633 A; Jockey Club of South Africa v
Forbes 1993 1 SA 649 A 645B, 654D;
Natal Rugby Union v Gould 1999 1 SA
432 SCA 440F; Rowles v Jockey Club of
SA and others 1954 1 SA 363 A 364D;
Johannesburg Country Club v Stott and
another 2004 5 SA 511 SCA.
10 Article 4.1.
11 Feinstein v Taylor 1961 4 All SA 366 W.
A R T I C L E S
A Critical Analysis of Article 4.3 of
the World Anti Doping Code*
By Steve Cornelius**
or method included on the Prohibited List, WADA must consider
whether the substance or method is performance enhancing and/or
harmful and/or whether its use is contrary to the spirit of sport, alter-
natively, whether it could mask the use of a prohibited substance or
method. But the Code does not confer on WADA a discretion to
determine which substance or method WADA deems performance
enhancing or harmful.
The drafters of the Code sought to make the process of determining
which substances and/or methods should be included on the prohibit-
ed list, more transparent by providing objective standards according to
which the determination must be made. These standards are mostly
scientific. Both article 4.3.1.1 and article 4.3.1.2 require WADA to con-
sider scientific or medical evidence or pharmacological effect to deter-
mine whether a substance or method is or could be performance enhanc-
ing or harmful, as the case may be. This seems somewhat tautologous
as both medicine and pharmacology are also sciences and evidence on
these grounds would also constitute “scientific evidence”.
In other words, the Code imposes a duty on WADA to determine
whether there is medical or other scientific evidence, pharmacological
effect or experience which indicates that the substance or method is or
could be performance enhancing or harmful. Article 4.3 of the Code
therefore imposes on WADA a duty to make a determination in accor-
dance with the relevant evidence, rather than a discretionary compe-
tence to weigh the various factors and make up its own collective mind
on the matter.
There is an apparent problem with this formulation. Even though
we live in the golden age of science and we strive towards the discovery
of exact scientific conclusions through the application of proper scien-
tific method, medicine and pharmacology, like the law, are not certain
and precise. Scientific and medical evidence relating to the impact which
substances and methods have on the human body, are often inconclu-
sive and sometimes contradictory. There are innumerable variables that
could at different times and in different studies impact in various ways
on the eventual results. Vagelos and Galambos
explains this succinct-
ly when they recall
[m]edicine, I suddenly realised, is not an exact science. It could not
be learned and applied by rote, even from a body of knowledge as
comprehensive as Loeb’s. Once the disease was understood, the physi-
cian could treat the patient in a variety of ways, using similar drugs
and solutions on the basis of the blood sugar level, the amount of
dehydration, the concentration of certain salts in the patient’s blood,
and so forth. Harvard medicine was different from Columbia med-
icine in that it was more flexible and left more to be determined by
a thoughtful physician. It required more intellectual input. I was
free to think, to use my understanding of the basic disease process,
and to explore the ‘art’ of medicine.
Molzone
also explains that the interface between medicine and phar-
macology, where clinical trials are conducted to determine whether any
particular substance or method has a favourable effect, no effect or an
adverse effect, is equally uncertain. Most often, substances do not pro-
vide miraculous results. Their effects are often much more subtle and
often difficult to qualify and quantify. Substances may have various
effects on the human body by relieving symptoms, altering clinical meas-
urements and influencing physiological processes. Because of differ-
ences in physiological make-up, different people react differently to the
same substance. Furthermore, the reaction which an individual may
have towards a particular substance may also differ from time to time.
In addition, the so-called “placebo-effect” means that the ability of a
substance to enhance performance depends also on psychological fac-
tors, which in turn are affected by the socio-economic and cultural envi-
ronment.
Scientific and medical evidence, therefore, seemingly pro-
vides an inadequate standard for determining whether a substance or
method should be included on the Prohibited List.
The standard of pharmacological effect is no less problematic. The
pharmacological effect of a substance depends on various factors, includ-
ing the exact composition of the preparation or solution which contains
the substance, the mode of ingestion, genetic and biological variables,
as well as the medical history and history of drug use of an individual.
The amount of a substance which is ingested and the period over which
it is ingested, could also have an impact on the pharmacological effect.
For example, in small quantities below 60 micrograms ingested over a
short term, clanbuterol is a decongestant and bronchodilator. If you
increase the dosage somewhat and it is used over a longer period, clan-
buterol becomes a nonsteroidal anabolic and metabolic accelerator which
improves muscle protein synthesis. In doses above 120 micrograms, the
stimulating and thermogenic effects of clanbuterol often cause trem-
bling, headaches and dizziness. In addition, after prolonged use with-
out interruption, the pharmacological effect of clanbuterol dissipates
so that it eventually has no effect.
Because the science seems to be so uncertain, WADA would appar-
ently be hard-pressed to justify the inclusion of any substance or method
on the Prohibited List. It is arguably for this reason that the drafters of
the Code added an alternative standard for determining whether a sub-
stance or method meets the requirements in article 4.3.1.1 and/or arti-
cle 4.3.1.2. WADA may also rely on “experience” which shows that a
substance or method is or could be performance enhancing or harm-
ful. This is a misguided attempt at resolving the difficulties relating to
scientific, medical and pharmacological evidence. This alternative stan-
dard poses many questions: Whose experience is considered? How is
the experience established? How much or how little experience is
required? Etcetera. Molzone
warns that
[d]rawing a conclusion about whether a medication or other treat-
ment works based on anecdotes is logically flawed. The reason is that
there are numerous alternatives, other than the treatment, that could
explain anecdotal findings (these are called ‘confounding variables’).
If called upon to justify the inclusion of a substance or method on the
Prohibited List based on this standard, WADA would be even more
hard-pressed to find convincing arguments.
As a result, the way in which article 4.3 of the Code is drafted, it leaves
no discretion and demands that WADA make a determination based
on evidence, which could be medical, scientific, pharmacological or
anecdotal. This could expose WADA to attack and lead to challenges
of the Prohibited List. For instance, category S0 in the Prohibited List
refers to non-approved substances and provides:
Any pharmacological substance which is not addressed by any of the
subsequent sections of the List and with no current approval by any
governmental regulatory health authority for human therapeutic use
(e.g drugs under pre-clinical or clinical development or discontin-
ued, designer drugs, veterinary medicines) is prohibited.
However, article 4.3 of the Code only allows WADA to consider “a sub-
stance or method” for inclusion on the list; Article 4.3 does not allow
WADA to list categories of substances or methods. As a result, the inclu-
sion of this blanket category is ultra vires. Furthermore, on what med-
ical or other scientific evidence, pharmacological effect or experience
could WADA possibly have relied to determine whether any particular
substance within this category should be included in the Prohibited List
when, at least at the time when WADA made its determination, it would
have been impossible to compile a comprehensive list of these substances?
As a result, WADA did not adhere to Article 4.3 of the Code when it
included category S0 in the list of Prohibited Substances. Clearly, then,
the inclusion of category S0 in the Prohibited List would not survive
judicial scrutiny if it should be challenged in court.
3. Can the Prohibited List be Challenged?
It seems that WADA may have anticipated challenges to the Prohibited
List and sought to pre-empt any challenge by providing in article 4.3.3
that WADA’s determination that a substance or method should be
included on the Prohibited List cannot be challenged. However, this
4
2012/1-2
12 Medicine, Science and Merck (2004) 27.
13 In O’Donnel and Ahuja Drug Injury:
Liability, Ananlysis and Prevention (2005)
61.
14 Hanson, Venturelli and Fleckenstein
Drugs and Society 11 ed (2011) 1, 155.
15 Hanson, Venturelli and Fleckenstein
(2011) 1, 5, 155 et seq.
16 http://www.clenbuterol.net accessed on 6
May 2012. See also Kearns et al “Chronic
administration of therapeutic levels of
clenbuterol acts as a repartitioning agent”
2001 Journal of Applied Physiology 2064.
2012/1-2
5
provision may not be as effective as it may appear at first glance to pre-
vent challenges to the Prohibited List.
Where the Code is binding by virtue of adoption and/or ratification
of or accession to the Convention, or by virtue of national legislation
to give effect to the Convention, clause 4.3.3 may be subject to scruti-
ny under the national laws of the countries concerned.
For instance, section 34 of the Constitution of the Republic of South
Africa, 1997, provides:
34. Access to courts. Everyone has the right to have any dispute
that can be resolved by the application of law decided in a fair pub-
lic hearing before a court or, where appropriate, another independ-
ent and impartial tribunal or forum.
A provision, such as article 4.3.3 of the Code, which seeks to exclude the
jurisdiction of courts or other dispute resolution mechanisms would
therefore be unconstitutional and invalid in South Africa.
Furthermore, courts in South Africa have always maintained that
they have an inherent power of judicial review derived from common
law.
To withstand judicial scrutiny, the board making the determina-
tion must apply its mind to the matter and a determination must be
lawful, made in good faith and not be grossly unreasonable.
In Lengene
v Johannesburg City Council
the court held that where a statutory power
must be exercised
[t]his is not an unfettered discretion that can only be attacked on the
narrow grounds available on review in such cases. The official must
be ‘reasonably satisfied’ ... Where his finding must be purely one of
fact with merely some discretionary latitude as to his methods of
enquiry, his findings would, on review be almost as fully open to
attack as they would have been on appeal.
And even where a limitation of the right of access to the courts is allowed,
such a limitation is interpreted narrowly. In Stanton v Minister of Justice
Jansen J held that a provision which precluded any appeal against or
review of certain decisions by the Minister of Justice, did not prevent a
court from determining whether the actual decisions had been made in
good faith.
In addition, article 6 of the European Convention on Human Rights
provides that everyone, whether in a civil or criminal case, is entitled to
a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law. In Golder v UK
the European
Court of Human Rights held that by implication article 6 also enshrines
the right of access to a court. Rozakis
explains
that
the right of access concerns both the factual circumstances of a case
and its legal substratum. In other words, a person within the juris-
diction of a State-party to the Convention must have effective access
to a court to settle his grievances on arguable civil claims. The Court
does not make a distinction between impediments to this right deriv-
ing from factual difficulties and those stemming from legal regula-
tions. Furthermore, as far as effectiveness is concerned, a person must
have the facilities to vindicate his right before the courts and be able
to enforce a decision determining that right.
The right of access to a court may be limited, provided that the limita-
tion does not impair the very essence of the right,
the limitation pur-
sues a legitimate aim and there must be some proportionality between
the aim sought to be achieved and the means of limitation employed to
achieve that aim.
In R v Medical Appeal Tribunal ex parte Gilmore
Lord Denning
explained that a determination can only be final if the determination is
made lawfully. A determination will only be lawful if there are suffi-
cient grounds to make that determination. In Pearlman v Keepers and
Governors of Harrow School
Lord Denning also held that a statutory
provision which expressly provided that a decision is final and conclu-
sive, merely excluded the possibility of an appeal on the merits, but it
did not exclude the possibility of judicial review. Furthermore, in
Anisminic Ltd v Foreign Compensation Commission
Lord Reid explained
that a statutory provision which provided that a determination shall not
be called into question in any court of law, only applied in the event of
a valid determination being made. As a result, the provision did not
prevent the court from establishing whether a valid determination had
in fact been made. In addition, in R v Secretary of State for the Home
Department, ex parte Fayed
Lord Woolf held that even where a statu-
tory provision expressly provided that a decision could not be taken on
appeal or review, a court could still review a decision on procedural
grounds to ensure that the decision was arrived at after following a fair
and proper procedure.
In other words, in spite of article 4.3.3 of the Code, a court could still
in appropriate circumstances review whether WADA has made a valid
determination in terms of article 4.3 of the Code and whether WADA
had sufficient grounds in terms of article 4.3 of the Code to include a
substance or method on the Prohibited List.
The matter is no different where the Code is binding by virtue of the
contractual relationship between the athlete and the various sports
authorities. A term in a contract which purports to exclude the juris-
diction of the courts, is contrary to public policy and therefore void.
In Sasfin (Pty) Ltd v Beukes
one of the issues related to a term in the
contract which provided that a certificate of indebtedness constituted
the sole memorial of the indebtedness of the debtor. Smalberger JA
held
that the clause concerned
purported to oust the Court’s jurisdiction to enquire into the valid-
ity or accuracy of the certificate, to determine the weight to be
attached thereto or to entertain any challenge directed at it other than
on the ground of fraud. As such they run counter to public policy.
English law similarly does not allow any term in a contract which would
have the effect of ousting the jurisdiction of the courts. In Scott v Avery
Wightman J explained that the
question in this case is, whether the effect of the 25th rule of the asso-
ciation, referred to in the policy, is to withdraw the cognizance of the
whole cause of action from the courts of law, and to oust them of
their jurisdiction, or only to impose upon the assurer a condition pre-
liminary to his right to sue for a loss, that the amount of the loss shall
be ascertained by arbitration. It may be that if the effect of the 25th
rule would be to oust the courts of law of their jurisdiction, ... that
rule would be bad.
This was further explained in McGowan v Summit at Lloyds
where Lord
Reid held that
[c]ourts possess jurisdiction by the operation of law. One of the pow-
ers which jurisdiction confers is the power to decide whether or not
to exercise that jurisdiction in the sense of allowing a case to proceed.
... A jurisdiction clause is relevant to the exercise of that power ... but
it cannot and does not oust the jurisdiction from which that power
is derived.
Similarly, Waller J held in The Glacier Bay
case that
the court will not allow a term to stand which precludes the party
from enforcing the right by an action in court. Such a term would
be repugnant giving the right by one hand and taking it away with
the other and/or is an ouster of the jurisdiction of the court and unen-
forceable for that reason. Even if the contract limits, as opposed to
completely ousts, recourse to the court, that term may be unenforce-
able depending on the extent of the ouster.
He explains
further that
17 In O’Donnel and Ahuja (2005) 62.
18 Mahmood v Secretary for the Interior 1974
2 All SA 495 C 501.
19 Feinstein v Taylor 1961 4 All SA 366 W.
20 1958 1 SA 647 T.
21 1960 3 All SA 208 T .
22 (1979) 1 EHRR 524 par 28 et seq.
23 “The Right to a Fair Trail in Civil Cases”
2004 Judicial Studies Institute Journal 96.
24 98.
25 Philis v Greece (1991) 13 EHRR 741.
26 Ashingdane v UK (1985) 7 EHRR 528 par
57.
27 1 QB 574.
28 2 QB 56.
29 2 AC 157.
30 [1997] 1 All ER 228.
31 Britstown Municipality v Beunderman
(Pty) Ltd 1967 1 All SA 36 C 39;.
32 1989 1 All SA 347 A.
33 358.
34 10 ER 1121.
35 2002 SC 638.
36 West of England Shipowners Mutual
Insurance Association (Luxembourg) v
Cristal Ltd (‘The Glacier Bay’) 1995 CLC
242.
37 250.
the question of ouster is said to be a question of public policy, I ought
to address a point made by Mr Gross QC. He has submitted that this
is an international contract and that thus English public policy real-
ly has no application, That point is in my view not well taken for the
following reasons.
... Third, in any event, the public policy is not just to see that English
people can come to an English court, but it is a policy to ensure that
any person can get to some court. It is not thus a parochial or insu-
lar concept.
Williston
indicates that in the various jurisdictions in the United States
the right of an injured party to legal redress is jealously guarded by
the courts.
In Central Contracting Co v Maryland Casualty Company
the Third
Circuit of the United States Court of Appeals held that
while private parties may not by contract prevent a court from assert-
ing its jurisdiction or change the rules of venue, nevertheless, a court
in which venue is proper and which has jurisdiction should decline
to proceed with the cause when the parties have freely agreed that lit-
igation shall be conducted in another forum and where such agree-
ment is not unreasonable at the time of litigation.
The judgment of the Iowa Supreme Court in the case of Wallace v
Brotherhood of Locomotive Firemen and Enginemen
is quite informa-
tive. Mitchell J held
that
[i]f the provision in the constitution [of the Brotherhood] is con-
strued as appellee contends, then it is void as far as it attempts to oust
jurisdiction of the courts.
The Iowa court in the case of Prader v Nat’l Masonic Accident Ass’n,
95 Iowa 149, 63 N.W. 601, 605, said: ‘A general provision by which
the parties to an agreement in terms bind themselves to submit to
arbitration all matters of dispute which may thereafter arise, and mak-
ing the arbitration final, will not deprive the courts of their appro-
priate jurisdiction, nor be enforced by them.’
In Goodwin v Mut Ins Co, 118 Iowa 601, 92 N.W. 894, 895, we said:
‘A litigant cannot be expected to consent that his case shall be tried
to his antagonist in person or by agent.’
‘One of the oldest and most [salutary] maxims of law is that no man
shall be a judge in his own cause.’
‘The judicial mind is so strongly against the propriety of allowing
one of the parties ... to be judge or arbitrator in its own case, that
even a strained interpretation will be resorted to if necessary to avoid
that result.”
The reason for the above quoted rule is sound. The courts are open
for the redress of injury done to person or property. To permit par-
ties to agree before a dispute arises to submit their differences to the
adjudication of one of the parties to the agreement is against public
policy. Appellee rather agrees with this proposition but claims it has
no application to a mutual benefit certificate which creates no liabil-
ity, it says upon the occurrence of the disability but only upon the
approval of the claim by the appropriate officer of the company. With
this we cannot agree, for it gives to some officer of the defendant com-
pany a right to say whether or not the appellant can recover. It gives
to the appellee the right to be judge in its own case. This is against
public policy. The practice of permitting one of the parties to a dis-
pute to be the judge, it just as vicious, whether one of the parties is a
mutual benefit society or not.
In Australia also, a clause in a contract which purports to exclude the
jurisdiction of a court, is contrary to public policy and therefore void.
In Hi-Fert Pty Ltd v Kuikiang Maritime Carriers Inc
Tamberlin J
explained:
The common law doctrine that the jurisdiction of the Court should
not be ousted is based on public policy that the access of citizens to
the courts should be preserved. This public policy as applied by the
courts overrides the intentions of the contracting parties who insist
on such a provision in their contract. However, the principle is not
one which is concerned to delimit the power of the legislature. The
principle does not, and indeed cannot, prevent the legislature from
permitting specified types of dispute or differences to be referred to
and determined by arbitration where certain conditions are satisfied.
As a result, article 4.3.3 of the Code is not only a misplaced attempt to
avoid scrutiny of the substances and methods included on the Prohibited
List, but it may also turns out to be a futile attempt in the end.
In final analysis, article 4.3.3 of the Code also does not accord with
the spirit with which the Court of Arbitration in Sport (CAS) was estab-
lished. Just as WADA was established to provide more consistency in
the fight against doping, so CAS was also established to provide a uni-
form dispute resolution mechanism which could avoid the inconsisten-
cies that would arise if sports federations were faced with legal action in
different countries with different legal systems.
By inserting article
4.3.3 in the Code, which is clearly unlawful in many countries, WADA
runs the risk of destabilising the uniform international sports law order
which CAS has been developing over the past twenty years.
4. The Way Forward
It is clear from the way in which article 4.3 of the Code has been draft-
ed, that the drafters either did not have an adequate understanding of
the law in so far as it would relate to determinations by WADA or they
showed a blatant disregard for the law. Secondly, the drafters also clear-
ly did not understand the legal nature of the function which WADA
would fulfil in determining the substances and methods which should
be placed in the Prohibited List.
In exercising its functions in terms of article 4.3 of the Code, WADA
is an administrative agency in much the same way as a licensing author-
ity or an urban planning council is an administrative agency. Weber
explains that a body is an administrative agency if
[t]here is an obligation to obedience only within the sphere of the
rationally delimited jurisdiction which, in terms of the order, has
been given to him.
The following may be said to be the fundamental categories of ration-
al legal authority:
(1) A continuous rule-bound conduct of official business.
(2) A specified sphere of competence (jurisdiction). This involves:
(a) A sphere of obligations to perform functions which has been
marked off as part of a systematic division of labor. (b) The provi-
sion of the incumbent with the necessary powers. (c) That the nec-
essary means of compulsion are clearly defined and that their use is
subject to definite conditions. A unit exercising authority which is
organized in this way will be called an ‘administrative organ’ or
‘agency’. ...
There are administrative organs in this sense in large-scale private
enterprises, in parties and armies, as well as the state and the church.
As an administrative agency, WADA is called on to perform certain
administrative functions in terms of the Code. The performance of
these functions requires that WADA exercise an administrative discre-
tion.
WADA should merely determine which substances or methods
should or should not according to certain guidelines be included in the
Prohibited List. The Code should not require that WADA should make
a scientifically unassailable funding that a particular substance or method
is or is not performance enhancing or harmful and therefore WADA
should not have to show that there are incontrovertible or even com-
6
2012/1-2
38 Williston on Contracts - Forms 4 ed (2011)
§ 15F:19.
39 367 F2d 341. See also AC Miller Concrete
Products Corporation v Quikset Vault
Sales Corporation 309 F Supp 1094.
40 For some examples, see also Whirlpool
Corporation v Certain Underwriters at
Lloyd’s London 662 NE 2d 467 (Illinois);
Haakinson and Beaty Co v Inland
Insurance Co 344 NW 2d 454 (Nebraska);
Appliance Sales and Service Inc v
Command Electronics Corporation 115
NC App 14 (North Carolina); Eads v
Woodmen of the World Life Insurance
Society 785 P 2d 328 (Oklahoma).
41 300 NW 322.
42 325 - 326.
43 Compagnie des Messageries Maritimes v
Wilson 94 CLR 577 at 585-586; Brooks v
Burns Philp Trustee Co Ltd 121 CLR 432.
44 75 FCR 583.
45 Blackshaw Sport Mediation and
Arbitration (2009) 151.
46 Economy and Society (1978) 218.
2012/1-2
7
pelling scientific, medical or pharmacological evidence that a substance
is indeed performance enhancing and/or harmful.
An administrative agency considers the evidence and arguments at
its disposal and makes up its own collective mind to make a particular
determination. An urban planning council deciding on the construc-
tion of a new road is often confronted with evidence and opinions that
are contradictory. It considers the evidence and submissions from oppos-
ing parties and makes a determination which will always in some way
or another conflict with some of the evidence or opinions. So there-
fore, even if the scientific evidence may not be certain and sometimes
even contradictory, the discretion as to whether or not a substance or
method should be included in the Prohibited List should be WADA’s
and WADA’s alone. A court or other tribunal cannot usurp that func-
tion merely because it would have reached a different conclusion. A
court or tribunal can only determine whether a determination has been
validly made. And to be valid, a determination must be made in good
faith, the agency must apply its collective mind in making the determi-
nation, it must be done in accordance with the procedures and guide-
lines which prescribe how the determination must be made and it must
be rational in the sense that, based on the evidence and arguments at
its disposal, the determination is not grossly unreasonable.
The way in which article 4.3 of the Code has been drafted, could
complicate matters for WADA, as it seems to suggest a procedure in
terms of which WADA may only make the determination if it finds
medical or other scientific evidence, pharmacological effect or experi-
ence that a substance is or could be performance enhancing and/or
harmful.
5. Conclusion: Proposed Amendments
The difficulties which I have highlighted in this paper can all be ade-
quately addressed with careful amendments of the Code. I propose that
the article 4.3 should be amended as set out in the table. The aim of the
amendment would be to emphasise that WADA has a discretion to
determine which substances or methods should be included in the
Prohibited List. Crucially, the proposed amendment only requires
WADA to consider the relevant scientific, medical, pharmaceutical and
other evidence before it applies its collective mind to determine whether
a substance or method should be included in the Prohibited List. But
unlike the current article 4.3, the proposed amendment does not require
WADA to determine that there is indeedscientific, medical, pharma-
ceutical and other evidence that the substance or method is or could be
performance enhancing or harmful.
47 Barry and Whitcomb The Legal
Foundations of Public Administration
(2005) 9.
48 Feinstein v Taylor 1961 4 All SA 366 W.
Current text Proposed amended text
4.3 Criteria for Including Substances and Methods on the
Prohibited List
WADA shall consider the following criteria in deciding whether to
include a substance or method on the Prohibited List.
4.3.1 A substance or method shall be considered for inclusion on the
Prohibited List if WADA determines that the substance or method
meets any two of the following three criteria:
4.3.1.1 Medical or other scientific evidence, pharmacological effect or
experience that the substance or method, alone or in combination
with other substances or methods, has the potential to enhance or
enhances sport performance;
4.3.1.2 Medical or other scientific evidence, pharmacological effect or
experience that the Use of the substance or method represents an
actual or potential health risk to the Athlete;
4.3.1.3 WADA’s determination that the Use of the substance or
method violates the spirit of sport described in the Introduction to
the Code.
4.3.2 A substance or method shall also be included on the Prohibited
List if WADA determines there is medical or other scientific evi-
dence, pharmacological effect or experience that the substance or
method has the potential to mask the Use of other Prohibited
Substances or Prohibited Methods.
4.3.3 WADA’s determination of the Prohibited Substances and
Prohibited Methods that will be included on the Prohibited List and
the classification of substances into categories on the Prohibited List
is final and shall not be subject to challenge by an Athlete or other
Person based on an argument that the substance or method was not a
masking agent or did not have the potential to enhance performance,
represent a health risk or violate the spirit of sport.
4.3 Criteria for Including Substances and Methods on the
Prohibited List
4.3.1 WADA shall, after considering the available scientific, medical,
pharmacological and other relevant evidence and any submission
made to WADA, determine whether to include a substance or
method on the Prohibited List if WADA finds that the substance or
method meets at least two of the following criteria:
4.3.1.1 The substance or method, alone or in combination with other
substances or methods, has the potential to enhance or enhances
sport performance;
4.3.1.2 The Use of the substance or method represents an actual or
potential health risk to the Athlete;
4.3.1.3 There is a risk that the substance can be abused by Athletes
because of its performance enhancing qualities or perceived perform-
ance enhancing qualities.
4.3.1.4 The Use of the substance or method violates the spirit of sport
described in the Introduction to the Code.
4.3.2 A substance or method shall also be included on the Prohibited
List if WADA determines that the substance or method has the
potential to mask the Use of other Prohibited Substances or
Prohibited Methods.
4.3.3 In performing its function in terms of article 4.3.1 or article
4.3.2, WADA may also determine that a category of substances or
methods shall be included on the Prohibited List.
4.3.4 WADA’s determination under article 4.3.1, article 4.3.2 or article
4.3.3 is final and can only be reviewed by a panel constituted by the
Appeals Arbitration Division of the CAS if it can be shown that
WADA did not follow a fair procedure in making such determination
or if such determination was not made in good faith or is grossly
unreasonable.
4.3.5 If the CAS finds that WADA did not follow a fair procedure in
making a determination under article 4.3.1, article 4.3.2 or article
4.3.3, or if such determination was not made in good faith or is gross-
ly unreasonable, the CAS may instruct WADA to reconsider the
determination within a set period or the CAS may annul the determi-
nation with prospective effect only.
4.3.5 An Athlete or other Person may not challenge the validity of
WADA’s determination under article 4.3.1, article 4.3.2 or article 4.3.3
in a hearing on an anti-doping rule violation and a hearing panel may
not take cognisance of any challenge to the validity of WADA’s deter-
mination in terms of article 4.3.4 or otherwise.
