Doping is as old as sport itself and the modern phenomenon of doping emerged as soon as modern sport emerged in the nineteenth century. (1) Initially doping seemed to be an acceptable and even necessary element of sport. (2) However, as reports of side-effects on the psychological, physical 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 (3) was the first International Federation to address the problem of doping in sport when it adopted a simple rule against doping in 1928. (4) 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. (5) 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. (6) 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. (7) This resulted in the adoption of the World Anti-Doping Code (the Code) in March 2003. (8) 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 measures 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 contractual relationship, (9) the terms of which are derived from the constitution, laws, rules and regulations of the various bodies, unions, associations 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 accession to the Convention by most countries affiliated to the IOC, compliance with the Code and the authority of WADA also becomes matters of national and international law. In addition, many countries have adopted legislation to deal with the issue of doping in sport as envisaged 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 inappropriately classified in terms of article 4.3 and should therefore not be included on the Prohibited List. This article does not address issues relating to the prudence or desirability to include or not to include any particular 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 (10) WADA must now revise and publish the Prohibited List of substances and methods which are prohibited as doping. A substance 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 determines that it has the capacity to mask the use of other prohibited substances 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. …