THE WARSAW INSTITUTE REVIEW
Date: 6 June 2017 Author: Witold Bańka
The Battle Against Doping – Challenging but Winnable
For some, doping in sport has become normal practice with it so commonplace that there are people calling for its legalization. These calls, however, rarely come from the athletes themselves.
Anyone who has ever competed, who has devoted long months preparing for an athletic event at the expense of their free time, studies or family, knows how important it is to feel that the competition is fair and equal. Even if you lose – and defeat is inevitable in sports – you know that everyone has had an equal chance to win; because in sports you either accept the principle of fair play, or you are not really an athlete. There is no third way. Thus, when taking up the post of Minister of Sport and Tourism in the Polish government, as a former athlete I made protecting the integrity of sport my priority. This is the foundation on which I want to build the future successes of our athletes. Using this approach, there is no place for compromise. Polish sport must be free from doping, but also free from corruption; it has to be managed transparently and free from conflicts of interest.
The Battle against Doping
Today, the fight against doping is more difficult than ever before. In the era of globalization, the internet and ceaseless pressure on athletes, it is no longer enough to rely solely on the results of doping tests and to increase their frequency. The fight against doping in sport is increasingly based on the quality of actions taken and on the adequate cooperation of a wide range of stakeholders, including the police and customs services. To create such conditions, it is necessary to start with a solid legal basis. Therefore, at the beginning of my term in office, a thorough review of the legislation on the fight against doping was carried out, taking a truly critical approach. Some of the solutions turned out to be impractical or not in line with current international standards; meanwhile, others were non-compliant with WADA regulations, including the World Anti-Doping Code. The situation required a resolute and well considered response. I made two decisions. Firstly, I found it necessary to draft a completely new law to comprehensively regulate the complex issue of doping, which required a single legislative act to provide a basis for action for all stakeholders in the fight against doping in our country. Secondly, I decided that all regulations considered doubtful as to their compliance with the World Anti-Doping Code had to be amended as soon as possible.
The Polish Anti-Doping Agency
The first solution was of a long-term nature; meanwhile, the second was ad-hoc and required the immediate amendment of the Act on Sport, which was made last summer and thoroughly changed the system of enforcing disciplinary liability for doping in sport. We put an end to the system in which adjudication in disciplinary proceedings was down to the role of Polish sports associations, who often delivered judgments seeking to protect the mistaken interests of the athletes, rather than the need to combat doping. The power to draw up and implement disciplinary regulations on doping in sport was vested in the Commission Against Doping in Sport which, at that time, held the status of the Polish National Anti-Doping Organization (NADO). In retrospect, I can say that this step contributed to increasing the quality of the Polish system of disciplinary adjudication on cases relating to doping in sport. The changes were, therefore, continued in the same direction through commencing the work on the Act on Combating Doping in Sport, which further strengthened the role of the central-level adjudicating body.
The main step in the legislative works was, therefore, the drafting of the new Act on Combating Doping in Sport, which ended on 20 December 2016 with the approval of the proposed legislation by the Council of Ministers. The work on the document was carried out in close cooperation with the World Anti-Doping Agency and in line with best practices used in drawing up anti-doping legislation in other countries, including Germany. As a result, a breakthrough legislative act, providing for modern systemic solutions, was developed. Its implementation will place Poland at the forefront of the fight against doping, alongside countries such as the United States, Great Britain and Germany. The Act on Combating Doping in Sport was passed by the Sejm, the lower house of the Polish Parliament, on 21 April this year and was supported by all political parties in the Parliament in their official statements, and all members present in the House voted for it.
The main purpose of the Act is to establish a new authority responsible for combating doping in sport in our country. However, this is not just a cosmetic change, consisting merely of replacing one entity with another. Rather, this is a truly in-depth and well considered institutional reform which aims firstly to streamline, and, secondly, to strengthen the country’s anti-doping structures. Starting from 1 July, the Commission Against Doping in Sport will be replaced by the Polish Anti-Doping Agency, a stable entity with wide-ranging powers and adequate funding. The Agency will use the acronym POLADA. Of particular importance for the effective fight against doping will be the Agency’s powers in the area of so-called investigative cooperation with the police, prosecutors, customs service, military police and border guards. Pursuant to the Act, all those services are required to share information with the Agency, thus allowing it to conduct its own doping-related investigations. Within the Agency’s structure there will be an investigation department, which is currently a standard followed by the best anti-doping organizations in the world such as UKAD in the UK or USADA in the United States. Without investigative activities, it is now difficult to imagine a truly effective fight against doping in sport. In general, such activities consist of determining whether a particular person (including an athlete) was involved in doping. This is done based on circumstantial evidence, without the requirement to detect a prohibited substance in the athlete’s sample or the use of a prohibited method.
However, the Agency’s main task will still be, as it was for the Commission Against Doping in Sport, to plan and conduct doping controls, both in-competition and out-of-competition. A novelty will be the significant professionalization of this task. According to the Act, doping controls may only be carried out by qualified doping control officers appropriately trained by the Agency and that the draft Act sets out very specific requirements relating to their training process.
The professionalization of doping control procedures is also reflected by awarding a special status to doping control officers. In the performance of their professional duties, or in connection thereto, they will be authorized to use the protection extended to public officials under the Criminal Code, but will at the same time be subject to the same liability as those officials. Tasks carried out by doping control officers have been considered measures in the public interest, and hence they have special status whose purpose is, on the one hand, to guarantee an adequate level of protection to doping control officers and, on the other hand, to serve a preventive measure against corruption of those officers.
Agency Cooperation with other Entities
The new Act on Combating Doping in Sport is also a continuation of the reform of the system of jurisdiction over cases relating to doping in sport, which commenced last summer. It provides for the appointment, within the Agency, of a disciplinary panel whose task will be to adjudicate on all disciplinary cases relating to doping in sport. The solution therefore consists of transferring the authority to adjudicate on those cases from the disciplinary committees which operated within Polish sports associations, to a single specialized entity which will guarantee the efficiency and fairness of the conducted proceedings. Notably, some of those committees lacked sufficient knowledge and the experience to be able to properly adjudicate on cases relating to doping in sport.
The Act also grants to the police and to the customs service the power to take measures necessary to investigate and prosecute smuggling and trafficking in doping substances that are prohibited in sport. This empowerment is accompanied by the relevant criminal law provisions which, under the conditions laid down in the Act, impose sanctions such as fines, restriction of liberty or imprisonment for up to 3 years, for making available to other persons, either free of charge or in return for payment, specific prohibited substances, trafficking in those substances or their transport or import into the territory of Poland. Such legislation is required, in particular, with regard to steroids which constitute a specific category of prohibited substances, and are of increasing interest to organized criminal groups, as a cheaper and “safer” alternative to drug trafficking.
The Act on Combating Doping in Sport also sets out a legal framework for the Agency’s cooperation with the minister responsible for health. It requires cooperation in terms of informing society about the possible risks of the presence of prohibited substances in dietary supplements, the risks related to using prohibited substances or prohibited methods, as well as information provision as part of ensuring appropriate marking or labeling of medicinal products, particularly when they contain prohibited substances.
The Act also clarifies the legal situation in the field of processing the personal data of athletes who undergo doping control procedures. Upon entry into force of the new Act, such data will be processed pursuant to the provisions thereof, rather than based on the consent of the athletes who, theoretically, may not have granted it. The scope of data to be processed, as well as data storage periods and destruction methods, are clearly determined. What is also of importance, is that the Act sets out the legal requirement for athletes to submit to doping control, and imposes on them the obligation to provide specific information, including their whereabouts for the following three months.
The Act on Combating Doping in Sport, which will enter into force on 1 July, is of extreme importance to the future of Polish sport. It has been long awaited by the entire country’s sporting community, and in particular by athletes who have the right to expect that fair competition will be guaranteed to them. This is not an easy task, as the international anti-doping standards set by the World Anti-Doping Agency develop dynamically and quickly, thus forcing countries to face new expectations and challenges. The Act not only meets them, but also makes it possible to think of Poland, in the near future, as one of the leaders in the fight against doping.
The new anti-doping legislation which will soon enter into force is the cornerstone of future actions aimed at ensuring the integrity of sport. It is the first and most important step towards building a strong, credible and globally recognized anti-doping system in Poland. Yet, it is not the only step. Of equal importance are other actions taken by the ministry I lead, including an increase in the number and effectiveness of doping controls, the purchase of modern equipment for the Polish anti-doping laboratory, and, possibly above all else, the involvement in international cooperation in the fight against doping in sport.
Poland’s International Commitment to the Fight Against Doping
Today, Poland is ranked 14’th in the world in terms of the number of samples collected during doping controls. We have plans to increase the number from 3300 in 2016 to almost 4000 this year and, ultimately, to 4500 in 2020. Over time, the Agency is going to become an anti-doping partner for all sports event organizers in the region, and a mentoring partner for other anti-doping organizations. Already today, such cooperation is carried out with Ukraine and Azerbaijan, in the latter case under a formal agreement with WADA. We already have the first results of this partnership with Azerbaijan returning to the list of countries compliant with the Code. Thus, in the future we aim to develop close cooperation also with other countries for which our knowledge and experience may be of assistance.
It is also planned to strengthen the position of the anti-doping laboratory in Warsaw, which is among the 34 WADA-accredited laboratories across the world. The goal for the laboratory is to obtain the permanent status of a leading anti-doping laboratory in the region, analyzing samples not only from the Polish Anti-Doping Agency, but also from other national anti-doping organizations and international sporting federations – organizers of sports competitions in the region. This is already happening today: the laboratory analyzes samples from Belarus, Ukraine, Lithuania, Russia and Spain. 2016 was a record year in terms of the number of analyzed samples coming from abroad and we would like this trend to continue. Therefore, in 2016 the ministry allocated the largest ever amount to the laboratory.
It is also of extreme importance for the Polish raison d’état to increase our country’s participation in the fight against doping on the international stage. Only by doing so can we prove the credibility and reliability of our anti-doping system. Furthermore, given that doping is an international phenomenon, the fight against it should not end at countries’ borders. Poland has therefore adopted a strategy of strict cooperation with the World Anti-Doping Agency (WADA), which is of mutual benefit to both parties. On the one hand, WADA offers us assistance in the improvement of our national solutions, including legislative ones, and we, on the other hand, support the mission pursued by the organization. Poland is particularly interested in WADA’s investigative activities; hence my decision to systematically support, also financially, the organization’s engagement in this innovative work area. In 2016, Poland paid a contribution of $US 50,000 to support the WADA Intelligence and Investigation Fund.
A reflection of our international engagement, but also of the appreciation for Poland’s recent activities has been my election as a member of the Executive Committee of the World Anti-Doping Agency, which was supported by all 47 member states of the Council of Europe. The Executive Committee is one of WADA’s two governing bodies whose role is decisive in shaping the global fight against doping. The Committee consists of 12 members; half of which represent public authorities, and the other half – the sports movement. I now have the honour of representing the continent of Europe. My priority as a member of the Committee will be to join all forces in the fight against doping, in order to make governments and the sports movement speak with one voice. On the Committee, I will always take a firm position and support only those measures which indeed contribute to the fight against doping.
As regards the strengthening of Poland’s international engagement, it is impossible not to mention the role of Katowice as the host city of the 2019 World Conference on Doping in Sport. The ministry headed by me, and very strongly supported by Katowice city authorities, sought the role of the host city since last November, and was selected for hosting the conference over Geneva and Muscat. The event is going to be a great challenge; yet, given the nature of Poles, our famous hospitality and extensive experience in hosting major international events, I am confident about the result. The World Conference on Doping in Sport is a periodic event in the WADA calendar, held every 4 to 6 years. It is attended by nearly 2000 experts from around the world, and is the main anti-doping event worldwide. In those conferences, decisions of key significance for the future fight against doping are taken: amendments to the Code are adopted and WADA’s president is elected.
In summary, over the past several months the Polish anti-doping system has undergone numerous in-depth reforms. This reflects the great commitment of the Polish government to the fight for the integrity of sport as a key aspect of the country’s society as a whole. This commitment has been noticed and recognized internationally. Consequently, we will enjoy the role of host of the 2019 World Conference on Doping in Sport, which will be held in Katowice. Yet, this is not the end; rather this is only the beginning of the road which must be followed by Poland and the world. We are fighting for the good name of sport and the future of athletes who have placed their trust in us. We should be inspired by athletes such as Beckie Scott, a Canadian skier who first competed for the gold medal in a sports arena, and later beyond it, when it turned out that the two Russian athletes who came before her used doping. Today, Beckie Scott chairs the World Anti-Doping Agency’s Athlete Committee and speaks for many athletes from around the globe. Among the members of this Committee was also the Polish Paralympic champion Katarzyna Rogowiec, now a member of the Polish Commission Against Doping in Sport. The voices of athletes must be heard and their right to fair competition in sport should be a priority for every government. Therefore, as a member of the Executive Committee, I will call on my colleagues and ministers to increase the efforts and funds to combat doping in sport.
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