One of the greatest challenges for sporting regulators in recent times has been developing and implementing a regulatory regime that can respond to the pace of scientific, technological and pharmacological advances and maintain sporting integrity.
How did anti-doping regulation begin?
The move towards participation in a doping-free sporting environment only began in the 20th century, although the origins of ‘doping’ can be traced back to 776 BC in Ancient Greece, where competitive athletes used special diets and stimulants to build strength in order to beat their opponents. During the 1800s, drug use became more socially acceptable and was even viewed by some in a positive light, as certain substances sparked the potential to combat fatigue. Athletes experimented with drugs for use within competitions, which remained legal.
However, by the 1920s, there were increasing health and morality concerns around the use of drugs for improving performance, and an emerging view that substance use was becoming out of control; legal restrictions were necessary. This was partly due to the realisation by governments of the serious health risks athletes could face through the use of stimulants. In 1928 the International Association of Athletics Federation became the first federation to prohibit the use of performance enhancing drugs. There was no testing at this point, but the prohibition was the first statement to athletes that it was no longer acceptable to enhance performance through the use of unregulated substances.
Following the death of Knut Jensen at the 1960 Rome Olympics due to use of amphetamines, France and Belgium implemented laws prohibiting doping and the International Olympic Committee (IOC) established a Medical Commission that developed and published the first list of prohibited drugs in 1967. This was swiftly followed by the first Olympic scientific drug testing, implemented at the 1968 Grenoble Winter Games and Summer Olympics in Mexico.
The introduction of anti-doping tests
Doping scandals continued to hit the headlines in the 1970s and 1980s, driven by the development of a reliable test for steroids in 1974 and reports of the German Democratic Republic operating a state-supported anabolic steroid programme. The disqualification of 100-metre champion Ben Johnson at the 1988 Seoul Olympics proved to be a watershed moment; the global impact of the scandal and the realisation that methods of enhancing performance were becoming increasingly sophisticated led the IOC to shift its focus to science in the form of testing. Testing became the primary regulatory response to the issue.
In 1989 the Council of Europe implemented the Anti-Doping Convention, focusing on harmonisation across member states. However, it took the ‘Festina affair’ scandal at the 1998 Tour de France, later named the ‘Tour de Shame’, where vast numbers of prohibited medical substances were found in a team car by police, to shift the commitment from a European-led approach to an international consensus. The aftermath also led the IOC to commit to regulating doping and to scrutinise the legitimacy of its anti-doping policy. The IOC also concluded that international consensus was needed, holding the first World Conference on Doping in Sport, in Lausanne in February 1999, and establishing the World Anti-Doping Agency (WADA) to further increase international cooperation.
Creation of the World Anti-Doping Agency
WADA was founded in 1999 to regulate and harmonise anti-doping policy internationally. WADA’s role was to regulate sport as an international body. It approved the World Anti-Doping Code (WADC) in 2003, which came into effect on 1 January 2004. WADA also created, and still maintains, the list of prohibited substances.
Alongside this prohibition, athletes who require medication for illnesses are protected through the International Standard for Therapeutic Use Exemptions (ISTUE). These exemptions permit an athlete to take medication on the prohibited list without committing a doping offence. The appropriate interpretation and use of the ISTUE has been an area of controversy and challenge, for example, Bradley Wiggins’ use of various treatments under ISTUE for asthma which were not commonly used.
The ‘Whereabouts Rule’
Another controversial requirement of the WADC is the ‘Whereabouts Rule’. This requires high profile athletes who are in the registered testing pool of either their International Federation or National Anti-Doping Organisation to specify three months in advance, five days a week, a date and time each day they would be available for out of competition drug testing. In 2009 the WADC was amended to require the athlete to identify a one-hour period between 5am and 11pm each day and a specific location where they would be available for testing. Any combination of three missed tests within an eighteen month period would result in an anti-doping violation, with a maximum sanction of a two-year ban from competing.
The rule was subject to severe criticism when it was introduced, including a challenge by French sporting unions that this policy violated an athlete’s right to private and family life. However, the European Court of Human Rights (ECHR) held that the restrictions were necessary and justified on public policy grounds. The Whereabouts Rule remains in effect.
The ‘Athlete Passport’
The WADC has been supported through WADA’s implementation of the ‘Athlete Passport’. This monitors selected biological variables over time in individual athletes and can indirectly reveal the effects of doping, rather than testing for a specific substance. This allows regulatory authorities to recognise an individual’s atypical result in relation to their specific biological data, which signals a doping offence has been committed. The Athlete Passport is also a way for the authorities to keep up with the development of new substances for which they lack a specific test.
World-leading regulation in the UK
The UK is now one of the world leaders in anti-doping regulation. This has been driven by the establishment of UK Anti-Doping (UKAD) in 2009, following the recommendations from UK Sport to the government in the lead-up to the 2012 London Olympics. UKAD is responsible for the implementation and management of UK anti-doping policy, and delivers testing, education and advice to competitive athletes within the UK. It also oversees the applications of ISTUE for British athletes under the criteria of the WADC.
The organisation exercises a policy of zero tolerance, whereby every athlete must take ultimate responsibility for every substance that enters their body. This is reflected in the UK Anti-Doping Rules published in 2015, which were intended to implement the requirements of the World Anti-Doping Code on a UK-wide basis. The rules were also updated in 2021, in line with the 2021 WADC.
For more information please contact Matt Phillip, Head of our Sports Law group, or your usual Shepherd and Wedderburn contact.
For an overview of the UK's anti-doping structure, please see our flowchart here. To learn more about handling doping violations, please see our article Doping violations in the UK: convictions, appeals and consequences.