As 2014 draws to a close, media attention remains fixed on the issues arising from the Essendon supplements investigation. Away from the spotlight, Federal Parliament has passed the Australian Sports Anti-Doping Authority Amendment Bill 2014 (Bill). The Bill, which comes into effect on 1 January 2015, makes several important changes to the powers and processes of the Australian Sports Anti-Doping Authority (ASADA) set out in the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act).
The core purpose of the Bill is to align Australia's anti-doping laws with the revised World Anti-Doping Code (Code) and international standards which come into force on 1 January 2015. The recent example of Essendon Football Club provides a useful illustration of the likely application of some of the new provisions.
Snapshot of Amendments
New 'Prohibited Association' Anti-Doping Rule Violation
The ASADA Act currently specifies a number of anti-doping rule violations (ADRV) (for example, use or attempted use by an athlete of a prohibited substance). The Bill creates a new ADRV called 'Prohibited Association'. Under this new ADRV, athletes and others persons bound by ASADA laws are prohibited from associating in a professional or sports-related capacity with any 'athlete support person' (such as a coach, trainer, manager, official, team staff member, medical personnel or parent) who:
- is serving a doping related suspension;
- has been convicted of a crime; or
- has been found in a criminal, disciplinary or professional proceeding to have engaged in conduct which otherwise would constitute an ADRV.
This ADRV is essentially aimed at stopping athletes associating with the wrong people. Had the Prohibited Association ADRV been in place years ago, it may have prevented the involvement of certain 'athlete support persons' at sporting bodies around Australia.
Creation of 'Violations List'
The Bill also provides for the establishment of a 'Violations List' which will catalogue details of persons sanctioned under the anti-doping laws. The Violations List will include information such as the name of the athlete or athlete support person, date of birth, relevant sport, team, nature of the violation, date when the ADRV was committed and the period of ineligibility and any other consequences flowing from the ADRV. This codifies ASADA's current practice of reporting on its website the details of an ADRV once a matter is finalised.
Removal of Register of Findings
At the same time, the current Register of Findings will be scrapped in an effort to reduce the current confusion that exists around the process of determining an athlete's culpability. Under the existing system:
- ASADA undertakes an investigation (which may be a joint investigation with a sports administration body, such as the AFL or NRL);
- If ASADA decides there may be a possible ADRV, it issues a 'show cause' notice to the athlete;
- The athlete has the opportunity to make submissions to the Anti-Doping Rule Violation Panel (Panel). The Panel is a decision-making body independent from ASADA;
- The Panel decides whether a possible ADRV has been committed and whether to enter the athlete's details onto its Register of Findings;
- The Panel's decision to place an entry on the Register of Findings is not a determination of the athlete's culpability. Once an entry is made on the Register of Findings, the matter is referred to a sports administration body for determination; and
- The athlete has a right to bring an appeal in respect of an assertion made by the Panel.
The Bill removes the Register of Findings to reduce complexity in the current system which leads some people to (erroneously) assume that the Panel is the final hearing body for an alleged ADRV.
Extended limitation period for commencing action for ADRV
The Bill extends the existing limitation period for commencement of actions in respect of ADRVs. Currently, ASADA has eight years from the date the ADRV is alleged to have been committed to commence action. This period has been extended to 10 years. The stated purpose of this change is to enhance ASADA's ability to uncover doping programs and retrospectively analyse athletes' stored samples as new technologies for doping identification are developed.
It remains to be seen how much difference this amendment will make. By way of example, it took ASADA 18 months to issue 34 past and present AFL players with show cause notices after commencing (jointly with the AFL) an investigation in February 2013 into Essendon FC's 2012 supplements program. ASADA's case against those players is reportedly based on the 'use and attempted use' ADRVs. However, in cases where an athlete's sample is central to an investigation and prosecution, the extension of the limitation period may be significant.
Public Disclosure of Information
The ASADA Act has also been amended with respect to the public disclosure of information. The existing laws prohibit ASADA from publicly commenting on the specific facts of a pending case. The Bill creates an exception to this prohibition, which will allow ASADA to publicly comment to correct or clarify facts where an athlete or their representative initiates discussion publicly about his or her case.
The chief aim of the Code is to encourage and promote competition free from prohibited substances and methods and to prevent doping practices in sport. The Bill recognises the importance of streamlined and effective anti-doping policies and processes and brings Australian practice in line with world anti-doping agencies. Doping is currently a live issue in the Australian sporting landscape. Continued review and improvement of the ASADA Act should be welcomed – the integrity of sports and the welfare of players across Australia are at stake.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.