Therapeutic Use Exemptions: Can WADA Strike A Fairer Balance Between Prospective & Retroactive Applications?
Therapeutic use exemptions (TUEs) allow athletes who use medications or methods prohibited by the World Anti-Doping Agency (WADA) for the treatment of an illness or medical condition to continue to use these treatments without falling foul of anti-doping rules. The International Standard for Therapeutic Use Exemptions (ISTUE) sets out the rules concerning the grant of a TUE. The rules were most recently revised and approved by the WADA Executive Committee on 23 September 2022 and the latest version1 (analysed in this article) will be effective from 1 January 2023. The regime set out thereunder envisages both prospective (before testing) and retroactive (after testing) applications for a TUE, with the former representing the orthodoxy and the latter being available only where certain criteria are satisfied. This article will explore:
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Whether the balance struck between prospective and retroactive TUEs is appropriate;
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Whether retroactive TUEs are capable of playing a more significant role in anti-doping regimes; and
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if so, whether the ISTUE should cast a wider retroactive TUE net.
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- Tags: Anti-Doping | Cycling | The International Standard for Therapeutic Use Exemptions | Therapeutic use Exemptions | WADA
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Written by
Harry Bambury
Harry is a trainee solicitor at Mills & Reeve based in the firm’s Birmingham office. Harry has worked on a number of sports law matters, ranging from anti-doping cases to work permit applications for professional footballers. Before starting at Mills & Reeve, Harry studied jurisprudence at the University of Oxford.
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Piotr Lebek
Dear Harry,
Very interesting article; however, I believe that the problem does not lie in the interpretation of the 'exception' but in the lack of understating by the sportsman one fact: TUE is generally a medical evaluation made by the doctors and in limited scope a legal matter. From my perspective, as a member of a disciplinary panel, the most crucial legal issue is always the question: Why do athletes submit for retroactive TUE after, e.g. 4, 8 and even 12 months? It’s always the first question and preliminary issue to adjourn during the appeal proceedings. The following issues concern medical stuff, and it is hard to resist the impression, as a tale as old as time, that there is always a surrogate. That is why the exception is not a problem but the surrogate.
During my many years of work in the disciplinary panel of the second instance at NADO, we had one case as an appeal panel from the TUE committee decision that ended up overturning the decisions so that the TUE committee could consider Art. 4.3. The athlete's medical history was impeccable, and the above question did not matter as the athlete should benefit from the TUE from the beginning of his sports career. WADA accepted our point of view.
I think that the exception cannot confirm the rule.
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