Prosecuting historic doping: Why the 2015 WADA Code’s new limitation period is an opportunity missed

The World Anti-doping Code (the “Code”)¹ contains a set of rules that aims to harmonise the anti-doping rules worldwide by the identification of prohibited substances and methods, the definition of anti-doping rule violations (ADRV), and the imposition of appropriate sanctions.² The Code was amended with effect from January 2015 (the “2015 Code”) and various changes were instituted to it. Specifically, as part of a general increase in sanctions,³ the period of limitation for prosecuting an ADRV has been increased under Article 17 from 8 years⁴ to 10 years.

This article considers the legal issues relating to the prosecution of historic ADRV’s outside of the Code’s stated period of limitation, and asks whether the changes instituted under the 2015 Code provide an effective legal structure for tackling that problem.

The Code’s New Period of Limitation

The period of limitation under Article 17 of the 2015 Code provides a defence to historic anti-doping offences. The defined period in which to prosecute doping offences is now ten years from the date the violation is asserted to have occurred (“the limitation period”). Therefore, in principle, an athlete has a complete defence to doping violations after 10 years from the date when the doping offence occurred. Article 17 of the Code states as follows:

“No anti-doping rule violation proceeding may be commenced against an Athlete or other Person unless he or she has been notified of the anti-doping rule violation as provided in Article 7, or notification has been reasonably attempted, within ten years from the date the violation is asserted to have occurred”

The aim of the increase is to widen the net slightly to enable the prosecution of more athletes who are guilty of historic but as yet unproven doping offences. It will further discourage those currently competing if they know that their samples might be analysed in the future when scientific advances might reveal offences that could not have been detected contemporaneously.

But does the mere two-year extension of a rigid limitation period address the real problem? What of the athletes who have successfully concealed offences that date back beyond the limitation period? Some may still be competing and still gaining an advantage from historic drug use. Even if not still competing, they might be involved in their sport as a coach or administrator. The clean athletes they defeated are still denied the satisfaction of knowing that they were the best (though even a successful prosecution will not give them back their moment in the spotlight).