WADA - Legal opinion on the compatibility of the proposed changes to the World Anti-Doping Code 2021 with general Human Rights principles

1

Legal opinion on the compatibility of the proposed changes to the World Anti -Doping Code 2021 with general Human Rights principles

The Honourable Michael J Beloff KC2

INDEX

1. Introduction…………………………………………………………………….…..……pp 3-6

2. Sample Analysis Articles 6.2 and 6.3………………………………….…….……...pp 6-13

3. Mandatory Provisional Suspension Article 7.4.1…………….……….….……….pp 14-17

4. Sanctions on Individuals Article 10…………………………………………………pp 17-20

5. Substances of Abuse Article 10.2.3…………………………..…….……….……..pp 20-21

6. Therapeutic Use Exemptions Article 10.2.4…………….……………….………..pp 21-22

7. Benefit of Admissions for POIs Article 10.7.2……………………….…...……….pp 22-26

8. Benefit of Informing for POIs Article 10.7.3………………………….…………….pp 26-30

9. Case Resolution Agreements Article 10.8………………………….….………….pp 30-39

10. Status during Ineligibility or Provisional Suspension Article 10.14…………...pp 39-42

11. Results Management Appeals Article 13………………………………..……….pp 42-44

12. Public Disclosure Article 14.3.3…………………………………………..……….pp 44-45

13. Research Article 19………………………………………………..…….….……..pp 45-47

14. Athlete Co-operation Article 21.1.6…………………………………….………....pp 47-50

15. Signatories non-doping sample use Article 23……….…….……….…………..pp 50-52

14. Athlete Co-operation Article 21.1.6…………………………………….………....pp 47-50

15. Signatories non-doping sample use Article 23……….…….……….…………..pp 50-52

16. Treatment of Minors and Protected Persons. Article passim………………..…pp 52-563

Introduction

1. I am asked to advise in an expert report as to the compatibility of proposed changes to the 2021 World Anti -Doping Code (“WADC 2 1”) with general Human Rights principles (“the relevant issue”) as requested by Mr. Julien Sieveking, Director of Legal Affairs at WADA, by emails dated 27th June 2024 and 9th October 2024, compiled after discussion with the Code Drafting Team, and confirmed in an email dated 30 th September 2024 from Oli vier Niggli, Director-General of WADA also dated 30 th September 2024. I have not been invited to comment on the many proposed changes which do not raise, even indirectly, the relevant issue, and therefore do so only incidentally.

2. My name is Michael J Beloff KC , a member of Blackstone Chambers in Temple, London, EC4Y 9BW (my professional address). I am an MA (Oxon) with degrees in both History and Law from the University of Oxford and an English barrister called to the Bar by the Honourable Society of Gray’s Inn in 1967 (serving as Treasurer , its elected senior officer, in 2008) and elevated to the rank of Queen’s Counsel in 19811.

I have appeared as an advocate at all levels of the Courts of England and Wales, in the Privy Council and the Courts of ten Commonwealth countries, as well as in the European Court of Justice (as it then was called) and in the European Court of Human Rights (“ECtHR”) on multiple occasions , acting both for and against the British Government.

the Privy Council and the Courts of ten Commonwealth countries, as well as in the European Court of Justice (as it then was called) and in the European Court of Human Rights (“ECtHR”) on multiple occasions , acting both for and against the British Government.

3. I was a member of the Court of Arbitration for Sport for 25 years and have chaired the ethics commissions and associated disciplinary tribunals of three global sports: athletics, cricket and skiing. I have held several judicial posts in England and was the Senior Ordinary Appeal Judge in both the Jersey and Guernsey Courts of Appeal. In all these roles I have dealt, inter alia, with disputes and issues involving human rights law. I was also , for a decade between 1996 and 2006 , President of Trinity College Oxford and have both written and lectured on human rights, including in seminars for members of the English judiciary in anticipation of the enactment of the Human Rights Act 1998 which came into force on 2nd October 2000.

4. I provide this opinion in my personal capacity pursuant to the instructions referred to in paragraph 1 above.

5. I have been provided initially with: - The first revised draft of the 2021 World Anti -Doping Code published for stakeholder consultation on 21 May 2024 (“First Revised Draft”). - A summary of the major proposed changes published on 21 May 2024 (“Major Changes Summary”). - Judge Costa’s opinion on the 2015 World Anti-Doping Code (2013) (“Costa 2013”)

1 Now renamed, since the accession of King Charles III, King’s Counsel.4

• Judge Costa’s opinion on the International Standard for Code Compliance by Signatories (2017) (“Costa 2017”) - Judge Costa’s opinion on the 2021 World Anti-Doping Code (2019) (“Costa 2019”) - A list of the changes where my opinion was required, in the email from Julien

Signatories (2017) (“Costa 2017”) - Judge Costa’s opinion on the 2021 World Anti-Doping Code (2019) (“Costa 2019”) - A list of the changes where my opinion was required, in the email from Julien Sieveking, dated 9 October 2024 updated by Professor Ulrich Haas on behalf of the Code Drafting team in an email dated 18 December 20242 and most recently on 10 July 2025 with a further revised draft showing the changes between the 2021 World Anti-Doping Code (currently in force) (“the 2021 Code”) and the changes that the stakeholders had by then have proposed 3. Any later proposed changes have not been considered.

6. I take note of and respectfully agree with the following observations of Judge Costa4 which will inform my approach to and conclusions on the specific questions with which I am asked to deal as crystallized from the stakeholder submissions and the way in which the Code Drafting Team wants to engage with these submissions.

(i) Although WADA is not a public authority, human rights principles contained in the European Convention on Human Rights ( “ECHR”) and equivalent instruments apply to it. The draft 2027 Code’s express and expressed purpose (differing more in phraseology than substance from WADC 2021) is “to ensure that all relevant stakeholders have agreed to submit to the Code and the Internationa l Standards, and that all measures taken in application of their anti -doping programs respect the Code, the International Standards and the principles of prop ortionality and

2 The issues on which my opinion was required changed as the Code Drafting Team continued to review and revise its initial thoughts see e.g. the attachment to the email of Julien Sieveking dated 3rd June 2025. It is a continually evolving document and I have in response continually revised and refined my submissions. 3 I have also been provided by Matthew Graham Head of UNI WORLD PLAYERS with a document entitled “Best

initial thoughts see e.g. the attachment to the email of Julien Sieveking dated 3rd June 2025. It is a continually evolving document and I have in response continually revised and refined my submissions. 3 I have also been provided by Matthew Graham Head of UNI WORLD PLAYERS with a document entitled “Best Practice improvements to Anti-Doping Programs” (‘BPIADP’) with associated material including correspondence with WADA dated 3 September 2021 advocating a “Proposed Athletes Rights Impact Assessment” (‘ARIA’) together (“the World Player Material ’’). The ARIA considers that the analyses of Jud ge Costa and other lawyers who answered questions posed by WADA “are incomplete in a number of material respects and, consequently arrive at conclusions which lack the requisite veracity ... (and) were conducted in a factual vacuum, especially by failing to research, understand and consider the lived in experiences of athletes regulated by the WADC.’’ I am instructed that the Code Drafting Team are familiar with the World Player M aterial, having received submissions on behalf of UNI World Players, and, in so far as those submissions deal with proposed changes to the 2021 Code and raise human rights issues, they have been factored into the questions I am asked to consider. The same material also deals with the structure of WADA as distinct from the content of the Code which falls outside my remit. Furthermore, I have been provided with an internal and, at that stage confidential, document by Ms. Snežana Samardžić-Marković, an acknowledged expert in human rights , who provided by way of response to World Player concerns an Initial Human Rights Impact Assessment. It is significant that she believes “the focus should be on the implementation (sc of existing standards) before introducing new norms” since “many of the human rights risks identified in the assessment arise from non compliance with the existing standard s”. She suggests that “enhancing respect for athletes right offers the best chance to transform them from mere objects of doping control into proactive participants in the global fight for clean sport”.

in the assessment arise from non compliance with the existing standard s”. She suggests that “enhancing respect for athletes right offers the best chance to transform them from mere objects of doping control into proactive participants in the global fight for clean sport”. I would add that there is of course a recognised distinction between best practice and legal requirements and between what Athletes might explicably wish for and what current human rights law requires. 4 Where I refer to his ipsissima verba I put them in quotation marks.5

human rights.” It further states that it “has been drafted giving consideration to human rights and the principles of proportionality”. Article 23 deals with acceptance and implementation; the Signatories become bound by contract i.e. a “declaration of acceptance” Article 23.1.25. (ii) The principles in the ECHR are a benchmark since it is, “if not the most universal international instrument, at least the most relevant one in material terms”6. (iii) The main, but not the only, articles relevant to the Code are Article 6 (fair trial) and Article 8 (right to respect for private life)7 of the ECHR. (iv) For the purposes of Article 6 ECHR, allegations of an ADRV are not "criminal accusations" and therefore the sanctions imposed for these violations are not of a criminal nature8. It is the civil rights of the Defendant which are protected, there being no separate rules under the ECHR relating to disciplinary charges. (v) The objectives of the fight against doping more generally, are twofold - the protection of health, and the fairness of sporting competitions, which affects the

5 In ‘A Guide to the World Anti-Doping Code’ by Paul David (2008) on earlier iterations of the Code an issue was raised as to whether disciplinary rules of a private organisation such as WADA whose authority stemmed from contract could be invalidated by reference to general human rights principles applicable within the jurisdiction in question at p.45 see e.g. CAS2006/A/1102 and CAS 2006/1146. That issue has now been resolved. See (i) above.

be invalidated by reference to general human rights principles applicable within the jurisdiction in question at p.45 see e.g. CAS2006/A/1102 and CAS 2006/1146. That issue has now been resolved. See (i) above. 6 “The relevance of the reference to the ECHR and its case law is also justified ratione loci: the Court of Arbitration for Sport (CAS), which has its seat in Switzerland (Lausanne) comes under the appeal jurisdiction of the Swiss Federal Court by virtue of Articles 176 and 190 of the Swiss Law on Private International Law. In addition, the decisions of the latter fall under the jurisdiction of the ECHR for two reasons. In terms of jurisdiction and substance, the Swiss Federal Court’s decisions are binding on Switzerland as it is a State Party to the European Convention on Human Rights (Article 1 of the Convention5) despite not being a member of the European Union. In procedural terms, they stand as the final domestic decision within the meaning of Article 35 of the Convention. Indeed, Article 35 stipulates as a condition of admissibility of applications made to the Court that all domestic legal remedies must have been exhausted and that a period of six months from the date on which the final decision was taken must have elapsed.” Costa 2017 The United Nations Guiding Principles ‘’UNGP’(2011)’ refer to the International Bill of Human Rights consisting of the Universal Declaration of Human Rights (UDHR) the International Covenant on Civil and Political Rights (‘’ICCPR’’) the International Covenant on Economic Social and Cultural Rights (‘’ICESCR’’) and the International Labour Organisation’s Declaration on Fundamental Principles and Rights at Work (“ILODFP & RaW’’) and its Follow Up (“ILO Declaration’’).The very names of these instruments illustrate that they are concerned with more than core fundamental rights. The UNGP state, however, “Nothing in these Guiding Principles should be read as creating new international law obligations, or as limiting or undermining any legal obligations a State may have undertaken or be subject to under international law with regard to human rights.”

rights. The UNGP state, however, “Nothing in these Guiding Principles should be read as creating new international law obligations, or as limiting or undermining any legal obligations a State may have undertaken or be subject to under international law with regard to human rights.” 7 Fédération Nationale des Syndicats Sportifs (FNASS) and others v. France (‘’FNASS) Applications 48/15/11 777/69/1318 January 2018 concerned the requirement for a targeted group of sports professionals to notify their whereabouts for the purposes of unannounced anti -doping tests. The applicants alleged in particular that the mechanism requiring them to file complete quarterly information on their whereabouts and, for each day, to indicate a sixty-minute timeslot during which they would be available for testing, amounted to unjustified interference with their right to respect for their private and family life and their home. The ECtHR held that there had been no violation of Article 8 (right to respect for private and family life and home) of the Convention in respect of the complaint of 17 of the individual applicants, finding that the French State had struck a fair balance between the various interests at stake. In particular, taking account of the impact of the whereabouts requirement on the applicants’ private life, the Court nevertheless took the view that the public interest grounds which made it necessary were of particular importance and justified the restrictions imposed on their Article 8 rights. The ECt HR also found that the reduction or removal of the relevant obligations would lead to an increase in the dangers of doping for the health of sports professionals and of all those who practise sports and would be at odds with the European and international consensus on the need for unannounced testing as part of doping control . I add that the ECJ has also recognised the virtue of anti-doping rules, Meca-Medina v European Commission 2006 ECR I-6991. 8 Mutu and Pechstein v Switzerland. Applications 40575/10 67474/10.2 October 2018.6

rights and freedoms of other people, both being legitimate goals within the

Meca-Medina v European Commission 2006 ECR I-6991. 8 Mutu and Pechstein v Switzerland. Applications 40575/10 67474/10.2 October 2018.6

rights and freedoms of other people, both being legitimate goals within the meaning of Article 8 (2) ECHR, so able to justify an infringement of the respect for private life (subject to the infringement also being " provided for by the law " and "necessary in a democratic society")9 and, mutatis mutandis, other Articles of the ECHR similarly structured. (vi) The European Court of Human Rights (‘’ECtHR’’) has recognized that there is “now a broad consensus, in Europe and outside Europe, in favour of the fight against doping, of which the Code, relayed by the national laws, is the principal legal instrument”.10 (vii) The principles are, however, in a constant state of development “ not immutable” so requiring continuing reference to the case law, in particular of the ECtHR. (viii) At the same time changes are continually envisaged in the anti -doping regime laid down in the Code so providing an updated context in which to apply updated principles ditto11.

7. I shall set out in order of the Articles on which my Advice is specifically sought and my observations thereon from a human rights perspective. I express my gratitude to Professor Ulrich Haas for his fruitful and constructive dialogue during my preparation of this Opinion.

8. I shall use, where convenient, the following acronyms:

ADRV = Anti-Doping Rule Violation ASP = Athlete Support Personnel CAS = Court of Arbitration for Sport DCF = Doping Control Form Fn = Footnote ISL = International Standard for Laboratories POI = Period of Ineligibility PS = Provisional Suspension NF = No Fault NSF = No Significant Fault Art = Article Para = Paragraph

Sample Analysis

9 FNASS cit sup. 10 ditto.

POI = Period of Ineligibility PS = Provisional Suspension NF = No Fault NSF = No Significant Fault Art = Article Para = Paragraph

Sample Analysis

9 FNASS cit sup. 10 ditto. 11 So with the aid of appropriate search engines, I have kept abreast of those developments. I also found a useful CAS publication dated 28 November 2023 SPORT AND HUMAN RIGHTS; and the Council of Europe’s own publication summarising its case law on the same topic.7

Article 6.2 and 6.3

1. The two key provisions in relation to the analysis of samples under the general rubric of doping control are these: 6.2 Purpose of Analysis of Samples and Assessment of Analytical Data Samples and related analytical data or Doping Control information shall be analysed to detect Prohibited Substances and Prohibited Methods identified on the Prohibited List and other substances as may be directed by WADA pursuant to Article 4.5, or to assist an Anti-Doping Organization in profiling relevant parameters in an Athlete’s urine, blood or other matrix, including for DNA or genomic profiling, or for any other legitimate anti-doping purpose.

In principle, all Samples collected shall be promptly analysed. However, the International Standard for Laboratories or the International Standard for Testing may identify specific conditions under which Samples may be collected and stored for possible future analysis. Article 6.3 Research on Samples and Data Samples, related analytical data and Doping Control information may be used for antidoping research purposes, although no Sample may be used without the Athlete’s written consent where the research involves re-analysis of the Athlete’s Sample(s) for a purpose beyond Article 6.2 12. Samples and related analytical data or Doping Control information used for research purposes shall first be processed in such a manner as to prevent Samples and related analytical data or Doping Control information being traced back to a particular Athlete. 13 Any research involving Samples and related

a purpose beyond Article 6.2 12. Samples and related analytical data or Doping Control information used for research purposes shall first be processed in such a manner as to prevent Samples and related analytical data or Doping Control information being traced back to a particular Athlete. 13 Any research involving Samples and related

12 [Comment to Article 6.3: For the avoidance of doubt, Athlete consent would not be required, by way of example, for a) Testing for the presence and/or Use of substances and methods that were prohibited at the time of Sample collection; b) Testing for non-Prohibited Substances or methods that are included in the WADA Monitoring Program (see Code Article 4.5); c) Testing for non -Prohibited Substances for results interpretation purposes (e.g. confounding factors of the “steroid profile”, non-Prohibited Substan ces that share Metabolite(s) or degradation products with Prohibited Substances);.d) Testing for non-Prohibited Substances or methods requested as part of a Results Management process by an Anti-Doping Organization with Results Management authority, a hear ing body or WADA; e); the use of analytical data. Athlete consent would also not be required for Quality Assurance processes, including without limitation: a) improvement of existing analytical methods; b) development of new analytical methods for detection of presence or Use of substances or methods already prohibited at the time of Sample collection, or for substances included in the WADA Monitoring Program or targeted for results interpretation purposes; c) application of methods for detection of presence or Use of substances or methods already prohibited at the time of Sample collection to new biological matrices (e.g. blood, DBS, hair, saliva); d) use of Samples as reference collections/quality control samples; e) establishing reference population ranges or new/revised thresholds/Decision Limits for substances or methods already prohibited at the time of Sample collection or for other statistical purposes.] 13 [Comment to Article 6.3: As is the case in most medical or scientific contexts, use of Samples and related information for Quality Assurance, quality improvement, method improvement and development or to establish reference

at the time of Sample collection or for other statistical purposes.] 13 [Comment to Article 6.3: As is the case in most medical or scientific contexts, use of Samples and related information for Quality Assurance, quality improvement, method improvement and development or to establish reference populations is not considered research. Samples and related information used for such permitted non-research purposes must also first be processed in such a manner as to prevent them from being traced back to the particular8

analytical data or Doping Control information shall adhere to the principles set out in Article 19.

2. I am instructed that it was a combination of laboratories and athletes’ representatives which were responsible for the insertion of a prompt analysis clause initially in the ISL, later in the Code itself . In my opinion , later analysis, as long as directed to the perceptible object of the Code, i.e. to purge any sport, to which it applies, of doping would obviously strengthen one or other aspect of doping control, i.e. deterrence from doping and protection of honest athletes and such use of samples would therefore satisfy the description of a legitimate anti-doping purpose. It follows that storage for such later analysis would also be intra vires the Code. I would nonetheless respectfully suggest, for the purpose of confirmation and of clarification, that the phrase “anti-doping purpose” which appears both in Article 5.1 (testing) and Article 6.2 (analysis of samples) could usefully be inserted in the definitions section of the Code. I do not think that the adjective “legitimate” adds anything since there can be no scope within the Code for an illegitimate anti-doping purpose, and accordingly it should be deleted.

3. In my view the first paragraph of Article 6.2 does not preclude, indeed actually permits, storage for potential future analysis. Therefore there is no need to treat the words “In principle” and “However”, each governing a separate sentence of the second para of Article 6.2, as requiring that storage for future analysis should be an exception to the

storage for potential future analysis. Therefore there is no need to treat the words “In principle” and “However”, each governing a separate sentence of the second para of Article 6.2, as requiring that storage for future analysis should be an exception to the general rule for prompt analysis (though it could be construed as merely descriptive of the status quo, i.e. that samples used for detection of ADRV are in fact generally analyzed promptly). I would myself recommend their delet ion as serving no useful purpose. But on no view can they, even if retained, sensibly be construed to prohibit storage of samples for future analysis, for this would be contrary to the purposes of the Code.

4. Article 6.2 is concerned with the analysis of samples for anti -doping purposes, both those taken as part of a test under Article 5 and those such as dried blood s amples (“DBS’’) which may at present be taken with an athlete’s consent on an irregular basis, though I am instructed that, in so far as further information becomes available as to the utility of DBS, provision may be made in future codes for their regular acquisition.

DBS are more easily and less expensively capable of storage than liquid i.e. uri ne or blood samples; they require no refrigeration and lend themselves more readily to bulk storage.

5. If a test of a liquid sample raised suspicion but no proof of an ADRV but later a more sophisticated technology allows the sample to be retested and supports a prima facie case, DBS could be used to determine whether or not there was an ADRV. Such use of stored DBS could cut both ways from the athlete’ s perspective. It could exculpate but equally could inculpate. I have been provided with a hypothetical illustrative example which I quote almost verbatim: “A urine sample is taken on 20.5 and tests positive for stanozolol at very low levels. The question is whether this is the end of an

but equally could inculpate. I have been provided with a hypothetical illustrative example which I quote almost verbatim: “A urine sample is taken on 20.5 and tests positive for stanozolol at very low levels. The question is whether this is the end of an

Athlete, having due regard to the principles set out in Article 19, as well as the requirements of the International Standard for Laboratories and International Standard for Data Protection.]9

excretion tail or whether this is from contamination of a supplement. Assume DBS were taken from the athlete on 15.5. and 10.5. and on 25.5. If they all show low level for stanozolol this would be clear proof that the athlete was and is taking some contaminated supplements. If, however, the DBS on 25.5 shows lower levels of stanozolol than the one on 20.5 and the DBS on 15.5. and 10.5. much higher level for stanozolol, then this would be proof that this is an excretion tail of a therapeutic dose that could not possibly stem from a contaminated product.”

6. A further use to which stored samples (in this context more likely of urine or blood rather than DBS) could be put is when a question is raised as to whether some new substance taken by athletes, not previously classified as prohibited, should be so classified. A question of this kind was raised in relation to meldonium. As recorded,

inter alia, in a “WADA Notice 4.11.2016’’: “Introduction Meldonium is a nonspecified substance prohibited at all times (inand out -ofcompetition) since 1 January 2016. It had been added to the Monitoring Program on 1 January 2015. The 2016 Prohibited List was adopted by the WADA Executive Committee on 16 September 2015. …. The inclusion of meldonium on the 2016 Prohibited List concluded a long process

on 1 January 2015. The 2016 Prohibited List was adopted by the WADA Executive Committee on 16 September 2015. …. The inclusion of meldonium on the 2016 Prohibited List concluded a long process conducted by the WADA List Committee between 2011 and 2015. This process, which included a review of the available scientific information and the generation of specific data (in particular via the 2015 Monitoring Program, which revealed a high prevalence of the use of meldonium by athletes and teams of athletes) ultimately led to the conclusion that meldonium met two of the three criteria listed at Article 4.3.1 of the World Anti-Doping Code (Code). In particular, claims of performance enhancement had been made by various authors, including the manufacturer of meldonium.’’ This Notice itself explains the utility of stored samples in furtherance of the monitoring program set out in the Code Article 4.5.

7. None of this as regards Article 6.2 raises human rights concerns. It is concerned only with anti-doping purposes. Storage of samples for possible future analysis and the opportunity for analysis other than promptly are specifically provided for. The athlete’s consent is inherent in the athlete’s responsibilities under Art icle 21.1.1 and 21.1.2 of the Code and needs no extra form of expression. None of this , however, is true as regards Article 6.3 which is concerned with the use of samples for a purpose other than detection of an ADRV.

8. Article 6.3 refers back to Article 6.2. The only proposed amendment to the text of Article 6.3 is to substitute the succinct phrase “for a purpose beyond Article 6.2” for a longer list of purposes , an exercise in deletion, not addition. The requirement for an athlete’s written consent where the research involves reanalysis of an athlete’s sample for a purpose other than detection of an ADRV remains the same.10

longer list of purposes , an exercise in deletion, not addition. The requirement for an athlete’s written consent where the research involves reanalysis of an athlete’s sample for a purpose other than detection of an ADRV remains the same.10

9. The question thus posed is whether a bare consent by an athlete to the use of his samples for an (unspecified) purpose beyond Article 6.2 (“a bare consent’) would suffice to render such reanalysis in accordance with the Code and immunize any person involved in such analysis immune from complaint on human rights grounds by an athlete whose sample was re-analyzed for such purpose.

10. I recognize that for such research purposes the sample must be processed so “ as to prevent it being traced back to a particular athlete’’ i.e. anonymized (Article 6.3) and that the research involving such sample must “adhere to the principles set out in Article 19” (Research) but I am not confident that a bare consent would adequately prevent an athlete who had given such consent from claiming violation of his or her personal rights.

11. Examining the issue through the lens of GDPR14 - data protect