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Cleaning up sport: conflicts of interest at the top | Space for Transparency

 

By Catherine Ordway

The tension between the International Olympic Committee (IOC) and the World Anti-Doping Agency (WADA) has never been greater than this year, when WADA recommended a ban on all Russian athletes from participating in the Rio Olympic Games, only to have the IOC reject that position. This points to a fundamental challenge for the relationship between the two organisations. As WADA is half run and funded by the IOC, its independence can be questioned.

In a vote to maintain the status quo, 75 year-old Sir Craig Reedie, an IOC member since 1994, was re-elected on 20 November as WADA President for a further three year term. Many of WADA’s decision-makers appear not to see a conflict in their dual/multiple roles. As IOC member and former WADA President, Dick Pound put it: “Tell me what the conflict of interest is between your capacity as an IOC member espousing clean, doping-free sport and sitting as representative of that organisation on [the] foundation board of WADA, which has the same objective.”

The fact that both WADA and the IOC have as a common goal the desire to achieve ‘drug free’ sport, does not negate the inherent conflict that arises in the space where the aims differ.

Despite creating WADA with inbuilt conflicts, the IOC now realises that WADA needs to change. The Declaration of the 5th Olympic Summit of 8 October recognised the fundamental philosophical tension within international sport on WADA’s role. Recommendation 3 emphasises that: “WADA [is] to strengthen its governance structure” and “[must] Ensure compliance with the highest ethical standards in particular with regard to the resolution of conflicts of interests and integrity.”

The Declaration went on to indicate that WADA should both be better resourced to operate independently and have greater powers. Hopefully this is also an indication that the IOC may now be willing to relinquish control and allow for greater independence.

Organisational objective conflicts

The IOC owns the Olympic Games and receives much of its revenue from the broadcasting and sponsorship of these events. It’s in the IOC’s interest to have the best athletes from all member nations there to keep the Games relevant and competitive. The proposal to ban Russia created a difficult dilemma for the IOC.

The challenge created when common interests raise a potential conflict is also demonstrated in WADA’s appointment of Dick Pound as the lead investigator in the first “independent” report into international athletics (IAAF) and Russia’s state sponsored doping. For the report to be ‘independent’, Pound’s current and former positions should have made him ineligible for this role.

In the most recent demonstration of the challenge posed, IOC members Gian-Franco Kasper and Dr. Ugur Erdender currently sit on both the committees that considered whether the athletes nominated by the Russian Olympic Committee should be barred from competing at the Rio 2016 Olympic Games, namely the IOC and WADA Executive Boards.

The IOC’s decision not to accept WADA’s recommendation on Russia’s eligibility sends the message that Olympic goals, including supporting one of the IOC’s strongest members, are prioritised over the aims of WADA. At the meeting of the broader IOC membership, only the former British skeleton athlete, and WADA Foundation member, Adam Pengilly, voted to support WADA’s recommendation, while Reedie abstained.

Composition of WADA’s Decision-Making Bodies

WADA’s mission is to: “promote and coordinate at [the] international level the fight against doping in sport in all its forms”.  To strengthen WADA’s governance and remove the conflicts between the different stakeholders, as recommended by the IOC, requires rewriting WADA’s constitutional documents to allow for the appointment of independent decision-makers.

As it stands now, WADA’s constitution provides for a two-tiered decision making system: the large Foundation Board made up of representatives from both governments and the Olympic movement, and a sub-set of that group sits as the Executive Committee. Most of the policy-makers sitting on WADA’s Executive Committee are also on its decision-making body, the Foundation Board. In order for the Foundation Board to truly play an oversight role, there should not be an overlap of personnel.

To have any claim to ‘independence’, WADA must also sever the tie between receipt of funding, and eligibility for a seat at the WADA board table.

As detailed elsewhere, this bind creates a number of issues for WADA, including: the danger of WADA being manipulated or held hostage by the dominant funder (see reference 1 below) and wasting resources on solving the struggles and disagreements between stakeholders with competing agendas (see reference 2 below).

The separation will help to diminish, but not completely avoid, the issues around funding bodies influencing the way WADA operates. How ‘independence’ is defined and achieved is a challenge that needs to be worked through in consultation with all the major stakeholders. Athletes have the ultimate vested interest in ensuring that sport is played fairly, and that ‘innocent’ athletes are supported and protected (see reference 3 below).

The current financial and rights model must be turned on its head to give athletes the ultimate say on how sport is governed and policed. Inverting the power pyramid will open up dialogue around ensuring greater justice and economic benefits for athletes. A more representative WADA would see a broad, inclusive group of skilled people reflecting the demographics of the community, including athlete alliancesanti-doping specialists, scientists, professional team sport employers and sponsors.

Opening up the nomination process would also provide the opportunity for other organisations with an interest in supporting ‘clean’ sport, such as the UN Office for Drugs and Crime and the Global Organization of Parliamentarians Against Corruption, to increase their involvement.  There is also capacity to expand UNESCO’s role in monitoring the implementation of the anti-doping convention.

An independent Foundation Board and Executive Committee will “strengthen [WADA’s] governance structure” by creating an additional internal accountability mechanism.  The challenge will be to then develop a fair, inclusive process so the views of athletes can be more comprehensively reflected, replacing the current Athlete Commission model.

The IOC’s plea for the “resolution of conflicts of interests and integrity” can be answered by ensuring that WADA’s decision-making bodies are composed of a diverse range of independent thinkers who are answerable to the athletes, not representative stakeholders.  Managed carefully, having experts from a range of disciplines available to set WADA’s strategic direction will ensure that anti-doping serves those most impacted by it.

References

1. For more on capture, see P. Sabatier, ‘Social Movements and Regulatory Agencies: Toward a More Adequate – and Less Pessimistic – Theory of “Clientele Capture”’ (1975) 6 Policy Sciences 301; M. E. Levine and J. L. Forrence, ‘Regulatory Capture, Public Interest, and the Public Agenda: Toward a Synthesis’ (1990) 6 Journal of Law, Economics & Organization 167.

2. U. Wagner, ‘The World Anti-Doping Agency: Constructing a Hybrid Organisation in Permanent Stress (Dis)Order?’ (2009) 1 International Journal of Sport Policy and Politics 183, 196.

3. S. Moston and T. Engelberg, “Guilty Until Proven Innocent (and Then Still Guilty)” Report, James Cook University, 15 November 2016

This post was originally published on the Transparency International Blog.

LBS’s Professor of Practice Catherine Ordway on Doping in Light of the upcoming Rio Olympics

CO ABC TV News 26 May 2016

With less than two months to go until the 2016 Rio Olympics, Russian athletes who tested positive to illicit substances in the lead up to the Beijing Olympics have been banned from competing. La Trobe Business School Professor of Practice Catherine Ordway discussed these recent developments on BBC World Radio’s Newsday on Tuesday 21 June 2016.

Last month, Professor of Practice Ordway also spoke about the current state of doping amongst Olympic athletes during an interview on Radio National, as well as during a  recent television appearance on ABC’s The World. Catherine was interviewed by Beverly O’Connor about the concerns going into the Rio games and about the difficulty of monitoring cheating. She notes that this is due to “athletes now using a whole range of experimental drugs, none of which have been permitted for human use”. As such, it is “difficult for the World Anti-Doping Agency to get proper verified studies done in order that they be robust enough to stand up in the Court of Arbitration for Sport”.

Professor of Practice Ordway was also interviewed on ABC’s The World Today, where she explained that the world is currently waiting anxiously to find out which athletes may be banned from the Rio games and if any Australians will be caught in the crossfire.

LBS’s Catherine Ordway comments on WADA Report on 666 ABC Radio Canberra

CatherineOrdway

On 28 April 2016, LBS Professor of Practice Catherine Ordway was featured on 666 ABC Radio Canberra’s Drive. Catherine commented on Australia’s appearance in WADA’s report as one of the top ten global offenders for doping in 2014.

Listen to Catherine speak (2:14:00) in the full fragment on ABC radio’s website.

Leading La Trobe researchers comment on ongoing impacts of Essendon case

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On the evening of 21 March 2016, Professor Patrick Keyzer appeared on the ABC’s Four Corners, to comment on 22 year-old Hal Hunter’s case against Essendon Football Club.  Hunter played at Essendon during the now notorious Essendon supplements scandal.  Patrick Keyzer is a Professor of Law at La Trobe University, but is representing Hal Hunter in his private capacity as a barrister.

Hal Hunter played for Essendon for two years before being de-listed in 2013. After his parents’ attempts to get information from the club were ignored, Hal decided to seek pre-litigation disclosure from Essendon and the AFL.  After eighteen months of delays Hal got his day in court in October last year.  The Supreme Court ordered the AFL to produce over one hundred documents for Hal and his legal and medical team to consider.  The Supreme Court did not order Essendon to produce any documents because, the day before the hearing, Essendon’s lawyer swore an affidavit that Essendon had told him that they had provided all of the relevant documents they had.  Notwithstanding their representations to the Court, which they relied on successfully when they sought a costs order against Hunter in February, Essendon sent further documents to Hunter just last week.  Keyzer was reported on 3AW Radio yesterday and advised that if Essendon did not agree to a reversal of the costs order that Hunter would have no choice but to return to Court and point out to the judge that the affidavit sworn by Essendon’s lawyer in October was no longer accurate.

“They’re treating it like an issue that will just go away,” Hal Hunter said on Four Corners, “but for me, if I’m not going to get the answers to the questions I’m asking, it’s never going to go away.”

Through the program, Essendon players were injected with unknown substances repeatedly, sometimes on off-site locations. When asked about the risks of these substances Dr Peter Brukner OAM, who is a specialist sports and exercise physician, media commentator, and Honorary Professor of Sports Medicine at La Trobe University, explains that the risk lies in the fact that they are unregistered:

“What people sometimes don’t realise is that the Essendon scandal doesn’t revolve around supplements, but actual unregistered drugs. This means that these drugs aren’t tested and long-term effects or harmful side-effects are largely unknown. To someone like Hal Hunter, the unknown nature of these drugs is understandably distressful, and Essendon should do anything within its power to provide this clarity to its players.”

LBS sports academic, Dr Emma Sherry, whose research focusses on sports and athlete welfare and sport and the community, is happy to see the narrative of the Essendon trial shift to the health of individual players.

“Often in instances of doping, the focus is on the fact that athletes were cheating, rather than the health risk any unregistered drugs may impose. But for these 34 players, their sense of control has been taken away from them, when it comes to their health. When they get sick in the future, they will never be certain whether this development is a long-term side-effect from this unregistered drug, or whether it would’ve happened regardless. Basically, they have been exposed to a human clinical trial, without giving their consent.”

 

Catherine Ordway discussing Essendon Football Club supplements case on ABC Radio

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Recently, Sports Management specialist and La Trobe Business School Professor of Practice Catherine Ordway, was featured on the ABC Radio news speaking about the decision of the Court of Arbitration for Sport on the Essendon supplements case.

You can listen to Catherine on the ABC website.

Doping verdict takeout: Ask more questions

By Catherine Ordway

I am not surprised by the Court of Arbitration for Sport’s finding of anti-doping rule violations by the Essendon Football Club players. It’s the right decision and I am pleased the panel found the evidence supports the claim made by ASADA that the players had been injected with a prohibited substance.

The 34 current and former Essendon players, whether innocent or not depending on your perspective, were found to have been injected with the banned peptide Thymosin Beta-4. They have been suspended until November 2016 after a tumultuous three years of intense scrutiny.

The outstanding takeaway from the CAS decision for the players and the board members of the Essendon Football Club is this: Ask more questions.

Catherine Ordway La Trobe Business School Essendon Doping Verdict

Essendon chief executive Xavier Campbell (left) and chairman Lindsay Tanner at a press conference after the CAS handed down its decision. Picture: Michael Dodge/Getty Images

Players accepted what they were told by their coaches and trainers and ignored warning signs: Why wasn’t the club doctor involved? Why were they being taken to an off-site location? Where was the documented individual player injection programs? Why weren’t there medical files for each player? What were they being injected with on each occasion? Was it approved for human consumption? How were the performance improvements being measured?

As ASADA CEO Ben McDevitt said: “At best, the players did not ask the questions, or the people, they should have. At worst, they were complicit in a culture of secrecy and concealment.”

The starting point under the World Anti-Doping Code is that all athletes take full responsibility for any substance ingested into their body. Despite the players receiving anti-doping education, and the supplements program not being administered by the club doctor Bruce Reid – he was excluded from the program – players took the word of Stephen Dank, employed as a sports scientist by Essendon.

Read the CAS ruling in full here

 

If the players believed what they were being told about the program being WADA compliant, why didn’t they declare the injections on the ASADA doping control forms as required? Is it because they didn’t know, and didn’t want to know, what they were being injected with?

The players were told by Stephen Dank the program complied with the WADA code. PIcture: Shutterstock

The players were told by Stephen Dank the program complied with the WADA code. PIcture: Shutterstock

The players were lied to about what they were being injected with, and told by Dank the program complied with the WADA code. In this way, players can be said to be innocent victims up to a point, but they should have done more to seek advice beyond the narrow confines of the club.
Dank’s behaviour throughout did not satisfy any professional standards.

Beyond requirements for athlete support personnel under the WADA Code, conduct of this kind in any other industry would attract jail time.

While players should have asked more questions, fault for this scandal lies much further up the line: multiple governance failings and weaknesses created this perfect storm. The governance within the club has been described as appalling; with major structural and accountability deficiencies identified.

To a large extent, these issues have now been resolved and the recommendations outlined in Dr Ziggy Switkowki’s 2013 report followed. Dr Reid admits that he could have done much more to prevent the program, although he did try to have it stopped; an instruction which was ignored.

Former Essendon coach James Hird. Picture; Michael Dodge/Getty Images Catherine Ordway La Trobe Business School

Former Essendon coach James Hird. Picture; Michael Dodge/Getty Images

Another crucial factor to be considered is the team environment versus athletes competing in individual sports. Although all the players were over 18, senior players and people with “god-like” charisma, such as that ascribed to Essendon head coach James Hird, can have an enormous influence in a team setting. This was not explored by the CAS panel.

I wonder whether this presents a research opportunity: comparing the influence a long-term, one-on-one coaching relationship has on a young, impressionable individual athlete verses the pressures within a team environment, and whether these are factors the CAS panel should have taken into account.

From here, there are two ways the 34 players can explore further legal options. First, lawyers for the players could appeal the CAS finding to the Swiss Federal Tribunal. This, however, I suspect is unlikely. The CAS decision thoroughly sets out why the panel felt they were “comfortably satisfied” with the evidence presented. The “comfortable satisfaction” standard of proof sits somewhere between the criminal standard of beyond reasonable doubt and the civil standard of the balance of probabilities.

The second approach is for players to lodge civil action against the Essendon Football Club for a breach of the club’s duty of care toward them, and citing a loss of reputation, current and/or future earnings and potential damage to players’ future mental and physical health. As the products have not been approved for human consumption, we have no idea what the injections’ impact could be, with the possibility they may lead to heart conditions, fertility issues, susceptibility to various cancers or impacts on their unborn children.

The CAS finding that the players were injected with an unapproved substance will undoubtedly now be used against the club in expensive civil proceedings.

At a time when there have been numerous failings around governance in sport internationally — including a raft of reports that have given international federations responsible for football, cricket, cycling and athletics a shake-up — the Essendon case is important. The CAS ruling makes it clear athletes need to do more and take more responsibility for their own health and wellbeing, even in a team environment. Players and officials cannot rely entirely on information they are given within the club. Players must do their own independent research and ask more questions.

CatherineOrdwayCatherine Ordway is a Professor of Practice in La Trobe Business School, specialising in sport management. She has more than 20 years experience in the Sports Industry and continues to provide consultancy services to Olympic bidding cities, government agencies and sporting organisations on integrity and anti-doping issues. Catherine is a member of the SportAccord (GAISF), IBAF (baseball), ICC and West Indies (cricket) anti-doping tribunals, and is the IAAF (athletics) medical and anti-doping delegate for Australia.

This article was originally published on Melbourne University’s Pursuit Blog.

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