Whistleblowing in Sport – Part 2: Investigations and Disciplinary Proceedings

In part two of this two part series, Sir Anthony Hooper & Andrew Smith review the “Substantial Assistance” provisions in the 2015 WADA Code and explain how other industries approach the investigations and disciplinary proceedings involving information provided by whistleblowers.

To conclude the authors outline some pragmatic solutions that will assist governing bodies of sport to maintain public confidence in their sport.

With regard to the objective of encouraging a greater number of whistleblowers to come forward, one potential option is to operate a form of ‘amnesty’ or reduced sanction regime for those individuals who do step forward and report serious wrongdoing, even if they themselves have been personally involved in that wrongdoing. In January 2013 the International Cycling Union (UCI) suggested that the World Anti-Doping Agency (WADA) should introduce a limited amnesty across all sports, stating that:

"If WADA is serious about uncovering the full extent to which modern science and the limited methods of detection available to sporting bodies and anti-doping authorities (including itself) have prevented doping, it should establish a truth and reconciliation commission…”¹

This suggestion was strongly criticised by (amongst others) Sir Dave Brailsford, the Principal of Team Sky, who is reported to have said:

“There is this idea that if everyone tells the truth it will make it all better. No it won’t. Telling the truth doesn’t make it better. It’s about acting on the information that you find and doing something tangible with that information to make sure it doesn’t happen in the future. This idea of everyone telling the truth and it all goes into a pot, is it going to change anything? If it is about trying to identify all the individuals who were involved only to say, ‘OK you’re off the hook’, then what have you learned?”²

WADA’s Approach To Whistleblowers

In terms of WADA’s current approach, a particularly important provision is Article 10.6 (Elimination, Reduction or Suspension of Period of Ineligibility or other Consequences for Reasons other than Fault) of the 2015 World Anti-Doping Code, which comes into force on 1 January 2015. ³ In brief summary, this rule provides that:

• A sportsperson who comes forward to admit a doping violation (in circumstances where no Anti-Doping Organisation was aware that an anti-doping rule violation might have been committed) may be ‘rewarded’ with a reduced ban, with WADA having the final say on any such reduction (see comment to Article 10.6.2);
• Anti-Doping Organisations may agree reduced bans in return for the provision of “substantial assistance” by sportspersons – put simply, information that leads to other doping violations being uncovered; and
• In exceptional circumstances, WADA has the power to agree to eliminate a ban in its entirety and offer complete confidentiality in return for the wrongdoer’s “substantial assistance” (Article 10.6.1.2).

Although there has been some criticism of this reform – with the charge that wrongdoers will be unjustly ‘let off the hook’ if they ‘get in early’ to report misdemeanours (including their own) – it must surely be a sensible system which: (a) provides some incentive for such reporting; (b) allows disciplinary bodies to take into account, as a significant mitigating factor, an individual’s willingness to step forward and report both themselves and others who they suspect of wrongdoing – whether they be teammates, colleagues or others; and (c) allows a case by case assessment to be made of what (if any) ‘benefit’ it may be proportionate and appropriate to bestow upon individual whistleblowers.