When it comes to sport few subjects cause as much debate as doping.
It causes myriad issues from a legal, moral and ethical standpoint. Issues such as using the wrong type of Vicks inhaler, failing to go to Barbados to check the banned substance list and hyperandrogenism to name but a few.
This week the World Anti-Doping Agency (“WADA”) has found itself the target of a group of hackers going by the name of “Fancy Bears” who have to date drip fed private and confidential medical records and information from its Anti-Doping Administration & Management System (“ADAMS”). These records relate to some of the World’s leading athletes including amongst others, Rio sensation Simone Biles, tennis superstar Serena Williams, 4 times Olympic champion Mo Farah and Tour de France winners Sir Bradley Wiggins (also the owner of 5 Olympic gold medals) and Chris Froome.
The furore these leaks have caused surround WADA’s Therapeutic Use Exemption (“TUE”). TUE is a term used by WADA to denote banned substances that an athlete is “required to take to treat an illness or condition”. TUE exemptions are policed by the International Standard for Therapeutic Use Exemptions (“ISTUE”).
The detection of a TUE by WADA in a sample is considered an “Adverse Analytical Finding” (“AAF”) rather than an “Anti-Doping Rules Violation” (“ADRV”). This is a significant difference as an AAF is permitted and will usually result in no sanction being given to the athlete whereas an ADRV is not and is likely to result in a lengthy ban.
There is no suggestion that any of the athletes named in the leaks so far are involved in any wrongdoing indeed it is difficult to see what Fancy Bears sought to gain from the disclosures given the information hacked was already known to WADA and therefore it was presumably happy the TUEs in question were granted properly. As Rafael Nadal summed up neatly:
“When you ask permission to take something for therapeutic reasons and they give it to you, you’re not taking anything prohibited. It’s not news, it’s just inflammatory.”
What it has done however is shed light on a previously less well known issue within elite sport.
The leaks have caused considerable disquiet as to the use of TUEs generally with different opinions as to their use. Some argue that TUEs are a necessity to allow athletes who suffer from certain medical conditions to compete on a level playing field with those who do not. Others suggest the system is open to abuse and that certain drugs available as TUEs should be banned altogether given their performance enhancing abilities irrespective of the conditions they are taken for.
The leaks have also had differing effects on the athletes named. Some would argue that the leaks have been beneficial for Mo Farah corroborating as they did the fact that he has only had one TUE since falling under the tutelage of controversial coach Alberto Salazar. Other are less fortunate, with Bradley Wiggins forced onto the defensive in respect of details of his TUE for triamcinolone.
Another legal issue, perhaps overlooked, is the integrity of WADA’s cyber security and the apparent ease at which this information was obtained from ADAMS. With the confidentiality of medical records seen as a fundamental human right, details regarding the TUE given to Francine Niyonsaba are of particular concern. If the attack by Fancy Bears was a targeted response to the treatment of Russian athletes at the recent Olympics and Paralympics it didn’t take them long to obtain this information. Data-Privacy and Cyber-security is a topic for another post however should you require further information in the meantime please see here.
Whatever your views on TUEs it would appear Fancy Bears’ apparent goal of causing disruption to the sporting world has been achieved. Whether this will result in a reassessment of the benefit of TUEs generally is yet to be seen. Only time will tell.
