Whistleblowing in Anti-Doping: A Missed Opportunity

I. Introduction

Whistleblowers have been at the centre of some of the biggest doping cases of the 21^st century – for instance:

1. Yuliya Stepanova & Vitaly Stepanov gave evidence which resulted in Russia's suspension from international athletics and later led to the banning of Russian athletes from the 2016 Rio Olympics and other major sporting events;
2. Aslı Çakır Alptekin and Liliya Shobukhova provided evidence that revealed the existence of a bribery and extortion scheme within the IAAF to cover up doping; and
3. Former teammates of Lance Armstrong lined up to give evidence against him and others.

Whistleblowing was in the news again late in 2024 with the World Anti-Doping Agency (“WADA”) accusing the United States Anti-Doping Agency (“USADA”) of bending the rules for whistleblowers after it was alleged that USADA allowed doped athletes to continue competing in exchange for providing intelligence about doping networks.

The World Anti-Doping Code (“WADC”) provides potentially generous benefits for whistleblowers. Under Article 10.7.1 of the WADC, athletes banned for doping who offer “Substantial Assistance” (“SA”) may have their period of ineligibility suspended by up to three-quarters (or more, in exceptional circumstances) if they provide SA, which results in either the discovery of a doping violation, criminal offence or a breach of professional rules by another person.

In theory, this offers an attractive incentive for athletes willing to assist. In practice, however, the SA process is often lengthy, burdensome, and fails to deliver the benefits offered by the WADC.

Partly because of these difficulties, SA has failed to gain much traction among athletes or Anti-Doping Organisations (“ADOs”). If SA is ever going to become the major anti-doping tool it was intended to be, ADOs and WADA (in particular) need to make a genuine effort to engage with SA provisions and to treat whistleblowers more like friends than foes.

II. The Potential of Substantial Assistance

SA should be a game-changer in the fight against doping. It enables authorities to go beyond penalising individual athletes and target the problem’s enablers, such as coaches, doctors, and suppliers.

Athletes who participate in doping have the potential to expose networks that would otherwise remain concealed – a potential that is more cost-effective and more significant to anti-doping efforts than ADOs spending limited time and resources fighting one positive test at a time, or debating the correct length of sanctions in contamination cases.

III. Roadblocks to Substantial Assistance

Most athletes bristle at the suggestion of becoming a whistleblower. The idea of turning on a coach, fellow athlete or doctor in order to save one’s own career is one most athletes would not contemplate.1

Further complicating the issue, whistleblowers can often be viewed as "snitches". That negative perception can discourage athletes from speaking up. In some cases, simply raising the possibility of whistleblowing may sour relationships between athletes and their legal representatives, as whistleblowing is often seen as a betrayal of one’s community.2

Additionally, athletes who provide SA face numerous risks. Beyond career damage, whistleblowers can experience physical threats,3 retaliation,4 and ostracization from their peers.5

There are other issues:

1. The SA process is often costly, slow, and more closely resembles punishment than encouragement. Some of the highest profile cases have taken years and cost tens of thousands of dollars for the whistleblowers.
2. WADA has the power to simply veto any suspension of sanction that the relevant ADO may have granted to the athlete. Notably, WADA has exercised that veto power. The Court of Arbitration for Sport (“CAS”) can, under certain circumstances, override WADA’s veto,6 but WADA has so far been granted wide discretion by the CAS.7   
3. Many ADOs are too inexperienced in dealing with SA cases to know what to do with them. That might mean, for instance, mishandling information (e.g. failing to take action on SA evidence),8 or failing to appropriately reward or support a whistle-blower.9 Others do not have the resources to deal with SA cases and, in some cases, ADOs have taken an outright hostile approach towards whistleblowers.10

Together, these factors mean that the risks often outweigh the rewards: athletes are unlikely to become whistleblowers, and their lawyers likewise are much less likely to advise athletes to risk becoming whistleblowers.

Anti-doping authorities must therefore offer – and must be seen to offer – very substantial incentives to overcome those inherent difficulties. There is little doubt that the right kind of incentives are effective in overcoming the barriers to, and risks of, whistleblowing (without leading to a surge in meritless claims).11

IV. Case Study

Imagine this:

1. An athlete commits anti-doping rule violations and receives an eight-year ban.
2. That athlete later spends months of his own time collecting evidence of wrongdoing by others, packages up that evidence at his own expense and sends it to anti-doping authorities.
3. Anti-doping authorities use that evidence to charge a coach for breaching the terms of a previous doping ban and exclude an entire sports federation from international competition.

Under the SA provisions, that athlete might have expected a very significant suspension of their ban. However, WADA has the ultimate say as to whether to approve any SA deal, and if it decides that there is to be no deal, the matter ends there – regardless of how instrumental the athlete has been in bringing to light an anti-doping rule violation. 

And that is exactly what happened to Alex Schwazer.12 World Athletics agreed that Mr Schwazer had provided Substantial Assistance, but WADA decided that there should be no SA deal for Mr Schwazer.

There is a long history between Mr Schwazer and WADA. Mr Schwazer has twice been found to have committed doping violations.13 Mr Schwazer has waged a years-long campaign regarding the second alleged violation, insisting that he did not dope. A judge in Italy who was investigating the second alleged violation to determine whether Mr Schwazer had committed a criminal offence under Italian law dismissed the case against Mr Schwazer, having instead concluded that WADA and its experts presented false, fabricated, incomplete and/or misleading evidence (the “Bolzano Decision”). WADA disputed the findings.   

Mr Schwazer then took part in a Netflix documentary that repeated the findings of the Bolzano Decision. WADA later refused to suspend any part of Mr Schwazer’s ban partly because Mr Schwazer had repeated in public the findings of the Bolzano Decision, which WADA deigned to “have the potential to undermine the credibility and reputation of [WADA] and to cause significant damage to the fight against doping”.14

Whatever one makes of the allegations, the point for present purposes is that there was no love lost between WADA and Mr Schwazer. Mr Schwazer might, therefore, feel aggrieved that the body determining whether he qualified for SA was the very organisation with which he had been at war for much of the past decade and that part of the reason WADA refused to suspend his ban was because of that history (i.e. specifically, because Mr Schwazer publicly repeated the findings of the Bolzano Decision).

None of that will matter much to any athlete considering becoming a whistleblower. The message from Mr Schwazer’s case is clear: providing extensive information to anti-doping authorities which assists in the fight against doping may have no benefit whatsoever for the whistleblower.

V. USADA: A Notable Exception

In contrast, USADA stands out as the ADO that has most fully and enthusiastically embraced SA, and not without controversy: it has been accused of breaching its own rules in order to do so.

That said, any athlete thinking of becoming a whistleblower is far more likely to turn to USADA than WADA or any other ADO, given the zeal with which USADA has embraced whistleblowing.

Whatever one may think of USADA’s methods, few would dispute that it looks after its whistleblowers. Take the case of Tyson Gay, who received a 50% suspension of his two-year ban for providing SA, or the long list of American cyclists who turned on Lance Armstrong in order to secure greatly reduced sanctions.

More recently, WADA accused USADA of bending the rules for whistleblowers after it was alleged that USADA allowed doped athletes to continue competing in exchange for providing intelligence about doping networks. Whatever the rights and wrongs of that particular case, it is clear that USADA offers – and, crucially, has been seen to offer – athletes tangible (if not occasionally controversial) rewards for their cooperation. Although divisive, USADA’s approach is far more likely to incentivise athletes to pursue SA than WADA’s bureaucratic and sometimes antagonistic approach towards whistleblowing.

The premise of this article is not to encourage ADOs to bend or breach the WADC in order to make SA work. In most cases, simply providing the benefits that are permitted under the WADC would make a big difference. Instead, all too often, WADA and other ADOs make the process extremely difficult, and ultimately offer between zero and minimal benefits to whistleblowers in exchange for information that could benefit the fight against doping. 

VII. Conclusion

SA has become a missed opportunity.

WADA appears content to spend time and resource in appealing cases which – more often than not – are inconsequential to the wider fight against doping.  Take the Jannick Sinner appeal – WADA accepted that Mr Sinner was unknowingly exposed to clostebol, and yet, it spent time and resources arguing that Mr Sinner should serve a ban. In the end, WADA and Sinner settled the appeal with Mr Sinner accepting a three-month ban. The fight against doping might have been better served if WADA’s time and resources had instead been diverted to cases of actual and/or systematic doping. One way of uncovering more such cases would be for WADA to focus on – and change its attitude towards – whistleblowers.

WADA will no doubt be quick to disagree with much of this article and point to the fact that it operates a whistleblowing platform – called “Speak Up” – and a specialist Intelligence Unit that is responsible for managing Speak Up.  Be that as it may, Alex Schwazer’s first step in his attempt to provide SA was to upload his dossier of evidence on the Speak Up platform. It then took almost three years for the process to conclude, with Mr Schwazer having spent considerable sums of money in the process and WADA refusing to grant him any suspension of his eight-year ban, despite the fact that Mr Schwazer’s evidence resulted in the discovery of anti-doping rule violations committed by others and the exclusion of an entire sports federation from international competition (see Section IV above).

ADOs – including WADA – underestimate the degree of reluctance that athletes have towards whistleblowing. Getting an athlete comfortable with the idea of whistleblowing is difficult enough. It is therefore imperative for ADOs to treat prospective whistleblowers with as much dignity and understanding as possible. Further, if ADOs want SA to become a significant tool in the anti-doping arsenal, then ADOs and WADA must start being more generous in offering the rewards that are currently available under the WADC. The idea of suspending large portions of the sanctions imposed on former-dopers-turned-whistleblowers may seem unpalatable to some ADOs, but the failure to do so is part of the reason that whistleblowing has not reached its maximum potential in anti-doping.

The miserly approach taken by WADA and other ADOs towards whistleblowing is difficult to understand. It may be that WADA and others have taken the view that by severely limiting the extent of the benefits offered in exchange for SA, they can protect themselves from possible criticism for allowing former dopers back to competition earlier than they otherwise would be permitted. If that is the reason, then it is a very short-sighted view: for a start, the advisers and lawyers of athletes who have been through an unsatisfactory SA process will often counsel other athletes against whistleblowing.

Whistleblowers face serious risks with little to no reward, while the SA process feels designed to frustrate rather than encourage cooperation. Instead of focusing on minor infractions or contamination cases, WADA and other ADOs ought to rethink their attitude towards whistleblowers – for example, by cultivating whistleblowers and providing the incentives that already exist within the WADC – and being seen doing so. Until the process is streamlined and rewards are made worth the risks, athletes will continue to avoid providing SA, and the fight against doping will miss a critical opportunity.

Authored by 

Mike Morgan
Managing Partner 

Sophie Kamhi 
Paralegal