The tension between an athlete’s privacy and clean sport are interconnected. In ensuring a sport’s cleanliness, an athlete voluntarily gives up a certain amount of privacy through random urine and blood testing.

In the last few weeks, the Russian cyber-espionage group “Fancy Bears” has laid bare and exposed this tense relationship.

Fancy Bears hacked the World Anti-Doping Agency’s databases, promising to publish confidential medical records of athletes. So far, the group has been good to its word, releasing information on athletes—the vast majority so far from Western nations. Athletes with information released include United States tennis stars Venus and Serena Williams, gymnasts Simone Biles and Laurie Hernandez along with basketball star Elena Della-Donne. Fancy Bears also exposed the tests of British gold medal distance runner Mo Farah, cyclists Chris Froome and Bradley Wiggins as well as Spanish tennis star Rafael Nadal. So far, the group has made five separate releases public.

This is a representative sample of the information they have:

What is Fancy Bears’ goal in releasing this information?

The goals for Fancy Bears appears quite simple. Essentially, Fancy Bears wants to shame athletes who they feel dope while also attacking WADA and the IOC’s credibility. It also appears to be a direct reaction to the numerous Russian athletes banned by the IOC after the McLaren Report came down exposing what could best be termed state-sponsored doping.

On its website, the group says it will:

“[G]o on exposing the athletes who violate the principles of fair play by taking doping substances . . . [t]he Rio Olympic Medalists regularly used illicit strong drugs justified by certificates of approval for therapeutic use. In other words, they just got their licenses for doping. This is other evidence that WADA and IOC’s Medical and Scientific Department are corrupt and deceitful.”

The IOC condemned the attack because it was “clearly aimed at tarnishing the reputation of clean athletes.”

What is a Therapeutic Use Exemption?

Section 1.0 of WADA’s International Standard for Therapeutic Use Exemptions (ISTUE) provides that an ISTUE is a granted to an athlete “under narrow, well-defined conditions.” Essentially, it allows an athlete (1) to take a necessary medication (2) while competing in their respective sport (3) without a drug test resulting in a doping offense.

Additionally, an athlete must have a well-documented medical condition that is backstopped by reliable and sufficient medical data demonstrating the athlete meets the criteria for granting an ISTUE.

An Athlete may be granted a ISTUE if (and only if) he/she can show, by a balance of probability, that each of the following conditions is met:

  1. The Prohibited Substance or Prohibited Method in question is needed to treat an acute or chronic medical condition, such that the Athlete would experience a significant impairment to health if the Prohibited Substance or Prohibited Method were to be withheld.

  2. The Therapeutic Use of the Prohibited Substance or Prohibited Method is highly unlikely to produce any additional enhancement of performance beyond what might be anticipated by a return to the Athlete’s normal state of health following the treatment of the acute or chronic medical condition.

  3. There is no reasonable Therapeutic alternative to the Use of the Prohibited Substance or Prohibited Method.

  4. The necessity for the Use of the Prohibited Substance or Prohibited Method is not a consequence, wholly or in part, of the prior Use (without a TUE) of a substance or method which was prohibited at the time of such Use.

Who possesses the burden in ISTUE cases?

If an athlete who is accused of doping takes his/her case to the Court of Arbitration for Sport, the athlete has the burden in proving they are entitled to an ISTUE.

Additionally, under IPC v. Brockman & WADA, a Court of Arbitration for Sport (CAS) case decided in 2004, the court said:

When the Technical Criteria are met, the athlete that has requested a therapeutic use exemption has the right to obtain it, and the competent anti-doping organization has the obligation (and not the simple possibility or discretion) to issue it.  More specifically, the therapeutic use exemption in such a situation cannot be denied on the basis of factors (relating to health) that are not included in the list of the Technical Criteria.

What do exposed athletes think
about the leak and ISTUEs in general?

Athletes range in their assessment of the hack. The idea of a transparent system of doping checking appeals to Froome, who wrote on Twitter that it appears the ISTUE system is open to abuse.

Biles graciously admitted she has ADHD and is currently on medication for it.

If nothing else, athletes who have had their private drug information released into the public face an added amount of scrutiny. Even if they are clean athletes, reputation costs they face may prove damaging in the short-term.

What will this mean going forward?

The answer remains unclear at this point. On the one hand, the McLaren Report’s thorough research exposed the dangers of state-sponsored doping along with the affirmative and systemic approach Russia took in breaking the current rules in place.

Alternatively, Fancy Bears’ hack does shine a light on how blurred the line is between doping and not doping. As the therapeutic use exemptions show, some things are allowed and some are not. There is no bright line rule regarding doping, which does lead to interpretation and gray areas.

Furthermore, the International Olympic Committee and WADA appear to be at loggerheads over how to next proceed. The IOC is thinking about going in-house with drug and corruption enforcement while WADA is concerned about the IOC bypassing WADA’s neutrality in doping enforcement.

Sean Ingle, a writer for The Guardian, summed up the situation perfectly at the end of his July 31st column:

The IOC has let down clean athletes. It doesn’t reward whistleblowers. The funding it provides to doping bodies is inadequate. And yet it has the nerve to proclaim athletes are at the heart of what it stands for.

 

Follow James on Twitter (@jameswoldbdc) and connect with him on LinkedIn

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