A level playing field in anti-doping disputes? The need to scrutinize procedural fairness at first instance hearings

The WADA Code upholds the virtues of procedural fairness. Minimum procedural guarantees have been strengthened under the 2021 WADA Code and the International Standard for Results Management. However, implementation of these guarantees by National Anti-Doping Organizations (NADOs) and domestic anti-doping panels are critical in ensuring that athletes are afforded procedural fairness. While some countries have enacted reforms in anti-doping dispute resolution infrastructure, other jurisdictions are arguably lagging behind. Since few doping disputes are heard by the Court of Arbitration for Sport (CAS), a strong domestic dispute resolution framework should encourage independence, efficiency and cost-effectiveness, as well as promote consistency and procedural fairness at all levels of hearing. First instance hearings are particularly significant given that CAS is not considered a practical option for many athletes, especially those from developing countries, predominately due to challenges of access to justice and affordability. Irrespective of procedurally unfair decisions at first instance, CAS has the de novo right of review to correct any such irregularities. However, this approach alone is inadequate, especially given that most athletes do not appeal to CAS. CAS, WADA and NADOs all have significant roles to play in ensuring procedural fairness for athletes. WADA and NADOs need to do more to ensure compliance with procedural guarantees at first instance. This paper advances the debate on the importance of procedural fairness and proposes a research agenda to support future reform, arguing that the current anti-doping model needs to reconsider how these important standards are upheld, from first instance until final appeal.