Public enough: the need to incorporate a public interest consideration in anti-doping decision-making

The World Anti-Doping Agency (WADA), which governs anti-doping globally, is an international organisation that may be described as a hybrid public-private entity. Given that public entities are bound to act in the public interest, this article explores the extent to which WADA is bound to, or ought to, incorporate a public interest test in the exercise of its discretionary decision-making. Models assessing the nature of WADA and anti-doping often focus on its structure rather than its practical activities. Because WADA’s structure is unusual, the anti-doping literature has primarily used Benedict Kinsgbury’s conceptualization of “publicness” to analyse the grey area between private and public that WADA occupies. Literature on the publicness of anti-doping predates several International Standards and does not reflect WADA’s evolving role in anti-doping fields such as education. In this paper, using a novel holistic understanding of publicness drawing from the works of Kinsgbury, Armin von Bogdandy et al. and Letitia Lo Giacco, we argue that WADA is sufficiently public in nature to require a public interest consideration. By embedding a public interest test, as is required of prosecutors in criminal justice systems worldwide, WADA decision-makers would be held to a common standard in articulating the rationale for their actions. This, in turn, would lead to greater consistency in decision-making and the embedding of procedural justice principles in anti-doping processes. We identify WADA’s current roles in anti-doping as well as situations of discretionary decision-making in the World Anti-Doping Code, and illustrate how a public interest test would impact decision-making using case studies.