UPDATE: Is Jarryd Hayne eligible for the Olympic Games?

UPDATE: World Rugby have released the following statement on Jarryd Hayne’s eligibility, which you can read more about here:

World Rugby notes the announcement that Jarryd Hayne wishes to pursue new sporting challenges with the Fiji rugby sevens team and has moved to address speculation regarding the player’s availability under Regulation 21 to play sevens.

World Rugby is committed to the highest-possible anti-doping standards. The WADA-compliant World Rugby Regulation 21 mirrors the requirements of the World Anti-Doping Code and the WADA International Standard for Testing and Investigations. It does not require a player to be included in a testing pool for a defined period of time prior to selection if they are being selected for international competition for the first time. This position is entirely consistent with World Rugby’s approach to other cross-over athletes, including other ex-NFL athletes coming into rugby.

Therefore, Hayne would be eligible for the London round of the HSBC World Rugby Sevens Series subject to all other regulatory and registration matters being met. He would also be immediately included in World Rugby’s pre-Rio 2016 risk-based testing programme, which since January 2016 has included a comprehensive programme of targeted in and out of competition blood and urine testing on players likely to compete in Rio. The pre-Games programme also includes regular additional screening for substances such as ESAs and human growth hormone, and both steroidal and haematological athlete biological profiling.

As with anything Jarryd Hayne related, news that he has retired from the NFL to take up a spot in the Fijian Sevens team at the Olympic games has gone completely bonkers.

Of course, Hayne being the freak of an athlete that he is, successfully transitioning into one of the most competitive leagues in the world in 12 months, it’s assumed that he’ll be straight into the Fiji team.

Some doubt him, but some doubted whether he could make it into the NFL as well, although Fijian Sevens is a smaller and very crowded talent pool. Whether he has the talent to make it can’t be questioned. Whether he has the time is an entirely different matter.

However, the biggest issue to date with the proposed switch came from former ASADA head Richard Ings, who doubts whether Hayne will be allowed to compete in the Olympics due to the National Football League, in which Hayne has been competing, not being a signatory to the WADA code.

More Jarryd Hayne:
» Hayne cleared by World Rugby to compete at Rio
» “Half a million, wow”: Hayne unaware of secret $500,000 deals
» Why Hayne shouldn’t make the Fiji sevens side
» NFL to the Olympics, but where will the Hayne Plane land in 2017?
» Jarryd Hayne announces NFL retirement, aims for Olympic Games

World Rugby is a signatory to the WADA code.

This piqued my interest – is Ings right? Is Jarryd Hayne even eligible to play in the Olympics?

Let’s examine what Ings, who no doubt has a lot more interpretive credibility than me when it comes to the code, has said, and what the WADA code says.

This is the tweet that really scattered the media pigeons.

It was followed up by a series of tweets from Ings, who’s cleary trying to hold WADA to their own standards, as laid out in the 2015 version of the code.

I believe Ings is referring to a section of the 2015 WADA code that talks about “retired” athletes returning to competition. Basically, under those rules, athletes have to be in a registered testing pool for six months prior to returning to competition. This can come in the form of writing to World Rugby, or your national anti-doping body, and being in the pool.

Ings is arguing that after Hayne left the NRL, he ‘retired’ from that testing pool, and would therefore have had to sign up some months ago to be eligible for competition.

5.7 Retired Athletes Returning to Competition
5.7.1 If an International or National-Level Athlete in a Registered Testing Pool retires and then wishes to return to active participation in sport, the Athlete shall not compete in International Events or National Events until the Athlete hasmade himself or herself available for Testing, by giving six months prior written notice to his or her International Federation and National Anti-Doping Organization. WADA, in consultation with the relevant International Federation and National Anti-Doping Organization, may grant an exemption to the six-month written notice rule where the strict application of that rule would be manifestly unfair to an Athlete. This decision may be appealed under Article 13.

I sent Ings a direct message on Twitter, but haven’t yet received a response. Hopefully we’ll get clarification that this is the section Ings is referring to.

This appears to be the key part of the statement: “If an International or National-Level Athlete in a Registered Testing Pool retires and then wishes to return to active participation in sport…”

Has Hayne, by moving to a sport that isn’t a signatory to the WADA code, ‘retired’ by no longer being in the pool? If the interpretation is yes, then he will have to apply for a waiver. If the answer is no, then he may find he has a clear passage to the Fiji sevens team at the Olympics.

Let’s pretend the answer is no, and dive a little deeper.

This reply to a tweet from Ings by James Kitching is pretty spot on:

There are complications here introduced by the very code Ings is trying to hold Jarryd Hayne, WADA and World Rugby.

Reports circulated in the last few years have hinted at increased cooperation between the NFL, USADA and WADA. While Ings calls the NFL “PED [performance enhancing drug] badlands”, could the increased cooperation help Hayne’s bid to take a place with Fiji during the Olympics?

This is the most relevant section of the WADA code applying that question, because, as Kitching points out above, the code and the rules simply don’t account for code-hoppers.

ARTICLE 15: APPLICATION AND RECOGNITION OF DECISIONS
15.1 Subject to the right to appeal provided in Article 13, Testing, hearing results or other final adjudications of any Signatory which are consistent with the Code and are within that Signatory’s authority, shall be applicable worldwide and shall be recognized and respected by all other Signatories.

15.2 Signatories shall recognize the measures taken by other bodies which have not accepted the Code if the rules of those bodies are otherwise consistent with the Code.*

*Comment to Article 15.2: Where the decision of a body that has not accepted the Code is in some respects Code compliant and in other respects not Code compliant, Signatories should attempt to apply the decision in harmony with the principles of the Code. For example, if in a process consistent with the Code a non Signatory has found an Athlete to have committed an anti-doping rule violation on account of the presence of a Prohibited Substance in his or her body but the period of Ineligibility applied is shorter than the period provided for in the Code, then all Signatories should recognize the finding of an antidoping rule violation and the Athlete’s National Anti-Doping Organization should conduct a hearing consistent with Article 8 to determine whether the longer period of Ineligibility provided in the Code should be imposed.

When the WADA code talks of “other bodies which have not accepted the Code if the rules of those bodies are otherwise consistent with the Code”, is the NFL in this group? It’s a vagary of the code, only exacerbated by the comment on article 15.2 beneath it, which says that bodies that are partially compliant with the WADA code have the power to ban athletes in signatory bodies that are compliant with it.

Complicated, but the question then is whether the same power can be transferred for clean athletes. After all, there’s no suggestion, from anyone ever, that Hayne has violated any anti-doping codes.

The final piece of the code I will share is the key principle of the document.

The Code
The Code is the fundamental and universal document upon which the World Anti-Doping Program in sport is based. The purpose of the Code is to advance the anti-doping effort through universal harmonization of core anti-doping elements. It is intended to be specific enough to achieve complete harmonization on issues where uniformity is required, yet general enough in other areas to permit flexibility on how agreed-upon anti-doping principles are implemented. The Code has been drafted giving consideration to the principles of proportionality and human rights.

Will any of that flexibility be afforded to a clean athlete, Hayne, chasing his Olympic dream, in the form of a waiver? Or will the rules be enforced to the letter, with Jarryd ruled to be a ‘retired’ athlete who should have written to World Rugby months ago?

I don’t have the answers, but you can make a reasonable case for and against, using the knowledge of experienced anti-doping campaigner Ings and the WADA Code itself.

Both Richard Ings and WADA have been contacted for comment.