Five gold medal-winning athletes in Asian Games not tested by NADA, many others too spared!

Muhammed Anas (leading here) and Arokia Rajiv at the Asian
championships in 2017. Both were among those not tested by
NADA in 2018 before Asian Games_Pic G. Rajaraman

Five of the six individual gold medal winners in athletics at the Asian Games were not tested out of competition by the National Anti-Doping Agency (NADA) prior to the event in Jakarta-Palembang last year.

Ten of the 25 athletes in the NADA Registered Testing Pool (RTP) were not tested at all out of competition in 2018. Nine other athletes in the pool were tested once out of competition through the year in clear breach of World Anti-Doping Agency (WADA) regulations.

These startling revelations in the testing statistics, made available by NADA, has strengthened the belief that NADA has been either trying to “protect” the leading athletes or is disinterested in catching the dope cheats among the top track and field athletes of the country. Whether the malady extended to other sports as well or not will require detailed review by a competent authority.

Out-of-competition testing is the foundation on which anti-doping measures have to be built. Leading athletes have to be monitored and tested so that they keep away from the temptation of consuming performance-enhancing drugs.

In the majority of cases in 2018, NADA seemed to have allowed the top athletes an out-of-competition dope-test-free window of four to six months in the run-up to the Asian Games. Was it done unwittingly, or was there complicity? These are questions that come up the moment one is struck by the staggering statistics of out-of-competition testing in athletics in 2018.

Anti-doping is a cat-and-mouse game. The element of surprise in testing an athlete is the key to catching a dope cheat. An anti-doping authority has to draw up the best possible test distribution plan (TDP) to ensnare the offenders. It is often a difficult task since the dopers know when to make themselves available for testing so that they would not get caught.

Those who fall easily into the trap are amateurs or else the odd experienced elite athlete who might have made a slight miscalculation in the “tapering off” process to fall into the trap. Positive tests during competitions are rare. The dopers are clever enough to avoid a positive test.

It is foolish to imagine that athletes would come into competition stuffed with steroids or take a shot of stimulant mephentermine just before “call room” entry. Professionals know when and how to do it and escape detection, often with the help of support staff.

‘Whereabouts’ testing

 Fie of the six individual gold medal winners in athletics at the Asian Games were not tested out of 

One of the instruments that the WADA has devised for the purpose of taking a prospective cheat by surprise is the RTP. It allows an authority to keep track of an athlete every day of the year at a pre-designated place so that the athlete does not evade testers. In theory, at least, that is the idea. In practice, we do know there are many loopholes to evade and explain an absence.

This is called “whereabouts”-based testing. Athletes are required to provide locations they would be available at for at least one hour every day so that testers can come and take samples if required. Three missed tests or filing failures can attract a suspension ranging up to two years.

The Asian Games year should have been crucial in terms of tracking the top athletes who had the best chance to bring home medals. NADA not only failed to effect changes in its outdated testing pool but also failed to test those in the RTP with any meaningful periodicity in mind.

Ten of the 25 athletes in the pool were not tested out of competition, four of them not undergoing any test at all through the year.

Ten others in the 25 were tested once out of competition, most of them after the Asian Games or just weeks before the Games, making it meaningless for the purpose of catching them by surprise if they were into doping.

Surprisingly, javelin thrower Annu Rani was tested five times out of competition last year, the most in track and field. She was also tested at four competitions. Initially rejected by the selection committee since she failed to come up to expectations in the confirmatory trials, she was included in the squad at the last moment but finished poorly with 53.93m for sixth. She was selected on the basis of her Inter-Railway meet performance of 58.17m.

No test in April

Amazingly, NADA did not conduct a single out-of-competition test in athletics in April last year. That should have been the beginning of a concerted effort to chase the dopers down in athletics in the build-up towards the Asian Games. From May, NADA managed 38 tests up to 31 July with 11 of them coming from the relay camp in the Czech Republic on 29 July and four from Thimphu, Bhutan, where the middle distance and distance runners were based, a day later.

The July-end testing, with the Asian Games athletics events scheduled to begin on 28 August, was of very little relevance from an anti-doping perspective. If NADA was looking for the red-blood-cell-boosting erythropoietin (EPO), it was ill-timed. No one wanting to use EPO would have done it with 25 days to go for the competition. It would be of little use. The closer to competition the better it would be. The fact that Monika Chaudhary, a middle-distance runner at the Thimphu camp was caught for EPO doping in the retrials in Delhi, indicated that EPO was much relevant in the Indian scenario.

The July and August out-of-competition testing by NADA looked a desperate measure, either to fulfill the requirement of testing all the competitors before the Games or to boost number of samples. It was a failure.

NADA went into overdrive in the month of December. It looked to achieve two targets – increase the overall number of tests, and show somehow that the leading athletes were indeed tested out of competition during the year, forget for a moment the Asian Games were over.

From August to December NADA did 162 out-of-competition tests in athletics with the last month of the year contributing a whopping 111. Had these 162 tests come in May-July, there might have been a different tale to tell. One is not suggesting that Indian athletes were on drugs. Far from it. Often, we are told, our athletes do not know what doping is, and what the names of the drugs are! This might be difficult to believe in today’s world of dope-driven athletics.

But NADA is expected to do its duty all the same. Instead of concentrating on junior athletes as it did in its out-of-competition testing in May last year for no apparent reason, NADA should have been expected to focus its attention on senior campers, at home and abroad. They were left alone.

NADA, which became functional in January 2009, started its domestic RTP in May 2015. The RTP took its own time to evolve. At first, there was no clear-cut policy in adding or excluding athletes in the list. From an original list of 40 track and field athletes, it grew to a total of 178 sportspersons including 64 athletes in November 2017.

This looked good on the eve of the Asian Games and Commonwealth Games year. NADA was tightening up the screws against dope cheats, one thought. But suddenly, it whittled the list down to 113, which was 65 less than the previous figure. Worse, athletics was cut down from 64 to 25.

Why should there have been extra focus on athletics? Both in 2017 (21 positive cases) and 2016 (23), athletics had topped the dopers’ charts. Weightlifting was always a close second if it was not on top among the Olympic disciplines. Athletes needed closer monitoring and so, too, weightlifting.

NADA, unfortunately, had an outdated RTP list in May-June, 2018 (whittled down from 64 and updated from Nov 2017) a list that contained many an inactive athlete or athletes who were no longer leading in their events or those whose inclusion in the first place defied logic.

It should not have been too much of a problem to compile a list of athletes who were prominent and among the medal-contenders in the Asian Games, at the beginning of 2018, based on the list of campers, NADA’s own RTP at that time (2017) and current performances, if any available. NADA apparently bungled.

An invitation to dope?

Overconfident much of the time in its own approach, having a philosophy “let’s not hound the athletes” and “you can’t test the same athlete over and over again”, NADA left a huge vacuum in its out-of-competition testing in the lead-up to the Asian Games that looked an invitation to dope.

Most of the leading athletes were not tested between 5 March and 25 June, the gap between the Fed Cup and the inter-State meet, the two competitions that formed the final selection trials for the Commonwealth Games and the Asian Games respectively. One would have thought they would have been tested at least twice during the intervening period.

There is a catchy line that the Athletics Federation of India (AFI) has adopted: “Our athletes do not dope, they don’t have a chance to dope in camps since testers arrive every other day.”

AFI President Adille Sumariwalla on 2 August last year tweeted: “AFI has always said that in national camp athletes are tested every few days and if they are stupid to dope, they will get caught. Hence the extra smart ones either don’t dope or avoid camp.”

Three of those who competed in the Asian Games (quarter-miler Nirmala Sheoran, distance runner Sanjivani Jadhav and discus thrower Sandeep Kumari) tested positive after the Games in re-tests ordered by WADA. Two others who were part of the national camps at some stage or the other, middle distance runner Jhuma Khatun and shot putter Naveen Chikara also tested positive. Jadhav has since been handed out a two-year suspension by the IAAF. This May, Asian Championships gold medallist Marimuthu Gomathi tested positive. AFI can no longer say athletes in camps do not dope.

As for the NADA testers whom AFI keeps referring to, they might have spent time in camps, but did they actually test the elite bunch of athletes there? ‘No’ is the unfortunate answer. Manjit Singh (800m), Jinson Johnson (1500m), Tejinder Pal Singh Toor (shot put), Neeraj Chopra (javelin) and Swapna Barman (heptathlon), the eventual gold medallists in the Asian Games, were not tested out-of-competition prior to the Games.

Could NADA have foreseen the gold medals in the Asian Games and concentrated on the above athletes? No.

Could it have focused at least on its RTP athletes among them and tested them more? Yes.

Johnson, who was in the Bhutan camp but was not tested though a few others were tested there, along with Chopra and Barman were among the registered pool athletes. Going by the WADA guidelines and the logic behind whereabouts-based testing, they should have been subjected to at least three tests during the course of the year. They were not.

Johnson was tested out of competition once on 22 December and Chopra twice, on 21 October and 21 December. Barman underwent no out-of-competition test at all through 2018. In fact, the only in-competition test that she was subjected to in the year (outside of any test she might have undergone by an international agency) was at the inter-State meet in Guwahati on 29 June last year, when she took the title, got selected for Asian Games and went onto win gold in Jakarta despite an assortment of injuries that she had suffered.

Triple jumper Arpinder Singh was the lone gold medallist tested out of competition before the Asian Games. He was tested on 7 March, a day before his competition in the Fed Cup. He was tested again in-competition. It was illogical but it prevented a clean sweep of the eventual gold medal winners in Jakarta being omitted for out-of-competition testing prior to the Games.

Among the silver medallists at the Asian Games, Dutee Chand (100m, 200m) and Muhammed Anas (400m) were not tested out of competition by NADA through the year. It must be noted here that Anas (also shot putter Tejinder Toor) was in the registered pool of the Athletics Integrity Unit (AIU) of the International Association of Athletics Federations (IAAF) in 2018 and might have been tested. That also could have been the reason behind NADA not testing him on 29 July in Jablonec, Czech Republic, where it tested almost all the campers preparing for the Asian Games. There was no bar on NADA testing him there, however.

Tests poorly timed

Considering that the athletics events were starting on 25 August, the tests conducted by NADA in Europe prior to the Asiad, probably outsourced to another agency, were not ideally timed. That it did arrange for tests abroad was laudable. More such ‘missions’ especially during a long Europe training programme of athletics, an integral part of the preparations nowadays, will assure ‘clean’ athletes that NADA means business.

Long jumper Neena Varakil (one out-of-competition test in August 2018) and steeplechaser Sudha Singh (one test in January 2018) were among the silver medallists tested before the Asian Games. The relay team members, both male and female, except Muhammed Anas and Arokia Rajiv, were tested at Jablonec, Czech Republic, on 29 July, 2018.

The two bronze medallists in the Asian Games, discus thrower Seema Antil Punia, and middle-distance runner PU Chithra, were not tested out of competition before the Asiad. Punia was tested once, on 8 March, at the Federation Cup at Patiala, and it was shown as out of competition which it was not. She underwent no other tests throughout the year. She competed in only one competition at home in 2018. Nothing has been heard of Antil Punia this year except that she had been training in Russia. Chithra was tested at Patiala in March and at Guwahati in June, both in-competition tests.

The oft-repeated claims of AFI about constant testing at camps become mute when one asks the number of times each athlete had been tested. “NADA will know that,” is the stock reply.

Now, we have numbers.

In a meagre total of 252 out-of-competition samples in athletics (13.07 percent) out of 1927 samples across all sports, NADA could not test 78 among 137 campers (base number from February 2018). That is nearly 57 percent of the athletics campers went without an out-of-competition test in 2018!

WADA wants NADA to do more out-of-competition tests than in-competition testing. That simply looks beyond the capacity of NADA. In 2018, it did 4194 samples in total in all sports, out of which 1927 (45.94 percent) were out of competition. There are plans to target more this year, perhaps even double last year’s count. But the positive results are also steeply climbing. This is where NADA and the government’s dilemma comes in. More adverse results would mean the dubious distinction of being among the top-three or top-six as had been the case in the past.

Will WADA be tempted to investigate the lack of adequate out-of-competition testing in India in the crucial months of April-July 2018? It had done an investigation into the Jamaican anti-doping commission (JADCO) doing just one random test between March and July in 2012 in the run-up to the London Olympics, as revealed by the former JADCO Executive Director, Renee Anne-Shirley. Nothing was known about the outcome of the “extraordinary audit” done by WADA following the allegation. WADA had done a ‘compliance audit’ of NADA in March 2018.

Should India go all out and catch more cheats or should NADA apply the brakes and bring the numbers down? That question will keep coming up for NADA and the sports ministry, especially when multi-discipline games or World Championships are round the corner. The recent statement in Parliament by the sports minister, Kiren Rijiju, that 187 positive cases were reported during the 2018-2019 financial year is an admission that doping goes on unabated in the country.

(This story was first published in Firstpost on July 23, 2019)

Biological sex is becoming irrelevant in this debate about T-level and athletic ability

She is celebrated as South Africa’s “golden girl”. But Olympic champion Caster Semenya is now pushing the sports world to potentially dash through a challenging hurdles’ course peppered with issues of gender, hormones and performance.

Amid the raging controversy over new eligibility regulations for female classification introduced by the International Association of Athletics Federations (IAAF), the basic question of who is a male or female is becoming increasingly irrelevant.

e IAAF regulations for athletes with differences of sex development. AP

The IAAF regulations for athletes with differences of sex development (DSD) have been challenged by middle-distance runner Semenya, a two-time Olympic champion in the 800 metres, in the Court of Arbitration for Sport (CAS). The Lausanne (Switzerland)-based court is an international quasi-judicial organisation that deals with disputes within sports, mainly anti-doping matters, athletes’ rights, commercial disputes and eligibility issues.

The DSD rules are the extension of the IAAF hyperandrogenism regulations that were set aside by CAS in July 2015 when Indian sprinter Dutee Chand questioned her ban from athletics because of her higher testosterone levels. The CAS, while staying the rules, gave the IAAF two years to bring forward evidence that female athletes would gain an advantage of 10-12 per cent over their rivals because of the extra testosterone in their bodies. Otherwise, it seemed to agree, it would be similar to other natural advantages that athletes gain because of long limbs or broad feet.

Hyperandrogenism is a medical condition that sees disproportionate levels of androgens, or male sex hormones such as testosterone, in the female body and the associated effects.

Advantage is not what CAS is looking for

Instead of going back to the CAS panel with its modified rules, the IAAF brought in an entirely different set of rules based on research done by scientists engaged by it. These were scheduled to be effective from November last year but kept in abeyance following the Semenya appeal to CAS. The IAAF research has not been able to show the 10 per cent advantage that CAS talked about, and only at much lower levels.

If Semenya prevails, as several activists and many observers hope would be the case, there could be another attempt by sports organisations to bring some other regulations or even suggest a third category for transgender or transsexual or inter-sex athletes. All Olympic sports are dependent on the International Olympic Committee (IOC) laying down regulations and the organisation is waiting for the Semenya case to be resolved.

Semenya, 28, looks unbeatable over 800m today and she is gradually gaining the same superiority over the 1,500m. Following the stay of the hyperandrogenism regulations, Semenya has clocked national records of 1:55.28 (2016), 1:55.16 (2017) and 1:54.25 (2018). Previously, the runner had clocked a sub-1:56 in the 2009 World Championships, winning in 1:55.45.

Semenya was apparently asked to undergo hormone therapy to reduce testosterone levels after the 2009 World championships. The South African slowed down considerably till receiving a boost from the Dutee Chand ruling in 2015. If there is a classic example of how much additional testosterone would matter to a female athlete, all that is required for anyone is to study Semenya’s timings.

The efforts of the IAAF and of the IOC to devise a method that would not be intrusive and would be based on scientific principles to determine eligibility rules for females have met with more opposition today than there was in the 1990s. The pro-Semenya lobby does not agree that testosterone is the determining factor in athletics advantage. It has found flaws in the research funded by the IAAF and has questioned the idea of healthy humans being advised to take drugs for a non-existent “disease”. It has also opined that there was so much of grey area in androgen sensitivity that athletes insensitive to testosterone might fall victim to the new rules and processes.

Should law decide who is a female? 

Should the law of a country determine who is a female, as many have argued? Suppose there is no such law in a country, who will certify someone is a female or transgender or intersex?

Today, after many years of explaining testosterone levels, gender ambiguity, conditions that may lead to confusion and exceptions including polycystic ovary syndrome (PCOS), the IAAF, in its statements, has mentioned “testes” as a crucial factor in its bid to bring a “level-playing field” for women. How everyone missed this point all these years is a mystery.

The IAAF DSD regulations, however, do not mention “testes” that are the primary source of testosterone in males. Females also produce testosterone from ovaries and adrenal gland, but in much smaller quantities compared to males.

In a subject that is complex and open to debate, scientists have sniped at each other without providing a solution. Androgen insensitivity in a female having one of the seven DSD conditions listed by the IAAF may lead to a state where the individual is incapable of utilising the testosterone produced. The IAAF has covered this situation by mentioning that in all cases the athletes who may be selected to undergo tests would be fully androgen sensitive. Critics say this is complicated science and it is difficult to establish androgen insensitivity in many cases.

The normal testosterone levels are above 10 nanomoles per litre for males and 0.1 to 2.8nmol per litre for females. The IAAF has fixed 5nmol per litre for DSD females. If exceeded, they would be ineligible to compete in select women’s events ranging from 400m to 1,500m and the mile at the international level, though they could compete at the national level and other meets that are not specified.

Athletes shy of coming forward

The cry of “discrimination” is loud across the world. From a United Nations group on human rights to scientists to activists to writers all are prepared to brand the IAAF as guilty. The organisation has said it has the support of a wide representation of the athletics community. Most of them are wary of coming forward, though. This, in a way, has harmed the interests of the non-hyperandrogenic females.

World marathon record holder Paula Radcliffe of Britain has suffered in expressing her opinion in favour of regulations, but someone like Kelly Holmes, also of Britain, a double gold winner in the Olympics, received encouraging support from her followers, when she tweeted: “Anyone can live how they want to live, but let women have their rights too!” Tennis great Billie Jean King – who famously beat 55-year-old retired male player Bobby Riggs when she was 29 in the Battle of the Sexes match in the 1970s – has offered Caster Semenya her full support. However, fellow legend Martina Navratilova has said that allowing transgender women to compete in women’s sport is “insane”.

Only a few active athletes have so far tried to show the hopelessness in competing against Semenya or a couple of others who are yet to sweep the races like the South African but are still formidable. There is a genuine apprehension that if Semenya wins her appeal in CAS, the stage might be set for hyperandrogenic athletes to be prepared consciously and methodically by nations that are out to gain Olympic glory. India might not be an exception in this hyperandrogenic exercise. If doping could be institutionalised to the extent that it has been shown to be in Russia, the testosterone-driven female athletes, supported by the State, could well become a reality, many have argued. CAS holds the key to the future of women’s sports in the world.

 (This article was first published in the print edition of Firstpost on March 1, 2019: "Battle of the sexes reboot" )

Is it a BCCI climbdown or another farce?

Cricket is not a dope-driven sport. It comes very low down in the hierarchy of dope-affected sports. By its illogical and obstinate stand against the attempts of the International Cricket Council (ICC) to get cricket compliant with the World Anti-Doping Code (WADC), the Board of Control for Cricket in India (BCCI) has brought undue focus on the sport in the doping sphere through the past decade. If recent reports are any indication, the BCCI seems hell bent on maintaining that position, giving a special status to itself in the world of sports organisations across sports and at the same time trying to run down the National Anti-Doping Agency (NADA).

The latest report about the BCCI suggesting a “trial run” to allow the NADA to carry out tests on cricketers is yet another farce it is going to attempt to cling onto its illogical argument. It is being reported as some sort of a climbdown by BCCI as though it is a body that can get away with anything.

It cannot be up to the BCCI to make an offer and for the ICC to accept it or for NADA to welcome it. The Code compliance issue is the sole responsibility of WADA. We don’t know what all WADA found out of ICC, its regulations and the functioning of its affiliates to be Code compliant and not compliant or what WADA advised the ICC to rectify if the latter wanted not to be named ‘non-compliant’.

ICC clause that breached Code

At least one particular clause in the ICC anti-doping code was surely unacceptable to WADA since it questioned the very authority of a national anti-doping organization (NADO) and provided an exception to the rule to accommodate the BCCI:

"13.2.2 Persons Entitled to Appeal In cases under Article 13.2.1, the following parties shall have the right to appeal to CAS: (a) the Player or other Person who is the subject of the decision being appealed; (b) the other party to the case in which the decision was rendered; (c) the ICC; (d) subject to Article 13.2.3 below, the National Anti-Doping Organization of the Person’s country of residence or countries where the Person is a national or license holder; (e) any other Anti-Doping Organisation under whose rules a sanction could have been imposed; and (f) WADA. 13.2.3 Notwithstanding Article 13.2.2(d), the Board of Control for Cricket in India (the National Cricket Federation for the territory of India) does not recognize the authority or jurisdiction of the National Anti-Doping Organization for India. Therefore, the right of appeal for National Anti-Doping Organizations under Article 13.2.2(d) shall not be available to the National Anti-Doping Organization in India in respect of decisions taken pursuant to the ICC Code."

It is not clear when these rule changes were made. They are not there in the ICC rules up to January 2012. They are available since at least 19 June 2017 when the existing ICC anti-doping rules have come into force.  Article 13.2.2 was changed then and a fresh one, Article 13.2.3 brought in to legitimize BCCI’s refusal to recognize NADA’s authority. They continue to be available in the ICC rules that do not in any case provide much importance to NADOs.

The main problem of course is BCCI’s refusal to allow Indian cricketers to be tested by NADA or in a broader perspective accept NADA’s authority to be in charge of all testing and ‘results management’ in all sports including cricket in this country as stipulated in NADA rules and notified by the Government of India through the Gazette. This authority stems from the WADA Code as well as from the UNESCO Convention on Doping in Sports. India is signatory to both these international protocols.

Top players concerned about privacy

Back in 2009 when the BCCI objected to the ‘whereabouts’ clause in the Code that the ICC, which became a signatory to the Code in 2006, also had to adopt, it was explained that leading Indian players were wary of their privacy being intruded into. An argument was also floated that it would be against the Indian Constitution to subject the players to ‘whereabouts’ requirements.

"We need to find a solution to the practical problem India is having, which is a constitutional issue of the country, which is why we decided to suspend the 'whereabouts' clause," ICC CEO Haroon Lorgat was quoted as saying by 'Cricinfo' in October 2009.

That Constitutional issue has not affected other sports and other sportspersons some of whom have been under some ‘whereabouts’ requirements either at the international level or the national level for the past 10 years. It was just as well that other sport did not come up with this ludicrous suggestion to stall “whereabouts” because any refusal to come under any of the Code provisions would have attracted immediate sanctions by the international federations concerned, leading to resultant sanctions by the International Olympic Committee (IOC).

Cricket is different; Indian cricket more so. ICC can only request the Indian Board to fall in line, to allow NADA to do testing and results management in cricket domestically. It cannot enforce its own rules without pleading. That pleading has become necessary since ICC has ambitions of campaigning for cricket's inclusion in the 2028 Olympics. The sport is also likely to get the nod for 2022 Asian Games. If the ICC is declared non-compliant of the Code, this cannot come through. Once in the past, in 2008, the ICC had become non-compliant but came back to join the mainstream after correcting itself with out-of-competition testing that was non-existent in the early years of its anti-doping exercise.

WADA has to come in

This is not an issue between NADA and BCCI as has been made out. That stage was over long ago. Now it is a question of the WADA declaring ICC as ‘non-compliant’ since one of its member units has rules that are in breach of the Code.

That is why it is difficult to understand that a tripartite agreement is going to be reached among ICC, BCCI and NADA to carry out a six-month trial by which NADA would test 10 per cent of the samples of the Registered Pool of players of the BCCI.

If one has understood the reports, they are saying NADA would get to have authority to collect 10 per cent of the out-of-competition samples under RTP to be tested by the National Dope Testing Laboratory (NDTL).

The immediate question that arises is, what about the rest of the authority, to test in-competition, to do other out-of-competition tests, to conduct ‘results management’ and to draw up registered testing pool etc?

More surprising is the response of the NADA Director-General, Navin Agarwal.

“It is a good move, though we haven’t received any official communication from the BCCI. If the BCCI is willing to work with NADA, we are willing to (support). It is the right thing,” Agarwal said

“We go by the WADA guidelines and we handle all the federations and we are willing to accommodate whatever (concerns) the BCCI (may have)," he added. .

The BCCI has been arguing through the years. “We are not a national sports federation”. That might be true, but it makes no difference to the anti-doping structure.

If you are the national body recognized by the international federation controlling a particular sport you are liable to come under the WADA Code and the National Anti-Doping Organization’s rules. There should be no escape from that. There is no requirement for a body to be registered or recognized as a National Sports Federation.

After having taken a tough stand initially in November 2017 about bringing Indian cricket under NADA’s authority, the Union Sports Ministry softened its stand thereby allowing BCCI to have misleading notions about its own powers and infallibility.

The goof-ups cannot be an excuse

Of late, the BCCI had also started changing its tune further. It had started pointing out “goof-ups” by NADA in some cases that has led to a few negative reports being re-opened. In the latest case, javelin thrower Devinder Singh Kang has been exonerated by the International Association of Athletics Federations (IAAF) and WADA after NDTL withdrew its 15-month-old ‘positive’ report.

For one thing, it is the laboratory under scrutiny here and not NADA. For another, even if NADA had faltered, it is not the BCCI’s job to issue a certificate of “competence” and agree to join the rest of the sports fraternity in allowing NADA to conduct testing. Any adverse opinion should come from WADA. National federations do not have the luxury of picking its testing agency or laboratory as per competence and reputation. Moreover, the BCCI also has been using NDTL for its sample testing requirements and it cannot now be saying “sorry, we were using sub-standard facilities”. As for sample collection etc, again it is not strictly a choice for BCCI to fall in line or not.

This is where the BCCI and possibly the ICC have apparently not grasped the situation. NADA is not an agency like the IDTM that the BCCI and several other international federations and anti-doping agencies have engaged for their sample collection. It is a National anti-doping authority having jurisdiction over the entire sports structure in the country. Its rules are non-negotiable and so are the WADA rules.
Just imagine if the Athletics Federation of India (AFI) were to say, "we are not happy with NADA DCOs, their sample collection process and result management. Now onwards, we will do our own dope-testing and hearing process!" That is not an option available to any national federation or for an international federation to accommodate in its rules. 

“IDTM has been doing a good job, ICC is WADA-compliant, so we too are WADA- compliant and we need not be NADA-compliant” is a refrain only the anti-doping illiterate will express.
The BCCI's hearing process and some of its decisions in the few doping cases that it has handled should also come into scrutiny when it talks of NADA's "inefficiency". Of particular interest to those following anti-doping was the decision in the Yusuf Pathan case. He was deemed to have been under suspension when he actually competed! An earlier piece on that is here.

The ICC has a ‘whereabouts’ policy that is based on team training venues and team hotel. It does not require individual players to provide ‘whereabouts’ in order for testers to spot them at specific locations throughout the year. NADA’s requirements may be different though it would be extremely surprising if NADA was to pick a leading player who is already on the ICC ‘whereabouts” list. Even if this was to happen, what harm would be done if an Indian cricketer’s whereabouts are made known? Will security be compromised? Is it difficult to know in these Googling days where M. S. Dhoni stays or where Virat Kohli’s residence is?

(Updated 19 March 2019)

The proposed anti-doping law might scare none

The draft National Anti-Doping Bill 2018 is ready and waiting to receive suggestions and comments.

Much of the wordage in the 11-page PDF document is devoted to a) Definitions, b) Composition of the National Anti-Doping Agency (NADA) and its powers and functions, c) Objectives and composition of the National Dope Testing Laboratory (NDTL), d) Appointment and powers of the Anti-Doping Disciplinary Panel (ADDP) and the Anti-Doping Appeal Panel (ADAP), e) Powers of the Doping Control Officers, f) Ethics and Ethics Panel and g) awareness.

Just two clauses under Section 13 deal with offences that may lead to imprisonment; just two paragraphs for sanctioning athletes or coaches and support personnel after all the talk since 2017 of sending violators to jail.

Of course, the Justice Mukul Mudgal (retd)-headed committee did well to resist the temptation of sending athletes to jail despite demands to resort to such a punishment in order to curb the widespread doping in India. Former Sports Minister, Vijay Goel, had talked about prison term for athletes testing positive while the Amateur Athletic Federation of India (AFI) president, Adille Sumariwalla was keen to get the jail clause implemented.

However, the lack of details on offences and sanctions in the draft Bill, other than through the well-established anti-doping machinery under the National Anti-Doping Agency (NADA), is appalling. So, too, the inclusion of several provisions related to administration, powers and functions in a proposed law that all but replicates the anti-doping rules of the NADA instead of incorporating them by reference. By laying down the composition of the NADA Governing Body and Executive, the proposed law has legitimized the all-government nature of an independent body without a single former athlete as a representative. In leading democracies elsewhere in the world they dominate such composition.

NADA will recommend to CBI

The criminal offence involving persons indulging in trafficking in banned substances will need to be referred to the CBI by the Director-General of NADA, “subject to approval by the Executive body, by a majority decision.” This is going to be time-consuming, just the recommendation part itself.

The draft Bill says:

“Any person who indulges in supply of prohibited substance on a regular basis for commercial purposes, to an athlete, shall be guilty of the offence of trafficking and shall be punished with simple imprisonment which may extend to one year and shall also be liable for a fine which may extent to rupees ten lakhs.

“Any person who is part of an Organized Crime Syndicate shall be punished with simple imprisonment which may extend to four years shall also be liable for a fine which may extend to rupees ten lakhs.

“Any person who fails to comply with duty under section 21 of this Act shall be fined which may extend to rupees twenty thousand for the first offence and if the offence is repeated, it may extend to rupees two lakhs for each offence.” (Section 21 deals with labelling of medicinal and supplement products)

Supply of “Prohibited substance on a regular basis for commercial purposes” would be an offence. Can he or she be not guilty under the various drug supply acts if the drugs are being sold without prescription? Anabolic steroids, the most widely misused drugs in sports, for example, are prescription drugs in India. Sale of such drugs without prescription can attract punishments but rarely does one hear of such actions. Will the proposed law stop the supply and sale of steroids?

Companies are required to put a warning on labels of medicines whose consumption/administration may lead to an anti-doping rule violation charge. Breaches will be liable to be punished. Some of the corticosteroids like cortisone if being sold may require such labelling while a cortisone injection administered intra-articular (into the joint) is allowed under WADA rules. The same goes for a set of inhaled asthma medications for which thresholds have been prescribed, say salbutamol, formoterol and salmeterol. Should they also be carrying warning labels?

For that matter, caffeine, now in the monitoring group of WADA's list can make a comeback into the Prohibited List in future. And then it can go right out of it as well perhaps. Will coffee products then be forced to carry a warning label?

NADA’s rules, banned substances and methods, labelled and unlabeled products etc could have been best left to NADA, WADA and drug and food control agencies, Food Safety and Standards Authority of India (FSSAI) and State Food and Drug Administrations.

“Any person” may suggest anyone who is a supplier. He or she could also be a coach or a physiotherapist or a doctor or even an athlete. If these people including the athletes can get banned drugs including steroids without a prescription from the chemists almost all across India, what could be the relevance of the proposed Act? Should the supplier be dealing in large consignments? 
Moreover, it has been shown during hearing procedures, that athletes are able to easily get prescriptions for prohibited drugs. Some of them get away with 'fabricated prescriptions' also. The draft Bill does not deal with either of these two situations.
With athletes more comfortable in foreign locations for months together before major championships, with Government support, it is to be seen whether any attempt would be made by NADA or any other agency to find out whether there is a “supply” of banned drugs to such centres abroad.

NADA has not been able to proceed against coaches who have been implicated in doping instances by athletes. Despite athletes telling hearing panels of stories about coaches being suppliers of prohibited substances, NADA had failed to initiate action.

Now, NADA will need to go in-depth into such allegations with a strong investigating team if the proposed law has to gain some relevance. First, it will have to establish there could be a case against a coach, masseur or doctor or athlete and then recommend it for further investigation by the CBI and co-ordinate the efforts. Is the new law going to scare anyone at all?

The 'dope chart-makers' may yet escape

Foreign ‘experts’ had prepared “dope charts” for the benefit of Indian athletes in 2002 and 2004. Those charts were published and yet no action was taken eventually, perhaps not even an attempt to match hand-writing.

Justice Mudgal himself was given a chit purportedly recovered from the room of a foreign coach at the NIS, Patiala, when he went into the circumstances leading to six international-level woman quarter-milers testing positive in 2011.

Suppose there were to be incidents like these yet again? Is there any provision to probe in the proposed Bill in order penalize such coaches or support personnel? None. Deterrence should have been the key in this respect. Foreign coaches and recovery experts need to be circumspect in advising even supplements because of the doping angle.  The fear of a prison term in India may deter such foreign ‘experts’.

Unless they are supplying on a “regular basis” for “commercial purposes”, these persons may be in the clear under the clause dealing jail terms even if they prescribe Winstrol and Menabol (stanozolol) or Nuvir (testosterone) or “white tablet”!

‘White tablet’ cropped up in the ‘dope charts’ of 2004 and in the slips that were given to Justice Mudgal during his enquiry into the 2011 scandal. That mystery could be solved in future if such instances crop up again and if the law has a provision to pursue the authors of such charts and notes and bring them to trial and punish them without compunction.

The proposed law also does not have a provision dealing with illegal import of prohibited substances from abroad by trainees and coaches returning from coaching camps. No provision either for NADA to co-ordinate efforts with Customs authorities and having the power to search and confiscate banned drugs at airports.

There is also no provision in the proposed law to search the rooms of athletes and coaches and confiscate banned substances if being stored. NADA does not have the powers for ‘search and seizure’ at present, it was established during the appeal hearing last year of an international hurdler who was caught with a bag of meldonium at the NIS. It needed police support, the panel ruled. He was exonerated on appeal after he was slapped with a four-year suspension.

But suppose the law brings in that much-needed authority? Let NADA officers search rooms of athletes and coaches at training camps, do the same during competitions and bring to book erring individuals. Let there be a provision for fine and or jail in such instances. It will send shivers down the spines of athletes and support staff. “My coach gave me” may then mean jail for the coach. Of course, only with irrefutable evidence to back such accusations.

Tampering, complicity to be dealt with by NADA rules

What is available in the proposed Bill is this: Sanctions: “The anti-doping (rule) violations pertaining to Tampering, Complicity, Prohibited Association, Trafficking, use of prohibited substance or possession shall be dealt with in accordance with sanctions enumerated in ADR” (anti-doping rules).

Then how can they have another clause that can send a person to prison for “trafficking”? Support personnel could be tampering with evidence or provide encouragement to doping. Even federation or SAI officials may be caught providing inducements to athletes. Will they be allowed to go scot-free under the new law simply because the law-drafters feel that can be taken care of by the anti-doping rules?

There is no mention of online sale of banned substances in the draft Bill; no suggested methods by which NADA or any other agency can pursue the origin, sale and receipt of such products by athletes or support personnel. If Government or federation funds are utilized to purchase drugs or supplements abroad, as it happened in 2011, can there be action initiated. After all, these agencies are not “supplying for commercial purposes”!

For the better part of the proposed Bill, it is silent on the World Anti-Doping Agency (WADA) which gets mentioned only in three places which is strange. Even while mentioning

International Standards, there is no mention of WADA or the Code.

Is there an innate antipathy towards WADA here?

More surprisingly, there is no mention of the UNESCO Convention against Doping in Sports 2005 that should have been the basis for this legislation.

The Convention states:

“Article 5: In abiding by the obligations contained in this Convention, each State Party undertakes to adopt appropriate measures. Such measures may include legislation, regulation, policies or administrative practices.”

In 2017, the late Justice G. C. Bharuka, a former Acting Chief Justice of Karnataka High Court, who had served the ADAP as its chairman, had stated that India needed to have a law to go in tandem with the UNESCO Convention to which it was a signatory.

Opportunity lost

The Mudgal committee seems to have lost a great opportunity to establish the authority of NADA over all sports in the country through legislation. There is no provision to enforce mandatory adoption of the NADA anti-doping rules by all National federations as prescribed by the Code and the NADA rules so that NADA derives its power to enforce rules across the board including testing and results management.

The proposed legislation provides judicial authority to the ADDP and ADAP. These panels can summon witnesses who would be required to depose under oath.

“Every proceeding before the ADDP and ADAP shall be deemed to be judicial proceeding within the meaning of sections 193, 196 and 228 of the Indian Penal Code. The ADDP and ADAP shall be deemed to be a civil court for the purpose of section 195 and Chapter XXVI of the Code of Criminal Procedure 1973”.

However,” the process of appeals from decision of the ADDP and ADAP shall be as per ADR (anti-doping rules)”

The writ jurisdiction of the High Court or the Supreme Court under Article 226 and Article 32 of the Constitution of India “shall not be affected”.

The judicial powers being given to the hearing panels is a major deviation from the WADA Code and existing NADA rules. Will this amount to a breach of the Code?

Surely, the section dealing with the National Dope Testing Laboratory (NDTL) should raise some doubts and concerns.

Chapter III: National Dope Testing Laboratory (NDTL): “The Laboratory in India recognized by the Government of India shall be called the National Dope Testing Laboratory. It shall conduct its operations in compliance with the International Standard for Laboratories (ISL), WADA Code and NADA Code, as applicable from time to time”.

And we always thought any laboratory which had gained accreditation from WADA alone would be a valid laboratory to conduct dope tests that would be acceptable to international agencies including WADA and International federations, as well as NADA!

One of the primary objectives of the NDTL, going by the draft Bill, is to do testing as per the directives of the ADDP or ADAP.

"Objectives of laboratory: 1)   To provide accurate & reliable testing services for testing of samples and other substances as directed by ADDP or ADAP."

What about NADA? Does it not provide the main job to NDTL and co-ordinate all efforts towards the testing of Indian sportspersons? What about foreign clients? Do they not provide the bulk of the revenue to NDTL?

By picking selectively from NDTL’s “Mission and Objective” above, the law-makers have obviously mistook the clients to be ADDP and ADAP!
It would seem there may be two sets of anti-doping rules, one existing under the NADA, and the other that may be brought forward by the Government through a notification.
For, the final section (Section 24) of the draft Bill says: "The Central Government may by notification amend, modify or repeal the existing ADR so as to make them compliant with the Act. The existing ADR shall continue to be in force till the Central Government amends, modify or repeals them."
The NADA anti-doping rules are based on the WADA Code and the model rules for NADOs prescribed by WADA. Some of the model rules are mandatory, some others optional. There is no provision in the Code to amend the NADA rules mid-stream until the Code itself completes a revision process. That is expected in 2021 only. Once the existing ADR (anti-doping rules) are amended in India that would mean consequences and sanctions for an anti-doping rule violation would necessarily have to be changed. NADA may have lot to answer when the amdended ADR goes to WADA.

(Amended 22 Jan, 2019)

Making a mockery of Govt directive!

One of the conditions laid down by the International Association of Athletics Federations in its revised anti-doping rules that came into force on January 1, 2019 is the incorporation of those rules into the rules of the national federations.

This provision is nothing new. It has been there for quite some time. But with the new categorization of countries and new set of obligations for each group of countries in the fight against doping, this provision assumes more significance than ever before.

The IAAF has categorized member nations as per its own assessment about doping in athletics across the world, with category ‘A’ that includes Kenya and Ethiopia being considered as that having the “highest risk” for doping in the sport. India is in category ‘B’ along with 56 other countries. Those 56 include practically all leading nations in athletics in the world including the US, Britain, Jamaica, France, Germany and South Africa. Any country may be in danger of being sanctioned if it has three or more international-level athletes who have committed anti-doping rule violations during a 12-month period.

Has the Athletics Federation of India (AFI) amended its constitution to fall in line with the IAAF regulations? Since some of these regulations were part of the IAAF anti-doping rules in the past, did the AFI get them into their constitution or make a reference to it in its constitution?

Reference to IAAF rules is there in the AFI constitution, but not about following the latest IAAF anti-doping rules or that of the National Anti-Doping Agency (NADA).

Outdated rules

In fact, the AFI constitution, amended up to 14 April, 2013 contains a mixture of IAAF anti-doping rules and its own rules that may date back to the 1990s! As per these rules, the AFI units and the AFI are competent to deal with anti-doping measures in the country and the AFI tribunal would be the competent hearing authority. The truth is, individual federations have had practically no role to play in anti-doping exercise in India since the advent of NADA in 2009.

These are outdated that need to go out of the AFI constitution. But that alone is not the issue now. Should AFI be incorporating the IAAF anti-doping rules either directly or by reference into its constitution? If that is accomplished, then where will the NADA rules come in?

The AFI can always argue that it had long ago put up a note on NADA on its website, as mandated by the Ministry of Sports, but that note does not say much about anything. It says AFI "liaises" with IAAF and NADA on all issues connected with anti-doping. It also says AFI is in “compliance with IAAF rules for anti-doping and WADA Code”. Both are wrong assumptions.

The IAAF in its revised rules has provided a provision to such National federations that may have to delegate the anti-doping task to another organization because of a legislation or government order that it could achieve its obligations through such organization. But the federation would be held “in breach” if the relevant organization fails to meet the requirements of the National federation under the IAAF rules. In short, if NADA errs, AFI would be held responsible!

No change in more than three years

Back in November, 2015, one had written a piece on AFI and other National Federations being in breach of NADA anti-doping rules and the WADA Code in not incorporating the rules into their constitution by reference or directly in their constitutions. There has not been any appreciable change in the attitude of the federations through the past three years.

The AFI has stuck to its constitution though it is one of the few federations that have placed on record on its website some anti-doping rules, even if outdated and inadequate, and some provision to acknowledge the existence of NADA. By no stretch of imagination can this be construed a delegation of authority to NADA to manage anti-doping activities or an admission that NADA rules would apply. Now that the IAAF has also insisted that its rules need to be incorporated by the National federations, the AFI has its task cut out.

The Indian Olympic Association (IOA) has a page on its website that mentions anti-doping. It is a token statement about doping and its ramifications and could have been presented in a more detailed, meaningful manner. But at least the IOA has something over there rather than having nothing at all.

What about other leading federations?

Hockey India the lone exception

As one found in 2015,  Hockey India is the only federation among Olympic sports in India to have clearly delegated the authority to NADA to carry out anti-doping measures and results management,

One wished HI could have displayed these anti-doping rules under a separate ‘anti-doping’ head rather than buried it under HI rules on its website. It also has another set of rules under ‘technical’ that includes FIH anti-doping rules.

The following federation websites have no mention of anti-doping rules: Archery, fencing, football, handball, swimming, rowing, basketball, volleyball, wrestling, table tennis, judo, yachting, equestrian, tennis, triathlon and shooting.

The following have some reference to anti-doping rules though no mention regarding the authority to test etc having been delegated to NADA: Athletics, boxing, cycling, weightlifting and golf.

The following federations have either quoted WADA rules or given links to WADA Code or international federation rules: Canoeing and kayaking and badminton.

Gymnastics, Modern Pentathlon, taekwondo and rugby were not assessed for want of available data in public domain.

Some of the federations do not have any mention at all about doping on their websites while many have fulfilled the requirement ordained by the Sports Ministry in 2015 to include a note on anti-doping as part of its 23-point formula needed for transparency.

The ministry’s points included one that read: “Note on efforts for having dope free sports and compliance to WADA/NADA Code along with details of cases found positive during the last calendar year and action taken thereon.”

The ministry could have instead sought a clear statement on the following lines: “Our federation has incorporated the anti-doping rules of NADA into our constitution. We agree to abide by the anti-doping rules laid down by NADA from time to time and will follow the WADA Code and the anti-doping rules of the International Federation”

There is no need to give an account of the cases of the past year and “action taken thereon” since that should be the responsibility of NADA. A federation can of course provide a list of suspended athletes with duration and dates. But more than all that every federation should be told to upload the WADA Code and Prohibited List and the NADA anti-doping rules.

Anti-doping section needed

Every federation should have a section on its website devoted to anti-doping that may include latest literature on anti-doping, athlete-friendly information like sample-collection procedures, rights and responsibilities of the athletes, formalities involved with filing ‘whereabouts’ information if the athletes are in the registered testing pool of a national body or an international one, hearing procedures in first-instance and appeal stages, information about supplements, anti-doping education material, links to important websites including NADA and WADA and messages from former internationals urging the athletes to stay clean.

Most of the federations have dismissed the Ministry fiat contemptuously, it would seem. Only some of the federations have completed the format of 23 points. On doping some of the points that came out glaringly on checking up websites are:

Yachting Association of India: The federation has reproduced the Ministry’s letter of 26 Feb 2015 asking the federations to upload the 23-point fact-sheet. There is no other mention of meeting the requirements as instructed by the ministry.

National Rifle Association of India: “WADA/NADA compliance: We conducted dope tests during 61st National championships and ISSF World Cup final. No positive case was found.”

All India Tennis Association: “Compliance with WADA as per ITF Guidelines”

Wrestling Federation of India: Has 13 of the points listed. There is no mention of anti-doping! 

Rowing Federation of India: “Regular testing was done during out of competition and in competition. No positive cases were found. Annual report is being submitted to FISA. Regular contact Meetings with the Rowers at every championships.”

It is appalling that a ministry directive of 2015 has been ignored by some of the federations and not fully implemented by many others. It is also unfortunate that at a time when the Internet has become part of our lives, the federations either do not have a section on anti-doping or have outdated rules and practically nothing of use to the athletes in this field.

With doping continuing to show no signs of abating in this country, it is imperative that the IOA and the NSFs make all-out efforts to educate and inform the athletes about the subject. It is also essential to keep the media and the public informed about what the federations are doing. Having outdated anti-doping rules in the constitution will not help no matter how many references a federation might make of other rules in separate, disjointed documents. Having no mention of doping at all in a constitution is something the concerned international federation and the WADA may have to look into.

The understanding of the Ministry and NADA and possibly the IOA and the federations that a Gazette notification in 2010 was adequate to take care of the requirement to have the federations incorporate the anti-doping rules into their governing documents, is erroneous. Even if we accept that nothing more needs to be done in this regard, the federations will ideally have to prominently display an ‘anti-doping’ section on their websites including NADA anti-doping rules and the latter's authority over the entire gamut of domestic testing in all sport, not just a note on “WADA/NADA Code compliance”.

WADA perhaps has realized that not all countries have NADOs that have got the national federations to incorporate their rules. Thus, it has brought in an ‘athlete consent form’ in which the athlete has to accept the WADA rules and agree to subject himself/herself to the jurisdiction and authority of the international federation/national federation/NADO as the case may be.

The IOA and the NSFs have to wake up. More importantly, the ministry has to enforce its 23-point guideline of 2015 to ensure that the information it had sought to be placed in the public domain is actually available on the websites. After nearly four years of the ministry directive, if some of the federations still have information related to 2014-2015 on their websites, it is nothing short of mockery.