Pechstein had a fair trial, says CAS

The Court of Arbitration for Sport (CAS) issued a statement on March 27, 2015, to point out that German speed skater Claudia Pechstein had a "fair trial".
Breaking its silence on the Pechstein issue that has shaken the foundations of the international arbitration court, based in Lausanne, CAS said "Claudia Pechstein had a fair trial, not only before the CAS Panel but also before the SFT (Swiss Federal Tribunal), and the judgment of the SFT, which remains in force, should have settled this matter definitively in 2010."
A German appeals court had upheld Pechstein's right to claim damages against the International Skating Union (ISU) after her doping case was disposed of by CAS and SFT.
In what could be of far-reaching consequences in sports arbitration around the world, the Munich court had questioned the neutrality of CAS and ruled that under German laws the winter Olympian could claim damages in a German court against the ISU.

"If, like in the Pechstein/ISU case, arbitration agreements were to be considered as invalid by state courts, even when not challenged at any stage during the arbitration, then the basic principles of international arbitration would be compromised," CAS has very rightly pointed out about the most startling ruling by the German court that theoretically at least opens up the possibility of a clutch of litigation around the world in all types of courts.

In a two-part piece on this blog, the issues were explained earlier 
The latest CAS statement is here

Is there a need for selection criteria for Olympics?

The ‘one-size-fits-all’ selection criteria for multi-discipline games announced the other day by the Union Sports Ministry may not solve all the problems that the government periodically faces prior to such games nor would it put a stop to arguments or litigations.

The most notable aspect of the latest announcement is, from now on, the Indian Olympic Association (IOA) and the National Sports Federations (NSFs) would not be able to fall back on the plea “we were not told” about selection standards.

     “It has been decided that for participation in multi-disciplinary sports events such as Olympic Games,  Winter Olympics,  Asian Games, Commonwealth Games, Asian Indoor Games, Asian Beach Games, Youth Olympics,  Asian Youth Games, Commonwealth Youth Games, Paralympics and Para-Asian Games, the performance  of the sportspersons in the individual events during the last twelve months prior to commencement of the event should not be less than the performance achieved by the 6th position holder of the previous edition of the respective tournament in measurable sports,” stated an official release.

Before we go into the issue of selection norms for the Asian Games and the Commonwealth Games, let us look at the relevance of such yardstick for the Olympic Games.

Participation in Olympics today is determined by qualification procedures laid down by the concerned International Federations in consultation with the International Olympic Committee (IOC). The process, as in shooting for example, begins around two years ahead of the actual Games.

In shooting there is a ‘quota place’ and a ‘minimum qualification score’ (MQS). A shooter may earn a ‘quota place for a country but need not be picked eventually to be the representative of that National Olympic Committee (NOC) in the event in which he earned the quota. The National federation makes that choice.

Should the ministry standard be applied here just in case the MQS is lower than the government norm and the shooter who gained the ‘quota’ is no longer in contention because of either poor form, ill health or any other valid reason that may satisfy the federation?

Athletics to have 'invitation' places

Take for example athletics. The IAAF qualification standards for the Rio Games are yet to be announced, but going by the formula adopted for the World Championships this year there could be just one standard instead of the ‘A’ and ‘B’ standards that used to determine whether a country could enter just one athlete or two or three in each event.

This could also mean the standards, to be announced next month, would be tough, at least tougher than those ‘B’ standards of the past. In many cases they may, however, not be as tough as the ‘sixth-place standard’ of the previous Games. And the crunch comes here.

Let us take the men’s discus standard for the last Olympic Games. It was 65.0m for ‘A’ and 63.0m for ‘B’. The sixth place in Beijing Olympics in 2008 went for 65.88m. The sixth place at the London Olympics in 2012 was 65.85m, and the standard for this year’s World Championships is 65.0m. For Rio, one can expect this to be more or less the same. If the ministry’s standard is to be the determining factor then it could turn out to be tougher than that prescribed by the IAAF.

An impressive 63.62m it was that Krishna Poonia achieved for her sixth place at the London Olympics. She has not crossed 63.0m since. Nor has the Asian Games champion Seema Ankush Punia (nee Antil ) done that kind of distance since 2004. In fact after 2012 Seema has not gone beyond 62 metres. Will it then be logical to fix the ‘sixth-place’ standard of the London Olympics in women’s discus as the selection norm for Rio?

There are any number of examples, especially of interest to Indian athletes, say men’s shot put (20.84), women’s 100m (10.94s), 400m (50.17s) etc where if the ‘sixth-place’ standard is applied the dreams of becoming an Olympian might recede for the Indian athletes.

Concessions become the rule

Concessions will then have to be made, as is normally done, in order to clear the few athletes who make the grade as per the IAAF standards. The IAAF this time would also be having an ‘Olympic ranking list’ to “invite” athletes who could be missing the ‘cut’ for qualification.

The same situation may be theoretically available in swimming also, though going by the last few games it has been shown that here it is much tougher for an Indian to make the grade as per the qualification system adopted by the International Federation (FINA). In swimming, individual rankings will count towards qualification with two sets of standards. ‘A’ standard will ensure automatic qualification.

In weightlifting, on the other hand, placing achieved by teams in various championships will be the benchmark to decide allocations of quotas.

In badminton, the qualification will be based on rankings as of May 5, 2016. The singles list will go down to the 34th place, with provision for continental representation and restriction of entries per NOC. In table tennis it would be a combination of rankings and continental qualification process that will decide who gets to play in the Olympics.

Obviously you cannot have a clause that says “the sportspersons must have achieved 6th rank in the last 12 months” and stick to a government-approved criterion. What if he or she is 34^th-ranked in badminton and fulfills the rest of the criteria for qualification? (In actual terms the qualification list will go down much deeper than 34th rank in singles since entry restrictions will limit the numbers per country to just two in singles and a maximum of 16 per NOC in all events put together. The 34 quota places will also include compulsory continental representation places.)

In boxing, wrestling etc competitors will earn quota places through pre-designated championships while in team games, countries make it either through a qualification tournament or on the basis of continental quotas normally decided by the results of the continental games or championships.

Little scope for Govt criteria

In short, there is hardly any scope for any government-determined criterion to be brought into play in deciding the composition of any of the Indian teams for Olympics. Unless of course there is such an abundance of talent, say in athletics for example, that more than three athletes are vying for places in the team, all having attained the qualification standard in a particular event.

The ministry would thus do well to announce that for the Olympics, standards as prescribed by the respective International Federations, or qualification procedures already agreed upon by the IOC and the International Federations would determine the eligibility.

Every International Federation has already finalized its qualification process and the total number of athletes to be allowed in each sports discipline in Rio and the number of events in all sports had been agreed upon and announced. There is provision, where necessary, to utilize ‘unused quota places’ under various formulae in all disciplines.

Asian Games and Commonwealth Games do not have either a qualification process or minimum qualification standards. For nearly two decades the Asian Games selection criterion approved by the Sports Ministry was the ‘third-place’ norm, meaning the bronze-medal-winning mark of the previous Asian Games or the last Asian championships, whichever was higher.

In 2006, the ministry diluted this to the ‘sixth-place’ standard. In 2010 no strict standards were applied and the federations made their own norms or used their discretion in recommending names.

Last year when it applied the 'sixth-place' criteria, there were protests and controversies as the ministry cut down a 942-member contingent proposed by the IOA to 679, mainly excluding sports and individual athletes who in its opinion stood no chance of figuring anywhere. The pruning exercise was carried out by the Sports Authority of India (SAI) and carried forward by the ministry, though eventually the PMO's help was also sought.

There are no official figures about the eventual size of the contingent since a few teams managed to get the clearance of the courts and a few others, despite being initially rejected by the ministry, made it to Incheon. This happens all the time of course.

The announcement of a clear-cut criterion at this point is thus welcome. This may or may not prevent last-minute recommendations and/or manipulation of criteria, arguments and counter arguments the next time. But the message is clear_achieve the standards or otherwise lose your chance to make it to the Asian Games.

Low weightlifting standards in CWG

There is a rush to gain inclusion in Indian teams in sport like weightlifting and wrestling at the CWG level since the standards are low while that in athletics and swimming, in contrast, are quite high, comparable to world levels in a majority of the events. The uniform ‘sixth-place’ criterion thus becomes illogical in respect of CWG.

The sixth place in the 2014 CWG men's 56kg class in weightlifting had a total of 225kg while the sixth place finisher at the 2014 National lifted 233kg. Not all weight categories in men show this level of disparity but the Commonwealth standards are pretty low.

Among women, the sixth place in Glasgow in the 48kg went for 142kg, the same as that was achieved by the fifth-place finisher in the Indian National championships last year. In the 53kg class the disparity is even wider with the sixth place in CWG showing 173kg, the same that the seventh-place lifter totalled in the 2014 National.

A method will have to be devised to toughen the standards for CWG in such sport where the standards are much lower than our National level, keeping in mind of course the legal issues that may crop up as they did last year for the clearance of the teams for the Asian Games.

Many Indian teams fared poorly in the Incheon Asian Games. A comparison of the claims made by such teams or individual athletes, as projected by the NSFs, and their actual performance in the Games would help the SAI keep a data bank that can come in handy at the time of future clearances. The SAI and the ministry would also do well to remember that once the stage has crossed for getting accreditation for individual sportspersons it would be futile to attempt to stop them. That means a timeline, like the one fixed by the International Federations for Olympic qualification, will need to be drawn up by the SAI to process proposals for the Asian Games and the Commonwealth Games. But who will reform the IOA and the NSFs?

One last point. The last time the PMO shot down 'no-cost-to-Government' formula that is adopted by the Sports Ministry to refuse official funding for teams that in its opinion fail to meet the standards. There is still a mention of 'no cost' in the ministry circular this time. Sticking to a policy is often a difficult exercise. Eventually if everyone gets official funding, it becomes unfair to those who have been left out because of "poor standards".
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(Amended-14-03-2015)

Anti-doping education can also begin from Federation websites

Every now and then the Union Sports Ministry issues directives to the Indian Olympic Association (IOA) and the National Sports Federations (NSFs) about complying with various guidelines formulated by the Government with regard to their functioning.

More often than not these directives are either ignored or else implemented rather lethargically. For example, the ministry had sought last August details from the NSFs regarding their teams that went to the Commonwealth Games last year, when it found that a large number of officials who were not part of the official contingent had made it to Glasgow. Nothing has been heard of it since.

Communication sans follow-up?

In its communication to the IOA and the NSFs in October last year the ministry pointed out that there were previous communications dated 17 July, 2014 and 6 August 2014  related to these issues that seemed to have been by and large ignored.

As far back as 30 March, 2010 the ministry had declared NSFs receiving Rs 10 lakh or more annual grants as public authority and thereby asked them to provide suo motu information as per RTI Act 2005. Then also there was a directive that they should place certain information on their websites.

So, how will the IOA and the NSFs react to the latest directive issued today, March 2, 2015?

One is not trying to find out who did what. The idea of writing this blog piece is to focus on an area that seems to have been ignored by most of the federations and, unfortunately, missed by the ministry.

‘Anti-doping’ gets priority on the websites of most of the sports organizations the world over nowadays. A section devoted to the subject on a website is the best avenue to spread awareness and educate athletes. To a large extent, it also takes care of the oft-repeated complaint from athletes “but we were not aware of these rules” or “we are not aware of the latest prohibited substances” or “we found nothing of relevance regarding anti-doping when we searched the website."

This may or may not be true, but it sort of provides an alibi to the athlete during a hearing procedure related to an anti-doping rule violation. Many adjudicators in India have pointed out the lack of awareness among athletes on the topic of anti-doping measures and rules and about the need to educate athletes from rural areas regarding dangers of using drugs without proper medical advice. Yet there seems to have been no serious effort made to rectify this situation, particularly through the use of websites including that of the NADA.

The 23 points now

Among the 23 points listed by the ministry in its latest communication, there is one item that deals with doping. The ministry has asked the NSFs to place on its website a“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”

This is fine from the ministry’s point of view in ensuring that there is compliance. “Action taken thereon” is rather superfluous of course. The National Anti Doping Agency (NADA) that functions under the ministry, is the sole authority in India to lay down rules, test athletes,  carry out ‘results management’ procedures, to bring forward ‘positive’ cases before panels and to impose sanctions as ordered by the panels. The federations have to just enforce these sanctions. NADA updates the list of suspended athletes on its website on a regular basis and there can be little confusion regarding who has been suspended or about the number of athletes under suspension. No national federation keen to continue its affiliation with an international federation will be thinking of not enforcing these sanctions!

But we should not just be concerned about a ‘note’ being published on a website regarding compliance. The athletes should be provided information on a variety of topics related to anti-doping, at a minimum the latest rules of NADA and the National and International Federation, the latest WADA Code, the latest Prohibited List of substances, any useful information regarding drugs and supplements, procedures related to doping control, rules regarding  issue of therapeutic exemptions that allow an athlete to use banned drugs, ‘results management’ procedures, hearing procedures, appeals etc.

How they do it

It is best to have an entire section devoted to ‘anti-doping’ as is the practice with most of the sports associations abroad. Take for example the British Athletics website  or for that matter the USATF  one 

These are not only user-friendly websites but also very informative from an athlete’s perspective. The UK athletics website has the following topics under its anti-doping section, 1) anti-doping education, 2) check your medication, 3) register medication, 4) therapeutic use exemption, 5) supplements and nutrition, 6) ADAMS, 7) UKAD anti-doping advice card, 8) rules and procedures, 9) Testing procedures,10) Notice and news, 11) currently under sanction.

The above headings are apart from  ‘WADA Code 2015 explained’,  a ‘Clean sport’ app, doping control test video that explains what happens during a dope test, from notification to provision of a urine sample, and FAQs, quiz and links to other useful websites. All of these obviously placed there to help the athletes.

In contrast, even the Athletics Federation of India (AFI) which has a brand new, refurbished website seems to have not bothered to update its anti-doping rules and procedures.

Rather interestingly, the AFI website lists ‘anti-doping’ under ‘development programme’. You may almost miss this section since no one could be expected to look for it under ‘development’. But that is beside the point.

A look at the rules, available not within the anti-doping section but inside the AFI constitution,  will reveal that these rules are not only archaic and highly misleading they are not even in line with the latest IAAF anti-doping regulations or for that matter the 2004 or 2009 rules of the IAAF.

On one page the existence of NADA is acknowledged, but within the rules the ‘doping commission’ is the supreme authority!

Who has the authority?

Rule 4 lists responsibility for doping control. There is no mention of NADA, the sole agency entrusted with the responsibility of conducting in-competition and out-of-competition testing in India.

The disciplinary procedures still state that an AFI disciplinary panel would hear the athletes. Since 2009, the National Anti-Doping Disciplinary Panel, formed under the NADA rules has been handling all ‘positive’ cases in all sports.

That the AFI has not been able to correct these rules despite amendments carried out to its constitution at least on two occasions in recent years is unfortunate.

The sporting world had moved to the WADA Code-based anti-doping rules since 2004 (revised in 2009) but the AFI rules still mention a sanction of two years for a first doping offence, for three years for a second and for life for a third.

And here we are not even trying to bring in a comparison with the 2015 Code that has an entirely different set of sanctions now, but the 2009 Code. Unless we go back to pre-2004 days we may not be able to find anything remotely resembling the AFI anti-doping rules available in its constitution which is an amended version of 2013.

Get the basics right

A large majority of the federation websites does not have an anti-doping section, and only very few have any reference to any rule, forget the 2015 NADA rules or the WADA Code. Those who do have may not be having the NADA rules. Say for example the Badminton Association of India (BAI) . It does have an anti-doping section, but no reference to NADA rules or the NADA.

The Indian Weightlifting Federation website, for example, lists an anti-doping policy that cannot be accessed.  You will be lucky to get the 2015 Prohibited List on one of these websites unless through a link to the WADA website.

The majority of the websites also do not have the constitution of the NSF placed there.

Anti-doping information is a ‘must’ in tackling doping and ensuring that athletes do not fall into the trap just because of lack of awareness or inaccurate information. The websites of NSFs, apart from fulfilling mandatory requirements listed by the Government, should also be expected to provide basic information to the athletes on doping matters so that they are fully familiar with the rules and procedures. The task of the NADA and that of the adjudicators and lawyers will then become that much easier.

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