Hockey India an exception in adopting unambiguous anti-doping rules
What authority
does the National Anti Doping Authority (NADA) have to collect urine and blood samples from athletes, get them
tested, bring forward rule violations before a disciplinary panel and impose
sanctions as ordered by the panel?
In a large
majority of Indian sports, especially Olympic sports, there apparently is no
clear-cut authority if you go by the present arrangement. Unless you agree that
a gazette notification does over-ride all provisions within the anti-doping
Code that stipulate a set of rules to be incorporated by the federations in
their rules to provide NADA this responsibility and authority.
During the past
two years one has spent time over the websites of the National Sports
Federations (NSFs) trying to find whether any of them had incorporated the
rules that provide NADA the authority to be the sole anti-doping agency in
India to collect samples and carry out ‘results management’.
On a re-check of
several websites on Sunday (Nov 1) after more than a year’s gap, I found one!
Hockey India (HI) has a document titled ‘Hockey India Anti Doping Policy and
Regulations’. It contains the provisions that provide NADA the authority to test hockey players in India and to bring forward disciplinary procedures.
“By accepting
the NADA rules and regulations on doping control Hockey India has agreed to
share/bestow the below-mentioned duties and responsibilities to NADA with
regard to doping control in the discipline of Field and Indoor hockey”, says the
HI anti-doping policy.
The rules are
effective from January 1, 2015.
The points that
follow this statement include all testing responsibilities, ‘results management’
procedures and right of granting of Therapeutic Use Exemption (TUE) being delegated to NADA
among other things.
HI might have
done better had it also mentioned NADA’s authority in its constitution, though
it was not mandatory. But when a reference to the WADA Code is there in the
constitution, a mention about the NADA rules might have been just the right
thing to do.
But well done Hockey
India! You have left no room for ambiguity.
'Deemed acceptance'
Do we actually
require an NSF to incorporate any NADA rule or grant NADA any authority when
the NADA anti-doping rules have been gazetted?
Here the opinion
differs. Some lawyers and officials with whom I had interacted during the
2009-2013 period when everyone was coming to grips with the changed set-up of anti-doping in India, felt that the gazette notification would be sufficient. A few
others were not so sure.
The federations
were deemed to have accepted the rules since they did not object to them even
after publication of the rules in the gazette and notification of the same in newspapers. Can 'deemed acceptance' be a substitute for "incorporation of rules" into constitutions/governing documents"?
Will the ‘so-called’
authority derived from a gazette notification hold good in a court of law or
the Court of Arbitration for Sport (CAS)?
Since it has not
been challenged, no one could tell for sure. But one point that one of the
legal brains made was the fact that an athlete was presumed to have agreed to subject
himself/herself to the procedures including disciplinary hearings without
raising an objection and that might preclude any challenge at a later stage.
One was not sure
about this argument and left it at that. Yet, a few questions could remain on
this score also. Do the athletes come into these proceedings agreeing in
writing to the authority of NADA and the hearing panels? Do they know the
authority of NADA when they are tested?
Poor response from NSFs
No one seems to
have questioned the authority of NADA or that of the panels so far. Nor would
it look that the NADA has been trying to get this aspect sorted out with the
federations all these years. Yes, it did attempt in 2008-2009 when it brought
in these rules and wrote to the federations. Not many bothered to reply even,
forget about incorporating these rules into their constitutions.
If one could
recall correctly, the Athletics Federation of India (AFI) wrote back that NADA could
carry out out-of-competition testing while the federation would conduct ‘in-competition’
testing. The argument was not pressed once NADA got into the act though the AFI did
play a major role during ‘in-competition’ test distribution plan at least in
those early years.
Another
federation to respond was the Basketball Federation of India which stated that
it would be willing to convene a special general meeting, if required, to amend
its constitution appropriately to include the provision to bring in NADA rules.
Unfortunately, it seems, such promises
were never followed up.
If one checks up
the websites of the federations, some of them do have a mention of ‘NADA’ in
some document or the other or on some page or the other, but rarely has one
come across a constitution of a federation or rules that incorporate the complete NADA
rules “either directly or by reference” as has been done by Hockey India.
The Indian
Weightlifting Federation (IWLF) used to have separate rules applicable for
sanctions in respect of ‘national-level’ and ‘international-level’
weightlifters in doping cases. The IWLF website currently does not provide a
clue about its ‘anti-doping policy’ though it is a topic within the contents of
its home page. There are no details available.
The AFI website
does have a mention of ‘anti-doping’, though tucked away within, strangely,
something called ‘development programme’, as had been mentioned in these columns previously too.
Confusing rules
The AFI website section
on doping primarily provides the composition of its Medical Commission, its
role, functions etc.
A headline “In
consonance with WADA Anti-Doping Rules” may suggest the adoption of WADA Code
or NADA rules, but there is no further reference to such things under that
headline. It of course says the rules
are in consonance with the IAAF anti-doping rules. And there was a need to
incorporate these rules into “our constitution”.
The AFI constitution, as amended in 2013, still refers to the old IAAF and AFI rules;
there is no mention of NADA here.
Rule 4 says “The
AFI will be responsible for doping control at i) national championships, ii)
regional championships (All AFI affiliated/recognized units meets), iii)
University & School Games , iv) on other occasions when random and or
designated testing is carried out, for example Area Group Championships or
meetings. At these meetings an AFI or area representative shall be present
Rule 5 says 3)
every athlete shall have the right to a hearing before the relevant tribunal of
AFI before any decision on eligibility is reached.
The NADA rules
What do NADA rules, based on the WADA Code, say?
“1.2.1 As a condition of
receiving financial and/or other assistance from the Government of India and/or
the National Olympic Committee of India, each National Federation of
India shall accept and abide by the spirit and terms of India’s National
Anti-Doping Program and these Anti-Doping Rules, and shall
incorporate these Anti-Doping
Rules either directly or by reference into their governing documents,
constitution and/or rules as part of the rules of sport that bind their members
and Participants.” So says the NADA anti-doping rules 2015.
There has been no change in these
provisions from the 2009 version. And no changes in the following provision
also:
“1.2.2 By adopting these
Anti-Doping Rules, and incorporating them into their governing documents and
rules of sport, National Federations recognize the authority and
responsibility of NADA for implementing the National Anti-Doping Program and
enforcing these Anti-Doping Rules (including carrying out Testing) in
respect of all of the Persons listed in Article 1.3 below who are under
the jurisdiction of the National Federation, and shall cooperate with
and support NADA in that function. They shall also recognize, abide by
and give effect to the decisions made pursuant to these Anti-Doping Rules,
including the decisions of hearing panels imposing sanctions
on individuals under their jurisdiction.”
It goes without saying NADA has to have some
authority to test athletes, carry out ‘results management’ procedures, bring
forward cases for hearing and impose sanctions following such procedures. That
authority has to be delegated by the National Federations.
(Continued in Part II)
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