NADA asserts itself; BCCI is not impressed

The National Anti-Doping Agency (NADA) wants to test cricketers at the domestic level. It had always wanted to do this but had been unable to since it became functional in 2009.

Now, its media-savvy Director General, Navin Agarwal, has come out openly with his agency’s authority and desire to test cricketers within the country. This is a welcome development even if this might have come at a time when the BCCI stock is at an all-time 'low'.

The Board of Control for Cricket in India (BCCI) has hit back at accusations that domestic testing was not transparent. It has asserted its right over dope-testing in the country but suggested, according to one report, that if NADA wanted to take over the responsibility it better approach the BCCI.

Through the years NADA had written several letters to the BCCI in this regard but those went unanswered. Though Mr. Agarwal has been quoted as saying that NADA wouldn’t need BCCI’s permission to do testing it would be advisable to reach some understanding and then begin the testing in order to avoid confusion and to spare the players embarrassment.

Territorial supremacy

Who is right and who is wrong in this battle for territorial supremacy?

This is not the first time questions have been asked of the BCCI about testing or its sole authority to test cricketers at the national level.

We all know how cricket signed up the WADA Code in July 2006, fell foul with WADA in its acceptance of ‘whereabouts” issue and the ICC was declared non-compliant. WADA subsequently changed its rules regarding “whereabouts”and gave freedom to individual international federations to adopt rules regarding registered testing pools as per the requirements of each federation. The ICC drafted its own “whereabouts”rules (as had the International Football Federation) that were largely based on the “team training sessions” and venues rather than residential addresses. This was accepted by WADA.

(The current rules require one set of top ODI players from each country to provide addresses but testing is supposed to be at training venues and team hotels if staying overnight.)

The Indian players_star cricketers_objected to their privacy being intruded into and at that time it was mentioned by the BCCI that even the Attorney General had advised that any attempt to intrude may amount to breach of Constitutional rights. Many commentators suggested that Indian cricketers needed some additional privacy that might not have been granted to superstars like Tiger Woods or Roger Federer when it came to “whereabouts” requirements.

BCCI had its way

Eventually, the Indian cricketers and the BCCI had their way, perhaps creating the impression _it has stuck_that cricket is run under a different set of rules from the WADA Code which, even if this is being repeated, is not true.

Let’s forget “whereabouts” requirements at the international level for a while. The ICC anti-doping code even today categorises a “player” as one who has played international matches!

“1.1 Any player who participates or who has participated in the preceding twenty-four (24) months (whether as a member of a starting XI or as an officially designated substitute) in an International Match (a “Player”) shall thereby automatically become bound by and shall thereafter be required to comply with all of the provisions of the ICC Code.”

This is the crux of the problem. The ICC anti-doping rules that are applicable to all its constituent units and players are applicable only to international players!

So, what about others? Players who might have retired from international cricket (more than two years ago) but are still playing domestic matches and players who are competing in national competitions? They are governed by the rules of the respective national cricket federations.

The ICC rules are practically evasive on the authority of the National Anti-Doping Organizations (NADOs) to manage doping control over domestic cricketers. As mentioned in a previous blog,there is mention of NADO only in respect of therapeutic use exemption (TUE).

 NADOs in charge of domestic testing

The WADA Code on the other hand empowers NADOs as in-charge of national-level testing and results management. There is no mention of national federations having any authority in the Code. There is no mention of NADA in the BCCI anti-doping rules either.

Despite this major discrepancy in the ICC rules and the plight of a NADO like India’s NADA, WADA went ahead of declared ICC as compliant in 2015.

It is pertinent to mention here that major cricket playing countries, including England, Australia and South Africa, have anti-doping rules in cricket that allow their respective NADOs to have jurisdiction over players of that country within their territories. England, Australia and South Africa, however, have a provision that allows for an arrangement to be worked out between the cricket boards and the NADOs, something that is not available in the WADA Code.

In his rebuttal of NADA chief’s claims, the BCCI General Manager, Administration and Game Development, Prof. Ratnakar Shetty has stressed that the BCCI rules were WADA-compliant. It is not actually a National Federation’s duty to be compliant since it is always presumed that when an International federation signs up its constituent units would also be following the same rules. In this case neither the ICC nor the BCCI even acknowledge the authority of the Indian NADO.

The Code gives complete authority to a NADO to do “in-competition” and “out-of-competition” testing and to handle “results management” at the national level. It also gives NADOs the authority to draw up its registered testing pool based on its “whereabouts” programme.

This is what Mr. Agarwal has claimed, though in the current scenario with the ICC code being silent on NADOs’ role except in a curious elaboration of NADO in the ‘’definitions”, and WADA not having clarified the discrepancy arising out of this dichotomy in roles and responsibilities of signatories to the Code, there can still be uncertainty about who has the authority.

(The ICC “definitions” describe NADO as: National Anti-Doping Organisation or NADO. The entity(ies) designated by each country as possessing the primary authority and responsibility to adopt and implement anti-doping rules, direct the collection of Samples, the management of test results, and the conduct of hearings at the national level. For the purposes of TUEs only, the Australian Sports Drug Medical Advisory Committee (ASDMAC) and its successor bodies. If this designation has not been made by the competent public authority (ies), the entity shall be the country's National Olympic Committee or its designee.”)

Incorporation of rules

Even if the ICC rules were clear, the BCCI could have taken refuge (in case it wanted to avoid NADA control) under the clause in the NADA rules that demand that each National federation shall incorporate the rules into their constitution or governing documents in order to recognize the “authority and responsibility of NADA” which in turn would give the latter the authority to exercise its jurisdiction over sportspersons governed by individual federation’s rules and regulations.

Possibly no National federation has incorporated these rules into their constitutions. One cannot expect other NSFs to question NADA’s authority or to quarrel with the Government over doping control. Almost all of them are dependent on Government funding while the BCCI is not. Theoretically, Government can stop funding if NSFs do not follow NADA rules. And as it had been explained in the past by the ministry it is not just funding alone for which NSFs are dependent on the Government; there could be a hundred other things.

NADA and the Sports Ministry have taken solace from the fact that these rules had been published in the Gazette of India and that amounted to “deemed acceptance” by the federations. That is debatable since it is not just the acceptance of the rules that counts but the implementation of a provision after their acceptance that demands that they be incorporated into the constitution.

Suppose the BCCI disagrees and a player refuses to be subjected to a doping control? Can he then be hauled up before a disciplinary panel by NADA? And if at the first opportunity both the BCCI and the player ask NADA whether it has any authority and demand that it show rules incorporated into the BCCI constitution, can NADA fall back on the Gazette?

National Sports Federation?

But is the BCCI a recognized National Sports Federation?

It is not. Never has been. It has never sought such a recognition. Yet it has come under the Writ jurisdiction of the courts as a private organization exercising “public authority” at times.

Moreover, the NADA anti-doping rules do not require a National federation to be Government-recognized for it to have authority to test in that sport.

This is what the definition in the NADA rules states: “National Sports Federation: A national or regional entity which is a member of or is recognized by an International Federation as the entity governing the International Federation's sport in that nation or region.”

In the current scenario when the BCCI has come under criticism from the courts it would be futile to stick to prestige and drag yet another matter to court to decide who has the authority to test cricketers domestically. It would be better to sit with NADA and sort this mess out.

NADA’s eagerness to test ‘in-competition’ is surprising in a sport that is not considered ‘vulnerable’. But then ‘out-of-competition’ testing will mean drawing up at least a perfunctory “whereabouts” list. There’s the rub!

Are NADA-imposed sanctions in breach of the Constitution?

Justice G. C. Bharuka (retd), chairman of the National Anti-Doping Appeal Panel, has set off a debate by stating that the bans imposed by the National Anti-Doping Agency (NADA) on sportspersons who breach anti-doping rules were not as per Constitution, and Parliament needed to enact a law for these bans to gain legitimacy.

In an interview to News 18 on April 28, Justice Bharuka, a former High Court Judge, said that banning an athlete also amounted to infringement of the person’s fundamental rights. He said the ban violated the “right to profession” guaranteed under Article 19 (1) (g).

“As of now, we are debarring players on the basis of the National Anti-Doping Agency rules based on WADA Code of 2015. We need an anti-doping law which should be in tandem with the International Convention against Doping in Sport, 2005, to which India is a party. Plus, under Article 253, it is only Parliament who has the power to make laws for implementing any treaty, agreement or convention”, Justice Bharuka was quoted as saying by News 18.

"The ban violates the right to profession of a citizen under Article 19 (1) (g). This only cements the need for an appropriate legislation," he said.

Justice Bharuka raises doubts

Justice Bharuka, appointed chairman of the appeal panel in October, 2015, has surely raised doubts about the sanctity of the decisions handed out by the National Anti-Doping Disciplinary Panel and his own appeal panel as well as the authority of the NADA. It must be mentioned here that he has been presiding over the appeal panel and disposing of cases leading to confirmation of suspensions.

But can we say that over 700 suspensions ordered by disciplinary panels for anti-doping rule violations through the past eight years have been improper? Or are they “unconstitutional” or “illegal”?

This is where Justice Bharuka needs to further clarify. If the process is improper or illegal then it should stop forthwith. Justice Bharuka can advise NADA and the Union Sports Ministry to put on hold all hearing procedures till a legislation is passed by Parliament.

Union Sports Minister Vijay Goel who was also interviewed by News 18 was quoted as saying that Justice Bharuka’s point about “rights violation” would be taken into consideration while drafting the law.

Goel took the initiative, it would seem, to organize a seminar in New Delhi at which the proposed anti-doping law was discussed among several stakeholders including representatives of the Indian Olympic Association (IOA) and the National Sports Federations (NSFs). Justice Bharuka and several members of the hearing panels also participated in the discussions.

WADA sought legal foothold through Convention

It is a well-known fact that the WADA, the world anti-doping body, formed in 1999, funded equally by the sports movement and governments of the world, wanted its rules to have some legal teeth so that every country would be able to follow these rules without being challenged in civil courts.

That was why it approached UNESCO and finalized a Convention against doping in sports in 2005. India ratified the Convention in November 2007. To date 185 countries have ratified the Convention_the second most ratified of all UNESCO conventions.

Justice Bharuka has said only Parliament has the power to “make laws” for implementing any treaty, agreement or convention as per Article 253. There cannot be any dispute about that.

In fact, the draft National Sports Development Bill, put in cold storage since 2013,  starts off by stating that it is essential to have a legislation to give effect to the Convention.

But can a country manage without a legislation till such time one is passed by Parliament?

Yes, it can as per the Convention.

Article 5 of the Convention (Measures to achieve the objective of the Convention) says:

“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.”

“Regulation or administrative practices” could mean something like the National Sports Development Code of India.

This code is being revised now. The existing code has several references that make it clear that the WADA Code and the NADA anti-doping rules would be applicable to all sports recognized by the Government of India. Those rules contain sanctions to be imposed on persons who breach anti-doping rules.

It is true that a better document detailing the roles and responsibilities of NADA, its authority over the management of anti-doping measures in all sports recognized by the Government of India and the functioning of the disciplinary and appeal panels in dealing with doping cases would have been a better option than having a set of circulars.

But that is what the National Sports Code has been from the start and that is what it is even today. The Sports Ministry can incorporate a detailed section on anti-doping in the Sports Development Bill as and when it is revived or else bring an elaborate anti-doping law to back NADA rules and to deter athletes and support personnel with the threat of jail term as is being contemplated. Alternatively, at least for the time being, it can bring in a more detailed anti-doping section in the revised Sports Code the publication of which has been stayed by the Delhi High Court.

Validity upheld by courts

The validity of the National Sports Code has been upheld by the Delhi High Court in different cases (mainly pertaining to tenure of office-bearers of National Sports Federations and the authority of the Government to issue guidelines related to governance of NSFs) dealing with the NSFs and the IOA since 2009, the year in which NADA was born.

A legislation to clearly spell out the supremacy of NADA as the sole anti-doping authority in the country, on the other hand, would be an ideal situation and further strengthen the anti-doping structure in the country.

Till such legislation is moved and passed by Parliament_if indeed it is moved_the present arrangement, of NADA being the anti-doping authority, and disciplinary and appeal panels being the two bodies to hear out persons charged with anti-doping rule violations, may have to continue.

Justice Bharuka has pointed out the drawbacks in a system that had never attracted serious attention of governments in this country. If his comments lead to a quick legislative backing for NADA, based on the WADA Code, it would provide further boost in the fight against doping in a country which has stood third for three successive years from 2013 in the dubious list of dopers prepared by WADA.

Do NSFs need to incorporate rules into constitution?

More than any law supporting the NADA rules and accepting the sanctions imposed by disciplinary and appeal panels, no one knows for sure whether any of the National Federations has incorporated these rules into its constitution or governing document as laid down in the WADA Code, and whether any of the federations has a clause that binds the athlete to these rules. Or whether the athlete has given a signed consent to being subjected to these rules. Or whether any arrangement or procedure exists that ensures that the athlete is bound by the rules of the federation.

Time and again NADA has taken shelter behind the fact that these rules had been published in the Gazette of India and that was sufficient to consider “deemed acceptance” by the National Federations of these anti-doping rules.

But what about federations inserting these rules into their constitutions so as to establish a link between NADA and the athletes after the “deemed acceptance”?

Even before the establishment of NADA in 2009 doping cases were dealt with by the concerned federations and the IOA. Subsequently, suspensions were imposed on several athletes. In 2002, the IOA disqualified the results achieved by 21 sportspersons at the Hyderabad National Games for anti-doping rule violations Subsequently, they were suspended by the federations. The IOA was following the Olympic Movement Anti-Doping Code (OMADC) and the National federations followed the rules of the respective international federations.

Indian weightlifters were disqualified following doping charges in the 2002 Commonwealth Games (Satish Rai and K. Madasamy) in Manchester and the 2004 Olympic Games (Sanamacha Chanu and Pratima Kumari) in Athens.  The Indian Weightlifting Federation later imposed suspensions on the weightlifters. There were a few others too before these athletes. All of them were in the pre-NADA days; all of them under the then existing anti-doping rules of the international federations or the IOC

Anti-doping rules are considered part of sport and are expected to be followed just like other rules that govern sport. If a sport can have players or teams suspended after a match or event on disciplinary grounds, if sportspersons can be banned for bringing sports into disrepute or for indulging in illegal activities (without a specific law dealing with the subject in India), why can’t athletes be banned for resorting to doping when that is prohibited by all international federations that are recognized by the IOC?

Does Article 19 (1) (g) come in the way of any disciplinary action in the field of sports or doping in sports? This is a topic that the legal fraternity has to debate at least till such time the Government brings in law to legitimize such action under the anti-doping umbrella.

The Godara case

It is pertinent to point out here what Delhi High Court ruled in a petition filed by marathon runner Sunita Godara. In a long-drawn case interest finally centred around a bunch of names of athletes who were alleged to have returned positive dope tests but were not proceeded against by the authorities. The names of the athletes were never revealed.

The court wrote in its order:

“During the pendency of present writ petition, National Anti-Doping Agency (In short NADA) has been set up by the Government of India. The anti-doping rules National Anti-Doping Agency, India have also been notified with effect from 1^st January, 2009

“Consequently, we direct that the information, as contained in the two sealed envelopes, regarding sportspersons who have tested positive for dope, be placed before Anti-Doping Disciplinary Panel (hereinafter referred to as ‘Panel’). It would be open to the Panel if it thinks appropriate to take any action it deems fit and proper. It will also be open to the petitioner to apply to the panel for taking action against any particular sportsperson. Needless to say, that the Panel would only take action after giving due opportunity of hearing to the concerned sportsperson.

“Accordingly, we direct the Registry of this court to transmit the information contained in the two sealed covers to the panel after resealing the same. Consequently, present petition stands disposed of”, wrote Chief Justice Manmohan in the order dated July 22, 2009.

A panel headed by Mr. Sudhir Nandrajog, one of the most intelligent and efficient  lawyer-vice-chairmen Anti-Doping Disciplinary Panel has had through these years, finally dismissed the Godara petition. I am unaware of a subsequent appeal or petition by Godara.

The court then not only concluded that the anti-doping panel was competent to deal with the case but was also empowered to impose sanctions on the sportspersons if found appropriate.

‘Distinct in nature’

In its preface the NADA anti-doping rules say:

“These Anti-Doping Rules are rules governing the conditions under which sport is played. Aimed at enforcing antidoping principles in a global and harmonized manner, they are distinct in nature from criminal and civil laws, and are not intended to be subject to or limited by any national requirements and legal standards applicable to criminal or civil proceedings.

“When reviewing the facts and the law of a given case, all courts, arbitral tribunals and other adjudicating bodies should be aware of and respect the distinct nature of these Anti-Doping Rules implementing the Code and the fact that these rules represent the consensus of a broad spectrum of stakeholders around the world as to what is necessary to protect and ensure fair sport.”

The UNESCO Convention says:

“Article 14: Supporting the mission of the World Anti-Doping Agency:

States parties undertake to support the important mission of the World Anti-Doping Agency in the international fight against doping.”

In the US, the United States Anti-Doping Agency (USADA), formed in October, 2000, is “recognized” by the US Congress as the official anti-doping organization for all Olympic, Paralympic, Pan-American and Pan-Para American sport in the US.

The USADA Governing Board is headed by Edwin Moses, two-time Olympic gold medallist in the 400m hurdles, former world record holder and one of the most distinguished ambassadors for the sport. He is assisted by eight others, all scientists or doctors or former athletes or coaches or healthcare specialists.

In the U. K., the UKAD is a non-departmental public body that is sponsored by the Department for Culture, Media and Sport, and through the latter is answerable to Parliament.

The UKAD Board is headed by Mr. Trevor Pearce, a former law-enforcement officer, and comprises four others, one of them a former Olympian, another a former Paralympian, and two scientists.

In Australia, the ASADA has been established under an Act of Parliament. It is headed by the Minister for Sport.

In India, NADA is practically a department of the Union Sports Ministry as its website would indicate and as the composition of its governing body would confirm.

NADA needs to induct athletes

The NADA Governing Body is headed by the Sports Minister (ex-officio) and has eight others, two of them representing the IOA. In effect six members of the nine-member body including the Sports Secretary are either Government officers or drawn from Government-administered institutions, headed by the minister.

When Government is funding NADA it is natural only that Government would want to monitor it also if not control it. Yet, for the sake of displaying a semblance of “independence” which WADA expects each NADO to have, won’t it be logical to shed some of its “government look”?

And why should the NADA GB have two representatives from the IOA? What extra inputs can the IOA president contribute towards anti-doping discussions or strategies when the IOA Medical Commission Chairman is also there in the same panel? Is it too much to expect the Government to induct a few knowledgeable former internationals of our country into the NADA GB?