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!