BCCI and ICC should not get special status

There is an air of inevitability about the row that erupts between the National Anti-Doping Agency (NADA) and the Board of Control for Cricket in India (BCCI) at periodic intervals. Every time it hits the headlines, various theories are put forward by the organisations involved in the posturing to explain why NADA is keen to test cricketers and why the BCCI wants to “protect” them or its autonomy.

Invariably, an impression gains ground that cricket need not be a ‘low vulnerable’ sport in doping terms, and that Indian cricketers are running shy of being dope-tested. For good measure, the ‘security angle’ involved in the ‘whereabouts’-based dope-testing exercise is often bandied about as though the only way to come to know of the places of residence of top-level cricketers is through the anti-doping ‘whereabouts’ route and that domestic matches are held in such secure environs no one would be able to see or approach the players. By implication, NADA’s credibility to safeguard data related to athletes’ ‘whereabouts’ is doubted.

Privacy and security (and, at a later stage, the apprehensions about blood-testing) were talked about in relation to Indian cricketers and ‘whereabouts’ at various intervals during the past eight years when NADA tried in vain to take control of domestic cricket testing. None of this reasoning might have been founded on logic but once the argument was made, the Board officials easily latched onto it and the media was too happy to oblige.

Take for instance the latest argument of the “top leadership of the BCCI” regarding NADA’s much-publicised attempt to test leading cricketers:

“The top leadership of BCCI believes that trying to get a Virat Kohli or Mahendra Singh Dhoni sign the ‘whereabouts’ clause is one of the main reasons behind NADA wanting BCCI to come under its wing”, says an agency report that was attributed to an unnamed BCCI official.

Now, why should NADA be keen to get Kohli or Dhoni sign the ‘whereabouts’ clause when they are already in the ICC ‘whereabouts’ (National Players) Pool?

Anti-doping agencies are expected not to duplicate efforts while drawing up their pools or testing individual athletes. It stands to logic then that even if the NADA gets the right to test cricketers, Kohli and Dhoni may not be obliged to file ‘whereabouts’ information with NADA since they would have already filed the information (as per ICC requirements) to the ICC. Just for the fun of it, if NADA still wants them to file information, they may, however, have to oblige.

The ‘whereabouts’ information collected by one agency is available through ADAMS (Anti-Doping Administration and Management System) to other relevant agencies that have the authority test an athlete. The ICC having a different approach to ‘whereabouts’ compared to many other international federations and NADOs, it is true the Indian NADA might not get the information it could be seeking from ADAMS alone.

ICC National Player Pool

The top five ODI batsmen of a country, along the top five bowlers and the wicketkeper with the most number of ODI appearances constitute the National Player Pool (NPP) of the ICC. Needless to say, both Kohli and Dhoni have been part of that pool for long and continue to be in it.

It is not essential for an anti-doping authority to base its ‘whereabouts’ data on residential addresses or holiday locations. The International Standards for Testing and Investigations gives the option of seeking information based on ‘team activity’. What is expected is the address of a venue where an athlete could be located for one hour every day as per his/her filing on a quarterly basis. It could be a training ground from 7 a.m. to 8 a.m every day of the quarter or year or else it could be a hotel during match days.

The ICC does not seek residential addresses of its players in the NPP_the IRTP players have to provide the address_ except a player’s “nominated address” to be given to the National federation for the purpose of communications. The International Standards, however, require that addresses where athletes are living be given.

Team activity

Neither the ICC nor the NADA (as and when it gets to test cricketers) would be expected to gather information from individual players if such information could be obtained from a team and which could be used during ‘team activity’. The ICC ‘whereabouts’ testing is based on team sessions at training venues and stay at hotels during match days. The International Football Federation (FIFA) also have similar rules for its main registered pool.

It is not absolutely necessary for an anti-doping agency to have ‘whereabouts’ data to test players it is targeting. An athlete could be tested any time between 6 a.m and 11 p.m any day of the year at any location, even if the athlete is outside the ‘whereabouts’ list. WADA has the authority to test any athlete any time in any sport anywhere in the world subject to timings restrictions.

It was not until May, 2015 that the NADA got together a national registered pool in any sport in India. A beginning was made with athletics and weightlifting followed. You might then wonder what the fuss was all about during the 2009-2010 period when the BCCI refused to accept the ICC ‘whereabouts clause’, ostensibly trying to protect the privacy of its leading players, and also refused to come under the jurisdiction of the NADA.

Breach of ‘right to privacy’

It was made out that the then Attorney General had advised the BCCI that the ‘whereabouts’ clause could be in breach of the Constitution since the “right to privacy” guaranteed in the Constitution could be violated.

"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' after an Executive meeting of the world body, PTI reported on October 8, 2009.

Could there be a Constitutional issue only for the cricketers and not for other sportspersons in India? No one asked the question, it seems.

No one was also bothered about seeking a legal opinion whether the Government of India was breaching the Constitutional rights of the athletes since it happened to be a signatory to the UNESCO Convention against Doping in Sports, which in turn endorsed the WADA Code that had the ‘whereabouts’ provision. Moreover, the Government by then had also set up the NADA which followed the ‘whereabouts’ provisions.

The US, UK, Germany, France and Australia, to name just a handful of leading democracies in the world, have adopted the Code and have ‘whereabouts’ rules in place without their judiciary questioning them about privacy intrusion. The same applies to blood sampling, once thought to be extremely contentious and likely to run into hurdles especially in Europe but now accepted the world over as part of a procedure that anti-doping authorities need to follow.

Blood testing

Indian cricketers, according to reports, are still wary of blood being drawn for testing. In short, Indian cricketers have been painted as a set of sportspersons who are special. Whether they themselves have expressed fears over NADA’s authority, the ‘whereabouts’ clause and blood sampling or whether this has been a BCCI-spun narrative is difficult to tell.

If WADA can protect personal data (notwithstanding hacking) and have rules in place to regulate such data, if NADA could handle dope tests and ‘whereabouts’ information of other sportspersons with the confidentiality expected of it, cricketers should not feel scared. After all, NADA is a signatory to the Code while the BCCI is not.

Attempt to gain special status

The ICC has unfortunately attempted to acquire for itself a special position among the Code signatories, and to provide a more special status to the BCCI that has refused to acknowledge the authority of the National Anti-Doping Organisation.  Declared ‘non-compliant’ to the Code in 2008 by the WADA, the ICC had managed to have its own set of ‘whereabouts’ rules that were later okayed by WADA. But now the ICC seems to have violated the Code again by amending its rules, probably in 2016.

Even as it has retained the contentious amendment to the rule that legitimizes the refusal of the BCCI to recognize NADA’s jurisdiction, the ICC has maintained that it was satisfied with the BCCI anti-doping policy that had adopted the ICC template. The ICC has rarely gone against the BCCI in matters of anti-doping especially in recent years.

But has the BCCI really adopted the ICC template for National Federations? A firm ‘No’ is the answer.  There are 58 references in that template for National Anti-Doping Organizations (NADOs); none in the BCCI anti-doping rules!
There is a clear assertion of the status of the NADO in the ICC template but none has been adopted by the BCCI. Despite this, the ICC has approved and acknowledged the BCCI's refusal to accept the rules and still contended that the latter follows the template.
This is what rule 5.1.1 of the ICC template says:

“Testing shall only be undertaken for anti-doping purposes, i.e. to obtain analytical evidence as to the Cricketer’s compliance (or non-compliance) with the Rules’ strict prohibition on the presence/Use of a Prohibited Substance or Prohibited Method. The National Cricket Federation shall be responsible for assisting the NADO to draw up and implement a test distribution plan for cricket played under its jurisdiction in accordance with Article 4 of the International Standard for Testing and Investigations. Where there is no NADO, or the NADO does not include sufficient Testing for cricket played under its jurisdiction in its test distribution plan, the National Cricket Federation shall be responsible for implementing such Testing. The National Cricket Federation will engage one or more third parties to conduct such Testing on its behalf. All such Testing shall be conducted in substantial conformity with the International Standard for Testing and Investigations and the Cricket Testing Protocols.”

One is not aware of any other International Federation not recognizing the authority of a NADO either directly or allowing one of its member units to defy the National body and providing a provision about it in its own rules. International federations in athletics, football and swimming, among dozens of others, have rules that provide for domestic testing and ‘results management’ responsibilities to be delegated by the National federations to the NADOs.

Quite a few of the International federations, however, stop short of entrusting the sole authority to test at the national level to NADOs where they are in existence.

National federations not Code signatories

National federations are not counted among the anti-doping authorities in the Code which has the international federations, major event organisers, regional bodies and NADOs as its signatories. A National federation may yet conduct tests at the domestic level under the authority and rules of an international federation, a clause not mentioned in the Code but available in the International Standards for Testing and Investigations (2017).

This does not give a national federation the right to defy a NADO nor does it provide it a chance to take over various responsibilities of the latter. 

NADA has allowed this to drag on for too long. It should have sorted this out right at the beginning, back in 2009. Now the issue has got clouded and there is only focus on ‘whereabouts’ testing and the need of the Indian cricketers to provide NADA with such information in case the latter becomes a testing authority for cricket. Of course, the ever-popular “privacy” angle is often mentioned in reports.

For an anti-doping body that is yet to have all Olympic sports under its ‘whereabouts’ window, cricketers should not be prime targets under NADA’s ‘whereabouts’ programme. The rules require ADOs to collect whereabouts information only if they plan to test an athlete out of competition three or four times a year.

In the WADA testing figures for 2016, cricket figures among the low rankers with only three adverse analytical findings, the same as golf, one more than darts and one less than archery. The Indian NADA should not try to make it out as though cricket is dope-driven or the BCCI does not bother about transparency, citing the example of one positive test by BCCI last year about which there is no further information. There is no information about three other cases from 2013.

Top-ranked cricketers are liable to be included in blood sampling though ICC has not done any blood tests so far. In the past two years only the Australian Sports Anti-Doping Authority (ASADA) has done all the blood tests on cricketers (33) except two by Jamaica.  In the four previous years (2012-2015) cricket did not have a blood sampling at all as per WADA figures. Cricket is not considered an endurance sport and thus the lack of urgency to draw blood from players despite the repeated slant given in news reports that “Indian players will be subjected to blood tests”.

Time for WADA to intervene

Unless WADA intervenes and directs the ICC to rectify the situation vis a vis its Indian unit, the stalemate would continue. WADA has reportedly written to the ICC but the latter has denied it. Any concession to the ICC by WADA would be unjustified while the Government needs to tackle the BCCI through the legal route if required. 

NADA’s attempts to go ahead and start testing cricketers, on the strength of a communication from WADA and a directive from the ministry, may not succeed since it does not have the authority to test cricketers. That authority must be given by the BCCI which should then incorporate the NADA rules into its own constitution or governing document for NADA to begin testing cricketers.

NADA might have done tests in other sports without this ‘delegated authority’ all these years and might continue to do so but the BCCI is not going to allow this “assumed right” go unchallenged, if it is bent upon a confrontationist path.

If a cricketer, on the advice of the BCCI, refuses to submit himself to sample collection, or the BCCI refuses to impose a sanction on a player (if a positive test comes up and a panel orders a suspension), NADA might not be able to do much legally and within the framework of the Code.

Merely falling back on the plea that the NADA’s status and rules were published in the Gazette of India might prove inadequate in a legal battle if the beleaguered BCCI, burdened already with legal issues, decides to fight it out in the courts. The sooner the parties sit across the table the better it would be for sports and anti-doping in India.

 

(amended Nov 2, 2017)