The proposed anti-doping law might scare none

The draft National Anti-Doping Bill 2018 is ready and waiting to receive suggestions and comments.

Much of the wordage in the 11-page PDF document is devoted to a) Definitions, b) Composition of the National Anti-Doping Agency (NADA) and its powers and functions, c) Objectives and composition of the National Dope Testing Laboratory (NDTL), d) Appointment and powers of the Anti-Doping Disciplinary Panel (ADDP) and the Anti-Doping Appeal Panel (ADAP), e) Powers of the Doping Control Officers, f) Ethics and Ethics Panel and g) awareness.

Just two clauses under Section 13 deal with offences that may lead to imprisonment; just two paragraphs for sanctioning athletes or coaches and support personnel after all the talk since 2017 of sending violators to jail.

Of course, the Justice Mukul Mudgal (retd)-headed committee did well to resist the temptation of sending athletes to jail despite demands to resort to such a punishment in order to curb the widespread doping in India. Former Sports Minister, Vijay Goel, had talked about prison term for athletes testing positive while the Amateur Athletic Federation of India (AFI) president, Adille Sumariwalla was keen to get the jail clause implemented.

However, the lack of details on offences and sanctions in the draft Bill, other than through the well-established anti-doping machinery under the National Anti-Doping Agency (NADA), is appalling. So, too, the inclusion of several provisions related to administration, powers and functions in a proposed law that all but replicates the anti-doping rules of the NADA instead of incorporating them by reference. By laying down the composition of the NADA Governing Body and Executive, the proposed law has legitimized the all-government nature of an independent body without a single former athlete as a representative. In leading democracies elsewhere in the world they dominate such composition.

NADA will recommend to CBI

The criminal offence involving persons indulging in trafficking in banned substances will need to be referred to the CBI by the Director-General of NADA, “subject to approval by the Executive body, by a majority decision.” This is going to be time-consuming, just the recommendation part itself.

The draft Bill says:

“Any person who indulges in supply of prohibited substance on a regular basis for commercial purposes, to an athlete, shall be guilty of the offence of trafficking and shall be punished with simple imprisonment which may extend to one year and shall also be liable for a fine which may extent to rupees ten lakhs.

“Any person who is part of an Organized Crime Syndicate shall be punished with simple imprisonment which may extend to four years shall also be liable for a fine which may extend to rupees ten lakhs.

“Any person who fails to comply with duty under section 21 of this Act shall be fined which may extend to rupees twenty thousand for the first offence and if the offence is repeated, it may extend to rupees two lakhs for each offence.” (Section 21 deals with labelling of medicinal and supplement products)

Supply of “Prohibited substance on a regular basis for commercial purposes” would be an offence. Can he or she be not guilty under the various drug supply acts if the drugs are being sold without prescription? Anabolic steroids, the most widely misused drugs in sports, for example, are prescription drugs in India. Sale of such drugs without prescription can attract punishments but rarely does one hear of such actions. Will the proposed law stop the supply and sale of steroids?

Companies are required to put a warning on labels of medicines whose consumption/administration may lead to an anti-doping rule violation charge. Breaches will be liable to be punished. Some of the corticosteroids like cortisone if being sold may require such labelling while a cortisone injection administered intra-articular (into the joint) is allowed under WADA rules. The same goes for a set of inhaled asthma medications for which thresholds have been prescribed, say salbutamol, formoterol and salmeterol. Should they also be carrying warning labels?

For that matter, caffeine, now in the monitoring group of WADA's list can make a comeback into the Prohibited List in future. And then it can go right out of it as well perhaps. Will coffee products then be forced to carry a warning label?

NADA’s rules, banned substances and methods, labelled and unlabeled products etc could have been best left to NADA, WADA and drug and food control agencies, Food Safety and Standards Authority of India (FSSAI) and State Food and Drug Administrations.

“Any person” may suggest anyone who is a supplier. He or she could also be a coach or a physiotherapist or a doctor or even an athlete. If these people including the athletes can get banned drugs including steroids without a prescription from the chemists almost all across India, what could be the relevance of the proposed Act? Should the supplier be dealing in large consignments? 
Moreover, it has been shown during hearing procedures, that athletes are able to easily get prescriptions for prohibited drugs. Some of them get away with 'fabricated prescriptions' also. The draft Bill does not deal with either of these two situations.
With athletes more comfortable in foreign locations for months together before major championships, with Government support, it is to be seen whether any attempt would be made by NADA or any other agency to find out whether there is a “supply” of banned drugs to such centres abroad.

NADA has not been able to proceed against coaches who have been implicated in doping instances by athletes. Despite athletes telling hearing panels of stories about coaches being suppliers of prohibited substances, NADA had failed to initiate action.

Now, NADA will need to go in-depth into such allegations with a strong investigating team if the proposed law has to gain some relevance. First, it will have to establish there could be a case against a coach, masseur or doctor or athlete and then recommend it for further investigation by the CBI and co-ordinate the efforts. Is the new law going to scare anyone at all?

The 'dope chart-makers' may yet escape

Foreign ‘experts’ had prepared “dope charts” for the benefit of Indian athletes in 2002 and 2004. Those charts were published and yet no action was taken eventually, perhaps not even an attempt to match hand-writing.

Justice Mudgal himself was given a chit purportedly recovered from the room of a foreign coach at the NIS, Patiala, when he went into the circumstances leading to six international-level woman quarter-milers testing positive in 2011.

Suppose there were to be incidents like these yet again? Is there any provision to probe in the proposed Bill in order penalize such coaches or support personnel? None. Deterrence should have been the key in this respect. Foreign coaches and recovery experts need to be circumspect in advising even supplements because of the doping angle.  The fear of a prison term in India may deter such foreign ‘experts’.

Unless they are supplying on a “regular basis” for “commercial purposes”, these persons may be in the clear under the clause dealing jail terms even if they prescribe Winstrol and Menabol (stanozolol) or Nuvir (testosterone) or “white tablet”!

‘White tablet’ cropped up in the ‘dope charts’ of 2004 and in the slips that were given to Justice Mudgal during his enquiry into the 2011 scandal. That mystery could be solved in future if such instances crop up again and if the law has a provision to pursue the authors of such charts and notes and bring them to trial and punish them without compunction.

The proposed law also does not have a provision dealing with illegal import of prohibited substances from abroad by trainees and coaches returning from coaching camps. No provision either for NADA to co-ordinate efforts with Customs authorities and having the power to search and confiscate banned drugs at airports.

There is also no provision in the proposed law to search the rooms of athletes and coaches and confiscate banned substances if being stored. NADA does not have the powers for ‘search and seizure’ at present, it was established during the appeal hearing last year of an international hurdler who was caught with a bag of meldonium at the NIS. It needed police support, the panel ruled. He was exonerated on appeal after he was slapped with a four-year suspension.

But suppose the law brings in that much-needed authority? Let NADA officers search rooms of athletes and coaches at training camps, do the same during competitions and bring to book erring individuals. Let there be a provision for fine and or jail in such instances. It will send shivers down the spines of athletes and support staff. “My coach gave me” may then mean jail for the coach. Of course, only with irrefutable evidence to back such accusations.

Tampering, complicity to be dealt with by NADA rules

What is available in the proposed Bill is this: Sanctions: “The anti-doping (rule) violations pertaining to Tampering, Complicity, Prohibited Association, Trafficking, use of prohibited substance or possession shall be dealt with in accordance with sanctions enumerated in ADR” (anti-doping rules).

Then how can they have another clause that can send a person to prison for “trafficking”? Support personnel could be tampering with evidence or provide encouragement to doping. Even federation or SAI officials may be caught providing inducements to athletes. Will they be allowed to go scot-free under the new law simply because the law-drafters feel that can be taken care of by the anti-doping rules?

There is no mention of online sale of banned substances in the draft Bill; no suggested methods by which NADA or any other agency can pursue the origin, sale and receipt of such products by athletes or support personnel. If Government or federation funds are utilized to purchase drugs or supplements abroad, as it happened in 2011, can there be action initiated. After all, these agencies are not “supplying for commercial purposes”!

For the better part of the proposed Bill, it is silent on the World Anti-Doping Agency (WADA) which gets mentioned only in three places which is strange. Even while mentioning

International Standards, there is no mention of WADA or the Code.

Is there an innate antipathy towards WADA here?

More surprisingly, there is no mention of the UNESCO Convention against Doping in Sports 2005 that should have been the basis for this legislation.

The Convention states:

“Article 5: 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.”

In 2017, the late Justice G. C. Bharuka, a former Acting Chief Justice of Karnataka High Court, who had served the ADAP as its chairman, had stated that India needed to have a law to go in tandem with the UNESCO Convention to which it was a signatory.

Opportunity lost

The Mudgal committee seems to have lost a great opportunity to establish the authority of NADA over all sports in the country through legislation. There is no provision to enforce mandatory adoption of the NADA anti-doping rules by all National federations as prescribed by the Code and the NADA rules so that NADA derives its power to enforce rules across the board including testing and results management.

The proposed legislation provides judicial authority to the ADDP and ADAP. These panels can summon witnesses who would be required to depose under oath.

“Every proceeding before the ADDP and ADAP shall be deemed to be judicial proceeding within the meaning of sections 193, 196 and 228 of the Indian Penal Code. The ADDP and ADAP shall be deemed to be a civil court for the purpose of section 195 and Chapter XXVI of the Code of Criminal Procedure 1973”.

However,” the process of appeals from decision of the ADDP and ADAP shall be as per ADR (anti-doping rules)”

The writ jurisdiction of the High Court or the Supreme Court under Article 226 and Article 32 of the Constitution of India “shall not be affected”.

The judicial powers being given to the hearing panels is a major deviation from the WADA Code and existing NADA rules. Will this amount to a breach of the Code?

Surely, the section dealing with the National Dope Testing Laboratory (NDTL) should raise some doubts and concerns.

Chapter III: National Dope Testing Laboratory (NDTL): “The Laboratory in India recognized by the Government of India shall be called the National Dope Testing Laboratory. It shall conduct its operations in compliance with the International Standard for Laboratories (ISL), WADA Code and NADA Code, as applicable from time to time”.

And we always thought any laboratory which had gained accreditation from WADA alone would be a valid laboratory to conduct dope tests that would be acceptable to international agencies including WADA and International federations, as well as NADA!

One of the primary objectives of the NDTL, going by the draft Bill, is to do testing as per the directives of the ADDP or ADAP.

"Objectives of laboratory: 1)   To provide accurate & reliable testing services for testing of samples and other substances as directed by ADDP or ADAP."

What about NADA? Does it not provide the main job to NDTL and co-ordinate all efforts towards the testing of Indian sportspersons? What about foreign clients? Do they not provide the bulk of the revenue to NDTL?

By picking selectively from NDTL’s “Mission and Objective” above, the law-makers have obviously mistook the clients to be ADDP and ADAP!
It would seem there may be two sets of anti-doping rules, one existing under the NADA, and the other that may be brought forward by the Government through a notification.
For, the final section (Section 24) of the draft Bill says: "The Central Government may by notification amend, modify or repeal the existing ADR so as to make them compliant with the Act. The existing ADR shall continue to be in force till the Central Government amends, modify or repeals them."
The NADA anti-doping rules are based on the WADA Code and the model rules for NADOs prescribed by WADA. Some of the model rules are mandatory, some others optional. There is no provision in the Code to amend the NADA rules mid-stream until the Code itself completes a revision process. That is expected in 2021 only. Once the existing ADR (anti-doping rules) are amended in India that would mean consequences and sanctions for an anti-doping rule violation would necessarily have to be changed. NADA may have lot to answer when the amdended ADR goes to WADA.

(Amended 22 Jan, 2019)