WADA’s responses to queries on NADA’s Anti-Doping Rules 2021

 

Question: Can NADA India test an athlete and if found positive, not report the case to WADA, not proceed with its rules based on WADA Code 2021, apply different sanctions other than those stipulated in the WADA Code 2021?

Answer: If the testing is conducted based on NADA’s anti-doping mandate and program under the Code and its Anti-Doping Rules, then all procedures and consequences provided for in the Code, the International Standards and the Anti-Doping Rules must be applied.

If NADA conducts other activities (including testing) outside of its anti-doping mandate, for example a public health mandate, such activities do not fall under its Anti-Doping Rules and the Code, and the Code does not need to be applied. As mentioned earlier, the Code requires the Anti-Doping Organizations to focus their anti-doping programs and results management on International and National-Level Athletes (and WADA monitors how this is done). It is NADA’s discretion to include – or not include – athletes below the National-Level into their anti-doping programs under the Code.

Q: Can NADA India test an athlete, and if found positive, not take the matter to a hearing panel but decide within its own administration or competence without the aid of any written down rules? Has NADA suggested to WADA any such procedure for adoption and whether WADA has given its approval?

A: If NADA’s additional activities are not based on the Code, WADA has no mandate to assess the compliance of such activities or the applicable adjudication procedure with the Code. Nonetheless, NADA is bound by the national law requirements.

Q: Can NADA India refuse to test an athlete or in a competition where national-level athletes or even international level athletes may be participating and justify such action saying it is within its authority to do so since WADA has given it the freedom to decide what is lower level competition or who is an athlete below national level?

A: The Code and NADA’s Anti-Doping Rules apply to specified persons due to their specific characteristics (for example, membership with any National Federation in India) or due to their participation in the specified events.

NADA has the discretion to define what a National-Level Athlete is. If an Athlete falls under NADA’s jurisdiction according to the Code and the Anti-Doping Rules (e.g. the Athlete is a member of any National Federation), then NADA’s anti-doping program applies to him/her notwithstanding the event such Athlete participates in.

In the same vein, if the lower-level athlete is nominated to participate in the national-level event organized by the National Federation, he/she becomes a National-Level Athlete and is subject to NADA’s Anti-Doping Rules and the Code, and the respective consequences under the Anti-Doping Rules and the Code apply should a test be positive.

Q: Can any rule other than what is stipulated in the Code apply to any positive case reported by an accredited laboratory following a doping control carried out by NADA India?

A: Anti-doping activities of NADA based on its Anti-Doping Rules and the Code shall follow the procedures and consequences provided for in the Code and the Anti-Doping Rules.

Q: Is it true that all positive cases from tests conducted by a WADA-accredited laboratory are reported to WADA by the laboratory and by the ADO?

A: Results of all tests conducted by the ADO under their Anti-Doping Rules and the Code are reported by the laboratory and by the ADO via ADAMS.

Q: Can NADA India conduct tests in a non-accredited laboratory?

A: For testing conducted under the Code and the Anti-Doping Rules, the applicable principles are set out in Code Article 6: for purposes of directly establishing an Adverse Analytical Finding under Code Article 2.1 (presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample), Samples shall be analyzed only in WADA-accredited laboratories or laboratories otherwise approved by WADA.

Q: Can anti-doping authorities decide on doping cases on unwritten rules? Can they adopt their own rules without the knowledge of WADA?

A; If doping cases result from NADA’s anti-doping mandate and program under the Code and its Anti-Doping Rules (which are reviewed and approved by WADA), then all procedures and consequences provided for in the Code, the International Standards and the Anti-Doping Rules must be applied.

For other (additional) NADA activities that are not based on the Code, WADA has no mandate to assess the compliance of such activities or the applicable adjudication procedure with the Code. Nonetheless NADA is bound by the national law requirements.  

Q:  Is it not the responsibility of an accredited laboratory that an anti-doping organization follows up correctly with a positive report reported by it to that organization as per Code and International Standards?

A: Results of all tests conducted by the ADO under their Anti-Doping Rules and the Code are reported by the laboratory and by the ADO via ADAMS as required by the Code and the International Standards.

If the laboratory provides other services to the organizations which are not based on the Code and the Anti-Doping Rules, the results of such services cannot be reported via ADAMS. The International Standard for Laboratories provides for further limitations to such services.

 

NADA must apply process & consequences provided for in the Code & Anti-Doping Rules for tests under its mandate: WADA

The World Anti-Doping Agency (WADA) has further clarified the position regarding the categorisation of athletes by a National Anti-Doping Organization (NADO) for the purpose of testing and subsequent results management and procedures leading to sanctions.

In response to a fresh set of questions posed by this journalist following its answers to an earlier batch of questions, WADA stated that if the testing was done under the anti-doping mandate of the National Anti-Doping Agency (NADA), all procedures and consequences as provided for in the Code must be applied.

“If doping cases result from NADA’s anti-doping mandate and program under the Code and its Anti-Doping Rules (which are reviewed and approved by WADA), then all procedures and consequences provided for in the Code, the International Standards and the Anti-Doping Rules must be applied” said WADA in its communication.

Thanks to WADA’s Manager, Media Relations and Communications, Maggie Durand, who gathered the relevant information from concerned colleagues and compiled this latest response, we are in a better position to understand the rules and regulations regarding the so-called ‘new category’ of athletes.

In at least two news reports published on Feb 9, 2021, NADA Director-General, Navin Agarwal, had stated that under the revised Code 2021, NADA had the authority to devise new rules that would, among other things, allow NADA to bring in a new category of athletes who, if they test positive, could be given a milder sanction than normal.

Here is the The Indian Express report quoting Mr.Agarwal on various aspects related to new rules to be either formulated by NADA or having already been implemented. He was also quoted as saying that NADA would not be required to inform WADA about such positive cases and these cases would not be taken before the hearing panel.

Mr. Agarwal also listed competitions in Schools Games, University meets and Khelo India as those where athletes would be given milder sanctions based on a fast-tracked hearing process conducted by NADA. These cases could be attracting a maximum of two-year suspensions and, in some cases, they may even end up in much milder sanctions, it was stated. There was no elaboration about the rules under which these sanctions could be imposed or the hearing process if any that might determine such punishments.

Here is my blog piece following the first set of answers received from WADA:

There are areas that are still left in the realm of conjecture even after the elaborate clarifications provided by WADA in its second response. For example, WADA saying ”If NADA conducts other activities (including testing) outside of its anti-doping mandate, for example a public health mandate, such activities do not fall under its Anti-Doping Rules and the Code, and the Code does not need to be applied.”

What other activities could NADA be having or intend to have other than anti-doping within the purview of the Code and its own anti-doping rules for which it was established by the Government of India in 2004?

WADA also mentions NADA’s ‘additional activities’ and WADA’s inability to assess the compliance of such activities.  What other activities could NADA be having that WADA would not be knowing or would not be able to assess?

Contradictions

Despite the clear announcement of bypassing the Code in handing out reduced sanctions to a set of athletes who would be categorized below “national level”, NADA had practically ruled out enforcing these rules in respect of Khelo India Games by stating this in its anti-doping rules 2021:

“Within the overall pool of Athletes set out above who are bound by and required to comply with these Anti-Doping Rules, the following Athletes shall be considered to be National-Level Athletes for the purposes of these Anti-Doping Rules, and, therefore, the specific provisions in these Anti-Doping Rules applicable to National-Level Athletes (e.g., Testing, TUEs, whereabouts, and Results Management) shall apply to such Athletes:

• Athletes who are members or license holders of any National Federation in India or any other organization affiliated with a National Federation including associations, clubs, teams or leagues;

• Athletes who participate or compete at any Competition, Event, or activity, which is organized, recognized, or hosted by a National Federation, by any affiliated association, organization, club, team, or league or by the Government in India”.

If exclusion of Khelo India athletes was the primary objective of introducing a new category, then it is ruled out by the mention of  ‘Government of India’ in the above para. For, Khelo India is organised by the Government and its agencies. It is fully funded by the Government; it is conducted in collaboration with National federations under their rules and technical supervision. In fact, many of the other heads of expenditure under sports are routed through the Khelo India budget.

It is a fact that since the start of the Khelo India programme, there have been many doping cases reported of the youngsters.  There was no option but to proceed with due processes including imposing of sanctions.

Now, it would seem, there is a desire to give a “second chance” to the youngsters, not to spoil their careers. The coming weeks and months would provide us a clear picture of what NADA has in store for young dope cheats.

(This was first published in the Circle of Sport on March 2, 2021)

Click here for the complete set of questions posed to WADA and its answers on the topic

The new NADA rules to “protect” young athletes: Discussions are ongoing, says WADA

 

Two articles appearing in the Indian Express and the Times of India on Feb 9, 2021 created a bit of confusion and controversy among those who follow anti-doping in our country.

The articles referred to a new set of rules the National Anti-Doping Agency (NADA) had formulated based on the World Anti-Doping Code (WADC) of the World Anti-Doping Agency (WADA). Both quoted the NADA Director-General, Navin Agarwal, to convey that from this year the young Indian athletes, if they test positive, would be dealt with by a separate set of rules that could impose a maximum two-year sanction instead of the standard four for serious offences. There were quite a few other implications as well.

Not having come across such important changes in the Code, when it was published in November, 2019 (To be effective Jan 1, 2021) one was surprised, to put it mildly, at the conclusions drawn by the NADA DG in deciphering these “new rules”.

To one’s surprise some of the portions mentioned by the NADA boss were incorporated in the NADA anti-doping rules of 2021 which were placed on its website much later than January 1 as it should have been

Now, comes an explanation from WADA on a set of queries posed by this journalist, which says the 2021 NADA anti-doping rules are still under its consideration and they have not been finalized.

We will leave this part for a while and concentrate on the main theme that the NADA DG elaborated in the above two articles.

The Indian Express quoted the NADA DG as saying:

“As per the new rules, which we have implemented from January 1 under the new WADA Code, there will be separate criteria for dope control of athletes below the national level. These tests will not be reported to WADA and will be governed by our regulations,” Agarwal said. “There will be milder penalties and quicker disposal of cases as they will not have stringent protocols required under the WADA rules.”

Had he only suggested a third category of athletes below international level and national level was being formed from 2021 to be dealt with differently it would have been all right. The “milder penalties” part was incomprehensible. There is no such mention in the Code, more importantly, there is no elaboration of what these penalties could be in the NADA anti-doping rules themselves. How will these penalties be decided? Who will decide which cases to be proceeded against and which ones to be all but ignored?

The Express report further said:

“Agarwal said the cases of this group of athletes will no longer be referred to NADA’s disciplinary panel. Instead, he added, there ‘will be a short procedure and a summary disposal of these cases so there is no delay.’

"The purpose of reducing sanctions for the dope offenders, he said, was to give them a second chance. “The whole idea is that upcoming athletes should not be ineligible for life at such an early age because of any misinformation they get. We realised we are unnecessarily finishing careers of sportspersons at an early stage,” Agarwal said. “We need to control doping and for that, we will conduct tests on national-level athletes. But these rules are to give them another chance to renew their sporting career.”

The Times of India report also said that the hearing panels would have no roles to play in deciding the cases against the young athletes.

The athletes in school games, university meets and Khelo India games would be brought under this bracket to hand out reduced sanctions. Since these sanctions were not specified and there was a hint that some of these cases could be disposed of quickly without even any sanctions, one delved further into these assertions.

The NADA anti-doping rules 2021 state:

"The following athletes shall be considered as Other Athletes for the purpose of these Anti-Doping Rules who shall be governed by the Anti-Doping Regulations:

"(a) Any other Athlete who by virtue of an accreditation, a license or any other contractual arrangement, falls within the competence of a National Federation in India or any affiliated association, organization, club, team, or league in India for the purposes of fighting doping in sport in India;

"(b) Athletes who participate in any activity organized, recognized, or hosted by a National Event organizer or any other national league and which is not otherwise affiliated with a National Federation.

"(c) Athletes who participate in any National School Games, National University Games, National Winter Games organised by National Sports Federation, Sports Council, Sports Boards, State Government.

"However, if any such Athletes are classified by NADA as National -Level Athletes then they shall be considered to be National Level Athletes for purposes of these Anti-Doping Rules."

But can there be any reduced sanction if found positive?

There was no clarity in the rules though the DG did assert this was the case, a two-year sanction at the worst or else something that could be decided within NADA without hearing panels coming into the picture.

Was this possible at all?

Today, Feb 23, 2021, this reporter received a reply to some of these questions from the Media Relations and Communications Department, WADA:

Question: Has WADA been in touch with NADA to find out how exactly they have arrived at the conclusion that Article 2.1 could be interpreted different in the case of some athletes whom they would classify below national level?

Answer: WADA and NADA discussions on NADA’s Anti-Doping Rules are still ongoing. However, as mentioned above, should NADA elect to bring lower-level Athletes within the definition of “Athlete” under its Anti-Doping Rules, and should such lower level Athlete commit an anti-doping rule violation under Code Articles 2.1, 2.3 or 2.5, then the consequences provided under the Code must be applied.

(Article 2.1 is presence of a prohibited substance or its metabolites in an athlete’s sample;

Article 2.3 is evading, refusing or failing to submit to a sample collection;

Article 2.5 is tampering or attempted tampering of any part of doping control)

So, forget reduced sanctions for School Games, University meets, Khelo India and departmental and other yet-to-be-specified meets.

A hearing process is a must under the Code. NADA cannot take over that process and decide all by itself whether an athlete is guilty or not. “Independent” hearing panel is the key to transparent anti-doping measures. It cannot be decided “in-house”. Even if a prompt admission or a substantial assistance to unearth other doping cases is provided by an athlete, WADA would come in in any mutually agreed upon sanctions.

Question: Did WADA approve the revised NADA anti-doping rules based on Code 2021? If so, what was WADA’s advice on the changes proposed?

Answer: NADA Anti-Doping Rules based on the 2021 Code are not finalized yet. We are not in a position to comment on ongoing discussions.

WADA does agree that every NADO would have the right to determine who could be in the group below “national level”. Accordingly, they could be subject to lesser testing or no testing at all, and testing need not be for all substances.

Says WADA: “The Code definition of “Athlete” in Code Appendix 1 refers to any Person who competes in sport at the international level (as defined by each International Federation) or the national level (as defined by each National Anti-Doping Organization).

 “An Anti-Doping Organization has discretion to apply anti-doping rules to an Athlete who is neither an International-Level Athlete nor a National-Level Athlete, and thus to bring them within the definition of “Athlete.” Therefore NADA has discretion to decide whether to consider lower level athletes as “Athletes” for the purposes of the Anti-Doping Rules. If such lower level Athletes are included in the scope of the NADO’s anti-doping rules, the NADO still has a discretion to conduct limited Testing or no Testing at all; analyze Samples for less than the full menu of Prohibited Substances; require limited or no whereabouts information; or not require advance TUEs. However, if an Article 2.1, 2.3 or 2.5 anti-doping rule violation is committed by such an Athlete, then the Consequences set forth in the Code must be applied.

“If such Athletes are not included in the scope of the NADO’s Anti-Doping Rules, they fall outside the scope of the Code as well.

"In the same vein, the International Standard for Testing and Investigations (Article 4.3.1) clarifies that “in recognition of the finite resources of Anti-Doping Organizations, the Code definition of Athlete allows National Anti-Doping Organizations to limit the number of sportsmen and sportswomen who will be subject to their national anti-doping programs (in particular, Testing) to those who compete at the highest national levels (i.e., National-Level Athletes, as defined by the National Anti-Doping Organization”.

Even in the previous Code there was a provision for “recreational athletes”. The new Code gives more elaboration and more freedom to NADOs. They need not test those athletes in School Games, University meets, Khelo India and an assortment of departmental meets. Problem solved!

This option was available in earlier years as well. In fact several national and junior national meets were either totally ignored or only partially covered in many years in the past. Avoiding testing or reducing sample numbers is not the most important strategy an anti-doping organisation can come up with to show a “clean image” of the country’s athletes.

As for not unduly penalizing young athletes, the current practice is to reduce sanctions to the minimum possible. The argument goes: Athlete being minor he or she does not need to prove how the prohibited substance entered the body as per rules. Since the athlete did not know how it happened, athlete’s sanction can be further reduced by “no significant fault or negligence”.

 

Increased numbers of positive cases probably prompted NADA to interpret rules in such a way it could not only reduce numbers but also provide, in its interpretation and wisdom, a “second chance” to young athletes.

Khelo India, across all levels, provide young athletes chance to gain Government assistance apart from setting up a launching pad for international exposure and TOPS funding under developmental category. Athletes cannot be receiving Government funding and still be considered “recreational” or below “national level”.

On the one hand, NADA had encouraged testing at State-levels and departmental levels in recent years in order to curb the menace of doping. Now, NADA wants to bring in these categories into "below national level" by which it thinks it can hand out reduced sanctions. In the 2019 testing figures, India has topped the world charts with 225 cases. The anti-doping rule violations lists are likely to show India again at No. 1 for 2019. Obviously, concrete action is called for to avoid this dubious distinction in future. But the proposed structure will make a mockery of anti-doping in our country.

NADA still has the 2021 anti-doping rules on its website. WADA says discussions are going on and it is not a finalized document.

We have a suspended laboratory; we are Number one among positive doping cases. We look headed for a unique set of rules to pardon “young athletes” or to treat them with kid gloves. Recent Khelo India events have shown that doping is popular among the young athletes. Many junior athletes in the past have been caught a second time proving that some advice from elders alone would not guide them through the right path. Hopefully, WADA would straighten this out in the coming weeks.