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.
