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!

Are NADA-imposed sanctions in breach of the Constitution?

Justice G. C. Bharuka (retd), chairman of the National Anti-Doping Appeal Panel, has set off a debate by stating that the bans imposed by the National Anti-Doping Agency (NADA) on sportspersons who breach anti-doping rules were not as per Constitution, and Parliament needed to enact a law for these bans to gain legitimacy.

In an interview to News 18 on April 28, Justice Bharuka, a former High Court Judge, said that banning an athlete also amounted to infringement of the person’s fundamental rights. He said the ban violated the “right to profession” guaranteed under Article 19 (1) (g).

“As of now, we are debarring players on the basis of the National Anti-Doping Agency rules based on WADA Code of 2015. We need an anti-doping law which should be in tandem with the International Convention against Doping in Sport, 2005, to which India is a party. Plus, under Article 253, it is only Parliament who has the power to make laws for implementing any treaty, agreement or convention”, Justice Bharuka was quoted as saying by News 18.

"The ban violates the right to profession of a citizen under Article 19 (1) (g). This only cements the need for an appropriate legislation," he said.

Justice Bharuka raises doubts

Justice Bharuka, appointed chairman of the appeal panel in October, 2015, has surely raised doubts about the sanctity of the decisions handed out by the National Anti-Doping Disciplinary Panel and his own appeal panel as well as the authority of the NADA. It must be mentioned here that he has been presiding over the appeal panel and disposing of cases leading to confirmation of suspensions.

But can we say that over 700 suspensions ordered by disciplinary panels for anti-doping rule violations through the past eight years have been improper? Or are they “unconstitutional” or “illegal”?

This is where Justice Bharuka needs to further clarify. If the process is improper or illegal then it should stop forthwith. Justice Bharuka can advise NADA and the Union Sports Ministry to put on hold all hearing procedures till a legislation is passed by Parliament.

Union Sports Minister Vijay Goel who was also interviewed by News 18 was quoted as saying that Justice Bharuka’s point about “rights violation” would be taken into consideration while drafting the law.

Goel took the initiative, it would seem, to organize a seminar in New Delhi at which the proposed anti-doping law was discussed among several stakeholders including representatives of the Indian Olympic Association (IOA) and the National Sports Federations (NSFs). Justice Bharuka and several members of the hearing panels also participated in the discussions.

WADA sought legal foothold through Convention

It is a well-known fact that the WADA, the world anti-doping body, formed in 1999, funded equally by the sports movement and governments of the world, wanted its rules to have some legal teeth so that every country would be able to follow these rules without being challenged in civil courts.

That was why it approached UNESCO and finalized a Convention against doping in sports in 2005. India ratified the Convention in November 2007. To date 185 countries have ratified the Convention_the second most ratified of all UNESCO conventions.

Justice Bharuka has said only Parliament has the power to “make laws” for implementing any treaty, agreement or convention as per Article 253. There cannot be any dispute about that.

In fact, the draft National Sports Development Bill, put in cold storage since 2013,  starts off by stating that it is essential to have a legislation to give effect to the Convention.

But can a country manage without a legislation till such time one is passed by Parliament?

Yes, it can as per the Convention.

Article 5 of the Convention (Measures to achieve the objective of the Convention) says:

“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.”

“Regulation or administrative practices” could mean something like the National Sports Development Code of India.

This code is being revised now. The existing code has several references that make it clear that the WADA Code and the NADA anti-doping rules would be applicable to all sports recognized by the Government of India. Those rules contain sanctions to be imposed on persons who breach anti-doping rules.

It is true that a better document detailing the roles and responsibilities of NADA, its authority over the management of anti-doping measures in all sports recognized by the Government of India and the functioning of the disciplinary and appeal panels in dealing with doping cases would have been a better option than having a set of circulars.

But that is what the National Sports Code has been from the start and that is what it is even today. The Sports Ministry can incorporate a detailed section on anti-doping in the Sports Development Bill as and when it is revived or else bring an elaborate anti-doping law to back NADA rules and to deter athletes and support personnel with the threat of jail term as is being contemplated. Alternatively, at least for the time being, it can bring in a more detailed anti-doping section in the revised Sports Code the publication of which has been stayed by the Delhi High Court.

Validity upheld by courts

The validity of the National Sports Code has been upheld by the Delhi High Court in different cases (mainly pertaining to tenure of office-bearers of National Sports Federations and the authority of the Government to issue guidelines related to governance of NSFs) dealing with the NSFs and the IOA since 2009, the year in which NADA was born.

A legislation to clearly spell out the supremacy of NADA as the sole anti-doping authority in the country, on the other hand, would be an ideal situation and further strengthen the anti-doping structure in the country.

Till such legislation is moved and passed by Parliament_if indeed it is moved_the present arrangement, of NADA being the anti-doping authority, and disciplinary and appeal panels being the two bodies to hear out persons charged with anti-doping rule violations, may have to continue.

Justice Bharuka has pointed out the drawbacks in a system that had never attracted serious attention of governments in this country. If his comments lead to a quick legislative backing for NADA, based on the WADA Code, it would provide further boost in the fight against doping in a country which has stood third for three successive years from 2013 in the dubious list of dopers prepared by WADA.

Do NSFs need to incorporate rules into constitution?

More than any law supporting the NADA rules and accepting the sanctions imposed by disciplinary and appeal panels, no one knows for sure whether any of the National Federations has incorporated these rules into its constitution or governing document as laid down in the WADA Code, and whether any of the federations has a clause that binds the athlete to these rules. Or whether the athlete has given a signed consent to being subjected to these rules. Or whether any arrangement or procedure exists that ensures that the athlete is bound by the rules of the federation.

Time and again NADA has taken shelter behind the fact that these rules had been published in the Gazette of India and that was sufficient to consider “deemed acceptance” by the National Federations of these anti-doping rules.

But what about federations inserting these rules into their constitutions so as to establish a link between NADA and the athletes after the “deemed acceptance”?

Even before the establishment of NADA in 2009 doping cases were dealt with by the concerned federations and the IOA. Subsequently, suspensions were imposed on several athletes. In 2002, the IOA disqualified the results achieved by 21 sportspersons at the Hyderabad National Games for anti-doping rule violations Subsequently, they were suspended by the federations. The IOA was following the Olympic Movement Anti-Doping Code (OMADC) and the National federations followed the rules of the respective international federations.

Indian weightlifters were disqualified following doping charges in the 2002 Commonwealth Games (Satish Rai and K. Madasamy) in Manchester and the 2004 Olympic Games (Sanamacha Chanu and Pratima Kumari) in Athens.  The Indian Weightlifting Federation later imposed suspensions on the weightlifters. There were a few others too before these athletes. All of them were in the pre-NADA days; all of them under the then existing anti-doping rules of the international federations or the IOC

Anti-doping rules are considered part of sport and are expected to be followed just like other rules that govern sport. If a sport can have players or teams suspended after a match or event on disciplinary grounds, if sportspersons can be banned for bringing sports into disrepute or for indulging in illegal activities (without a specific law dealing with the subject in India), why can’t athletes be banned for resorting to doping when that is prohibited by all international federations that are recognized by the IOC?

Does Article 19 (1) (g) come in the way of any disciplinary action in the field of sports or doping in sports? This is a topic that the legal fraternity has to debate at least till such time the Government brings in law to legitimize such action under the anti-doping umbrella.

The Godara case

It is pertinent to point out here what Delhi High Court ruled in a petition filed by marathon runner Sunita Godara. In a long-drawn case interest finally centred around a bunch of names of athletes who were alleged to have returned positive dope tests but were not proceeded against by the authorities. The names of the athletes were never revealed.

The court wrote in its order:

“During the pendency of present writ petition, National Anti-Doping Agency (In short NADA) has been set up by the Government of India. The anti-doping rules National Anti-Doping Agency, India have also been notified with effect from 1^st January, 2009

“Consequently, we direct that the information, as contained in the two sealed envelopes, regarding sportspersons who have tested positive for dope, be placed before Anti-Doping Disciplinary Panel (hereinafter referred to as ‘Panel’). It would be open to the Panel if it thinks appropriate to take any action it deems fit and proper. It will also be open to the petitioner to apply to the panel for taking action against any particular sportsperson. Needless to say, that the Panel would only take action after giving due opportunity of hearing to the concerned sportsperson.

“Accordingly, we direct the Registry of this court to transmit the information contained in the two sealed covers to the panel after resealing the same. Consequently, present petition stands disposed of”, wrote Chief Justice Manmohan in the order dated July 22, 2009.

A panel headed by Mr. Sudhir Nandrajog, one of the most intelligent and efficient  lawyer-vice-chairmen Anti-Doping Disciplinary Panel has had through these years, finally dismissed the Godara petition. I am unaware of a subsequent appeal or petition by Godara.

The court then not only concluded that the anti-doping panel was competent to deal with the case but was also empowered to impose sanctions on the sportspersons if found appropriate.

‘Distinct in nature’

In its preface the NADA anti-doping rules say:

“These Anti-Doping Rules are rules governing the conditions under which sport is played. Aimed at enforcing antidoping principles in a global and harmonized manner, they are distinct in nature from criminal and civil laws, and are not intended to be subject to or limited by any national requirements and legal standards applicable to criminal or civil proceedings.

“When reviewing the facts and the law of a given case, all courts, arbitral tribunals and other adjudicating bodies should be aware of and respect the distinct nature of these Anti-Doping Rules implementing the Code and the fact that these rules represent the consensus of a broad spectrum of stakeholders around the world as to what is necessary to protect and ensure fair sport.”

The UNESCO Convention says:

“Article 14: Supporting the mission of the World Anti-Doping Agency:

States parties undertake to support the important mission of the World Anti-Doping Agency in the international fight against doping.”

In the US, the United States Anti-Doping Agency (USADA), formed in October, 2000, is “recognized” by the US Congress as the official anti-doping organization for all Olympic, Paralympic, Pan-American and Pan-Para American sport in the US.

The USADA Governing Board is headed by Edwin Moses, two-time Olympic gold medallist in the 400m hurdles, former world record holder and one of the most distinguished ambassadors for the sport. He is assisted by eight others, all scientists or doctors or former athletes or coaches or healthcare specialists.

In the U. K., the UKAD is a non-departmental public body that is sponsored by the Department for Culture, Media and Sport, and through the latter is answerable to Parliament.

The UKAD Board is headed by Mr. Trevor Pearce, a former law-enforcement officer, and comprises four others, one of them a former Olympian, another a former Paralympian, and two scientists.

In Australia, the ASADA has been established under an Act of Parliament. It is headed by the Minister for Sport.

In India, NADA is practically a department of the Union Sports Ministry as its website would indicate and as the composition of its governing body would confirm.

NADA needs to induct athletes

The NADA Governing Body is headed by the Sports Minister (ex-officio) and has eight others, two of them representing the IOA. In effect six members of the nine-member body including the Sports Secretary are either Government officers or drawn from Government-administered institutions, headed by the minister.

When Government is funding NADA it is natural only that Government would want to monitor it also if not control it. Yet, for the sake of displaying a semblance of “independence” which WADA expects each NADO to have, won’t it be logical to shed some of its “government look”?

And why should the NADA GB have two representatives from the IOA? What extra inputs can the IOA president contribute towards anti-doping discussions or strategies when the IOA Medical Commission Chairman is also there in the same panel? Is it too much to expect the Government to induct a few knowledgeable former internationals of our country into the NADA GB?

NADA needs to do its job

The Sports Ministry is planning to bring forward an anti-doping law that may send offenders to jail. It is a welcome move.

But before we jump to conclusions let’s clear a few things first.

The World Anti-Doping Agency (WADA) does not want governments to criminalize doping in sports with the intention of sending athletes to jail. It does want people who indulge in trafficking of prohibited substances, coaches, doctors, other support staff, agents and suppliers, among others, to be dealt with severely and punished with prison terms if possible.

WADA keeps reminding stakeholders that their duty is to follow the Code and not let unduly harsh sanctions or prison terms replace what had been agreed to by all parties concerned while redrafting the Code for 2015.

The Union Government is trying to bring a law to criminalize doping in an effort to fall in line with the International Convention against Doping in Sports passed by UNESCO in October, 2005. Many countries have passed laws that either directly criminalize doping in sports or else are associated with penalizing the trafficking of banned substances in sports.

Several countries have laws

Those having some law or the other dealing with doping in sports include Austria and Australia, both having introduced the laws in 2006, Germany which brought it in in 2016, France, Italy, Spain Denmark, Hungary, Romania, Portugal, Sweden, Serbia, New Zealand and China. No country has however sent an athlete to jail for a doping offence so far.

(May also refer to my article in The Wire )

No matter that there is a growing concern about doping in sports, especially in the wake of the stunning revelations about state-abetted doping in Russia that almost kept that country out of the Rio Olympic Games last year, not many countries want to send their athletes to jail. Understandably so.

India should also weigh the pros and cons before we decide to have any provision to punish the athlete with a jail term in the proposed anti-doping law. Would it not be sufficient to penalize the athletes with the sanctions prescribed in the Code? How long would proceedings last in a criminal case in the event of an athlete being brought under this new law and sentenced to say a one-year term in jail? Will the athlete remain suspended even after serving, let’s say, a two-year ban? Or will he or she be prevented from competitions since a case is going on? Should they be concentrating on the criminal case in a court of law instead of training hard in their comeback bid?  These are questions that should exercise the minds of the Sports Ministry and the law-makers if indeed there is any move to send athletes to jail.

Hopefully, India would follow WADA’s wishes rather than opt for a harsher penalty to provide a greater deterrence to potential dopers. If it is to follow the example of Australia which does have a provision to penalize a dope offender with a prison term (it has never used it so far or at least there is no information regarding this), since it has got an ongoing collaboration with the ASADA, then it would be better off to concentrate on trafficking rather than doping per se. 

Coaches escape sanctions

The fact that the NADA has not managed to bring forward a single offender from among coaches, doctors, physiotherapists, masseurs and other support staff, may however prove a dampener when it comes to chasing drug-traffickers.

One has to hope that the law-enforcement agencies would be more diligent in keeping a watch on drug-traffickers in the sports arena.

To be fair to NADA, it never had an investigation department or officer since inception in 2009. Less than a dozen people work in NADA and so far, they have handled 715 doping cases (latest figures available on the NADA website) which in itself is highly creditable.

A couple of coaches or other support staff with athletes in training camps or doctors who apparently prescribed steroids for some ache or the other could have been pursued through appropriate authorities to get to the truth and, if necessary, charges brought against them. That did not happen.

NADA has to utilize existing provisions in the Code to sanction support staff of athletes rather than hide behind the plea that there is nothing in the rules that it can fall back on to punish coaches, doctors and others. Existing rules can ban support personnel for life if trafficking or other serious charges are proved.

In September 2015 WADA brought out a list of suspended support personnel around the world. The initial list of 113 contained 61 Italians, 15 of them life-banned. The list has since been expanded to 151. There is no Indian there! Is it a record to be proud of or does it show the total lack of interest shown by NADA to pursue coaches, doctors and other support personnel who might have had a role to play in the doping programme of the Indian sportspersons?

MHA tablet!

In one case in 2012, NADA did not even try to establish that there could be no “MHA tablet”, claimed to have been prescribed by a doctor to an athlete, since there never was a tablet for that substance (methylhexaneamine) manufactured by any company in the world!

Then there were cases where athletes alleged they were being supplied with banned drugs by the coaches. Occasionally news also trickled in of drugs being confiscated inside training centres or being impounded by Customs authorities. Or for that matter a ‘dope chart’ or two doing the rounds at the NIS, Patiala during pre-NADA days.

 No follow-up action was ever taken to probe such incidents either by the NADA or the ministry.  

With the possible advent of laws to prevent at least trafficking in banned substances one can hope that agencies would vigorously pursue to plug the loopholes.

But will they?

For years we have heard of banned drugs, mainly steroids, being easily available at chemists shops near the NIS, Patiala, the main hub of training camps for elite athletes. Occasionally when doping makes headlines such shops are raided, some are closed and some others brought under stricter control.

Nothing lasts for long, though, in India. They get back into business before long.

WADA-banned drugs are not the only problem in India as is the case in most countries. The proposed legislation is expected to tackle spurious dietary supplements, too. This will be a bigger problem than keeping tabs on dope-giving coaches.

FSSAI regulations

India does not have proper regulations to monitor the manufacture and sale of dietary supplements. Many of the countries do not have. The Food Safety and Standards Authority of India (FSSAI) issued a set of rules only last year to regulate the manufacture, supply and marketing of supplements, nutraceuticals and such other items. The rules will come into force in January 2018. Will they be superceded by the proposed anti-doping law?

It will be interesting to see how the Sports ministry, NADA, health organizations and the police regulate the sale of supplements on the internet. The majority of the supplements popular among Indian athletes (going by the references made in anti-doping rule violation cases before disciplinary panels and the grapevine) are manufactured abroad. Either they come into Indian market through agents or else athletes purchase them on the internet where a variety of options are available. This is not to suggest that all such supplements could be contaminated by banned substances. But studies in the past have shown that athletes run great risk in consuming nutritional supplements not manufactured by reputed firms.

While NADA’s concern about unscrupulous manufacturers and suppliers mixing banned substances in supplements is genuine (this is a world-wide phenomenon) it has to be noted that it is one of the few national anti-doping organisations (NADOs) in the world that has not bothered to keep athletes updated about the danger of using supplements through its website.

How to do it

There is of course mention about “awareness” in the pages dealing with anti-doping education of athletes on the website but nothing that may guide the athletes towards actual use.

Check out the UKAD website to see how an anti-doping agency can make a difference as far as educating an athlete is concerned.

Even as the government brings in laws to tackle the supplements industry and suppliers_if they could be effectively tackled_NADA has the primary responsibility of educating the athletes about the danger of supplements use. Many hearing panels have urged NADA to step up its awareness programme. This journalist has on more than one occasion pointed out the possible use of the website to contribute towards this.

From mid-2012 till now the website has remained what it has been: nothing in particular for the athletes bar some rules and regulations. And not much for the media barring an updated list of suspended athletes. The website has undergone an overhaul since 2012 though without much improvement in contents. Some of the sections have not been updated since September, 2016.

NADA should not sit back and relax thinking that lawmakers would take care of some of the crucial aspects of anti-doping if indeed laws are going to be framed in the near future. While the deterrence value of anti-doping laws cannot be discounted NADA has to concentrate on its primary goals: make life that much easier for the ‘’clean athletes” by coming down hard on the cheats.

Till the time it has an efficient “intelligence gathering” machinery NADA should continue to test more athletes at senior and junior national levels while not ignoring departmental meets and schools and university championships. And as I have stressed through the past few months, NADA has to hold refresher courses for panel members to familiarize them with the rules and interpretations through CAS and other decisions around the world.

Sooner the NADA gets an investigation department or investigator the better it would be for anti-doping in this country. Criminal investigation may take years to come to fruition; NADA cannot afford to wait that long to choke the supply system of steroids and growth hormones and stuff like that. It can lay part of the blame on the doors of the health authorities in the country, both at the Centre and the States, in their failure to prevent the supply of steroids to athletes but that alone would not wash.

Panel wanders into NADA domain; rewards athlete for ‘substantial assistance’

Just a week ago, I had raised this question in a piece on the understanding of the anti-doping rules by the National Anti-Doping Agency (NADA) and the disciplinary panels.

Do our panels understand these rules well enough to dispense justice?

The more one browses through orders of the National Anti-Doping Disciplinary Panel (NADDP) and the National Anti-Doping Appeal Panel (NADAP) (as and when one is able to lay one’s hands on such documents) the more convinced one becomes about the need for the World Anti-Doping Agency (WADA) to hold workshops or refresher courses for panel members in our country to get familiarized with the WADA Code and the NADA anti-doping rules.

Take for instance the NADDP decision in the case of Tamil Nadu athlete Deepan Chakravarthi. The 400m runner was charged with an anti-doping rule violation in the all-India inter-University athletics championships held at Patiala in December, 2015. He took the silver in the 400m there.

He tested positive for stanozolol, an anabolic steroid. A four-year sanction looked extremely likely unless the athlete came up with some evidence by which he could establish it was an “unintentional” offence.

Supplements taken

Chakravarthi told a panel headed by Ms Gourikaruna Mohanti that he had taken some supplements on the “advice of coach”. The other members of the panel were Dr L. K. Gupta and Ms. Poonam Chopra.

Chakravarthi had two positive results from samples taken within a gap of three days, on December 31, 2015 and January 3, 2016. Since his adverse report could not have been found and reported to him within that short time, the offence was treated as one single violation as rules stipulate.

If the largely accepted practice in recent months had been to submit medical records and seek leniency, the panel itself in this case seemed to have stumbled onto a new clause which perhaps has been pressed for the first time in India to reduce the otherwise prescribed sanction.

The article in question is 10.6.1 Substantial assistance in discovering or establishing anti-doping rule violations.

One was happy to note that finally an athlete’s deposition had led to either a coach or a member of the support staff being hauled up by NADA before a disciplinary panel.

But on a second reading of the article one also realized that this was not in the ADDP’s domain; this was something which NADA had to decide and pursue.

The relevant article

The whole article is quoted in the order given by the Ms. Mohanti panel. It is relevant to go through the rather lengthy article here:

10.6.1.1 NADA may, prior to a final appellate decision under Article 13 or the expiration of the time to appeal suspend a part of the period of ineligibility imposed in an individual case in which it has results management authority where the athlete or other person has provided substantial assistance to an anti-doping organization, criminal authority or professional disciplinary body which results in: (i) the anti-doping organization discovering or bringing  forward an anti-doping rule violation by another person, or (ii) which results in a criminal or disciplinary body discovering or bringing forward a criminal offense or the breach of professional rules committed by another person and the information provided by the person providing substantial assistance is made available to NADA. After a final appellate decision under Article 13 or the expiration of time to appeal, NADA may only suspend a part of the otherwise applicable period of ineligibility with the approval of WADA and the applicable International Federation. The extent to which the otherwise applicable period of ineligibility may be suspended shall be based on the seriousness of the anti-doping rule violation committed by the athlete or the other person and the significance of the substantial assistance provided by the athlete or other person to the effort to eliminate doping in sport. No more than three-quarters of the otherwise applicable period of ineligibility may be suspended. If the otherwise applicable period of ineligibility is a lifetime, the non-suspended period under this article must be no less than eight years. If the athlete or other person fails to continue to cooperate and to provide the complete and credible substantial assistance upon which a suspension of the period of ineligibility was based NADA shall reinstate the original period of ineligibility. If NADA decides to reinstate a suspended period of ineligibility that decision may be appealed by any person entitled to appeal under Article 13.”

The order went onto state: “In view of the admissions and substantial assistance provided by athlete a case has been made out of substantial assistance as contemplated under Article 10.6.4. The period of ineligibility is therefore reduced to three-quarters of four years i.e. one (1) year. The athlete is directed to co-operate with NADA in providing any further assistance regarding the investigation.”

Forgetting for a moment that this was not the responsibility of the ADDP to bring in the ‘substantial assistance’ clause or to reduce the otherwise applicable sanction, one also has to look at what the athlete had deposed that prompted the panel to consider this clause.

In his written statement to NADA the athlete stated that he had not taken any prohibited substance knowingly. He also stated that his coach Rajsekar used to “give him supplements saying they were energy and vitamin tablets.” He also said that the coach had given similar supplements to other elite athletes training under the club.

Chakravarthi told the panel the same things. He said his coach used to give him and other athletes what was termed as “energy drinks”. He said he was not aware of the contents of the said drink and he had full faith in his coach. His version was corroborated by an unspecified number of fellow trainees in his club. No one apparently told the panel that the coach was supplying steroids or other performance-enhancing substances. 

The panel came to the conclusion, based on the evidence, or at least what it calls ‘evidence’, that prima facie it looked to be a case of “aiding and abetting doping violations by the said coach”.

NADA asked to probe

The panel issued directions to NADA on 22 Nov 2016 to “conduct discreet inquiry and probe into the alleged doping violation (sic) by the coach in USF Club, Chennai, in order to establish the accuracy of allegations made by the athlete.”

NADA gave a written reply (contents not known) which was taken on record. The panel noted that summoning of the coach at “this stage is premature and would negate the very purpose of a discreet inquiry”. The panel said the coach could be summoned at a later stage.

It is not known whether NADA conducted any follow-up investigation. Instead it has filed an appeal before the National appeal panel against the one-year sanction imposed. The appeal is a clear indication NADA is not going to pursue “investigation” for which it does not have any staff but press for a four-year ban.

The athlete having stated that the coach had told him to stop the supplements a month prior to competition indicated that it was deliberate doping, NADA had argued before the panel.

Even if NADA failed to tell the disciplinary panel that the “substantial assistance” clause could come into play only after the panel pronounced its verdict and it was not within the panel’s jurisdiction or responsibility to reduce the suspension period based on this clause, it has a second chance now.

All that the NADA would be required to do before the appeal panel would be to re-read Article 10.6.1.1 reproduced in the disciplinary panel order, and state that NADA, and not any panel, has to exercise its authority to provide this concession to the athlete provided certain crucial conditions were met.

Athletes often put the blame on their coaches when confronted with anti-doping rule violation charges. “My coach gave tablets” or “my coach advised me to buy supplements” is an oft-repeated explanation. Half the time it could be true also though proof is hard to come by. 
It may be recalled that all the six woman 400m runners charged in the famous 2011 doping scandal blamed the Ukrainian coach for having supplied the ginseng that they claimed led to the positive dope tests for steroids. No action was taken against coach Yuriy Ogorodnik who was allowed to leave the country quickly after the scandal broke. He was brought back to prepare the longer relay teams for the Rio Olympics with a top AFI official insisting that he was never blamed by the athletes!

Chakravarthi’s case once again brings into focus the inadequate Indian anti-doping apparatus. Something is missing here. One can understand panels or NADA missing the right interpretation of a complicated WADA rule. But this was simple, just a question of domain. Both the disciplinary panel and NADA missed it.
(updated 24 March, 2017)

Note: 26 Oct, 2018: It seems there was no appeal by any agency in this case. The original decision of the disciplinary panel, as listed on the NADA website, says one year suspension. It stands.

Is it going to be redrafted sports code or Bill?

The National Sports Development Code is in the news again.

Nothing surprising there. It hits the headlines periodically, especially when almost everyone in the country, bar the sports officials, are clamouring for more accountability and transparency in the functioning of the National Sports Federations (NSFs).

The Sports Code, compiled first in 2011, clubbing the 1975 Government guidelines with a series of government notifications through the years, is supposed to be a substitute for the National Sports Development Bill.

The draft for such a Bill was brought forward by the then Sports Minister Ajay Maken in 2011 but it was shot down by the Cabinet and the ministry asked to redraft the document. Since then there had been several attempts to revive the draft Bill though without success.
The last one heard about the draft Bill (till the Attorney General mentioned a fresh move by the Centre during the cricket case hearings in the Supreme Court) was in July 2013 when Justice Mukul Mudgal who headed a committee that redrafted the 2011 draft, submitted its report to the Union Sports Ministry.

Mahajan committee report stayed

But the Sports Code remained and the draft Bill continued to be put on the backburner. The ministry formed a committee under Justice C. K. Mahajan (retd.) in 2015 to redraft the Sports Code. But Rahul Mehra, the lawyer-turned-sports activist who has brought about a whole lot of changes in the structure and functioning of the NSFs, obtained a stay against the finalization of Justice Mahajan headed committee’s report.

In the wake of the Lodha Committee report on cricket reforms and the Supreme Court ruling there were demands that the rest of the National sports bodies also follow the changes enforced by the SC in the case of cricket.

Aggravating the situation for the Indian Olympic Association (IOA) and the NSFs was an ill-timed attempt by the former to bring in two of the “tainted” officials, Suresh Kalmadi and Abhay Chautala, as Life Presidents of the IOA. A hurried decision to this effect at its Chennai meeting had to be backtracked when the Government intervened and suspended its “deemed recognition” of the IOA.

The ministry’s response came on predictable lines. It formed yet another committee, this time headed by the man who drafted the 2011 code and presented the Government view before the International Olympic Committee (IOC) in Lausanne in 2010, Injeti Srinivas.

Srinivas currently holds dual charge of Secretary, Sports Ministry, and Director General, Sports Authority of India (SAI) which he was till elevated to the Secretary’s post.

Srinivas knows the IOA and the NSFs inside out; he also knows the Olympic Charter and the history of government control or legislation in sports in other countries, not to speak of the basic principles of good governance which the IOC endorses. In short, he is the most experienced bureaucrat in the Government today who can handle one of the knottiest issues Indian sports has faced over four decades_the extent of autonomy of the NSFs including the IOA.

Before the ministry could announce the recommendations of the Srinivas committee which also included badminton legend Prakash Padukone, Mehra approached the Delhi High Court once again and obtained another stay against the committee publishing its “findings”. (He has now said through a tweet the court has asked the ministry to submit the redrafted code) 

The redrafted Sports Code would not be confined to just tenure or age restrictions of officials, but as we have seen in the past and as we are seeing in respect of the BCCI and state units’ discomfort in implementing the Lodha panel stipulations currently, it all comes down to tenure and age guidelines for the most part.

Will the Srinivas committee opt for the Lodha formula? That is three years each of three terms with a three-year cooling off period after each term? Or will it go by the existing Government guideline (for non-cricket bodies) of two terms of four years each with the President of the Federation getting a third term?

The third term for the president was a concession granted by the then Sports Minister M. S. Gill. The 70-year stipulation was also brought in during his time.

Can there be more concessions to the NSFs? Or could there be tougher stipulations on the lines of the BCCI reforms ordered by the Lodha panel?

Twenty-eight sportspersons have filed a writ petition in the Supreme Court urging it to extend Lodha panel recommendations to the rest of the national sports federations.

The disclosure by the Attorney General in Supreme Court that the Government was mulling a legislation to provide more autonomy to the federations took almost everyone by surprise. Could the ministry have formed a committee to redraft the sports code even as it was redrafting the Sports Bill that had been put in cold storage?

Sports Minister Goel has ruled out the possibility of diluting the code in recent reports. He was of the opinion that eventually his ministry would come up with a code that would be acceptable to all the NSFs?

The feeling has yet persisted that the attempt was to bail out the BCCI. How, is a question that only the ministry can answer unless we wait for the code or the Bill to get its final shape and is announced.

Before the draft Bill is taken up by the Government it will have to sort out the issue of Concurrent List. Sports is a state subject. By bringing it into Concurrent List, a move made sometime in the 1980s also, the Centre would be able to legislate on sports without any limitations.

Minister Goel was quoted in recent reports that the process of bringing sports into the Concurrent List had reached a decisive stage. Surprisingly, he also told Parliament in a written reply in December last that there was no move.

An Act of Parliament will provide more teeth to the ministry’s guidelines though courts have till now endorsed the authority of the government to enforce the stipulations in the Sports Code as far as the NSFs were concerned.

Though the Centre’s powers to enact legislation in sports dealing with national federations and India’s representation in the international arena etc had been re-iterated it is the state-level sports bodies that have continued to pose a question. For this the Centre needs the support of the States.

However, a Central Government Act is not something that the IOC would welcome, especially if it contains stipulations on the tenure and election process etc of the national federations and the NOC.

In the past the Government had tried to brush aside suggestions, though informally, that the IOC would tangle in any way with regard to its guidelines for the functioning of the NSFs including the IOA. Its belief was that India was too large a democracy, too big a nation, too important a country for the IOC to meddle with.

That belief was rudely shattered in December 2012 when the IOC suspended the IOA. Even now, in several media reports, that suspension is attributed to the election of Abhay Chautala and Lalit Bhanot as president and secretary of the IOA when they were faced with charges of financial irregularities, but the fact remained the IOC said at that time that it was primarily due to ‘government interference”. The fact also remained that the IOA was suspended even before it held its elections. In short it was a combination of factors that contributed to the IOC sanction.

IOC resists encroachment

The IOC has always resisted any attempt by governments to impose rules from outside, either through legislation or through norms laid down in documents such as the sports code. Thought it wants NOCs and federations to incorporate principles of good governance that may include tenure restrictions it also wants them to have the freedom to be governed by its own rules without a Government Act dictating such a course of action. Towards that purpose it has always expressed its willingness to engage authorities in a dialogue.

Though the National Federations had agreed in principle to incorporate the Sports Code in toto not many have done that by amending their constitutions. Even when they have included certain rules they have done away with some others.

The Athletics Federation of India (AFI), for example, has three categories of membership, determined by points earned by their athletes in national meets, Olympic representation etc. Category I member has three votes in the General Assembly, Category II has two and the rest, mainly comprising institutional units, one vote each.

From the 1975 guidelines, the government had stipulated the policy of one-state-one-vote, something that the Lodha panel has also enforced, thus curtailing the voting rights of such a cricketing powerhouse as Mumbai.

The IOA continues to have State Olympic Associations as its members with full voting rights, much against the demands of the Sports Ministry and the wishes of the IOC. The vote-bank politics of the IOA perforce provides a lifeline to these state units which come alive only during the National Games in most cases.

What the Charter says

The Olympic Charter says an NOC may comprise National Federations governing sports in the Olympic programme, IOC members, if any in that country, and athletes’ representatives. It may also include federations outside the Olympic programme but recognized by the IOC.

The top two officials of the IOA at the moment (N. Ramachandran and Rajiv Mehta) are both outside Olympic sports, something that the Indian NOC cannot be proud of. Mehta's sport, kho-kho, in fact does not even have the IOC recognition.

The IOC had suggested in 2011 that State Olympic associations could be included as associate members in the IOA without voting rights. But by 2013 the IOC was no longer insisting on this stipulation though the government continued to insist that state bodies be kept out of voting.

Through the past six years the Sports Ministry has attempted to dilute the Sports Code, especially the tenure clause. It is to be seen if the redrafted code would tighten the rules even if they do not replicate the Lodha panel reforms for the BCCI. (Lawyer Mehra tweeted on March 21, that he would expose the ‘dirty game’ being played by Government officials in Delhi High Court on March 22 when his PIL on sports is scheduled to come up.

What happens to the revised code prepared by the Mahajan committee? Will the whole effort be wasted in the wake of the Srinivas committee report? Or will it eventually be a hurriedly-redrafted National Sports Development Bill that the ministry may spring?

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NADA fails to apply appropriate rule; panel overlooks flaw

Does the National Anti-Doping Agency (NADA) follow its own rules or that laid down by the World Anti-Doping Agency (WADA)?

Do Indian disciplinary panels understand these rules to the extent of dispensing justice?

We have seen a disciplinary panel reducing a sanction for steroid offence from the standard four years to just one year in the case of a weightlifter even when the athlete produced a medical prescription that contained the wrong drug!

We have also seen several other cases where panels have given contentious decisions.

Now, sample this. A cyclist was given a two-year sanction for an MHA offence when he had committed two similar offences in 2014 and 2015 and going by the rules the four-year sanction prescribed in the 2015 Code should at least have been discussed. It was not. Everyone concerned seemed to have just ignored the 2015 violation.

Cyclist Amit Kumar of the Services was ordered to undergo a two-year suspension even though he committed an offence in 2015 when the new Code and a new set of sanctions had kicked in.

He has finished his two-year suspension at the beginning of this month,

Of the 16 dope offenders in the National Games in Kerala in 2015, the Punjab cyclist was the only one to have been handed out a sanction under the 2009 Code; the rest of the cases were dealt with under the 2015 Code.

Right clubbing, wrong application of rules

How did this happen? Amit first tested positive at the National road cycling championship at Jamkhandi, Karnataka in December, 2014. Then he tested positive again at the National Games in Kerala in February, 2015. On both occasions the substance detected was methylhexaneaime (MHA), a stimulant.

His two offences were apparently clubbed (no harm done there) when they were brought before a panel headed by Mr. Sanjay Mani Tripathi. The others in the panel were Mrs. Damayanti Tambay and Dr Bikash Medhi.

The normal practice in such cases has been to list the details of the sample collection,  substance found, plea of the athlete, hearing dates etc in two separate documents while delivering an order. Here there was just one. No details of the National Games report were given.

Instead the order said:

“Athlete Amit Kumar (Sports Discipline-cycling) has been found in doping for violation (sic) for Article 2.1 of Anti-Doping Rules of NADA 2010 and 2015 respectively for finding of prohibited substance methylhexaneamine (MHA), stimulant on two occasions as under:

i)                   In competition 19^th National Road Cycling Championships 2014-15 held at Jamkhandi, sample was collected on 27-12-2014 vide sample code no. 2967997;

ii)                In competition 35th National Games-Kerala held at Trivandrum, Kerala, sample was collected on 07-02-2015 vide code no. 297109.

The athlete claimed he had consumed supplements and alleged inordinate delays in getting intimation about his anti-doping rule violations. He claimed the first intimation was received after 56 days and the second one after 67 days.

The dates in the order however do not support the athlete’s contention.

A provisional hearing was held for the first offence in 21 days of NADA issuing notice. For the second, a provisional hearing was held 14 days after issuing notice as per the order.

The laboratory documentation package was delayed in both instances. NDTL had its own explanations for the delay in completing the testing process as well as in supplying documentation packages. The panel was satisfied with the explanations and found no reason to believe that there could have been anything that could have materially affected the outcome of the tests.

The athlete made several allegations including a claim that he was forced to sign documents by NADA before provisional suspension for his first offence which was eventually shown as “voluntary”.

The cyclist raised several objections about the lab procedures and reporting but the panel rejected them all.

Eventually the panel handed out a two-year suspension based on the 2009 rules. In the end there was no mention about the National Games sample testing positive or about the need to treat the combination of two offences as one.

Since the athlete had apparently received intimation about his first offence only after competing in the National Games (in fact two days after his event), Amit couldn’t have been faulted for either competing nor penalized with a second offence. It had to be just one offence.

The rules

But what do rules say when two such offences occur close to each other?

10.7.4 Additional Rules for Certain Potential Multiple

Violations

10.7.4.1 For purposes of imposing sanctions

under Article 10.7, an anti-doping rule

violation will only be considered a second

violation if the Anti-Doping Organization

can establish that the Athlete or other

Person committed the second antidoping

rule violation after the Athlete or other Person received notice pursuant

to Article 7, or after the Anti-Doping

Organization made reasonable efforts to

give notice of the first anti-doping rule

violation. If the Anti-Doping Organization

cannot establish this, the violations

shall be considered together as one

single first violation, and the sanction

imposed shall be based on the violation

that carries the more severe sanction.

The above rule makes it clear that such cases should be treated as just one first violation. But the sanction shall be based on the violation that carries the more severe penalty. Going by the 2009 Code it was two years and by the 2015 Code it was four years if it could be proved it was intentional.

The panel couldn’t have wished away the National Games offence. It apparently did. The NADA couldn’t have forgotten about the second offence or about the rule relating to such combinations. Apparently, it did.
MHA being a specified stimulant it was NADA's responsibility to show that the violation was intentional in order to seek a four-year sanction. It got four-year suspensions in a few other cases in the National Games, notably that of cyclist Amrit Singh (stimulant Oxilofrine) and boxer Mazhar Hussain (diuretic furosemide) for 'specified substances".
The Tripathi panel order stated: "Under Article 10, ineligibility of Two (2) Years is imposed on Mr. Amit Kumar, Jr Warrant Officer, MT/Fit, Sports Section, 260 Signal Unit, Air Force Station, Patiala for the violation of Article 2.1 of Anti Doping Rules, NADA, 2010." No mention of 2015 rules!

If you happened to be a cyclist and checked out the rules on your federation’s website, you would have got outdated NADA rules and the 2009 WADA Code.

There is a need to ‘educate’ the hearing panel members. And there is a need to help NADA familiarize at least with its own rules if not with the rather complicated rules covering all aspects of anti-doping as laid down by WADA.

Unless NADA has a legal department, or at least a standing counsel, it would be difficult for it to effectively present its case before hearing panels and to review the orders and take appropriate follow-up action if necessary.