An Open National that failed to attract NADA

Photo_courtesy G. Rajaraman.

“It was an open championship, I believe, and it does not have much relevance and significance.”

The statement hits you like a ton of bricks!

Trying to read that line on your smartphone as you wake up in the morning, you rub your eyes to make sure you got it right.

An Open National Athletics Championship is of not much relevance in an anti-doping perspective! That was the essence of the statement.

Yes, the unfortunate, ill-timed statement has come from the Director-General of the National Anti-Doping Agency (NADA). No less.
Anti-doping will not be able to achieve its goals if men in charge come up with such ill-informed, damaging statements. The NADA chief who was abroad at that time, was quoted as saying that there might have been more important assignments for his team at the time of the National championships, a vague excuse that betrayed his own lack of understanding of his organisation's plans.

One had heard murmurs about very few samples having been collected at the National Inter-State championships at Guntur last July. That happened to be the final shot for athletes trying to qualify for the World Championships in London. It was foolish, one thought, to cut down on samples for such an important meet.

And now comes this: No testing at Open National and the NADA boss justifying it by claiming it was just an ‘open championship’ and was of little relevance. It is ‘open’ because institutional sides get a chance to field teams.  The States, too. But ‘open’ does not mean anyone can enter. It has to be an affiliated unit of the Athletics Federation of India (AFI) and there are minimum standards prescribed for an athlete to be eligible to enter.

Without the NADA knowing perhaps_and probably without the athletes also being aware of it_the Commonwealth Games qualification process had begun with the Open at Chennai.

The NADA, under Navin Agarwal since June, 2016, seemed to have done reasonably well in catching a few “big fish” in the Olympic year.

The slide

Then things started slipping a little. The Hindustan Times reported early 2017 that the National Sports Federations (NSFs) were getting worried because NADA had started cutting down on the number of tests in each of the Olympic sports discipline, possibly to work within its budget.

The new ‘mantra’, it was explained, was “risk assessment” and “targeted testing”. People in the field of sports always knew the most vulnerable sport in terms of doping propensity and those within such sports also knew who were the most likely candidates who were either already into juicing up or likely to taste the stuff.

The news about reduced number of samples for 2017, brought out a desired response from higher-ups. Fortunately, that is. Niti Aayog, worried about the continued status of India as the No. 3 doping country in the world (a position maintained from 2013 through to 2015), directed that NADA do at least 5500 tests this year.

NADA suddenly increased that number to target 7000 tests despite “budgetary constraints”. Mind you, it had cut down on tests at the national level and then this realization that “we have to do 7000”. Perhaps that is where the trouble started.

Such numbers can often cloud logical thinking and reasoning. “Let’s-beef-up-numbers” is never the answer to improved anti-doping measures. Which sport do you want to target with the hiked numbers and which competitions and who among them in particular? That should have been the topmost question and number one priority.

Worried federations

Instead NADA seemed to have hit upon a “great idea” of carrying out doping control at State athletics championships and weightlifting championships and inter-college competitions even as the respective federation officials expressed their frustration at not being able to curb doping since their major competitions were being either ignored or given low priority.

The Hindustan Times quoted the officiating secretary of the IWLF, Sahdev Yadav to say that domestic testing had become a routine. He said the past year NADA had tested 180 samples spread across youth, junior and senior groups (Nationals). “This time (2016) anti-doping officials skipped youth and junior events but conducted eight tests in the senior event.” Yadav said.

Athletics was no different. Just five samples were collected from the Junior Nationals last year. And the AFI Secretary, C. K. Valson, was quoted by HT as saying that no dope tests were conducted at the National cross-country meet at Bhopal, also last year.

The competitions where testing has been conducted this year, as per NADA Newsletter, included the Services Best Physique Championships, the Chief Minister’s State-level athletics championships at Madurai, the Chief Minister’s State-level weightlifting championships at Thanjavur, the Delhi University Inter-College Powerlifting and Best Physique Championships and an Under-19 football tournament at Hyderabad and Vizag.

The Open National is the No. 1 athletics championships in the country. In its 57th year this time, the Open suffered because of large-scale absenteeism. Yet, there were quite some “incredible” performances. NADA could have been  very  effective there. People who attended the meet informed this writer that quite a few athletes seemed to have known in advance that there would be no testing and came "well prepared"! Surprising then that some of the best in the business chose to stay away. CWG qualification could have been simplified.

“My suggestion is that athletes who are getting TOPs support should be tested and cleared minimum four times a year (out of competition) for doping. Our system needs to be more vigilant and proactive to ensure rights of clean athletes are protected,” Anju George, India’s lone World Championships medallist, is said to have written to the Sports Ministry, according to the Express report. Anju is one of the Government Observers in athletics, the other being P. T. Usha.

Anju’s concern is genuine. To add to her suggestion, one would be tempted to say “make it six to eight times of out-of-competition testing per registered pool athlete through the year.”

Deliberately targeted?

But NADA seems to consider testing an athlete about half a dozen times a year rather unwarranted! Too harsh perhaps?

A PTI report in February stated: “NADA said it has also come to its notice that some athletes were targeted deliberately by their federations.

“Instances were observed where NADA was unduly targeting some athletes and repeatedly testing them time and again, even more than 4 to 5 times a year, which now stands discontinued,” the body stated.

Targeted deliberately by their federations?

One always had this notion that NADA was the sole testing authority in India. Has it changed?

Targeting has to be done by NADA. Targeting is not a hitherto unknown tool that NADA stumbled upon in 2016. It is prescribed in the WADA Code; has been there since the Code came into being.

If NADA had not been able to do much target-testing, especially in athletics, it was only because it did not have the expertise to draw up a meaningful list for its registered testing pool, leave alone identify the top “suspects” among them for special target testing.

Even now, two years after NADA managed to compile a list of 41 athletes for its Registered Pool, it is doubtful whether the body has the most obvious cases in athletics in that RTP. (RTP is a list where an athlete has to provide his/her “whereabouts” on a quarterly basis to make himself/herself available for out-of-competition testing at a chosen location for one hour every day,)

Let’s presume, NADA has struck pay-dirt in its fight against doping by concentrating on out-of-competition target-testing.

Figures do not match

The statistics, however, do not match the NADA estimates and assessment. In 2015, when the new, revised Code came into being, NADA tested 894 ‘in-competition’ samples in athletics and came up with 19 adverse analytical findings (AAFs). Of the 513 out-of-competition samples, none came positive.

Firm figures are not available for 2016 which WADA should be releasing any time now. However, from the data that could be compiled, one arrived at a rough count of two sanctioned cases out of 15 disposed of so far in athletics in 2016 as being ‘out-of-competition’ ones. The rest were from ‘in-competition’ tests.

In 2017, out of 29 cases in all sports, either sanctioned or going through a hearing process, there are seven out-of-competition cases. And there are nine cases in all in athletics, all of them from ‘in-competition’ tests.

The idea of catching the dopers unawares through “surprise tests” is good and may work provided the “surprise” element is maintained in such ‘missions’.  Quite often the athletes get tipped off or else they just go "on leave" from the Patiala camp. Also of importance in this exercise would be the co-operation of coaches and camp authorities with the testing team, quite often missing, according to observers. 

One example in 2015 would suffice to drive home the point that ‘intelligence-based’ out-of-competition testing is very difficult to accomplish.  A dope control officer delegated by the International Association of Athletics Federations (IAAF) made two visits to the LNCPE grounds, Thiruvananthapuram, to “catch” two women 400m runners but on both occasions they slipped through under his very nose. There are any number of such instances that people narrate when it comes to NADA testing.

The Open National, Inter-State Championships and the Federation Cup should be ‘must’ in NADA’s Test Distribution Plan for athletics. There should be more than 100 samples collected at each of these championships; closer to 150 would be ideal.

The rest including Indian Grand Prix and any last-minute ‘trial meet’ etc could be tackled depending on what could be at stake from such meets. If a qualification is at stake, redouble the efforts. NADA should also not forget Junior National meets.

Last year NADA said that the NSFs were told to provide their calendars. NADA should not wait for an “invite” for doping control arrangements. The AFI Medical Committee Chairman, Dr Arun Mendiratta, stated this time that he had informed NADA about the Open National in July.

If a yearly calendar is prepared by NADA, even with tentative/available dates, it would be useful for it to focus on ‘in-competition’ testing where required. Testing at Rajasthan State weightlifting championships and Delhi University Best Physique competition is okay, provided you don’t forget your main menu. And that has to be the Senior National Championship in every major Olympic discipline, the most ‘vulnerable’ like athletics and weightlifting getting top priority.

Biological passport

The Athlete Biological Passport (ABP) that NADA plans to bring in by 2018 will also be a useful protocol to make life that much tougher for the prospective cheat. But that in itself is not going to nab them by the dozen. It will be a slow process, mainly to pinpoint abnormalities to be followed up with target testing.

NADA’s “catch” so far has been impressive. More than 852 positive cases reported and processed or being processed. That is not just because of NADA’s ability to relentlessly pursue the cheats but also because of the widespread practice of doping that goes on in the country.

The numbers would go up now since NADA has started testing again in powerlifting and bodybuilding, two disciplines that invariably turn in dopers by the dozen. Athletics had topped the Indian charts in 2014 (29 out of 95) and 2016  (23 out of 76) while being second in 2015 (24 out of 120) behind weightlifting (56). Churning out dope-'positive' numbers, as the Russians have been doing for years, may not eventually prove that the country is "clean" from a doping perspective. 

Olympic sports need more attention, athletics in particular. If those hunting for “talent” is fooled by dope-induced performances, as had been the case during the past few years, then funds would be drained through schemes like the TOPs and Khelo India with some “great potential” failing to blossom on the big stage.

Include every TOPs-funded athlete in the NADA RTP, test them six or eight or ten times a year if need be. Let the Government also make sure the recipients of Khelo India annual scholarship, especially in the disciplines where doping is common, are tested regularly so that the Olympic dream could be realised.

NADA has recently advertised for a legal officer and investigator. The Sports Ministry has sought an international expert as a consultant. Things should perk up if everyone concerned work together to provide a “level playing field” for the “clean athletes”.

The moment someone says, “we don’t want to harass an athlete with five or six tests a year” you have false-started. They normally put a DQ against your name!

Of qualification marks, internal standards and selection guidelines

P. U. Chithra  winning 1500m at the Asian championships in Bhubaneswar_Pic courtesy G. Rajaraman.

Obfuscation is the ‘in thing’ in Indian sports administration. For years, the Athletics Federation of India (AFI) has been laying down qualification criteria for selection of teams for major international competitions. And flouting them much of the time!

Now comes this news: “The AFI will introduce qualifying standards across track and field disciplines for next year’s Commonwealth Games and Asian Games.”

Public memory is short. It seems the media’s, too. Not just the media, but that of the coaches and officials also.

The AFI stated in a Press release in June, 2014 just when the athletes were getting ready to compete in the inter-State meet in Lucknow that served as the selection trials for the Commonwealth Games in Glasgow, that a set of qualifying marks was being announced for the selection of the Indian team.

Complicated process

The AFI went through a complicated process of compiling the third and fourth place results of the three previous Commonwealth Games and arrived at a particular mark which it fixed as the norm for the Glasgow Games.

For the Asian Games in Incheon it was explained that only "qualifying guidelines" were being issued and not 'qualifying standard'. It did not matter; the athletes knew what to clock and how far to jump in order to make the cut.

Since the times one could remember, the AFI had some selection standards for picking Indian teams for Asian Games, Asian Championships and Commonwealth Games. You may call them ‘selection criteria’, ‘qualification standards’, ‘entry standards’, ‘selection guidelines’ etc, it all boils down to just one thing: what performance should an athlete turn in in order to make the team.

The ‘entry standards’ for Olympic Games and World Championships (and similar meets) are different. They are a set of standards prescribed by the international federation (IAAF) without which an athlete cannot hope to compete in the global-level championships. For the World championships, however, the IAAF has in recent years made concessions, allowing continental champions, defending champions and athletes who may get an invitation because of his/her placing in a ranking list, to be entered without any conditions. 

Both Olympics and World Championships have ‘distress quota’ meaning a country would be allowed to enter a male and a female athlete in an event (excluding certain specified events) irrespective of attaining an entry standard.

In contrast to the IAAF standards, if the federation and/or the ministry dilute the criteria_and they invariably do_you can make an Indian team.  The IAAF does not dilute any criteria, not even by 0.1s when a final list is released. That then is the difference between “entry standards” and “selection criteria”, the latter more often than not referred to as “qualification mark”.

Make no mistake, there would be statements by the federation that no concessions would be given and it would strictly stick to laid-down criteria etc. When the final hour comes there would be “adjustments”.

The Union Sports Ministry had followed its selection criteria in measurable disciplines from sometime in the 1970s. It was third place performance of the previous games (or last Asian championships, whichever is higher) for Asian Games and sixth place for the Commonwealth Games and the Olympic Games. Some concessions used to be given to “young and promising” athletes.

Once the IAAF brought in entry standards for Olympics, the Government criteria became irrelevant for athletics. But not for Asian Games and Commonwealth Games. In 2006, for the Asian Games, the ministry, however diluted the criteria to the sixth-place standard.

This was the signal for further dilution in 2010 when no criteria was insisted upon, and and to some extent in 2014 when the Government did not  firmly stick to any standard though the sixth-place standard was sort of benchmark. The AFI had its own set of norms, even though it was flouted often to benefit a few ‘favourite’ athletes.

“There are no qualifying standards for the Asian Games and the Commonwealth Games. We will be uploading these qualifying standards on our website in a week so every athlete is clear about what performances will be considered when a squad is picked,” Adille Sumariwalla, AFI chief, was recently quoted as saying.

The selection criteria were uploaded on earlier occasions also when the AFI website became operational and the federation started utilizing it for communicating with the athletes and state bodies. 

That they were changed overnight at the Inter-State meet in 2014 at Lucknow led to much confusion as this report in The Hindu would confirm.

The AFI president said the other day that the selectors had referred to ‘internal qualifying standards’ when selecting an athlete. But this would be the first time that timings, distances and heights which athletes need to achieve will be uploaded on the website , said Sumariwalla.

There cannot be any “internal qualifying standards” that are unknown to the athletes. It will then be meaningless. The selectors could be given broad guidelines in case too many claimants are there for one or two slots in a team. These cannot be termed ' qualifying standards' when those standards have already been laid down by the international federation. A selection process or a policy has to be different from "internal standards".

What happened in the P. U. Chithra (in pic above) episode before the London World Championships was due to the complete lack of foresight displayed by the AFI. That led to the mess that brought Chithra's plight and the AFI functioning into national focus. Today, Chithra is one of the 17 athletes chosen in the initial list of 152 elite sportspersons for the TOPs funding and monthly stipend of Rs 50,000.

Neither the selection committee nor the athletes knew that becoming champions in the Asian championships in Bhubaneswar would not be sufficient to “qualify” for the World Championships in London.

The IAAF had laid down the policy of allowing a “free” entry to the continental champions, irrespective of the performance levels.  Unless there was a rider announced well in advance to this method of qualification by the national federation, there was no need to doubt the proces. Of course the AFI had the final authority to enter the athlete in the World championships.

Athletes briefed

At the end of the Asian championships in July, the AFI Secretary, C. K. Valson, briefed athletes and coaches to convey that the ‘Asian champion’ tag or the entry standards achieved earlier alone would not be sufficient for selection to the World championships and the athletes would be expected to come close to the IAAF standards at the inter-State meet at Guntur that was to follow within a week. Participation at the Guntur meet was a “must” for the qualified athletes, it was stated.

None of the athletes who attained standards prior to the Asian championships and had clinched their places in the London-bound squad competed at Guntur. From among those who became Asian champions and thus became eligible to go to London, steeplechaser Sudha Singh skipped the meet.

Heptathlete Swapna Barman competed only in the hurdles and long jump, while G. Lakshmanan, the double gold winner in Bhubaneswar improved his timing in 5000m compared to the Asian championships but skipped_understandably_the 10,000m.

Chithra was beaten to second place by junior Lilli Das, a fact that the AFI projected to rebut criticism that the federation had played ‘politics’ in the selection.

Chithra (4:1792 at Bhubaneswar, 4:28.87 at Guntur; IAAF standard 4:07.50) Sudha and Ajay Kumar Saroj, the men’s 1500m winner at Bhubaneswar (3:45.85 as against IAAF standard of 3:36.00) and Guntur (3:45.88) were axed. AFI’s anxiety to cut down on numbers after the Rio fiasco was understandable. But could downsizing have been achieved by dropping just three athletes?

Was there a selection criteria fixed for prospective Asian champions for them to become eligible for World championships?

None.

That is where the AFI made its first mistake. Then it compounded it by being selective in its application of so-called “internal standards” which apparently even the selectors were unaware of.

Now, to say, AFI had never set criteria for selection all these years and it would do it now since stung by the criticism and court case arising out of the Chithra episode is akin to having selective amnesia.

Tougher than prescribed

Once in the past, for the Sydney Olympic Games, the AFI had tried to fix tougher standards than required by the IAAF. That was by going for the ‘A’ standard rather than the easier ‘B’ standard. ‘A’ allowed you to enter more than one athlete while ‘B’ was good for just one. Eventually, the federation stuck to the ‘B’ standard though some of the athletes did return ‘A’ standards.

It turned out to be one of the most disastrous outings for Indian athletes in the Olympics with only K. M. Beenamol in the 400m going past the first round.

Selection norms are announced by federations. Some do it well in advance, some late in the day. The AFI has done it both ways in the past. Not surprisingly, the AFI has tended to fix norms looking at the standards of its own athletes rather than what could await them in actual competitions.

Sometimes this may click as it did in 2010 for both CWG in New Delhi and the Asian Games in Guangzhou, China.

The Government had notified in 2015 that for all the multi-discipline games the sixth-place standard would be applicable for measurable sports. This was a sequel to the drama that involved the clearance of the Indian contingent for the Incheon Asian Games.

The IOA proposed a 942-member contingent which was cut down drastically by the ministry initially. But after the Prime Minister’s intervention, a contingent of 679 including a 56-member athletics squad, was approved. The track and field athletes won 13 medals including two gold, the lone individual gold coming from discus thrower Seema Punia. In Guangzhou in 2010, Indian athletes had won five gold medals.

Will it be sixth-place criteria?

Will the Government stick to the sixth-place criteria next year? Or will it be another concession, as in 2006, to boost numbers so that someone would be able to say “we send a 1000-member contingent”!

Looking at the performances in 2016 and this season the sixth-place criteria should not pose much problems for Indian athletes in established events for both Commonwealth Games and Asian Games. This is presuming that the AFI itself would not make it a lot stiffer than that when its think-tank sets out to formulate criteria. Anything below sixth-place would be making a mockery of this business of "laying down standards".

The crucial question would be how much active would the National Anti-Doping Agency (NADA) be in the run-up to these two games? Out-of-competition testing that should start from November this year at least, should hold the key.
The Commonwealth Games are to be held in Gold Coast, Australia, from 4 to 15 April, 2018 while the Asian Games in Jakarta, Indonesia, from 18 August to 2 September.

(amended 18 Sept 2017)

An excretion study and a WADA letter lead to 8-year ban for Priyanka Panwar

A technical letter from the World Anti-Doping Agency (WADA) to all the accredited laboratories regarding the metabolites of Oxethazaine last February coupled with an 'excretion study' and an expert opinion provided by the Director of the National Dope Testing Laboratory (NDTL) clinched the argument against quarter-miler Priyanka Panwar in a doping case decided recently.

Panwar was handed an eight-year ban, this being her second offence after the more famous one involving her and five other 400m runners who were preparing in 2011 for the London Olympic relay qualification.

The 2011 offence was one involving a steroid, methandienone, alleged to have come from the Ginseng reportedly purchased by the Ukrainian coach of the 4x400 team, Yuriy Ogorodnik, in China.

This time, Panwar tested positive for the injectable stimulant mephentermine and its metabolite phentermine in a sample collected at the Inter-State meet in Hyderabad in July, 2016.  Surprisingly the case dragged on, eventually being decided more than a year after the sample collection.

The National Anti-Doping Agency (NADA) and the Anti-Doping Disciplinary Panel (ADDP) surely look headed towards setting records for long-winding arbitration proceedings.

The eight-year ban should more or less end the career of the 29-year-old Uttar Pradesh runner who shot into prominence in the 2011 season by being among the contenders for a place in the 4x400m relay team for London Olympics before being sidelined through the sensational doping fiasco that ruined India’s qualification bid.

Non-specified stimulant

Mephentermine is a non-specified stimulant meaning its finding in a dope test would result in the athlete facing the same type of consequences as that for steroids. To elaborate, there would be an automatic provisional suspension unlike none in the case of a specified stimulant or substance, and the athlete would be required to prove that he or she did not take the drug intentionally to enhance performance to avoid a four-year sanction.

Panwar argued through her lawyer, Vidushpat Singhania, that she had ingested the drug mephentermine through a medicine (Mucaine Gel) prescribed by one Dr Vipin Sharma for stomach pain. She produced the prescriptions and even had the doctor depose before the panel.

It is a fact that two of the metabolites of Oxethazaine which is one of the ingredients of Mucaine Gel are mephentermine and phentermine.

Armed with the WADA technical letter on Oxethazaine and the excretion study on the drug conducted by the Cologne laboratory and her own lab, the Director of NDTL, Dr Shila Jain, presented evidence that eventually clinched the argument against the athlete.

Panwar had failed to mention the medicine (Mucaine Gel) on the doping control form though there were prescriptions dated 02-01-2016 and 07-05-2016. The panel dismissed one dated 12-12-2016 as irrelevant to the case since her sample was collected on 02-07-2016.

Dr Sharma deposed before the panel but did not say he had advised her to take it on an SOS-basis (as and when pain recurred), a point that went against the athlete.

NADA argued that the mephentermine/phentermine ratio was much higher than the “less-than-one” level that would have indicated use of Oxethazaine. In fact it was 36 times it was disclosed to the panel.

The WADA technical letter plus the report that the NDTL Director submitted about the metabolite concentration levels finally clinched the argument conclusively as far as the panel was concerned.

WADA technical letter

This is what the WADA letter to all the directors of accredited laboratories stated:

“1. Check the Sample Doping Control Form (DCF) for a declaration of use of Oxethazaine;

2. Test for the presence of Oxethazaine major Metabolites, namely β-hydroxyphentermine and β-hydroxymephentermine. Both of these Metabolites are detected in much higher concentrations than Phentermine and/or Mephentermine following the administration of Oxethazaine”.

If it was proved that use of Oxethazaine (Mucaine Gel or Stoin for example) had produced the metabolites β-hydroxymephentermine and β-hydroxyphentermine then the lab was supposed to report the result as “negative’.

Not even traces

The panel observed: “In the present case, both beta-Hydroxy metabolites of Oxethazaine were not seen even not in traces then how the athlete can take the plea that she took ‘Mucaine Gel” prior to the questioned event. This clinches the issue and the Panel has come to the conclusion, keeping in view the clarification given by Dr Shila Jain by sending reply on 06/06/2017 as well as cross-examination conducted on 30/06/2017 that Ms. Panwar has probably ingested Mephentermine and Phentermine directly and not through Mucaine Gel. The Panel has also kept in mind the concentration level of the questioned sample which was Mephentermine 11.0ng/ml and Phentermine 300mg/ml and the same was on much higher side. Therefore, the burden lies upon the athlete to prove that she had no fault (sic) or negligence for taking the benefit of Article 10.4 of the NADA Code 2015 which she could not discharge by alleging to have taken Mucaine Gel prior to the questioned event.”

On being asked by the panel to get from the NDTL details of the concentration of mephentermine and phentermine, Dr Jain also reported that as per the study conducted by NDTL and Cologne laboratory, beta-Hydroxy mephentermine and beta-hydroxy-phentermine were major metabolites of Oxethazaine and were found in urine at much higher concentration than mephentermine and phentermine.

In Panwar’s case, Dr Jain said, both Beta-Hyrdoxy metabolites of Oxethazaine were not seen, even not in traces which indicated that the “athlete might have not taken Oxethazaine”.

The fact that the laboratory tested for hydroxy metabolites of mephentermine and phentermine despite there being no mention of Mucaine Gel on the doping control form could suggest such tests were carried out at a later stage.

Singhania’s contention that the laboratory had subjected the sample to re-analysis and perhaps used them for research purposes despite being expressly forbidden by the athlete, was rebutted by NDTL.

During cross-examination, Singhania asked Dr Shila Jain:

“Has any testing been conducted after providing laboratory package of the athlete’s sample to the athlete?”

Answer: ‘No”.

Would it have been against the rules to test the sample again to establish whether Mucaine Gel was ingested or not? After all, a hearing panel could have ordered such a test to be carried out in order to come to a conclusion whether it was a direct ingestion of mephentermine or a permitted drug that caused the positive result.

Excretion studies

Dr Jain said in both the excretion studies, based on one single volunteer ingesting one single dose (10-20mg) of Oxethazaine it was found that the Hydroxy metabolites were 5-10 times higher in concentration than mephentermine and phentermine.

It was not clear whether the NDTL study was a recent one, whether it was done after the order was reserved in the Panwar case initially or whether it was done after the panel raised the issue of concentration levels of mephentermine and phentermine on 22 May, 2017.

The panel concluded that from the evidence presented and the opinion of Dr Jain it was clear that the positive result was the consequence of mephentermine use and not that of the permitted medicine, Mucaine Gel.

The defence counsel argued that Dr Jain’s testimony should not be relied upon, that metabolism of drug in the human body differed from person to person, that it depended solely on genetic factors, disease, age etc.

The panel rejected all such arguments and said “…when there was (sic) no metabolites, beta-Hydroxymephentermine and beta-Hydroxyphentermine found in the questioned sample, then how we can reach to (sic) the conclusion that she took Mucaine Gel and, therefore, the question of various factors like genetic factors, environmental factors, age and sex etc has (sic) not (sic) relevancy while disposing (sic) the matter.”

In mounting Panwar’s defence, Singhania also referred to the cases of tennis player Richard Gasquet (CAS 2009) and decisions in respect of Indian sportspersons.

Lawyer unconvinced

Singhania remained unconvinced by the procedures adopted by the laboratory and was even mulling the idea of complaining to the WADA about the additional tests or study allegedly conducted by NDTL. The lab had claimed that the athlete’s sample was not subjected to any further tests after it supplied the laboratory documentation package to her.

Panwar could not make the 4x400m relay team for Rio Olympics and later it was revealed that she had failed a dope test. She was part of the gold-winning Indian team at the Incheon Asian Games in 2014 and was considered a near-certainty for Rio till her performance slumped in the build-up period for the Olympics.

Her best for the 400m in 2016 was 54.23s and she was included only in the India ‘C’ team for the relay that was held at Hyderabad alongside the inter-state meet to provide the Indian team with a chance to ensure its Olympic berth.

The chairman of the panel, Mr. Ramnath, should be complimented for bringing out a detailed, reasoned order that went into 14 pages. Quite often ADDP orders are perfunctory in nature without either the argument made by NADA or the defence put up by the athlete or the conclusions arrived at by the panel being mentioned in clear terms. The other panel members were hockey Olympian Ashok Kumar and Dr Bikash Medhi.

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?