Doping DOPING AND SPORTS

NATIONAL ANTI-DOPING AGENCY, INDIA’S FAILURE IN DISCHARGING ITS POSITIVE DUTIES: ANALYSIS OF INFORMATION DISSEMINATION AND ATHLETE AWARENESS

[Author: Yash Dawda, student of law at NMIMS, Mumbai, India]

Let’s talk Sports Law S4_E17

INTRODUCTION

Sport has often been summed up as a celebration and honouring of the human spirit, body and mind, and in most sports, physical traits such as power, speed and endurance are extremely important. Athletes nowadays follow strict regimens in order to achieve the highest levels of fitness and agility to give them the edge over their competitors. The sporting world has seen various instances wherein Athletes have resorted to the use of performance enhancing drugs in a bid to achieve the aforesaid. Using drugs or other processes for performance enhancement is justly considered to be unethical, considering that it essentially distorts the spirit of sports. This deliberate use of a substance or a process/method, banned by the medical commission of the World Anti-Doping Agency (‘WADA’) is what amounts to doping and is one of the most serious issues plaguing the field of sports in the modern day.

Additionally, owing to the rapid technological advancement, a plethora of processes and methods have been innovated, such as, inter alia- blood transfusion and gene modification, which are readily available and have intensified the fight against doping. Consequently, the objective behind having such a system of regulation in place to prohibit and penalise doping is to protect the Athletes’ health and avoid the accompanying consequences of doping, while also upholding the ‘spirit of sport’ at its core.

ESTABLISHMENT OF THE WORLD ANTI DOPING AGENCY (‘WADA’)

Regulatory response towards the issue of doping was the consequence of a number of different doping scandals and drug abuse instances, with the Festina cycling team doping case being the most instigative, following which the IOC organized the World Anti-Doping Conference at Lausanne, the upshot of which was the establishment of WADA. As a result, WADA is now a recognized body which maintains a check on doping in sports, and its key activities include scientific research, education, development of anti-doping capacities, and monitoring of the World Anti-Doping Code (‘WADC’), which is a document harmonizing regulations pertaining to anti-doping, in all sports played across the globe. WADA essentially keeps a track of all sporting activities around the world, and comes up with a revised doping code from time to time, as well as a list of prohibited substances which is updated annually. Undoubtedly, WADA has been a leading force in the sporting world and has advanced the fight against doping in recent years.

REPERCUSSIONS OF GRANTING AUTONOMY TO A NADO

The WADC is the principal regulatory framework that aids WADA in spearheading the fight against doping. By working with national agencies and governments as well as by establishing universally recognized norms, WADA seeks to streamline anti-doping regulations across all sports globally. Accordingly, the national regulatory bodies, i.e., the National Anti-Doping Organizations (‘NADOs’), are tasked with enacting, implementing, and policing within their purview, the mandatory anti-doping rules, as specified by the WADC, in order to achieve their objectives. The NADOs must uniformly apply the WADC; this is particularly crucial when it pertains to testing protocols, defending the rights guaranteed to an athlete, and implementing effective sanctions in line with WADC. While it gives regional authorities considerable discretion in the regulations they enact in their individual regions, there are a number of its provisions that have to be implemented by each and every anti-doping organization without any significant modifications. As a result of the discretionary power given to NADOs, there appears to be a variation in the impact that the WADC has on jurisdictions all over the world, along with deviation in the implementation of particular sections of the WADC, especially those pertaining to testing, training, and certain procedural aspects.

THE NATIONAL ANTI-DOPING AGENCY, INDIA (‘NADA’)

The National Anti-Doping Agency (‘NADA’) in India, established as an autonomous society, is responsible for curbing doping in sports. The National Anti-Doping Rules, 2021 (NADA Rules) outline how samples must be collected, how test findings should be administered, and how regional hearings have to be conducted. It serves as a coordinating body for the execution of anti-doping systems in the country while also acting as an advisory group to the state on questions of legislation relating to anti-doping in sports.

CONSEQUENCES OF NADA’S LAX ATTITUDE ON THE NATIONAL ANTI-DOPING LANDSCAPE

Over 40,000 athletes have already been investigated by NADA for Anti-Doping Rule Violations (‘ADRVs’) between 2009 and the beginning of 2022, and 1206 sportsmen in totality have breached anti-doping standards under the NADA Rules. As per the ADRV reports released by WADA, India has regularly ranked among the worst violators. More than 98% of ADRVs, as reported on the NADA database, are the consequence of a competitor testing positive for a banned drug, hence infringing Article 2.1 of the WADC, as determined by a review of these infractions. This is where the NADO plays an important role in disseminating information, while also alerting Athletes of their obligations under the anti-doping rules. The anti-doping approach of WADA places a strong emphasis on education. Inadequate education and contamination-related unintentional doping have been cited as the two main causes of the high frequency of doping amongst Indian sportspersons. Athletes have a responsibility to ensure that no prohibited substance enters their system, which if violated, renders them strictly liable for the same.

It is crucial to remember that the vast majority of athletes in India emerge from backgrounds lacking access to healthcare as well as basic education.  They have very little or sometimes no awareness regarding prohibited substances, their classification as a prohibited drug, and their potency. Indian athletes also heavily rely on the guidance of the coaching personnel and support staff, who have often been found to have inadequate knowledge themselves as to the anti-doping requirements. Therefore, it is extremely necessary to educate the Athletes given that it is possible that they might have used a prohibited substance while addressing a medical issue out of naivety or mere lack of information.

Thus, a sportsperson may inadvertently violate the anti-doping rules by using/consuming a product intended for daily uses. The WADC does provide for a few exemptions that allows Athletes to use specific medications with a doctor’s prescription and guidance. In accordance with Section 4.4 of the WADC, a list of such substances has been compiled, and exemptions from the intake of such drugs are permitted to a certain degree. Making such a provision available is justified for precisely the same reason as stated previously, so that Athletes have the choice to remedy their health conditions and have the discretion to handle any medical emergency. As a result, Athletes are now offered the ability to get a Therapeutic Use Exemption (‘TUE’) before taking such medications and to reveal it on the doping control forms, which were designed with this very possibility in mind. The issue, though, is that no formal process has been developed for an Athlete to learn about the TUE application process with regard to a medication, thus resulting in a situation of scant awareness among athletes about such criteria. It all trickles down to the aspect of adequate education and information amongst athletes.

Perhaps even more alarming is the fact that there have been instances where players have been given prescriptions for drugs containing prohibited substances by sports medicine specialists, for instance- in the case of Manjeet Singh v. National Anti-Doping Agency. The Sports Authority of India (‘SAI’) had tasked certain sports medicine professionals to tend to the boxer, after the athlete was involved in an accident, consequently suffering a back injury. Unexpectedly, the doctors issued him prescriptions for medications that contained a prohibited substance. The individual subsequently tested positive for clostebol, a steroid that is found in clostagen and was on the list of prohibited drugs. The Athlete was then confronted with the possibility of having his or her participation in forthcoming athletic events prohibited, and was forced to appear for multiple hearings and submit an appeal to the NADA’s Anti-Doping Disciplinary Panel (‘ADDP’).

The NADA is solely functioning as a screening and sentencing entity at present. It has not yet undertaken sufficient efforts to educate all Athletes or sportspersons of the doping standards, the rights and obligations of athletes, or the processes and regulatory standards that must be followed by Athletes. It’s indeed undeniable that NADA has neglected to carry out its positive obligation of educating athletes and has devoted itself to fulfilling solely its negative duty of penalising them.

CASE STUDIES INVOLVING INDIAN ATHLETES

The major shortcomings of NADA have been highlighted through the following case studies:

Case Study 1: Amar Muralidharan v. NADA

The necessity for quick and efficient decision-making processes at the national level in the country is highlighted by this case study. Amar Muralidharan’s case showcases NADA’s failure in fulfilling not only their positive duties, but also highlights their laid-back approach in disposing of cases and exercising their penal obligations. In a majority of the instances, NADA has surpassed deadlines without reasonable cause, and in a few instances, the delay was so severe that verdicts were reached about two years after the occurrence, even though theoretically the ban would have ended if the processes had been completed in accordance with the WADC itself. Indian swimmer Amar Muralidharan brought up the topic of unjustified delays in the first action brought by an Indian Athlete before the Court of Arbitration for Sport (‘CAS/TAS’). In this instance, the CAS reprimanded NADA for failing to uphold the fundamental procedural protections mandated by the NADA Rules.

Muralidharan asserted that the sample collection and storage procedure was highly flawed and in violation of the WADA International Standard for Testing. Muralidharan’s ban was eventually affirmed, despite the arbitrator’s conclusion that “NADA displayed a worrisome failure to efficiently, quickly, and responsibly manage the Appellant’s case.”

As is evident, NADA has not undertaken significant measures to comply with the principles of natural justice or the notion of a fair, equitable, and prompt trial. Albeit the above may be a unique instance or an exceptional matter, it just clearly depicts the state of helplessness that the Athletes in India have to endure.

Case Study 2:  National Anti-Doping Agency v. Nirupama Devi

This incident serves as a typical illustration of how, regardless of their best efforts, Athletes are often unable to prevent a doping infraction. The cases of Nirupama Devi and that of Jyotsna Pansare (National Anti-Doping Agency v. Jyotsna Pansare) highlights the issue of how the lack of awareness and education amongst both the Athletes and the coaching staff could lead to extremely grave consequences. In both instances, the usage of a routine cosmetic product that contained geranium oil allowed the prohibited substance to enter the Athletes’ bodies. When a routine test was conducted at a senior national judo tournament in Kolkata, India, in 2012, the sample taken from Nirupama Devi, tested positive for methylhexaneamine, a stimulant that was prohibited by NADA guidelines for use during competition. The ADDP and ADAP both were convinced that the prohibited substance entered the body of the Athlete due to regular usage, via skin absorption and was not intended for performance enhancement, and this claim was supported by the fact that she had a good track record and was a clean athlete. Subsequently, an appeal filed by WADA with the CAS, resulted in them overturning the decision of the ADAP and handing Nirupama a 2 year ban, who was merely reprimanded by the ADAP previously.

WAY FORWARD

The issue of doping appears to be getting worse every year as an increasing number of breaches are being found by NADA during testing. As can also be seen above from a review of the cases, that NADA has not taken on the role of education as vigorously as necessary, which places Indian Athletes in a position of enhanced risk, ultimately resulting in ADRVs. To strengthen the general anti-doping scenario in our nation, certain fundamental reforms must be made, such as -:

  • Building the system and infrastructure required for it to fulfil the function of an entity capable of promoting dissemination of information regarding doping standards and boosting knowledge of the laws and regulations, particularly for young amateur Athletes as well as those involved at the grass-roots level.
  • Publishing a manual or an updated booklet periodically in local languages would also help reach the rural population, hence educating them about prohibited substances.
  • Since a developing nation might not possess the same means and have the same goals as a developed country, implementing the WADC’s rules in a way that addresses the country’s social and economic requirements and conditions is crucial. Therefore, it is crucial to reconsider the NADA regulations as they apply to India and to critically appraise them while taking into account both the Indian context and relevant international legislation, thus making it more detailed and suited to the regional ecosystem.

Although the need to provide national governments and NADOs a fair bit of leeway in how the Code is implemented will always prevail, the goal of creating a level playing field in anti-doping is compromised, owing to the lack of synchronisation caused by this leeway. The system’s overall dependability is called into question in light of the same. Hence by working in collaboration with the NADOs, WADA has to strike a balance and ensure that anti-doping policies are not subject to any domestic systemic issues and that the flexibility allowed is controlled. Athletes may endure serious repercussions in addition to critical comments of the industry if anti-doping authorities fail to adhere to the stringent testing procedures, educational mandates, and operational requirements outlined by the WADA. Therefore, in order to produce the expected effect, the governing body i.e NADA, must guarantee that its anti-doping policy is transparent, coherent, and appropriately integrated into the doping protection mechanism.

*For any query, feedback, or discussion, Yash Dawda can be contacted at [yashdawda45@gmail.com]

*NOTE- The opinions and views expressed in this article are that of the Author(s) and not of SLPRR- the expressed opinions do not, in any way whatsoever, reflect the views of any third party, including any institution/organisation that the Author(s) is/are currently associated to or was/were associated to in the past. Furthermore, the expressions are solely for informational and educational purposes, and must not be deemed to constitute any kind of advice. The hyperlinks in this blog might take you to webpages operated by third parties- SLPRR does not guarantee or endorse the accuracy or reliability of any information, data, opinions, advice, statements, etc. on these webpages.

PREFERRED CITATION: Yash Dawda, National Anti-Doping Agency, India’s Failure in discharging its Positive Duties: Analysis of Information Dissemination and Athlete Awareness, SLPRR <https://sportslawandpolicyreviewreporter.com/?p=2427(opens in a new tab)> December 27, 2022.

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