Anti-Doping and its Current Judicial Scenario in India

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Anshul Kulshrestha
Anshul Kulshrestha
Anshul Kulshrestha is an Advocate Member of Delhi High Court Bar Association. Experienced in handling matters relating to property disputes, consumer protection, negotiable instruments act, environmental law, IPR, arbitration, banking, and insurance quasi-criminal matters and has been exclusively looking after matters in the Delhi High Court, District Courts and Various Tribunals in Delhi.

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Sports have always been a source to teach one the basic principles of morality, discipline, and time management. This field has always played a cardinal role in peoples’ life may it be the time of the 1980s or 2020,  it united the people of the country and brought them under the same platform where they do not exist as people of a different religion but as a people of the same country same soil. However, this noble character of this field has withered away due to some unethical behaviour of the sportsmen, one of them is doping. The offence of doping has deeply affected the roots of this disciplinary field as it has taken away the very nature of this field. But before coming into any conclusion about sportsmanship this article will help to examine why doping is an offence in sports law and the nature and consequences of committing this offence and will help to critically evaluate the effectiveness of current. Antidoping sanctions and whether this offence should be criminalized or not. It is high time to make doping as a stringent offence and to criminalize it to establish a deterrent theory in the history of professional sports.

What is Doping?

Doping has not been defined properly in any legal document. Rather the content of a “doping” offence is defined by the sports different organizations in their own respective manner. Therefore, the definition of doping generally varies between international sports organizations[1]. The consequence of the hierarchy structure binds the national organization to adopt the definition of doping from the international organizations and set them in their norm, standard, and rules for anti-doping sanctions.

But in layman’s language doping is the consumption or use of any performance-enhancing substance (PES) or method which has been categorized as a prohibited substance by WADA (World Anti-Doping Agency). PES leads to an increase in immunity, muscle mass, and strength and helps them to outperform themselves.

The word doping is probably derived from the old Dutch word “dop”, which was the name of an alcoholic beverage made of grape skins used by Zulu warriors to enhance their prowess in battle[2].

Further, the World Anti Doping Agency has given a distinct definition to the word ‘doping’ in its Article 1, which defined it as “Doping is defined as the occurrence of one or more of the anti-doping rule violations set forth in Article 2.1 through Article 2.10 of the Code”[3]. Therefore, the definition of doping may differ from organization to organization but the meaning remains the same i.e., consumption of the prohibited substance.

The reason why Doping is an offence in professional sports?

WADA in its code has explained the fundamental rationale to have anti-doping sanctions. According to WADA to preserve “ the spirit of sport” it is essential to regulate the anti-doping norms of international, national organizations or event-based organizations. Further to provide equal opportunity to each sportsman to showcase their performance without the consumption of prohibited substance and to provide them level playing grounding the existence of World Anti- Doping Code, 2015 and another anti-doping sanctions are required.

WADA has defined “The spirit of sport is the celebration of the human spirit, body, and mind, and is reflected in values we find in and through sport, including

  • Ethics, fair play and honest
  • Health
  • Excellence in performance
  • Character and education
  • Fun and joy 
  • Teamwork
  • Dedication and commitment
  • Respect for rules and laws
  • Respect for self and other Participants
  • Courage
  • Community and solidarity”[4]

The offence of Doping contravenes this sportsmanship spirit and it violates the equality rights of other participants, which again results in human rights violation as set by the Universal Declaration of Human Rights. Therefore, to give equal rights and for equal protection of the law, it is necessary to make doping as an offence.

WADA and its Role in Anti-doping

World Anti Doping agency is an international independent agency established in the year 1999 to promote, monitor, and coordinate the fight against doping in sports in all its form and to preserve the ‘spirit of sportsmanship.’ In the light of the above objective, WADA formulated the World Anti Doping Code, 2015 which is a core document that harmonizes anti-doping sanctions of all the organizations which are its signatory around the globe.  It works in conjunction with six International Standards which aim to foster consistency among anti-doping organizations in various areas: testing; laboratories; Therapeutic Use Exemptions (TUEs); the List of Prohibited Substances and Methods; the protection of privacy and personal information; and Code Compliance by Signatories[5].

According to the World Anti-Doping Code (Code), an athlete can be shown to have violated the anti-doping provisions:

“when a prohibited substance is detected in the urine or blood sample;

when the athlete uses or attempts to use a prohibited substance or method;

when the athlete tampers with or attempts to tamper with a doping sample.

An athlete’s urine or blood can be tested for the presence of a prohibited substance in one of the thirty WADA-accredited laboratories throughout the world”[6].

Anti Doping Rules Violation (ADRV)

Article 2 of World Anti Doping Code, 2015 provides for the Anti Doping Rules Violation, which states that under the strict liability principle the presence, possession, use or attempted use of any prohibited substance or its metabolites or markers in the specimen of an individual during  In competition and Out Competition Testing would be lead to violation of Anti Doping Rules under this Act. Further, it also provides that the act of evasion or refusing or failing to submit samples or where about will also come under the violation of Anti Doping Rules. A violation occurs with or without the intention of the athlete, for the violation the presence or possession is enough to charge the athlete of a doping offence.

Article 3 of the Code further provides that the burden of establishing is on the Anti- Doping Organization to prove that the Anti Doping Rules Violation ( ADRV) has occurred.

Data Collection of Athletes

The Whereabouts of the Athlete should be collected by the Anti-Doping Authority so that a track can be maintained of their activities. WADA has established the Anti-Doping Administration and Management System (ADAM) for the data collection purpose. ADAM is a web-based data management and processing tool which collects, stores, shares and reports the designated information to stakeholders and WADA for anti-doping operations in consonance with data privacy acts.

What is a prohibited substance? And whether the meaning of prohibited substance differs in a different organization?

But after discussing the brief about doping and WADA another question would be there that what are the prohibited substance, who defines them, and which drug can be called a prohibited substance. Article 4 of the World Anti Doping Code, 2015 defined the prohibited list if any substance comes under this list it will be called as “ specified substance” and the consumption of that substance will lead to Anti Doping Rule Violation ( ADRV). On an annual basis, WADA specifies the list of prohibited substances. Some of the specified substance are listed below:

  1. Steroids
  2. Human Growth Hormone( HGH)
  3. Erythropoietin(EPO)
  4. Stimulants
  5. Narcotics
  6. Amphetamines
  7. Insulin
  8. Blood doping

The next question which arises is whether each organization has to follow the same list of prohibited substances as set by the WADA? All the signatory to WADA has to follow the prohibited list and guidelines framed by the WADA. Moreover, Event-based Organizations Like FIFA, Olympic, and Paralympic can apart from this set forth their own set of prohibited substances.

In the recent 2019 Prithvi Shaw’s case, in Prithvi’s urine a specified substance, ‘Terbutaline’ was identified in a B sample test due to which he was banned by BCCI for 8 months. Though he did not have any malice to do doping in Syed Mushtaq Ali Trophy match just because his cough syrup contained this prohibited substance he was disqualified by BCCI in the violation of anti-doping rules. Court of Arbitration of Sports (CAS) has clearly laid down that anti-doping rules violation is strict liability, which means even though the participant did not have any intent to commit doping he/she will be banned for the offence of commission of anti-doping merely by the presence of a prohibited substance.

Exemptions under which prohibited substance can be used

Article 4.4 of the WADC, 2015 provides that the presence, possession, use or attempted use of a prohibited substance or its metabolites or markers in an athlete’s sample shall not violate the Anti Doping Rules Violation if it is consistent with the provision of Therapeutic Use Exemption (TEU) granted by the International Standard for Therapeutic Use Exemption (ISTUE). For claiming the benefit of TEU  the athlete has to make an application to respective organizations as provided in the Code to seek the exemption under TEUS. The respective organizations shall comply with the conditions set forth by the International Standard for Therapeutic Use Exemption (ISTUE) after fulfilling all the conditions the exemption under Therapeutic Use Exemption shall be granted.

In the case of Prithvi Shaw’s case, he failed to comply with the TEU provision therefore, in this case, Adverse Analytical Finding was reported in his sample by the WADA accredited laboratory.

Who can take the test or sample of anti-doping?

The anti-doping test is conducted by the Anti-Doping Organization with the testing authority. The anti-doping test is of two types- In-Competition test and out-of Competition Test. In-Competition test is undertaken in connection with competition event generally, 12 hours prior to the competition, and completes at the end of the competition. While out-of Competition test or Targeted Doping Test is carried out of the competition for the non-approved substance or for anabolic agents and other marking or prohibited substance. The Code provides that the sample can be analyzed only by the WADA accredited or approved laboratory. This is the guidelines which World Anti Doping Agency has set for the testing and investigation of sample and which need to be followed by each signatory of WADA.

Rights of Athlete during the doping test

The Anti- Doping Agency has provided certain rights to the athlete for providing natural justice to the Athlete. His rights include the following during the doping test:-

  1. To be informed of the result of the test;
  2. To get test under B Sample if A Sample result comes positive within the specified time;
  3. To present at the time B Sample test is opened and Analyzed;
  4. To get accompany of any specialist of his/her choice when the B Sample test is conducted[7].

The athlete is also provided with the right of fair hearing after the report of anti-doping rules violation comes. All rights have been guaranteed to make him available all the means of natural justice and fair trial.

India’s stance in Doping Offence

National Anti Doping Agency  (NADA)  has been set up in India to regulate and monitor the anti-doping sanctions. On November 24, 2005, it was registered as a society under the Societies Registration Act, 1890. In India, it is the main organ that regulates the functionality of doping-free sports.

In 2017 India has been ranked 7th in  World Anti Doping  Rules Violation (ADRV) and 5th rank when it comes to Adverse Analytical Findings ( AAF).  It’s an alarming signal for India to make doping as a stringent offence so that we can combat doping offence. Russia has been disqualified for 4 years from the Olympics due to their negligence in combating doping offences. India should get alert from this and make its doping offence hard enough to establish the theory of deterrence for the upcoming offenders.  Among the NADOs, India’s National Anti-Doping Agency (NADA) recorded 109 ADRVs, the second-highest behind Russia’s (127)[8] in the 2015 report.

Prithvi Shaw’s Doping Test

In Prithvi Shaw’s doping case there was a delay in sending reports by the WADA- accredited National Dope Testing Laboratory (NDTL). The Laboratory received the sample on February 23 but the report of doping was received on April 5. In his urine, it contained ‘Terbutaline’ which was a specified substance for both In-competition and Out-competition in the WADA prohibited List of Substances. Questions arose regarding the effectiveness of BCCI’s anti-doping test. Even though his sample was taken for a doping test, he was allowed to play for Indian Premier League 2019 on March 23, this clearly states that in India Doping is not taken a serious offence. Moreover, the testing agency of BCCI should be efficient to give the reports within the time.   Another issue which was brought up, in this case, was that under the Art 10.11.2 of BCCI ADR ( Anti-Doping Rules) “a cricketer may return to train with a team or use the facilities of a club or other member organization during the shorter of:-

  • The last two months of the cricketer’s period of ineligibility; or
  • The last quarter of the period of ineligibility imposed[9]”.

Therefore, according to the above article, Mr Shaw may have returned to training after September 15. But he returned before September 15 so the issue was raised why Shaw was allowed to use the facilities at NCA in Bangalore. We can say it another flaw in Indian Anti-doping regulations.

Need for criminalizing the offence in India

With the increase in the number of doping offenders now the time has come in which we should think to criminalize the offence in India. After having such a good example case Prithvi Shaw’s doping case wherein even though he was banned from doping his ban was more for the namesake. If the punishment should be difficult the offenders would have fear in mind before committing it.

Now the current scenario of India is just that doping is an ethical offence the athlete or offender will only be banned for some time that too no stringency will be there in his or her ban. This relaxation is motivating more and more sportsmen to commit the offence of doping for their self-gain or to win the competition. It is against the principle of natural justice as it does not provide fairground to every sportsman to show their performance. Either doping should be criminalized or it should not be made an offence so that each individual gets equal opportunity to perform. Obviously, the latter option is not suitable for a welfare State like India so we should advocate the principle of criminalization of this offence for the betterment of the society as a whole.

Sport Minnows has always been intimated by their fans, but when some sportsman puts a black spot upon the true spirit of the game people lose interest over it and find sport as more a game of cheat. This not only harms the reputation of sportsmen but result in loss of faith and interest of people over sports. Basically, the reasons for the criminalization of doping offence is that:-

  • the stigmatic deterrent principle should be adopted to punish the doping offenders;
  • for an alteration of public belief in truth sporting performance.

The question is as WADA makes all guidelines for the regulation of anti-doping sanction why it is not making it a criminal offence. To substantiate this question, WADA answered in one interview that it does not want to interfere with the sovereign right of any state and if any state is intending to make doping as a criminal offence so they should set their own standards to criminalize the offence of doping.

As every offence which has now got criminalize was earlier pondered to make it stringent so that people have fear in their mind before committing it. Bottom states that ‘the facts of the prohibition, and citizens’ evolving response to it, can influence the development of a new strand of positive morality’ and further he substantiated the example of the offence of drink and driving about which there is now ‘ substantially greater moral disapproval… then was the case 30 years ago when it was first made a criminal offence.[10] The above statement of Bottom can be taken to make doping also a criminal offence.

The incarceration is the best way to establish deterrence in any offence. So we should strive to advocate this principle to bring a rapid and great change in professional sports.

Conclusion

The Indian Anti Doping Organization i.e  National Anti-Doping Agency has various challenges recently one of its challenges got solved when BCCI became the signatory of NADA and WADA. It gave a huge to anti-doping organizations as earlier it maintained its own rules and procedures for framing its own anti-doping regulations by claiming that it is an autonomous body. This was a big issue for NADA as BCCI failed to comply with its testing and investigation in consonance with WADA CODE, thereby resulting in delay and failure to get a proper result.

Another issue is that a doping offence is not taken seriously and is just treated as an ethical offence. Therefore, to combat doping it is necessary to make it criminalized.

Anti-doping Agency is now the heart of professional sports as it takes care of the principle of natural justice, equality, and fair play, which are t key essentials of any sporting activity. People should not deviate the meaning of sports by infiltrating it with unethical offences like anti-doping which not only affects the purity of sports but it also affects the morality of man. Due to rapid increase in this offence, the Anti Doping Agencies have stopped taking a valid excuse also to make it very stringent but WADA can alone not act as Anti Doping Agent unless its signatories support it to endeavour the basic objective of ‘ the spirit of sports’ and to provide a level playing ground to each and every individual. So the countries should adopt anti-doping norms strictly to preserve the basic ideals of sportsmanship.

[1] George Engelbrecht, Adoption, Recognition and Harmonization of Doping Sanctions Between World Sports Organisations, 3ff (2000). See generally, C. Prokop, Die Grenzen Der Doping Verbote 93 (2000).

[2]See: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2657503/

[3] https://www.frontiersin.org/articles/10.3389/fpsyg.2018.01890/full

[4] See: https://www.wada-ama.org/sites/default/files/resources/files/wada-2015-world-anti-doping-code.pdf

[5] See: https://www.wada-ama.org/en/what-we-do/the-code; https://sportsgranny.com/wada-the-code; http://www.ciss.org/wadas-fifth-world-conference-on-doping-in-sport

[6]  See: https://www.antidoping.ch/en/testing/control-procedure/analysis-methods-laboratories

[7] https://www.antidoping.ch/en/testing/control-procedure/analysis-methods-laboratories

[8]See:https://www.thehindubusinessline.com/news/sports/india-ranks-3rd-for-third-year-in-a-row-in-wada-doping-charts/article9615378.ece#

[9] https://www.sportsintegrityinitiative.com/anti-doping-rule-violations-during-the-bcci-domestic-season-2018-19/

[10] Bottom (2002), p.25


This Article is written by Mr. Anshul Kulshrestha. Mr. Anshul Kulshrestha is an Advocate member of Delhi High Court Bar Association. He is experienced in handling matters relating to property disputes, consumer protection, negotiable instruments act, environmental law, IPR, arbitration, banking and insurance quasi criminal matters and has been exclusively looking after matters in the Delhi High Court, District Courts and Various Tribunals in Delhi.


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