Jul 25, 2020 10:15 UTC
| Updated:
Jul 25, 2020 at 10:42 UTC
What are the Anti-Doping Regulations in Indian Cricket?
Introduction
The Board of Control for Cricket in India (“BCCI”) has newly been defied by the resurgence of a problem concerning the National Anti-Doping Agency (“NADA”) and whether, like different Indian sports organizations, it should present itself to the power of NADA – by way of an agreement with anti-doping rules and testing methods, which completely mirror those set out by the World Anti-Doping Agency (“WADA”).
As things are, the BCCI is not NADA-obedient, as its self-power, what it considers to be a well understandable and effective doping control program. Additionally, the BCCI explains that because it is not listed as a ‘National Sports Federation’ by the Government of India (reasons discussed below), it must not fall in the range of NADA’s discretion.
Furthermore, the site rule, challenging players to present data about their spot daily (and discussed in further detail below), has always been a bone of competition for the BCCI, summoning privacy matters. As such, agreeing to NADA’s jurisdiction would mean, among other matters, an unspoken acceptance of the WADA/NADA spots principle.
This article attempts to explain the benefits behind the BCCI’s request for a jurisdictional license, particularly by considering the following issues:
- Should the BCCI come outside NADA’s jurisdiction merely because it is not (technically) assigned as a ‘National Sports Federation’ (“NSF”) by the Government of India (hereinafter referred to as the “Government” or “GOI”)?
- Are the ‘whereabouts’ rule invasive and a breach of the ‘right to privacy’?
- National Sports Federation: a mere technicality?
National Sports Development Code of India
According to the National Sports Development Code of India, 2011 (“NSDC”), an NSF in India is “responsible for the overall administration, control, direction, organization, development, subdivision and support of the system for which they are approved by the concerned International Federation”[1].
Once acknowledged by the Ministry of Youth Affairs and Sports (“MYAS”), established under the Government, NSFs are qualified to obtain financial support and sponsoring from the Government.
Besides, an NSF would also have the capacity to (among others):
- Preferred national teams who serve India;
- Follow the word India in its title;
- Monitor and check the sport in India; and
- Avail of special types of duty, income tax, and foreign exchange exceptions under relevant laws[2].
The case of the Board of Control for Cricket in India & Anr. v. Netaji Cricket Club & Ors.[3], the Supreme Court of India (“SC”) mentioned that the BCCI “enjoyed a copyright status as respects the management of the sport of cricket…enjoys advantages by way of tax exclusion and the power to use stadia at a low annual rent. It makes a huge interest not only by selling tickets to the watchers but also by marketing the right to show films live on TV…As a member of the ICC, it serves the nation in international conferences. It uses large public gatherings. It has the authorization to decide players, referees, and leaders to serve the country in international conferences. Its power over the sport of competing for cricket is long, pervasive, and complete…”
Accordingly, as a somewhat logical conclusion, one could be excused for thinking that the BCCI passes as an NSF for the objectives of the NSDC. Though, especially, the BCCI does not highlight among the list of India’s 53 identified NSFs on the MYAS website (as updated from time to time)[4].
One of the grounds for this, as asserted by the former Minister of State for Youth Affairs and Sports, Mr. Vijay Goel in parliament, is because the BCCI has nevermore asked for GOI funding and not has it helped from any donations from the GOI[5].
A similar attitude was beforehand selected by the SC in the case of Zee Telefilms Limited v. Union of India [6] in deciding whether the BCCI appointed a ‘State’ (i.e. a body performing a public function) for the objectives of the Constitution of India. It was believed that the BCCI is not “cumulatively…financially, functionally or administratively managed by or is below the direction of the Government. Thus, the light power that the Government may be said to hold on the Board is not pervasive. Such control is merely administrative and nothing more.”
Whereabouts in Indian cricket in a nutshell
The ‘whereabouts’ law, imposed by WADA, has remained in presence for almost 15 years now. A player is expected to present their national anti-doping organization with aspects of where they can be transferred (during one hour every day) for extraordinary testing during out of competition days. The part of surprise associated with such drug examination is designed to work not only as a doping hindrance for athletes but also as a means of raising the likelihood of anti-doping authorities catching cheaters.
Given the logistically difficult task of controlling the whereabouts of each player, world-over, the whereabouts rule involves just to ‘elite athletes’, or in other terms, those who work part of what is termed a ‘Registered Testing Pool’ (“RTP”). These athletes are acknowledged by international federations and national anti-doping bodies.
Players who fail 3 drug tests within a period of 12 months are then held to have performed an ‘anti-doping rule violation’, which suggests they will be responsible for penalties, subject to relieving factors and fault-related results. In India, NADA is effective for classifying the RTP and receiving and watching whereabouts filings made by each player in the RTP (Article 5.6 of the NADA Code).
Though, with Indian Cricket, the BCCI has used its anti-doping code (“BCCI Code”), which gives for a measurement regime with a ‘soft’ whereabouts management. To confuse things further, the ICC also has its anti-doping code, which mirrors that of WADA’s (including the whereabouts provisions).
Article of the BCCI Code recognizes the ICC’s potential to discover an RTP through which Indian cricketers would be expected to provide their whereabouts. Accordingly, on the face of it, Indian cricketers who are part of the ICC RTP are typically subject to the ICC jurisdiction, who, just like any other player, would be directed to WADA jurisdiction.
Nevertheless, Article of the BCCI Code provisions that where a cricketer is part of both, the ICC and BCCI’s RTPs, the BCCI would be qualified to receive such whereabouts filings from cricketers, to limit duplication. This efficiently means that if the ICC describes an Indian cricketer to be a member of its RTP, the BCCI by the subsequent suit, could receive authority over the cricketer’s whereabouts filings – something that should ideally be NADA’s capacity – therefore endangering the clarity and confidence of the anti-doping testing management in Indian cricket.
Hence, while the whereabouts control remains under the BCCI Code, it is recommended that it operates in sign only, as there is no speaking how if at all, the BCCI controls the whereabouts of Indian cricketers. This is additionally helped by the fact that the BCCI has openly opposed [7] the whereabouts management on various incidents, summoning privacy violation matters.
[1] Ministry of Youth Affairs and Sports, Government of India, National Sports Development Code of India, 2011, paragraph 6.1(b) at page 10. Available at: Source Link.
[2] Ibid, paragraph 3.6 at page 5 and 6.
[3] AIR 2005 SC 592: (2005) 4 SCC 741. Paras 80-82
[4] Ministry of Youth Affairs and Sports, Government of India, ‘List of Recognised National Sports Federations for the Year 2018’. Available at: Source link.
[5] Government of India, Questions answered by the Sports Minister in the Lok Sabha, unstarred question number 1651 answered on 27 July 2016.
[6] AIR 2005 SC 2677: (2005) 4 SCC 649.
[7] Bhose, B., (2017), “BCCI CoA Happy with Existing Anti-Doping Measure, Feels Players Don’t Need to Sign Whereabouts Clause”, CrickNext, available online [Source Link], accessed 10 August 2018.
