By: Milind Rajratnam and Srishti Bhargav
When Harry Potter got a herculean task in the Triwizard Competition to find the Golden Egg which was hidden deep inside the Black Lake, Neville Longbottom gave him Gillyweed, so that he could breathe underwater. This phenomenon exists not only in fiction but also in real life.
An increase in competition and the demand for more results from the athletes have exposed them to an enormous amount of pressure. In order to combat this pressure, they usually resort to Performance Enhancing Drugs (hereinafter ‘PED’), commonly referred to as doping. Doping in the sports arena is a contentious issue as it strikes at the spirit of fair play and hampers the spirit of Olympism. The use of PEDs is banned as it is considered unethical and it also adversely affects the physical and mental health of the athletes.
COPING WITH DOPING
Efforts to combat the menace of doping have been made since 1960, but more serious efforts were made in the 21st century with the establishment of World Anti-Doping Agency (hereinafter ‘WADA’) by the International Olympic Committee. In the year 2004, the World Anti-Doping Code (hereinafter ‘the Code’) was first implemented, after which it has been amended several times to meet the challenges of the ever-growing advancements in sports. WADA ensures the enforcement of the Code and also coordinates with Regional Anti-Doping Organizations (hereinafter ‘RADOs’) to help other countries to develop Code compliant anti-doping regime so that athletes in all the nations worldwide are subjected to the same anti-doping processes and protocols. In addition to these, another major function of WADA is educating and spreading awareness amongst the athletes regarding the adverse effects of doping.
UNESCO, for the purpose of effective implementation of the Code, adopted the International Convention Against Doping in Sport (hereinafter ‘ICADS’) in the year 2005, in which over 170 countries came together for applying the force of International Law to fight the menace of doping in sports.
India has also ratified the ICADS in the year 2007 and to fulfil the obligations of the ICADS, the Ministry of Youth Affairs and Sports has established the National Anti-Doping Agency (hereinafter ‘NADA’). NADA was established with the objective of implementing the Code compliant with anti-doping rules and standards in India. To educate and create awareness amongst the athletes regarding doping, NADA also developed an extensive education program, namely Mass Athlete Awareness Program Against Doping (hereinafter ‘MAAPAD’).
In the present blog, the authors are going to critically analyse the Code and NADA rules and its impact on the Indian sporting arena along with suggesting the measures that can help in improving the situation.
CRITICAL ANALYSIS OF WADA
The rule of strict liability that originated in the case of Rylands v Fletcher states that lack of fault or mens rea is not a defense to liability. This rule has made its way in sports law also as Article 2 of the Code makes an athlete strictly liable for any banned substance entering his body and therefore an athlete is bestowed with the duty to guard his body against any prohibited substance that may enter his body. In case the athlete is found guilty of using, attempting to use or possessing a prohibited substance for the first time, the Code is lenient to some extent, but in case of repeated offenders, the Code is extremely strict as it provides a 2-year ban on the first-time offenders under Article 10.2 of the Code and a life-time ban on the third-time offenders under Article10.7.2 of the Code. Also, by virtue of Article 10.8 of the Code, the presence of any prohibited substance in the sample of an athlete will result in the forfeiture of his medals, prizes or points won in that competition, along with automatic disqualification from that competition.
Further, Article 3 of the Code specifies the burden and standards of proof and states that the initial burden of establishing that the athlete indulged in doping lies on the relevant anti-doping association. After this, on the basis of the Balance of Probabilities principle, the athlete may establish any fact or circumstances or rebut any presumption. Since the lack of intention or negligence is not a defense under this Code, the shifting of the burden of proof becomes difficult. In case, an athlete is able to negate the presumption of intention then the ban may be amended ranging from a mere warning to a maximum disqualification of 1 year without the imposition of a lifetime ban. Also, to maintain the objective of the Code and to preserve the rights of athletes, the Code provides a chance to reduce or waive the allegation, but that too under truly exceptional circumstances.
MAJOR PROBLEMS ASSOCIATED WITH DOPING IN INDIA
NADA has adopted the standards of WADA without making any changes or even considering its practical and legal consequences in India. In India, a large number of athletes, including M.C. Mary Kom, Deepika Kumari, Umesh Yadav, Sushil Kumar come from rural backgrounds. Also, the common intention of most of the athletes in India behind taking up sports is personal rather than professional as government jobs are easily available through sports quotas. Due to these reasons, the lack of total awareness regarding the doping standards of NADA is not a surprise. Further, a number of ordinary medicines that are meant to cure common pain or illness, and even some daily used products also, contain some amount of banned substances. This is the reason why most of the doping incidents in India are caused due to lack of knowledge regarding the presence of banned substances.
In National Anti-Doping Agency v Jyotsana Pansare, the banned substance entered into the body of the athlete through a beauty product that contained germanium oil. Similarly, in Manjeet Singh v NADA, the banned substance entered into the body of the athlete through medicine that was prescribed by a doctor specialising in sports medicine. In a more recent case where 6 Indian athletes tested positive for doping, the banned substance found in their urine samples was Ginseng. Later, the investigation proved it was given to them by their coach who bought it because the Sports Authority of India was reluctant in providing supplements to the athletes despite repeated requests by the coach. The case had gone to the Court of Arbitration for Sports, Lausanne, where the athletes were held at fault and were banned from playing for 4 years. One of the athletes, in that case, was a tribal girl who was unable to understand Hindi or English and belonged to a backward section of the society and it cannot be reasonably expected from her to conduct research on each and every ingredient before consuming it. Therefore, we can say that the rule of strict liability combined with the problem of lack of knowledge among the Indian athletes can lead to a disaster in the Indian sporting arena.
Notwithstanding, the rule of strict liability creates a fear among the athletes to not resort to doping, it has the tendency to lead to injustices at an individual level. There have been cases where it was not the athlete but the coach who has administered the prohibited substance. So here, the question arises that whether there should be application of the principle of strict liability only on the athlete when we are well aware of the fact that in some cases, the responsible authorities do not take their work seriously.
Another contentious issue is that of NADA’s pedagogy. Its educational programs are conventional as the language mainly used is English, which may not be easy to understand by most of the athletes as most of them belong to rural areas and have studied in State Board schools. Owing to this, there are many cases in which athletes have taken the plea of unknowingly committing the violation due to lack of knowledge.
Although India has taken steps towards dealing with the menace of doping, there is a long way to go to be on par with other nations in this regard. Besides the requirement of amending the provisions of NADA in accordance with the Indian context, NADA should also play a more proactive role by making their programs more athlete-friendly. It should focus more on creating awareness amongst the athletes regarding the harmful effects of doping rather than punishing them. To do so, the programs and the presentations should be conducted in the vernacular language of the athlete as it helps in acquainting them better with the technicalities of doping.
NADA should also provide a complete list of banned substances in regional languages to the athletes so that they can have a better understanding relating to that. Crackerjack coaches should be appointed who train the athletes to perform at their highest level without the use of any PED rather than the ones who dupe them into taking those PEDs.
Apart from this, the responsible authorities should encourage a transparent, fair and trustworthy system as well as provide the necessary support to athletes because the allegations of doping can greatly hamper the reputation and livelihood of an athlete.
We suggest that a balance has to be maintained between the objectives of this Code and the rights of the athletes by putting some obligations upon the authorities, and along with it, stringent actions should be taken against the authorities, in case of non-compliance.
(Milind and Srishti are currently law undergraduates at Dr. Ram Manohar Lohiya National Law University, Lucknow. They may be contacted at https://www.linkedin.com/in/milind-rajratnam-60a390165/ and https://www.linkedin.com/in/srishti-bhargav-5ba9ba17b/ respectively.)
Cite as: Milind Rajratnam and Srishti Bhargav, ‘Anti-doping Law: The Quagmire of Enforcing WADA Norms in India’ (The RMLNLU Law Review Blog, 08 April 2020) <https://rmlnlulawreview.wordpress.com/2020/04/08/anti-doping-law-the-quagmire-of-enforcing-wada-norms-in-india> date of access.