BCCI got it wrong, it does come under Nada: Here’s why it has to comply with dope-testing rules

What is the road ahead for National Anti-Doping Agency after BCCI has rejected the proposal to allow testing in cricket?

The Board of Control for Cricket in India has rejected the proposal of the National Anti-Doping Agency that it be allowed to do testing in cricket at the national level as stipulated in the World Anti-Doping Agency Code and the International Cricket Council rules.

Given the stand the BCCI had adopted on this issue through the past eight years, the latest posturing by the cricket body has not come as a surprise.

From the communication that the BCCI CEO Rahul Johri has addressed to the Nada Director General and the Union Sports Ministry, it becomes clear that the Board has been under the mistaken belief that a sports body has to be a Government-recognised National Sports Federation in India for Nada to have any testing authority in that sport.

“At the very outset it is necessary to clarify that the BCCI is not a national sports federation but an autonomous sports organisation affiliated to the ICC, which governs the game globally,” Johri has written.

BCCI does come under Nada jurisdiction

It is true the BCCI is not a recognised National Sports Federation. But within the rules of the Nada and those of the ICC and Wada, the BCCI does come under the jurisdiction of Nada. A sports body in India need not be a government-recognised federation for a Wada-affiliated National Anti-Doping Organisation to exercise its authority over it.

A Nado has the primary authority to adopt and implement anti-doping rules at the national level as per the Wada Code. It also has authority to collect samples, manage test results and hearings at the national level.

The rules of India’s Nado, which is Nada, define a national federation as: “A national or regional entity which is a member of or is recognised by an International Federation as the entity governing the International Federation’s sport in that nation or region.”

Note here: there is no mention that a national federation is required to be a recognised body of the government of India. Once it is established that it is a body recognised as the one governing the particular international federation’s sport it comes under the jurisdiction of Nada.

What do the ICC rules have to say about a national federation?

“A national or regional entity which is a member of or is recognised by the ICC as the entity governing the sport of cricket in a country (or collective group of countries associated for cricket purposes).”

So, the assumption that the BCCI can escape the legal status of Nada, in terms of its right to test in cricket at the national level, cannot simply be based on the argument that it is not a national sports federation. Different countries have different nomenclature to describe a national sports federation. That should not mean they can avoid being subject to the Wada rules even as the concerned international federation is a Code signatory.

It is up to the Wada to determine whether the ICC is Code-compliant when a major unit of that international federation, with enough clout to swing practically any decision in its favour because of its overwhelming financial superiority, has defied the national anti-doping authority.

No cricket federation has forbidden their Nado

Just because the BCCI has a “robust” dope-testing mechanism or because it is the national cricket federation that does the maximum number of tests every year among all the ICC affiliates or it follows the ICC anti-doping code (though in considerable breach), an argument cannot be put forward to say that the existing arrangement is adequate and there is no room for Nada.

In the pre-2009 phase in India, when Nada was yet to come into existence, every national federation, at least in Olympic sports, had its own anti-doping testing arrangement, in collaboration with the Sports Authority of India. It might not have been as “robust” as that is being claimed by the BCCI of its own programme, but just because of the availability of such an arrangement, neither the Government of India nor the Wada allowed any concessions to these national federations.

Between 2001 and 2008, the national federations in non-cricket sports handled around 300 doping cases in India and many of the athletes were penalised either with fines or suspensions though the Delhi laboratory, at that time, was yet to be accredited.

Since the Wada Code came into existence in 2003, the definition of a National Anti-Doping Organisation has remained the same: It is the primary authority to manage anti-doping measures at the national level.

Some of the ICC member units do have rules that allow a role for themselves at the national-level anti-doping management. But so far there is no information that any country’s cricket federation has forbidden that country’s Nado from carrying out its functions if such a body was in existence.

If the BCCI has been following Wada’s International Standards, as had been claimed in the letters, so has the Nada been since its inception. The national agency is supposed to follow them since it is signatory to the Code, which the BCCI is not.

What could be the road ahead?

After having taken a firm stand, the Sports Ministry seems to have climbed down in recent days. Its letter to the Vinod Rai, chairman of the Supreme Court-appointed Committee of Administrators, pointing out a communication from the Wada, has been responded to by Johri.

In that letter, the ministry had reportedly told the BCCI that its non-cooperation may result in the Wada declaring Nada as “non-compliant”. The BCCI response, it has been emphasised, was under the “instructions of the Supreme Court-appointed CoA”.

Will the ministry which directed Nada DG Navin Agarwal, to go ahead with dope-testing of cricketers in domestic competitions, back off at this stage?

If it does, it will be a letdown of sorts and it can give ideas to other national federations. Indeed, a majority of the other federations, if not all of them, are dependent on the Government for financial support unlike the cash-rich BCCI that is ostensibly trying to protect its players from the intrusive “whereabouts” rules that may require players disclosing their residential addresses. But money should not dictate policies or adherence to international conventions and treaties.

The Ministry can approach the Supreme Court since the CoA has supposedly approved the BCCI response to the Government, with the plea that it has a responsibility to follow the Wada Code not just as a signatory to the Code but also as a signatory to the Unesco Convention against Doping in Sport 2005. The Convention requires signatories to take appropriate measures to facilitate anti-doping efforts at the national and international levels “consistent with the principles of the Code”. The Government can seek a directive from the Supreme Court to the BCCI to fall in line with the arrangement followed world-wide.

The courts have ruled that when private bodies perform public functions, Government has the right to intervene and enforce its regulations.

The Gazette notification of 31 December 2008 states:
““F. No.21-4/2008-ID-In pursuance of the setting up of the National Anti-Doping Agency (Nada) vide Cabinet decision dated 15-12-2004 as an Apex authority in the field of Anti-Doping in Sports in the Country and in terms of the World Anti-Doping Agency (Wada) code, the Government of India hereby notifies the Nada Anti-Doping Rules framed by (Nada) India laying down the conditions for Athletes and Athletes support personnel for participation in sports events as also the manner of collection of samples for dope tests, management of Test Results and conduct of hearings at national level. These Rules will come into effect from 1st January 2009 and will apply to the whole of India.”  

It says “anti-doping in sports in the country”, not particular organisations or federations.

If a legal recourse is not being taken, Nada can recommend to the Ministry to de-recognise BCCI as a sports body controlling cricket in the country. Even if there is no “recognition” as such granted to the organisation by the ministry there is always a ‘de facto’ recognition that helps the BCCI in several areas outside financial assistance.

Nada and the Ministry can also write back to Wada to state that the BCCI is not within its control nor dependent on Government funding and it would be up to the ICC to take appropriate measures when the BCCI has completely ignored the “ICC template” for national federations.

There are 58 references to NADOs in the ICC template for national federations anti-doping rules. The BCCI rules have none. Yet, the ICC feels the Indian Board has followed its template. And the BCCI argues that it had been following the ICC rules all these years.

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