To address BCCI’s non compliance, Wada should press through ICC instead of threatening Indian body

If the Board of Control for Cricket in India refuses to subject itself to the jurisdiction of the National Anti-Doping Agency, as is mandated, should the latter be penalised by the World Anti-Doping Agency?

This is the question that has come up following the reported communication from Wada that Nada could be risking its compliance with the World Anti-Doping Code (WADC) in case it was not capable of being fully effective in carrying out tests across all sports in the country.

The Wada undertook an audit of India’s anti-doping measures last April, flagged several points and sought corrective measures from Nada and the Sports Ministry. The process could be going on, as it is with several other countries, but one of the contentious issues happened to be the “independent” functioning of the BCCI anti-doping machinery and its refusal to come under the Nada umbrella.

Wada’s letter to the Sports Minister, Rajyavardhan Singh Rathore has reportedly sought urgent assistance from the minister in helping Nada implement the anti-doping programme in cricket with the co-operation of the BCCI.

ICC amending anti-doping rules for India

Wada has told the minister that it was “following up” with the International Cricket Council. The ICC needs to be told to fall in line with the Wada rules before any “follow-up” action can become meaningful from a long-term perspective.

It was always difficult to understand how Wada could deem the ICC as Code-compliant. It is all the more so now when one looks at the ICC’s complicity in legitimising BCCI’s refusal to recognise Nada’s existence and its authority through an amendment to its own anti-doping code.

One had not noticed this amendment since the version of the ICC anti-doping code became effective from 15 December 2016. It could be possible this might have been done earlier than 2016 though in the 2010 and 2012 versions it is not available.

This is startling. That an international federation could amend its rules to provide a special status to a member country in relation to its anti-doping rules defies logic, leave alone description.

This is what the amended rule regarding appeal to the Court of Arbitration for Sport says:

“13.2.2 Persons Entitled to Appeal

In cases under Article 13.2.1, the following parties shall have the right to appeal to CAS: (a) the Player or other Person who is the subject of the decision being appealed; (b) the other party to the case in which the decision was rendered; (c) the ICC; (d) subject to Article 13.2.3 below, the National Anti-Doping Organization of the Person’s country of residence or countries where the Person is a national or license holder; (e) any other Anti-Doping Organisation under whose rules a sanction could have been imposed; and (f) Wada.

“13.2.3 Notwithstanding Article 13.2.2(d), the Board of Control for Cricket in India (the National Cricket Federation for the territory of India) does not recognise the authority or jurisdiction of the National Anti-Doping Organisation for India. Therefore, the right of appeal for National Anti-Doping Organizations under Article 13.2.2(d) shall not be available to the National Anti-Doping Organisation in India in respect of decisions taken pursuant to the ICC Code.”

This is an outrageous attempt to circumvent Wada rules. The Code is clear as far as the authority to test at the national level is concerned. It rests solely with the National Anti-Doping Organisation. It is also clear as far as appeals are concerned. From the national level, only the NADO has the right of appeal at CAS.

The provision that accepts the status of the BCCI over that of NADA is available in the latest (June 2017) ICC code version as well. This is an international federation proclaiming that one of its units does not recognise the authority of an entity that has the mandate of Wada to test in all sports at the national level.

The Code says: “Each National Anti-Doping Organisation shall have in-competition and out-of-competition testing authority over all athletes who are nationals, residents, license-holders or members of sport organisations of that country or who are present in that National Anti-Doping Organisation’s country.”

Yet, the ICC has been more or less silent about the status of NADOs in general and the one in India in particular through the years. At best, it has mentioned NADOs in respect of granting Therapeutic Use Exemption (TUE) or appeals or biological passport etc, but not about the fundamental authority and responsibility of a NADO except in the “definitions” para. The BCCI anti-doping rules that are also applicable to the Indian Premier League are silent on Nada.

Time for Wada to read the Riot Act?

From the 2016 amendment in the ICC rules it becomes apparent that among the ICC members, India is the only country that has a body that is defying the sole Wada-approved anti-doping authority in the country from carrying out its functions. It has got away with it so far, or so it would seem. It is time the Wada read out the Riot Act and sent the ICC back to the “non-compliant” category.

Can the ICC pressure BCCI into amending its rules and allowing a foothold for Nada? From the way the BCCI has conducted itself in this drawn-out battle for ‘’territorial supremacy’’, it looks doubtful unless there is a more pragmatic approach from the court-appointed Committee of Administrators (CoA) headed by Vinod Rai. Injeti Srinivas, the Sports Secretary till recently, had written to Rai seeking his intervention to set matters right, and he was hopeful about a solution.

As for Nada’s attempts to get the BCCI fall in line, they have been half-hearted so far. Now, armed with the Wada letter, there would be an urgency.

Any attempt to assume the testing authority role only on the strength of a Wada letter may, however, prove problematic if the BCCI decides to seek legal intervention. The BCCI rules, or for that matter the rules of a large majority of the National Federations, do not accept the jurisdiction of Nada which is mandatory to take over testing and “results management” authority.

The BCCI has never admitted that it was a national sports federation. Nor does it receive government funding which could have been stopped for non-compliance of Nada rules. Still, there are several areas in which the BCCI needs government help and approval and things can become tricky for it in the coming days.

Having come under Supreme Court scrutiny during the past year and given the background of Delhi High Court rulings regarding the legitimacy of the National Sports Code which recognises the authority of Nada, the time looks ripe for the Sports Ministry to intervene and clinch the argument in favour of Nada.

BCCI vs Nada is a long-standing feud

The BCCI-Nada feud is old, almost as old as the very existence of Nada which became operational in January 2009. From 2008, Nada had been writing to the BCCI to join the rest of the National Sports Federations (NSFs) under its jurisdiction for dope-testing, “results management” and hearing procedures. The BCCI did not respond.

Having signed the anti-doping Code in 2006, the ICC was declared “non-compliant” by Wada in November 2008. The disqualification had more to do with the lack of out-of-competition testing in ICC’s programme and a lack of “whereabouts”-based testing than anything else. The “whereabouts” policy was to rake up a huge controversy a year later, when leading Indian cricketers voiced concern over the possible intrusion into their “privacy”.

“Whereabouts” rules require athletes to be available for testing for a fixed period at a pre-designated place every day through the year.

By July 2010, the ICC brought out a “whereabouts” policy that was acceptable to the BCCI and was also approved by the Wada. The idea was not to disturb leading players at their homes and to confine the “whereabouts” testing at training venues and hotels during match days.

The Wada gives the freedom to the international federations to frame their own “whereabouts” regulations. The international federations, in turn, are engaged in testing international-level athletes and those competing in international competitions.

Domestic testing and other responsibilities, according to the Code, should be taken care of the NADOs. The NADO is an entity “possessing the primary authority and responsibility to adopt and implement anti-doping rules, direct the collection of samples, the management of test results, and the conduct of hearings at the national level.”

This is where the problem comes as far as the BCCI is concerned. Apparently apprehensive of the Nada “whereabouts” rules making things difficult for its stars at the domestic level (or so it has been made out all these years), the BCCI has not delegated powers to the Nada to carry out any testing in cricket in India.

Through the years, an impression has thus been created that the ICC has an anti-doping code that is different from that of the Wada, or the BCCI has its own rules that may not be consistent with either the ICC or Wada rules.

Once the ICC became Code compliant again in 2010, it was presumed that everything would be in order. But there were always variations, the BCCI example of not accepting Nada’s supremacy in domestic testing being a sore point for both the bodies.

A showdown looks inevitable now. It is for the Wada to press for a change in the BCCI policy through the ICC rather than for it to spell out the consequences of “non-compliance” to Nada on this issue.