Proposed National Anti-Doping Bill, 2021
The proposed National Anti-Doping Bill, 2021 – is it the need of the hour?
A swinging increase in competition and unparalleled expectations, combined with the shortfall in the number of sporting events, has coalesced into a gigantic amount of pressure on athletes, intensifying their urge and desperation to participate, perform, and moreover survive, in the world of sports. While athletes put in their sweat and blood into each such participation, to battle this mounting pressure, many often resort to the use of Performance Enhancing Drugs, commonly alluded to as doping. Simply put, doping is the use of banned and prohibited substances (drugs) by athletic competitors to enhance their sporting performance.
On the international front, in the world of sports, the World Anti-Doping Agency (WADA) has been established to battle the dangers of doping with the object of ensuring a level playing field and protecting the health of the athletes. WADA established a set of rules, regulations, standards and guidelines – the “WADA Code” – which is applicable and is required to be followed by all members and participants of every international sporting event. Similarly, at the domestic level, for national sporting events, each country has established its own Anti-Doping Organization and policies that mirror the provisions and compliances of the WADA Code, with minor tweaks considering the country-specific requirements.
In India, currently, the organization responsible for promoting, coordinating, and monitoring the doping control program in sports in all its forms is the National Anti-Doping Agency (NADA). NADA has its own set of rules and regulations, i.e., the NADA Code, for governing the menace of doping in alignment with the WADA Code. However, it must be noted that the NADA Code is merely a set of rules and not a legislation. There is hence, an on-going debate on the need for a proper national anti-doping framework through a legislation passed by the Parliament of India.
Foregoing this, the Hon’ble Sports Minister of India, Mr. Anurag Thakur, has presented a draft bill in the Parliament – The National Anti-Doping Bill, 2021 (the “Bill”) – to regulate anti-doping activities in sports and to give effect to the United Nations Educational, Scientific and Cultural Organisation International Convention (“Convention”) (to which India is a signatory) against doping in sport.
The Bill inter alia allows the authorities to initiate search and seizures of the property of athletes, coaches, officials, managers or suppliers, in accordance with the provisions of the Code of Criminal Procedure, 1973, where the authorities have reasons to believe that such foregoing personnel are involved in doping activities. Furthermore, it makes provisions in respect of other doping control processes such as collection of samples and testing, result management, hearing by the disciplinary committee and consequences thereof, and the procedure for appeal. .
A development worth mentioning is that, earlier, while the NADA Code only sanctioned and penalized athletes found guilty of the Anti-Doping Rule Violation (ADRV), through this Bill, the authorities intend to extend the scope of these sanctions to athlete support personnel as well. This includes coach, trainer, manager, agent, team staff, official, medical or paramedical personnel or such other person working with or treating or assisting an athlete who is participating in, or preparing for, a competition or event at the national level or international level. Nonetheless, the exact scope and applicability of the Bill is unclear as Clause 28 of the Bill, provides that the Bill shall apply to such athletes and sporting bodies which the Central Government may specify via notification in the Official Gazette, and the same has been very broadly dealt with in the Bill.
Further, the Bill adds to provide for the constitution and establishment of a board – the National Board for Anti-Doping in Sports – which would primarily be responsible for ensuring implementation of the provisions of the Convention and monitoring the compliance thereof, and shall consist of a Chairperson and two members, all appointed by the Central Government. Further, the Board shall also oversee the activities of NADA and may call for such information and reports from NADA as may be required for ensuring compliance with the provisions of the Convention and the WADA Code. Constitution of a Board and the creation of a hierarchy in the doping-control process has been missing from the original NADA Code.
The Bill seeks to maintain the sanctity of NADA as is, however, proposes to transfer the structuring of NADA from a Society (as it was originally formed) to a unit/ agency under the Bill with similar roles and responsibilities as initially undertaken by NADA. Similarly, there has been no significant modification in the doping-control process, the testing protocols, the resolution bodies and the sanctions awarded; except to the extent of penalising (with financial sanctions) the personnel found guilty of an ADRV.
The Bill provides for the establishment of a National Dope Testing Laboratory and other dope testing laboratories to ensure compliance with the international standards laid down by WADA. Since August 2019 and until recently, the accreditation of the Indian National Dope Testing Laboratory (New Delhi Laboratory) stood suspended as it was found to be in breach of the compliance standards set by the WADA. This resulted in several hardships and financial ramifications for both – the authorities and the athletes. Hence, establishing a laboratory under the Act would be a positive step towards strengthening the quality and standards of the National Dope Testing Laboratory, if the same is being established and governed by a dedicated authority. The Bill also seeks to include the Comptroller and Auditor General of India for inspecting and auditing the accounts of the Board as well as the National Dope Testing Laboratory to ensure proper functioning and transparency of the NADA.
A conspicuous drawback with regards to the Bill however, is that it fails to identify and make provisions in respect of the applicability of the Bill on, and the governance of, foreign athletes participating in India, committing an ADRV during events in India. Further, the Bill also fails to identify a way to recompense the other affected parties in a sporting event such as sponsors and broadcasters.
It is highly likely that WADA would not be onboard with the idea of a separate legislation for doping in sports as it already has a code in place which is used to sanction athletes, including life bans. While commenting on a draft legislation introduced by the United States of America for controlling and managing doping in the country, WADA highlighted that “It is likely to overlap laws in different jurisdictions that will compromise having a single set of anti-doping rules for all sports and all anti-doping organisations under the WADA Code.” WADA has also expressed concerns that future whistle blowers could be wary of spilling the beans because of the two sets of rules, the WADA Code and the respective legislation of the countries, under which they could potentially be prosecuted.
Considering the present governance structure of the NADA and keeping in mind the necessity to secure the integrity of the sporting events and to keep a coordinated check over various sporting malpractices, a proper legislative framework is a desirable solution to create a dope-free India. However, any such enactment of a legislation must be done keeping in mind universal sporting practices and the established protocols of the WADA – to avoid non-uniformity and conflict at international events. Further, considering the geographic and cultural structure of India, establishment of regional level dope control centres under the national level centre, providing education, knowledge and information to the athletes and athlete support personnel, to deeply help them understand the usage of the supplements and avoidance of the Performance Enhancing Drugs, is suggested.
Rashi Tater