Sports a specimen, use of a banned substance

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Last updated: May 30, 2019

Sports have been an intrinsic part of the human society since time immemorial and even back then sports always remained competitive. Today, as the competition and pressure to excel increases, sportsmen succumb to the use of performance enhancing drugs. Recent years have seen many cases of doping at the national and international level. Laws governing sports is evolving every day and it becomes imperative to look into different aspects of doping to find possible solutions.  This article attempts to understand the problem of doping, internationally and nationally, through two major cases, namely, German Football Federation Case and Amar Murlidharan v. NADA.

It critically analyzes the codes of WADA and NADA to understand their objectives and functions along with the procedures followed and sanctions imposed under it. Lastly, it attempts to understand the effect of this framework on athletes and suggest changes for improving the same. INTRODUCTION Andy Murray once famously said: “I don’t know how you judge whether a sport is clean. But if one in 100 players is doping, in my eyes, that isn’t a clean sport”      The Merriam Webster dictionary defines doping as the use of a substance or technique to illegally improve athletic performance. Doping is inherently opposed to the spirit of sportsmanship as it seriously compromises the health of the athlete, the chances of those playing fairly and the reputation of the sport itself. Laws regarding doping are at a nascent stage and require many modifications to keep abreast of the rapidly changing developments in sports.

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 WADA and ADRV (Anti doping Rules Violations):The World Anti Doping Agency, an autonomous international body, was created in 1991 to monitor the use of dope in all competitive sports. In India, it is the National Anti-doping Agency, under the Ministry of Sports which does the monitoring. The WADA has laid down ten ADRV, the violation of which entails strict investigation. These include positive presence of banned substance in athletes’ specimen, refusal to give a specimen, use of a banned substance or method, failure to inform whereabouts and missing tests, tampering with the process, trafficking or possessing a banned substance and complicity in ADRV. Principle of Strict Liability:Sports laws are principally founded on the English Court’s jurisprudence of strict liability as evolved in the famous case of Ryland v Fletcher. It states that there is an imposition of liability on the defendants who are neither negligent nor intentional of wrongdoing. The principle of strict liability has been incorporated in Article 2.1.

1 of the WADA code which states that- It is each athlete’s personal duty to ensure that no prohibited substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti doping violation under Article 2.1.

‘ It has been observed that an athlete, if found guilty, will be banned for two years for the first offence and will face a life ban for the second one. Burden and Standard of Proof: Article 3 of the WADA code states the Burdens and Standard of Proof. The Anti-Doping Association which conducts the test has the primary and preliminary responsibility of proving that the athlete has violated anti-doping norms. The standard is easily satisfied with a positive result for a prohibited substance.

Further, Article 3.2.1 lays down that any WADA accredited laboratory has to follow proper procedures for collecting sample and conducting analysis as set forth by the International Standard.  In the case of Z v DFB (German Football Association), Player Z was under a contract with a German football club called FCN.

After a match against another club his urine sample was collected and tests showed positive for steroids. The said substance was prohibited under the DFB list. B, employed as a dietician by FCN, monitored the nutrition of the players along with supervising their diet including that of Z. The tablets were given by B and the specific composition may have been unknown to the players. Sports law holds an athlete not guilty of doping if he can prove that the administration of drugs was forced. In this case there was a possibility that B gave Z capsules or medicines containing steroids without Z being specifically aware of it.

However, under sports criminal law an athlete will be held guilty of doping if he takes any prohibited substance negligently or even if he fails to regulate his food intake and corresponding intake of medicines. Z was found guilty of doping and a ban was imposed on him for nine months. The approach, in concurrence with the sports criminal law, taken was founded on the liability of Z, i.e.

where every player, is to take personal responsibility for all dietary intake including medicines and nutrition supplements.    The Indian Context- Setting up of NADA: In 1998 a huge scandal broke out when a large number of prohibited substances were found in a police-raid during Tour-de-France. Hence, a pressing need for an independent international agency to set unified standards of anti-doping along with coordinating the efforts of sports organizations and public authorities was felt. India became one of the signatories to the Copenhagen Declaration on Anti-Doping and the UNESCO International Convention against Doping.  Subsequent to this, on 24th November 2005, the Government of India set up National Anti-Doping Agency of India (NADA). In India, the doping test is done by National Dope Test Laboratory. The Anti-Doping rule of NADA is made in conformity with the WADA code of conduct.

The Agency is responsible for ensuring dope free sports. Its main objective is to implement the WADA code, regulate dope control programme and create awareness about doping and its side effect.  The main functions of NADA include-· Coordinating dope testing program through all participating stakeholders. · Promoting anti doping research and education to inculcate the value of dope free sport· Adopting best practice standards and quality systems to enable effective         implementation and continual improvement of the program. One problem that arises because of this conformity is that the NADA anti-doping rule takes no consideration of Indian ground realities. For instance, six commonwealth gold medallist athletes were tested positive for the presence of anabolic steroids in their urine sample taken both in and out of the competition. This led to a dispute between the athletes and NDTL which was assigned to test the supplements consumed by the athletes.

 The NDTL argued that the substance taken by the athletes had Ginseng pills which contained prohibited substance. Anti Doping Disciplinary Panel (ADDP) was set up which held that the athlete bore “no significant fault or negligence” and their suspension for a period of one year was overturned. NADA and WADA together filed an appeal against the decision where the decision was upheld. A second appeal was filed by the International Athletes Federation (the IAF), the WADA and NADA before the Court of Arbitration for Sports, Lausanne (CAS).

The CAS found them guilty and issued two years ineligibility for four of them, dooming their careers. In Amar Murlidharan v. NADA, the athlete participated at the National Aquatic Championship. He was one of the 39 players selected by NADA to give their urine sample. Out of the samples sent to NDTL, Amar Murlidharan’s sample tested positive for MHA, a prohibited substance under the WADA list. The Anti Doping Disciplinary Panel held it to be violative of Article 2.

1 of NADA and a 2 year ban was imposed. He did not have an option of appeal to the higher authority as under Article 13.2.

2 of NADA the remedy in case of grievance lies with ADDP and no appeal lies before the CAS, to the disadvantage of athletes. Doping in the Indian Scenario – An overview:Doping is the worst form of cheating as it jeopardizes the integrity of both players and the sport. Many athletes representing India have tested positive for banned substances and subsequently held guilty, proving that Indian sports is not untouched by doping.  The 2004 Olympics gave India a hero in Major Rajyavardhan Rathore but also shamed her with weightlifters Pratima Kumari and Sanamacha Chanu testing positive for doping. In 2011, Mandeep Kaur, Ashwini Akkunji and Sini Jose, part of 4×400 relay, were held guilty along with four other athletes leading to the firing of the Indian Track and Field coach, Yuri Ogorodnik. Acclaimed discus throwers, Seema Punia and Neelam Jaswant, weightlifter Monika Devi, wrestler Rajeev Tomar, shot putter Sourabh Vij, swimmer Richa Mishra are a few examples to show rampant doping in India. Even Indian cricket has not remained untouched by this menace. In 2009 Mohammad Asif faced a year ban from IPL for using steroids.

The BCCI was forced to take cognisance of the problem and formulated rules to bring transparency and dissuade such practices.  CONCLUSION Sportsmen are revered in most parts of the world. Thus, it becomes necessary for them to set good examples for generations that look up to them for inspiration.

Ultimately, it is the responsibility of the athletes to see what goes inside their bodies. Rules framed by the WADA and NADA seek to ensure fairplay and a clean competitive environment in sports. It is also for them to ensure that no athlete ends up on the losing side without cause. Strict laws are required to deal with doping and also to maintain the dignity of the sports but it also requires flexibility so that innocent athletes don’t suffer. Hence, WADA and NADA have huge responsibilities towards protecting the glory of sports.


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