The Sports Law & Policy Centre | Anti-doping regulation in Indian cricket: Should the BCCI accede to NADA’s jurisdiction?
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Anti-doping regulation in Indian cricket: Should the BCCI accede to NADA’s jurisdiction?

Introduction    

The Board of Control for Cricket in India (“BCCI”) has recently been confronted by the resurgence of an issue involving the National Anti-Doping Agency (“NADA”) and whether, like other Indian sports federations, it should submit itself to the jurisdiction of NADA – by way of compliance with anti-doping rules and testing procedures, which effectively mirror those laid out by the World Anti-Doping Agency (“WADA”).

As things stand, the BCCI is not NADA-compliant, as it self-administers what it believes to be a perfectly transparent and efficient doping control program.

Additionally, the BCCI argues that because it is not classified as a ‘National Sports Federation’ by the Government of India (reasons discussed below), it need not fall within the reach of NADA’s jurisdiction.

Moreover, the whereabouts rule, requiring athletes to submit information about their whereabouts on a daily basis (and discussed in further detail below), has always been a bone of contention for the BCCI, citing privacy concerns. As such, acceding to NADA’s jurisdiction would mean, among other things, a tacit acceptance of the WADA/NADA whereabouts principle.

This piece seeks to analyse the merits behind the BCCI’s claim for jurisdictional immunity, specifically by examining the following issues:

  1. Should the BCCI fall outside NADA’s jurisdiction purely because it is not (technically) classified as a ‘National Sports Federation’ (“NSF”) by the Government of India (hereinafter referred to as the “Government” or “GOI”)?
  2. Is the ‘whereabouts’ rule invasive and a violation of the ‘right to privacy’?

National Sports Federation: a mere technicality?

According to the National Sports Development Code of India, 2011 (“NSDC”), an NSF in India is “responsible for the overall management, direction, control, regulation, promotion, development and sponsorship of the discipline for which they are recognised by the concerned International Federation”.[1]

Once recognised by the Ministry of Youth Affairs and Sports (“MYAS”), constituted under the Government, NSFs are eligible to receive financial assistance and sponsorship from the Government.

In addition, an NSF would also have the ability to (among others):

  1. Select national teams who represent India;
  2. Use the word India in its name;
  3. Regulate and control the sport in India; and
  4. Avail of certain customs duty, income tax and foreign exchange exemptions under applicable laws.[2]

Interestingly, in the case of Board of Control for Cricket in India & Anr. v. Netaji Cricket Club & Ors.[3], the Supreme Court of India (“SC”) observed that the BCCI “enjoyed a monopoly status as regards the regulation of the sport of cricket…enjoys benefits by way of tax exemption and right to use stadia at nominal annual rent. It earns a huge revenue not only by selling tickets to the viewers but also by selling the right to exhibit films live on TV…As a member of the ICC, it represents the country in international fora. It exercises enormous public functions. It has the authority to select players, umpires and officials to represent the country in international fora. Its control over the sport of competitive cricket is deep, pervasive and complete…”

Therefore, as a fairly logical corollary, one could be forgiven for assuming that the BCCI qualifies as an NSF for the purposes of the NSDC. However, peculiarly, the BCCI does not feature among the list of India’s 53 recognised NSFs on the MYAS website (as updated from time to time)[4].

One of the reasons for this, as stated by the erstwhile Minister of State for Youth Affairs and Sports, Mr. Vijay Goel in parliament, is because the BCCI has never applied for GOI funding and neither has it benefited from any grants from the GOI[5].

A similar stance was previously adopted by the SC in the case of Zee Telefilms Limited v. Union of India[6] in determining whether the BCCI constituted a ‘State’ (i.e. a body performing a public function) for the purposes of the Constitution of India. It was held that the BCCI is not “cumulatively…financially, functionally or administratively dominated by or is under the control of the Government. Thus, the little control that the Government may be said to have on the Board is not pervasive in nature. Such control is purely regulatory and nothing more.”

Additionally, the SC in Zee Telefilms also noted that:

  1. No part of the BCCI’s share capital is held by the Government; and
  2. The Government gives practically no financial assistance to meet the whole or entire expenditure of the BCCI.

Therefore, since a recognised NSF qualifies as a ‘State’ for the purposes of the Indian Constitution, the BCCI, not being a State need not be classified as an NSF, despite the nature of its operations, as previously noted by the SC in the Netaji Cricket Club case.

However, if substance were to prevail over form, it is inconceivable that the BCCI ought not to be classified as an NSF, given the functions the BCCI performs in the current legal and political environment.

In fact, in 2012, the then Minister for Youth Affairs and Sports, Mr. Ajay Maken admitted in Parliament that, “so far as the BCCI is concerned, the Government of India has been treating it as an NSF and has been approving its proposals for holding events in India and participating in international events abroad.”

Most recently, even the Law Commission of India noted that the BCCI:

“being allowed by the State to represent the country at the international stage…became an archetypal body for Indian cricket… By virtue of being the organisers of competitive cricket between one association and another or representing different States or different organisations having the status of State, making bye-laws for the same, BCCI is de facto legislating on ‘sport’ related activities.[7]

Therefore, given the relative ambiguity surrounding the legal status of the BCCI as a body, it continues to justify its refusal to fall under NADA’s scrutiny based on a mere a technicality.

However, a plain reading of the definition of a National Sports Federation in the 2015 NADA Code (“NADA Code”) points towards a fallacy in the BCCI’s argument.

As far as NADA is concerned, an NSF is defined 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.”[8]

As such, by dissecting the definition, it can be demonstrated that the BCCI does in fact, classify as an NSF:

  1. National entity – (i) as a registered society under the Tamil Nadu Societies Registration Act, 1975, the BCCI is an ‘entity’; and (ii) since its constitutional documents lay down policies that seek to regulate cricket in India and the selection of national teams to represent India at the international level, it is a ‘national entity’.
  2. Recognition by the International Cricket Council (“ICC”) as the governing body of cricket in India – the ICC, being the International Federation for cricket, recognises India as one of its 12 full members.

Additionally, (i) the Indian cricket team represents the country in national colours, with their helmets even displaying the national emblem, the ‘Ashok Chakra’; and (ii) the BCCI nominates cricketers for national awards such as the Bharat Ratna, Padma awards and Arjuna Awards.

However, one of the pre-requisites for an organisation to classify as an NSF is that it must comply with all conditions laid down in the NADA Code (paragraph 3.21)[9]. Indeed, the BCCI’s refusal to do so is evidence of their taking advantage of the benefits associated with being an NSF while at the same time shirking the responsibilities and obligations associated with maintaining that status.

Whereabouts in Indian cricket in a nutshell

The ‘whereabouts’ rule, enforced by WADA, has been in existence for nearly 15 years now. Essentially, an athlete is required to provide their national anti-doping organisation with details of where they can be reached (during a one-hour period every day) for surprised testing during out of competition periods. The element of surprise involved with such drug testing is intended to operate not only as a doping deterrent for athletes but also as a means of increasing the likelihood of anti-doping authorities catching cheats.

Given the logistically impossible task of managing the whereabouts of every athlete, world-over, the whereabouts rule applies only to ‘elite athletes’, or in other words, those who form part of what is termed a ‘Registered Testing Pool’ (“RTP”). These athletes are identified by international federations and national anti-doping bodies.

Athletes who miss 3 drug tests within a period of 12 months are then deemed to have committed an ‘anti-doping rule violation’, which means they will be liable for sanctions, subject to mitigating factors and fault-related deductions.

In India, NADA is responsible for identifying the RTP and accepting and monitoring whereabouts filings made by each athlete in the RTP (Article 5.6 of the NADA Code).

However, with Indian Cricket, the BCCI has adopted its own anti-doping code (“BCCI Code”), which provides for a testing regime with a ‘soft’ whereabouts regime. To complicate matters further, the ICC also has its own anti-doping code, which mirrors that of WADA’s (including the whereabouts provisions).

Article 5.3.2.1(a) of the BCCI Code recognises the ICC’s ability to establish an RTP through which Indian cricketers would be required to furnish their whereabouts. Therefore, on the face of it, Indian cricketers who are part of the ICC RTP are essentially subject to the ICC jurisdiction, who, just as any other athlete, would be subject to WADA jurisdiction.

However, Article 5.3.2.3 of the BCCI Code provides that where a cricketer is part of both, the ICC and BCCI’s RTPs, the BCCI would be competent to receive such whereabouts filings from cricketers, to prevent duplication. This effectively means that if the ICC notifies an Indian cricketer to be part of its RTP, the BCCI by following suit, could gain control over the cricketer’s whereabouts filings – something that should ideally be NADA’s responsibility – therefore compromising the transparency and independence of the anti-doping testing regime in Indian cricket.

Thus, while the whereabouts rule exists under the BCCI Code, it is submitted that it operates in name only, as there is no saying how, if at all, the BCCI monitors the whereabouts of Indian cricketers. This is further supported by the fact that the BCCI has publicly opposed[10] the whereabouts regime on numerous occasions, citing privacy infringement concerns.

Whereabouts: the right to privacy vs. public interest

An interesting angle to the whereabouts debate in the Indian context can be highlighted from recent jurisprudence of the SC in its assessment of what constitutes the ‘right to privacy’. In essence, would the control given to anti-doping authorities in enforcing the whereabouts rule curb an athlete’s freedom and consequently impinge upon his/ her right to privacy? Or are means, such as the whereabouts rule, adopted in the fight against doping sufficiently justifiable in the public interest?

In Gobind v State of Madhya Pradesh[11],  while the SC did not conclusively adjudicate on the existence of a right to privacy under the Constitution, it found that “If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right”.

However, most recently, the SC in the seminal 2017 judgment of Justice KS Puttaswamy v. Union of India[12] recognised the existence of a constitutional right to privacy and concluded that “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone…”. However, the bench went further to clarify that “like other rights which form part of the fundamental freedoms…privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights.”

Applying the current position of law, the whereabouts principle ought to be justified on grounds of public interest, given that (a) the object of the rule – solely to prevent doping prevent doping – is not unlawful and to that end is (b) proportionate particularly since the ‘3 strikes in 12 months’ rule takes into account the fact that an athlete could make a genuine mistake when filling out whereabouts information; and (c) it is in the public interest to ensure that Indian athletes protect the integrity of competition, while competing both within and outside the country.

In fact, as recently as January 2018, the whereabouts principle withstood a legal challenge[13] before the European Court of Human Rights (“ECtHR”). The case involved a challenge of Article 8 (right to respect for private and family life) of the European Convention on Human Rights (“ECHR”) by a syndicate of French national sporting federations together with certain individual athletes.

The ECtHR held that the whereabouts principle was in the public interest and that the reduction or removal of athlete obligations would lead to increased doping which would be at odds with the consensus on the need for unannounced testing as part of doping control.[14]

Conclusion

Notwithstanding any hint of merit in the BCCI’s reluctance to submit to NADA jurisdiction, the issues analysed above attempt to shed light on the fallacies in the BCCI’s reasoning. Despite this, the BCCI continues to push back on the issue, begging the question: is this a mere excuse for the BCCI to maintain control over its affairs, even those it ought to distance itself from, namely doping regulation?

The WADA Code, similarly adopted by NADA enshrines the principle of independence of doping control process at the national level, and specifically prohibits interference from all public and sports movement bodies. However, the BCCI’s self-administered anti-doping program squarely contradicts this principle – recently evidenced by the selection of Abhishek Gupta in the ‘India Red’ squad [15], despite the fact that he would be serving a doping ban throughout the duration of the tournament he was selected for.

Therefore, in the interests of transparency and adding credibility towards India’s stance against doping, the BCCI, as India’s most prominent sports governing body, ought to relent and submit itself to NADA’s authority, so as to be treated with other national sports federations on a ‘level playing field’.

****

[1] Ministry of Youth Affairs and Sports, Government of India, National Sports Development Code of India, 2011, paragraph 6.1(b) at page 10. Available at: https://yas.nic.in/sports/national-sports-development-code-india-2011
[2] Ibid, paragraph 3.6 at page 5 and 6.

[3] AIR 2005 SC 592: (2005) 4 SCC 741. Paras 80-82.
[4] Ministry of Youth Affairs and Sports, Government of India, ‘List of Recognised National Sports Federations for the Year 2018’. Available at: https://goo.gl/H2nJ2m.
[5] Government of India, Questions answered by the Sports Minister in the Lok Sabha, unstarred question number 1651 answered on 27 July 2016.
[6] AIR 2005 SC 2677: (2005) 4 SCC 649.
[7] Law Commission of India, Legal Framework: BCCI vis-à-vis Right to Information Act, 2005, Report No. 275, published 18 April 2018, at paragraphs 6.14 and 6.15, page 95.
[8] National Anti-Doping Agency Anti-Doping Rules, 2015, Appendix 1: Definitions, at page 84.
[9] Ministry of Youth Affairs and Sports, Government of India, National Sports Development Code of India, 2011, paragraph 3.21 at page 37. Available at: https://yas.nic.in/sports/national-sports-development-code-india-2011
[10] Bhose, B., (2017), “BCCI CoA Happy with Existing Anti-Doping Measure, Feels Players Don’t Need to Sign Whereabouts Clause”, CrickNext, available online [https://bit.ly/2NaQdEF], accessed 10 August 2018.

[11] (1975) 2 SCC 148, at page 155, paragraph 22.
[12] WRIT PETITION (CIVIL) NO 494 OF 2012
[13] European Court of Human Rights, Press Release, “Doping control: whereabouts requirement does not breach Convention”, released on 18 January 2018, accessed 20 August 2018 [https://bit.ly/2wp62ka].
[14] World Anti-Doping Agency, “WADA Welcomes ECHR decision to back whereabouts rule”, Media Release, 18 January 2018, accessed 20 August 2018 [https://bit.ly/2BjlHSe].
[15] ‘BCCI’s Blooper: Punjab’s Abhishek Gupta selected for Duleep Trophy despite doping ban’, published on 23 July 2018, accessed on 1 August 2018 [https://bit.ly/2NaQozT].