Proposing an ad hoc Anti-Doping Disciplinary Panel Modelled After Arbitration at the Olympic Games
*Altamash Kadir
Cricket is an irresistibly potent force for marketing in India.[1] The Indian Premier League (‘IPL’) is the manifest realisation of this potential, as a professional cricket league founded in 2008 by the Board of Control for Cricket in India (‘BCCI’).[2]IPL had already amassed about 90 million viewers by the second edition in 2009.[3] By 2010, it became the first sport in the world live-stream matches on YouTube.[4] IPL contributed ₹11.5 billion to the Indian Gross Domestic Product in 2015.[5]
Even in 2020 with the Coronavirus disease 2019 Pandemic, 269 million people viewed the opening week of IPL.[6] This edition of the IPL saw a record-breaking 28% increase in viewership.[7]Indian cricket revenue is estimated at 45% of the total revenue cricket generates globally.[8] The success of the IPL comes from India’s huge sporting market consisting of over a billion people and the fact that the United States of America is not a factor in the marketing and the commodification of the sport.[9]
Sports competitions are initiated for financial and social benefits associated with victory and success.[10] These are the reasons that sports players artificially increasing their physical performance.[11]This leads to the manipulation of aspects of the sports environment in duplicitous ways like drug abuse i.e., doping.[12] The IPL is no stranger to this, as a doping scandal was brewing just post its inception in 2008.[13] Famously, Yusuf Pathan was suspended for a doping violation in 2018.[14] Prithvi Shaw was also suspended for similar doping violations in 2019.[15]
For the purposes of deploying efficacious dispute resolution for the IPL, this blogpost recommends ad hoc dispute resolution through the National Anti-Doping Agency (‘NADA’)’s Anti-Doping Disciplinary Panel(‘ADDP’) modelled after the Court of Arbitration for Sport (‘CAS’) Ad Hoc Division (‘AHD’) utilised in the Olympic Games. BCCI, NADA & ADDP
In 2019, the BCCI came under the ambit of NADA, marking the end of more than a decade long standoff between the two.[16] BCCI had used the services of Sweden-based International Dope Testing Management for collecting the samples of cricketers and submitting them to the National Dope Testing Laboratory prior to this.[17]
NADA was established with the objective of acting as the independent Anti-Doping Organization for India.[18] The primary function of NADA is to inter alia, to achieve compliance with National Anti-Doping Rules by all the sports organizations in India.[19] The most recently available such Rules were released in 2021 (‘NADR 2021’).[20]
According to Article 2.1.1, it is the cricket player’s personal duty to ensure that no prohibited substance enters their bodies.[21] However, Article 3.1 states that it is NADA’s burden to establish that an anti-doping rule violation has occurred.[22] In accordance with Article 3.2.2, Laboratories that are either accredited or approved by the World Anti-Doping Agency conduct sample analysis for this determination.[23] Furthermore, under Article 5.3.1, the NADA has the exclusive authority to conduct tests at the event venues.[24]
Under Article 7.4.1, that if NADA receives an adverse finding for a prohibited substance or a prohibited method, it may impose a provisional suspension on the athlete. However, such a mandatory suspension may be eliminated if the athlete demonstrates to the NADA’s hearing panel that the violation is likely to have involved a contaminated product, or it involves a substance of abuse and the athlete establishes entitlement to a reduced period of ineligibility under article 10.2.4.1.[25]
Article 7.4.3 states that such a suspension cannot be imposed unless the athlete is given an opportunity for a provisional hearing, either before or on a timely basis after imposition of the suspension or an opportunity for an expedited hearing after imposition.[26] Under Article 8, any person asserted to have committed an anti-doping rule violation shall be provided with a fair hearing within a reasonable time by a fair, impartial and Independent hearing panel.[27] For this, the ADDP is in the position to conduct the hearing and decision-making process without interference from NADA.[28] However, there is a lacuna present within this process.
The problem
NADA started sample collection with IPL 2020.[29] The event was conducted in the United Arab Emirates, due to India practising physical distancing through lockdowns.[30] The IPL is large enough to be held in countries outside India, holds massive monetary gains or losses for investors and can make or break cricket careers, it is no ordinary sports event. This makes addressing the lacuna in the current workings of NADA pertinent.
NADA can impose a provisional suspension on cricket players for anti-doping violations and it can do so prior to even holding fair hearings. This harm is escalated when the possibility of IPL being held in other countries like in 2020 is added to the juxtaposition. It is pivotal to take into consideration the stakes IPL holds for cricket players and other actors involved in the event.
NADA could impose sanctions and cricket players and the ADDP operating out of India would delay the dispute resolution process. Even where the matches are held in India, players could miss matches by the ADDP not being able to hold hearings prior to the matches. The lacuna present here can become instrumental in punishing crickets very tangibly without even receiving a hearing. An ad hoc panel could be the solution to this issue.
CAS AHD & the Olympic Games
An ‘ad hoc’ or ‘for this’ body is created only for a specific purpose at hand, without reference to wider application.[31] Beginning with the Atlanta Olympics in 1996, a number of CAS AHDs have been set up to resolve disputes at the Olympic Games.[32]
The function of AHD is to provide for the resolution of the disputes that arise during or 10 days preceding the Olympic Games.[33] It was designed to ensure attenuation of athletes' rights.[34] The AHD was especially crowded during Rio Olympic Games, due to the doping scandal where 16 ad hoc awards were rendered to Russian athletes.[35]A similar ad hoc panel for the ADDP should be established for the IPL.
An ad hoc ADDP
The IPL is an economic juggernaut. The impact of provisional suspensions on the careers of teams, cricket players and other stakeholders can be massive. Justice is denied the moment penalties can be implemented without fair hearings. This can be changed in a value positive manner with the introduction of ad hoc ADDPs established exclusively for providing dispute settlement during the IPL. Even when it is conducted outside India, the ad hoc panel could travel with the league, as it would be their only designated purpose for the duration of the IPL.
The implementation of an ad hoc ADDP ensures that justice is delivered to the cricket players quickly and with the least amount of harm created upon all the concerned stakeholders where it is held that there was no anti-doping violation committed.
*The author is a law scholar from Government Law College, Mumbai.
(The image used here is for representational purposes only)
References
[1]See Bose, Mihir. The Magic of Indian Cricket: Cricket and Society in India (Sport in the Global Society). 1st ed., Routledge, 2006. 45. [2]See Sawant, Ajinkya, et al. “Indian Premier League And Its Impact On India.” International Journal of Creative Research Thoughts, vol. 8, no. 4, 2020.1498–506, ijcrt.org/papers/IJCRT2004196.pdf. [3]See Sharan, Anita. “IPL Finals Drew This Year’s Highest TV Viewership.” Hindustan Times, 29 May 2009, www.hindustantimes.com/business/ipl-finals-drew-this-year-s-highest-tv-viewership/story-qS2LQooEzRuVyzaGc8ApJK.html. [4]See Hoult, Nick. “IPL to Broadcast Live on YouTube.” Telegraph [London], 20 Feb. 2010, www.telegraph.co.uk/sport/cricket/twenty20/ipl/7033597/IPL-to-broadcast-live-on-YouTube.html. [5]See IANS. “IPL 2015 Contributed Rs. 11.5 Bn to GDP: BCCI.” Hindu [New Delhi], 30 Oct. 2015, www.thehindu.com/sport/cricket/2015-indian-premier-league-ipl-contributed-rs115-billion-182-million-to-indias-gross-domestic-product-gdp-says-bcci/article7823334.ece. [6]See Tewari, Saumya. “269 Million Watched IPL 2020 Opening Week, 15% Jump in Viewing Minute.” Mint [India], 1 Oct. 2020, www.livemint.com/news/india/marginal-increase-in-ipl-2020-opening-week-viewership-15-jump-in-viewing-minutes-11601555601260.html. [7]See “IPL 2020 Saw Record-Breaking Increase in Viewership.” Hindustan Times [New Delhi], 12 Nov. 2020, www.hindustantimes.com/cricket. [8]See Raman, Sundar. “Impact of Covid-19 on Revenues of World Cricket and Indian Sports.” Sports Law & Policy Centre Reports, 2020. 1–18, www.sportslaw.in/home/wp-content/uploads/2020/05/Impact-of-Covid-19-on-Revenues-of-World-Cricket-and-Indian-Sports.pdf. [9]See Gupta, Amit. “India and the IPL: Cricket’s Globalized Empire.” The Round Table: Commonwealth Journal of International Affairs, vol. 98, no. 401, 2009. 201–11, doi:10.1080/00358530902757875. [10]See E., Jokl. Sport and Culture in Doping. 1st ed., Oxford, Pergamon Press, 1965. 1-24. [11]SeeThevis, Mario. Mass Spectrometry in Sports Drug Testing: Characterization of Prohibited Substances and Doping Control Analytical Assays. 1st ed., Wiley, 2010. 1. [12]See Schneider, Angela J., and Theodore Friedmann. The Problem of Doping in Sports. Elsevier Inc, 2006. 3. [13]See Correspondent, HT. “No Name yet in IPL Doping Scandal.” Hindustan Times [New Delhi], 14 July 2008,www.hindustantimes.com/cricket/no-name-yet-in-ipl-doping-scandal/storyCQhyxrucWwUfjUNASc8OSK .html. [14]See Sportstar, Team. “Yusuf Pathan Suspended for Doping Violation.” Sportstar, 9 Jan. 2018, sportstar.thehindu.com/cricket/yusuf-pathan-suspended-for-doping-violation/article22403118.ece [15]See Sportstar, Team. “Prithvi Shaw Suspended until November 15 for Doping Violation.” Sportstar, 30 July 2019, sportstar.thehindu.com/cricket/prithvi-shaw-test-cricketer-mumbai-team-india-suspended-doping-violation-cricket/article28761207.ece. [16]See Pti. “BCCI Has Agreed to Come under NADA Ambit, Says Sports Secretary.” The Economic Times, Economic Times, 9 Aug. 2019, economictimes.indiatimes.com/news/sports/bcci-has-agreed-to-come-under-nada-ambit-says-sports-secretary/articleshow/70602971.cms?from=mdr. [17] See Ramesh, Akshay. “Why the BCCI Was Reluctant to Become NADA Compliant.” India Today, 9 Aug. 2019, www.indiatoday.in/sports/cricket/story/bcci-nada-compliant-reasons-for-reluctance-india-cricket-whereabouts-quality-doping-officers-blood-tests-1579274-2019-08-09. [18]See National Anti-Doping Agency (India), “Vision”, NADA 13 April. 2020, https://www.nadaindia.org/en/vision. [19]See National Anti-Doping Agency (India), “Primary Functions”, NADA 13 April. 2020, https://www.nadaindia.org/en/primaryfunctions. [20] Therefore, for the purposes of this blogpost, the relevant NADR is NADR 2021 and every reference made to ‘Articles’ in the body refers to the articles of NADR 2021; [21] National Anti-Doping Rules, 2021. National Anti Doping Agency (India), 2021 Art. 2.1.1, https://www.nadaindia.org/upload_file/document/1609925451.pdf (‘NADR 2021’). [22] NADR 2021, Art. 3.1. [23] NADR 2021, Art. 3.2.2. [24] NADR 2021, Art. 5.3.1. [25] NADR 2021, Art. 7.4.1 & Art. 10.2.4.1. [26] NADR 2021, Art. 7.4.3. [27] NADR 2021, Art. 8. [28] NADR 2021, Art. 8. [29]See “IPL 2020: Started Sample Collection of Players in the UAE - NADA.” Hindustan Times, 12 Oct. 2020, www.hindustantimes.com/cricket/ipl-2020-started-sample-collection-of-players-in-the-uae-nada/story-3tVk8M3n84sCXpMRwpR6HL.html. [30]See “IPL 2020 to Be Played from 19th September to 10th November 2020.” IPLT20.Com - Indian Premier League Official Website, 11 Feb. 2021, www.iplt20.com/news/206387/ipl-2020-to-be-played-from-19th-september-to-10th-november-2020. [31]See Fellmeth, Aaron Xavier, and Maurice Horwitz. Guide to Latin in International Law. Oxford University Press, 2009. 16. [32] See Lindholm, Johan. The Court of Arbitration for Sport and Its Jurisprudence An Empirical Inquiry into Lex Sportiva. T.M.C. Asser Press, 2019. 31 [33]See Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games. Court of Arbitration in Sport, 2017, Arts.1&2, https://www.tascas.org/fileadmin/user_upload/CAS_Arbitration_Rules_Olympic_ Games__EN_.pdf [34]See Michael J. Beloff, “The Court of Arbitration for Sport at the Olympics”, 4 Sports And The L. J, 1996. 5. [35]See Duval, Antoine. “The Russian Doping Scandal at the Court of Arbitration for Sport: Lessons for the World Anti-Doping System.” Yearbook of International Sports Arbitration 2016, 2018. 61–99.
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