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A case for players’ rights against doping regulation

Last week, Mint covered our post on the latest doping scandal.The full report can be read here. This week we take a look at players’ rights vis a vis doping regulation.

There is a serious lack of sensitivity and understanding of vulnerabilities of a sportsperson in India. They are seen as giants, they must shoulder the burden of making the rest of us proud, and they must be making a lot of money. They must be punished and made an example of if they dope. We rarely think they may be victims of a very powerful sports industry, and in need of protection. Sometimes we even refuse basic protections any human being in a civilized society is entitled to – especially when it comes to a person against whom there has been an allegation of doping.

The typical problem in India is that the media overhypes the issue of doping as national shame and ignores the intricate issues that goes into administration of sports and sports law. They fail to understand the sturcture of organized sports as it stands today, monopolized institutions directed at maximizing profits, but unaccountable unlike any other business. Sporting institutions like FIFA and International Olympic Committee thrive on the success of sportspersons, but often ignore and sometimes systematically alienate the interest of professional sportspersons, who are helpless against the mighty sports bodies.

The structure of current doping laws is one example of how legitimate interests of innocent sportspersons are often subjugated to the economic and other interests of sports bodies.

Are you innocent if you consume a spiked drink gifted by your opponent?

The World Anti Doping Agency, an organization headquartered in Lausanne, Switzerland, was established as an independent anchor body responsible for development of the prevailing doping laws. They have taken the view that doping is very harmful for image of sports and therefore must be curbed at any cost. In reality, mostly this cost is paid by the sportspersons, many of them innocent by any standard followed in legal systems in civilized countries.

Imagine any elite athlete. They are often guided by doctors and coaches with respect to what to eat, drink or what medicine to take. Many of these sportspersons are young, impressionable, sometimes uneducated in case of Indian sportspersons and do not decide for themselves. Even after following instructions minutely, sometimes they discover that a sample has been returned positive of some banned substance – and they may not even know when and how it entered their body.

Sporting history is replete with instances of athletes being banned for innocently consuming medicines containing an obscure compound in their ingredients which turns out to be ‘prohibited’ by the World Anti Doping Agency. Often, the same medicine, when purchased in another country, may contain an additional compound, which turns out to be a prohibited substance.

Sportspersons must exercise their abilities towards the development of their proficiency in the sport, and cannot be expected to be experts on this. It is quite unreasonable to place the responsibility of performing such an elaborate inquiry before eating or drinking anything on the sportsperson, with such severe penalties. It is important to note here that making a sincere and honest inquiry is not sufficient to relieve a sportsperson from the penalties he may face if he tests positive, it is imperative that his inquiry must lead to the correct results. Clearly, a sportsperson cannot be expected to possess the talent or technical competence to find this out.

Sometimes they are actively misled or sabotaged by competing teams without even realising what happened. There was one instance in the case of WADA v. NASM & Chesh, Ng & Masitah (CAS 2007/A/1395) decided on 31 March 2008 where shooters have been given Ferrero Rocher chocolates by the coaches of an opposing team, as per the defence raised by the sportspersons involved. However, under WADA code, such a defence is not tenable. It is a strict liability regime – if you  are found positive, you are liable.

There has also been the big debate over whereabouts clause. In India practically everyone criticized the cricketers for objecting to it. However, as far as legal rights are concerned, this is a serious issue.  You may see this link for some concerns raised by eminent sports journalists elsewhere in the world.

In a broad way, most of WADA code is highly invasive and fails to protect interest of innocent sportspersons in a reasonable manner. Professional sportspersons invest their lives into sports, and it is often sacrificed with very little proof or incriminating evidence. The punishment of being condemned away from sports is very harsh for any sportsperson, it ends their professional career and not just the right to continue to play the game.

We can easily draw an analogy with crime in society and doping in sports world. If you commit a crime, you have many rights as an accused – the Constitution and the Criminal Procedure Code take care of it. If you are tested positive for doping – none of these rights are available any more. Under criminal law, courts take into account whether someone else is framing you for committing the murder, and place the burden on prosecution to prove their case. It is just the opposite in case of sports. No one cares if you have been framed or set up by someone else, your intentions are immaterial and you must prove your own innocence.

Is doping regulation consistent with constitutional and criminal law safeguards available to an accused?

Taking the comparison of doping with criminal law a step forward, it will be pretty interesting to see if someone challenges the Anti-Doping Code for violation of various fundamental rights provided to every person (including sportspersons and athletes) under the Constitution before  a Court of law. An explanation of specific aspects of doping regulations which can be challenged, and the corresponding human rights which they are likely to be inconsistent with is provided below.

The presumption of innocence and the right to a fair hearing are compromised due to the strict liability regime of doping regulation, where the sportsperson is held liable irrespective of his guilty intent or fault, and the burden of proving his innocence is placed on him.

Second, violation of privacy may be raised as a valid challenge, due to the ‘surprise’ element, invasiveness, and the requirement to report ‘whereabouts’ for dope testing to doping agencies. The understanding of privacy law in India is developing fast with Indian courts laying down progressive judgments, and they are likely to be sensitive to such concerns.

Further, testing methodologies are sometimes not compatible with the cultural and religious notions of various communities, but players find themselves unable to raise objections to that during a sporting event. These methodologies can be violative of their religious and community rights.

International writers have also compared the stripping of medals of sportspersons found guilty of doping with retrospective punishment which is unconstitutional in India. Further, severity of sporting sanctions (such as lifetime bans for stray instances of doping) is considered to be a penalty disproportionate to the act of doping.

Last, by allowing doping regulation to stay in its current form, the State may also be failing in enforcing the directive principles of state policy which include the right to work and to earn a livelihood, as sportsperson’s prospects of earning are jeorpadised by doping regulation.

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