The Effectiveness of Anti-Doping Law in Cricket: A Comparative Analysis

The Effectiveness of Anti-Doping Law in Cricket: A Comparative Analysis

Author:  Swagath C. R,
Student, 3rd Year,
School of law, Christ (Deemed to be University)
ABSTRACT
The popularization of sport and sporting leagues in India, has created a need for sports law and regulation of sporting activities, institutions and personalities. One of these laws is with regarding to doping – the use banned substances to enhance one’s sporting capabilities. With the focus in India being primarily on cricket, the rules and regulations laid down by the Board of Control of Cricket in India must be analyzed in order to understand the relevance and impact on players and the sport in itself. With strict action being taken against international players such as Alex Hales; it is an opportune moment to peruse through the rules governing Indian cricketers. This paper will comparatively analyze the Anti-Doping Rules in India against the backdrop of rules and regulations in other prevailing cricketing boards such as the English Cricket Board, Cricket Australia and the International Cricket Council. This paper will also analyze the World Anti-Doping Code in order to decipher the most effective code and suggest that the norms in India be altered either through an amendment to the Indian rules or the creation of domestic law so as to render a more efficacious sanction to those indulging in the malpractice of doping.

Key Words – Anti-doping; Board; WADA (World Anti-Doping Agency); Sanction; Effective; Cricket; Rules; Testing; English Cricket; Australia Anti-Doping Code; International Cricket Council.
   
INTRODUCTION:
Doping is the use of a substance or a specific technique to improve athletic performance[1] and is considered to be a highly unethical and an immoral act in the realm of sport. While this understanding of doping is quite common, it does not explain the concept entirely. This is due to the fact that one of the main characteristics of doping has not been mentioned – it is an illegal or prohibited act in sport. The definition of doping can be further elaborated to state that it is the involvement of an athlete in prohibited drugs or methods to improve sporting performance.

Cricket can be described as a game played with a ball and bat by two sides of eleven players each on a field, at the centre of which are two wickets, each defended by a batsman.[2] Cricket truly is, a game of ebbs and flows, of luck, determination, endurance, physical stamina backed by immense mental strength over long periods of time. It is a game often decided by a matter of inches, and in order to gain the relative advantage of those few inches, cricketers may forego the physiological side effects and indulge in doping.[3] This paper chooses cricket as the sport to cast the limelight upon with respect to doping due to the fact that while cricket is a team sport, individual performances are of utmost importance and the usage of illegal substances to enhance an individual batsman or bowlers performance can have a significant impact on the results achieved by the team.
The Game-theoretic reasoning essentially states that there are two effects or consequences of doping – firstly, the positive effect of enhanced performance and secondly, the negative effect that doping has on an athlete’s body. This theory states that if one was to consider a premise where doping is permissible in sport, every sportsperson would indulge in doping and thus they would all have the comparative advantage over the other, resulting in a situation wherein none of the sportsperson would have an enhanced performance over the other. In this situation, all that remains is the negative consequence on the body, which no athlete will willingly undergo for no consequent benefit. Thus, one can conclusively state that athletes themselves would prefer a policy on complete ban of doping.[4]

This theory however, is not foolproof as the world has witnessed prior to the recently concluded ICC Cricket World Cup wherein Alex Hales, an international cricketer with 11 Test matches, 70 One Day Internationals, 60 Twenty20 Internationals and 8 years of experience, considered to be a key member of the English cricket team, tested positively for recreational drug use
and found himself being excluded from the English World Cup squad.[5] This is an example of the psychological impact of one player’s actions on his  team members, as the effect on morale was clear to see in the English cricket team.

AUTHORITY OF THE BCCI TO MAKE RULES:

The Board of Control of Cricket in India (herein referred to as BCCI) is the national governing body for cricket in India. It is a private, autonomous institute with no public mandate or governmental control[6] and is responsible for the regulation and smooth conduct of all cricketing activities and events taking place within the country and with respect to international tournaments.

They are responsible for the making of rules and regulations as well as policies for all things cricket in India, including the creation of anti-doping laws. However, before we analyze the relevance and implementation of these rules in light of various other doping rules, it is necessary to comprehend as to whether the BCCI has the authority to enact this code in the first place, and whether the provisions of this code are binding upon cricket players and other parties involved in the sport in India.

In the case of Zee Films vs Union of India[7], the Supreme Court of India ruled, that the BCCI does not fall under the category of a ‘state’ under article 12 of the Constitution.[8] The powers are derived through the form of delegated legislation. The concept of delegated legislation has been established in India through Article 312 of the Constitution[9] and has been further reiterated in the case of D. S. Garewal vs State of Punjab[10]. Many understand this concept to merely be an excuse for the legislature to lessen its burden[11], however, for the understanding of this paper, delegated legislation is the method by which the BCCI attains and derives the rule making powers that it enjoys.

THE BCCI ANTI-DOPING RULES:

The BCCI has adopted anti-doping regulations in the form of the BCCI: Anti-Doping Rules (herein after referred to as the Rules) in order to impose clear prohibitions and certain restrictions on cricketers as part of their effort to maintain the integrity of the sport of cricket in India, to protect the rights and health of all participants in the sport of cricket in India and to keep Indian cricket free from doping.[12] The focus of this paper will lie upon Article 5 and Article 10 of the Rules, which contain the provisions regarding testing for doping violations as well as the sanctions on individuals respectively.[13]
The Anti-Doping rules may be applied to those persons specified under Article 1 of the Rules, wherein it states that all cricketers and cricketer support persons who are members of the BCCI or members of affiliates of the BCCI, who take part in matches or events organised by the BCCI shall fall within the ambit of the Rules.[14]

Article 10.2.1 of the Rules states that if an individual player is found guilty for the presence of prohibited substance or its metabolites or markers in a sample, use or attempted use of prohibited substance, and this is the cricketer’s first offence, he shall be imposed with a period of ineligibility of 4 years.[15] If the cricketer was to prove that the prohibited substance was not intentionally consumed, the ineligibility period will be for 2 years.[16] In order to understand the true effectiveness of this sanction, one must identify the implementation of the given sanction and also the frequency of drug testing conducted on the players.
Article 5 of the Rules states the details regarding testing of players for doping and mentions the concepts of in-competition testing[17] – testing players for doping violations during the period of time that they are participating in a tournament, and out-of-competition testing[18] – testing players for doping violations at any period in time that they are not participating in a tournament. The Rules also specifies that the BCCI will create specific pools of players based on the level of competition that they play cricket at, i.e., international and national[19] and states that the BCCI can, at any time or place, request a player in the particular pool to make themselves available for testing and also inform the BCCI as to their whereabouts.[20]
However, the fact that there is no specific interval of time during which a player must be tested may be viewed as an issue. The frequency of testing is purely at the discretion of the BCCI and this power can be easily misused. Statistics may show that very few Indian cricketers partake in doping, whereas in reality it is merely due to the fact that frequent testing of players has not been conducted. This issue is further highlighted upon an analysis of the provisions regarding testing in the anti-doping rules and regulations in various other prominent cricketing nations.

COMPARATIVE ANALYSIS OF ANTI-DOPING RULES:

For the purpose of a relevant comparative analysis of anti-doping rules in cricket, this paper will focus on the three nations of India, Australia and England, also known in the international cricketing world as ‘The Big Three’, as well as the board governing these three nations, the International Cricket Council (herein after referred to as ICC).
The Cricket Australia Anti-Doping Code (herein after referred to as the Australian Code) is the prevalent anti-doping legislation in Australia and is responsible for maintaining the integrity of cricket in Australia and ensuring that Australian Cricket is free from doping.[21] Similarly, the England and Wales Cricket Board Anti-Doping Rules (herein after referred to as the English Rules) is the leading legislation for the control of doping activities, the regulation of players with regards to doping law, as well as the protection of the sport of cricket from doping in England and Wales.[22]

In terms of the scope and application of all four legislations, they are similarly applicable to all cricketers and cricketers supporting personnel who may be participating in tournaments or who are under contracts with their respective boards. However, certain key differences can be noticed upon perusal of the provisions regarding testing for doping activities under Article 5 of each legislation.
The provisions regarding sanction for doping violations are specified in the Australian Code[23], the English Rules[24] as well as the ICC Code.[25] They are all similar to that of the BCCI rules in the fact that they also prescribe a period of ineligibility which can extend up to 4 years and in the case of unintentional substance use, a reduced period of 2 years. Upon comparison with the provisions regarding testing in both the Australian Code, English Rules and the ICC Code, it is evident that there are glaring lacunae present namely:

      A)   Athlete Biological Passport Testing:

One of the key differences is illustrated through Article 5 of the Australian Code and the ICC Code, both of which have sub-provisions regarding Athlete Biological Passport (herein after referred to as ABP) Testing.[26] This is a method through which one can monitor selected biological variables over time that indirectly reveal the effects of doping rather than attempting to detect the doping substance or method itself[27], and is a very effective test in order to pursue possible anti-doping violations. Both the ICC Code as well as the Australian Code not only establish Athlete Biological Passport Management Units, run by experts selected by Cricket Australia and the ICC respectively[28], but they also establish a system for the transport of blood and urine samples[29], and specify that the data shall be analysed by a panel of experts in order to determine whether or not a doping violation has taken place, and punish the player accordingly.[30]

      B)    Targeted/Random Testing:

Another lacuna in the BCCI Rules can be identified upon a reading of Article 5 of the English Rules, where there is a special provision for the selection of athletes to be tested.[31] The provision specifies that target testing, weighted and random selection methods will be used to determine which players are to be selected for the testing.[32] The English Rules also further states that in order to ensure that these random tests can be conducted without the targeted player’s prior notice, the information regarding the selected player will be disclosed on a need-to-know basis only.[33] Thus ensuring that players are genuinely unaware that they are going to be subjected to doping tests and so are more likely to provide genuine results. Similarly, this ideology of random surprise doping tests is also incorporated in the ICC code.[34]   

       C)   Conflict of Interest:

The BCCI Rules states the BCCI themselves are responsible for the conduct of tests for doping violations, whereas in the Australian Code, this responsibility is given to Australian Sports Anti-Doping Authority (herein after referred to as ASADA)[35] and the role of Cricket Australia is merely to assist them in the process of conducting tests. Similarly, in the English Rules, the responsibility of conducting doping tests is entrusted upon National Anti-Doping Organization (herein after referred to as NADO) and the National Cricket Federation.[36] The fact that testing is done by separate third parties in both Australia as well as England ensures that neither board has a direct influence on the number of tests conducted and thus the statistics regarding number of players sanctioned for doping will be a true reflection of reality unlike in the Indian scenario. This concept is not reflected in the ICC Code, which states that the ICC themselves are responsible for the conduct of doping tests.[37] The difference between this provision existing in the ICC Code and its existence in the BCCI Rules lies in the fact that the ICC is not a stakeholder in the results of doping tests while the BCCI would suffer a tarnished image and damage to their repute in the international cricketing arena if it was to be found that a player under their jurisdiction was apprehended for doping.

THE WORLD ANTI-DOPING CODE:

The World Anti-Doping Agency (herein after referred to as WADA) is an international agency which was established in 1999 and it is funded by various sporting movements as well as many governments around the world. It is the agency responsible for the creation of the World Anti-Doping Code (herein after referred to as the Code), which aims at harmonizing doping policies around the world.[38] The Code is the universal document with respect to anti-doping laws and creates uniformity in
policies regarding the issue of doping as well as establishing fundamental principles with regards to implementation of the policies.[39]
Article 1.5 of the Code mentions the concept of testing for doping violations and states that anti-doping organizations must plan for and implement a certain number of tests to be conducted based on an assessment of risk of doping that the sport faces[40] and to also establish a pool of players who may be at a higher risk of doping.[41] The Code also states that random testing must be conducted on athletes such as those whose performances have drastically improved over a short period of time and athletes whose coaches have had other athletes under them test positively. The code clearly states that ‘no advance notice testing’ must be made a priority so as to ensure more legitimate and effective results.[42]
With regards to penalties for out-of-competition tests, the Code differs from the previously discussed legislations. The Code states that for first time doping violations, athletes will receive a two-year period of ineligibility, while if an athlete is found guilty of a second doping violation, they will be prescribed a penalty of lifetime ineligibility.[43]

Thus, while the previously discussed legislations provide penalties that range up to four years of ineligibility, the Code ensures that first time offenders receive a lesser punishment so as to allow them a chance of rehabilitation and reform, while repeat offenders are no longer entertained in the sporting arena.

INCORPORATION OF WORLD ANTI-DOPING CODE IN INDIA:

The World Anti-Doping Agency regulates and governs doping in sport all around the world through the World Anti-Doping Code, which is far superior to that of the BCCI Rules with respect to the provisions regarding testing, frequency of testing as well as the provisions regarding penalties and sanctions imposed upon athletes.
Dualism is a concept regarding adoption of international law by national authorities based on the understanding that international and domestic laws operate in two separate and distinct spheres and so international law cannot simply be directly implemented in a domestic legal system.[44]
India has been regarded as a dualist nation and Article 253 of the Constitution of India.[45]Thus, the Indian constitution provides the basic framework for the implementation of international laws signed and ratified by India into the domestic legal system.[46]  However, an easier solution to this issue would be to simply make amendments to the existing BCCI Rules so as to make the legislation more effective through the introduction of the various provisions present in the World Anti-Doping Code.[47]

CONCLUSION:

The intention with which this paper was written was to analyse the most prominent anti-doping legislations in the world of cricket, which would eventually lead to the discovery that one of these legislations is far superior to the rest and thus is the clear contender for implementation and incorporation within the BCCI Rules and in the Indian Cricketing system. However, through the analysis conducted the observations to be made are: firstly, that the BCCI Rules are far inferior to every other legislation that was under the scrutiny of this paper and secondly, that each and every other legislation have certain key differences that set them apart from the BCCI Rules, making them more effective and overall a better pieces of legislation.
From the Australian Code as well as the ICC Code, the concept of Athlete Biological Testing[48] stands out due to the fact that it is a highly technical and scientific method of pre-emptively recognising doping violations and identifying whether or not a player as conclusively committed a doping violation. This method of testing as well as the entities created in order to ensure the smooth conduct of this testing are concepts that should be incorporated in the BCCI Rules to bring Indian cricket up to date with the technological advancements in doping violation testing.
From the English Rules, the concept of random testing[49]conducted on players while ensuring that the information regarding the conduct of the test is not disclosed to the player, thus ensuring that the player cannot take any last minute precautions to avoid having to take the test or prepare for the test by i
ndulging in practises that could provide a false negative. This concept ensures players are always on their toes and will always be hesitant to partake in any doping activities with the constant cloud of a surprise doping test hanging above their head.
From the World Anti-Doping Code, which can be argued as the most exhaustive anti-doping legislations of all that have been discussed, there is a ‘no advance notice’[50]concept where the player is monitored on the above parameters and if any abnormalities or incongruencies are discovered, they can be given a surprise doping test without any prior notice. Another concept that may be implemented in the BCCI Rules is the fact that first time offenders are handed a reduced punishment in order to provide them a chance to reform, while repeat offenders are handed no further chances and are no longer considered eligible to partake in the sport of cricket.[51]

The best available solutions with regards to the issue of Anti-Doping laws in cricket in India are to either incorporate the relevant provisions from other legislations through the form or amendment, or to implement the WADA norms in India through the formation of a comprehensive domestic legislation for all sport in India.
Therefore, it is evident that the BCCI Anti-Doping Rules suffers from many loopholes, largely in the area of testing athletes for doping violation and implementation of these tests and sanctions, which can be filled by the implementation of concepts that are already existing in other legislations around the world, through amendments in the Rules[52]. Cricket in India is considered to be far more than just a sport, it extends beyond the boundaries of the playing field and effects the lives of millions of Indians all over the world, this is the reason why rules and regulations regarding Indian cricket are so crucial. Every Indian wants to see their idols in the form of cricketers perform well and bring home laurels for their nation, however, this must not be done through the malpractice of doping and at the cost of ethics, morals, the health of the players and most of all, the spirit of the game.


[1] The Merriam-Webster Dictionary (1973).


[2] The Merriam-Webster Dictionary (1973).

[3] Eric Chwang, Why Athletic Doping Should Be Banned, Journal of Applied Philosophy, Vol. 29, No. 1 (Feb. 2012), pp. 33-49.

[4] Eric Chwang, Why Athletic Doping Should Be Banned, Journal of Applied Philosophy, Vol. 29, No. 1 (Feb. 2012), pp. 33-49.

[5] Agence France-Presse, Alex Hales Out of England World Cup Squad, The Hindu, April 29th 2019.

[6] Aditya Sondhi, The Legal Status of BCCI: Unwarranted Ad-Hocism, Constitutional Hurdles and the Pressing Need for a Cricket-Legislation, National Law School of India Review, Vol. 22, No. 2 (2010), pp. 111-123.

[7] Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC (India).

[8] INDIA CONST, Art. 12.                                                                                                 

[9] INDIA CONST, Art. 312.

[10] D. S. Garewal v. State of Punjab, AIR 1959 SC 512 (India).

[11] P. B. Mukharji, Delegated Legislation, Journal of the Indian Law Institute, Vol. 1, No. 4 (July, 1959), pp. 465-492.

[12] Introduction, Board of Control of Cricket in India Anti-Doping Rules, BCCI Anti-Doping Cell (2018).

[13] Article 5; Article 10, Board of Control of Cricket in India Anti-Doping Rules, BCCI Anti-Doping Cell (2018).

[14] Article 1.1, Board of Control of Cricket in India Anti-Doping Rules, BCCI Anti-Doping Cell (2018).

[15] Article 10.2.1, id.

[16] Article 10.2.2, id.

[17] Article 5.2, id.

[18] Article 5.3, id.

[19] Article 5.3.2, id.

[20] Article 5.3.2.1, id.

[21] Introduction, Cricket Australia Anti-Doping Code, Cricket Australia Integrity Unit (2017).

[22] Introduction, The England and Wales Cricket Board Anti-Doping Rules (2017).

[23] Article 11, Cricket Australia Anti-Doping Code, Cricket Australia Integrity Unit (2017).

[24] Article 10, The England and Wales Cricket Board Anti-Doping Rules (2017).

[25] Article 10.2.1, International Cricket Council Anti-Doping Code, The ICC’s Anti-doping Manager (2019).

[26] Article 5.4, Cricket Australia Anti-Doping Code, Cricket Australia Integrity Unit (2017); Article 5.4, International Cricket Council Anti-Doping Code, The ICC’s Anti-doping Manager (2019).

[27] World Anti-Doping Agency, Athlete Biological Passport, https://www.wada-ama.org/en/athlete-biological-passport.

[28] Article 5.4.1, Cricket Australia Anti-Doping Code, Cricket Australia Integrity Unit (2017).

[29] Article 5.4.3, id. At 25.

[30] Article 5.4.5, id. At 27.

[31] Article 5.4, The England and Wales Cricket Board Anti-Doping Rules (2017).

[32] Article 5.4.1, id.

[33] Article 5.4.2, id.

[34] Article 5.5, International Cricket Council Anti-Doping Code, The ICC’s Anti-doping Manager (2019).

[35] Article 5, Cricket Australia Anti-Doping Code, Cricket Australia Integrity Unit (2017).

[36] Article 5, The England and Wales Cricket Board Anti-Doping Rules (2017).

[37] Article 5.1.1, International Cricket Council Anti-Doping Code, The ICC’s Anti-doping Manager (2019).

[38] World Anti-Doping Agency, Who We Are, https://www.wada-ama.org/en/who-we-are?

[39] Introduction to the Code, World Anti-Doping Code, World Anti-Doping Agency (2015).

[40] Article 1.5.1.1, World Anti-Doping Code, World Anti-Doping Agency (2015).

[41] Article 1.5.1.2, id.

[42] Article 1.5.1, id.

[43] Article 1.9.2.3, World Anti-Doping Code, World Anti-Doping Agency (2015).

[44] Aparna Chandra, India and International Law: Formal Dualism, Functional Monism, Indian Journal of International Law (2017), https://library.unej.ac.id/repository/_Indian_Journal_of_International_Law0A.pdf.

[45] INDIA CONST, Art. 253.

[46] Dr. Sunil Kumar Agarwal, Implementation of International Law in India: Role of Judiciary (June 14th, 2010), https://ssrn.com/abstract=1864489.

[47] Article 18, Board of Control of Cricket in India Anti-Doping Rules, BCCI Anti-Doping Cell (2018).

[48] Article 5.4, Cricket Australia Anti-Doping Code, Cricket Australia Integrity Unit (2017) and Article 5.4, International Cricket Council Anti-Doping Code, The ICC’s Anti-doping Manager (2019).

[49] Article 5.4.2, The England and Wales Cricket Board Anti-Doping Rules (2017).

[50] Article 1.5.1, World Anti-Doping Code, World Anti-Doping Agency (2015).

[51] Article 1.9.2.3, World Anti-Doping Code, World Anti-Doping Agency (2015).

[52] Article 18, Board of Control of Cricket in India Anti-Doping Rules, BCCI Anti-Doping Cell (2018).

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