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Thursday, July 09, 2020

The Error In Zero Tolerance

Anti-doping measures often target sportspersons who are victims, not perpetrators

Written by Anish Dayal | Updated: June 1, 2018 1:50:34 am
A nation with a burgeoning young population cannot let inertia put it on a murky sporting track

Close on the heels of the recently concluded Commonwealth Games at Gold Coast, Australia, where the Indian contingent got rapped for alleged violations of the “No Needle Policy”, the Athletics Federation of India (AFI) has reportedly decided to implement a similar policy. The AFI claims it is the first national sports federation to do so, while there are rumblings that our sports ministry and the Indian Olympic Association are considering such a policy as well.

Zero tolerance is welcome. The culture of casual doping amongst athletes needs to change. The reasons for the malaise are many — peer pressure, irresponsible advisers and fellow athletes, unscrupulous coaches, easy availability, poorly administered federations and, of course, human fallibility.

In April, The Indian Express reported that India had dropped from third to sixth place on the recently released World Anti-Doping Agency’s (WADA) 2016 List of Offenders. From 120 sportspersons in 2015, only 69 were found guilty in the subsequent year. What makes India’s position unique is that it’s too high on this list, disproportionately so to the levels of its sporting achievement.

Indian anti-doping rules mirror the WADA code and prescribe a framework of strict liability. For this, the athlete first needs to establish how the prohibited substance entered his/her system. This burden is justifiably onerous. In reality, it disables an athlete caught in inadvertent doping. Inadvertent doping is due to contaminated or mislabelled supplements, misguided medical treatment and at worst, sabotage. Harmless food supplements like proteins or vitamins used by athletes are often from unreliable sources like private shops or online purchase. A recent initiative by the Foods and Safety Standards Authority of India (FSSAI) and National Anti-Doping Agency (NADA) to test and certify supplements is still to be fully operationalised. Ideally, the government should create a source for safe permitted supplements. It would curb accidental doping. An athlete accused of inadvertent doping cannot get supplements tested for contamination, having no access to authorised laboratories. The National Dope-Testing Laboratory (NDTL) is accessible only to NADA or the government.

Any anti-doping initiative should aggressively focus not only on detection but also on education and awareness. Athletes, support staff, federations, sports medical personnel must be equipped with well-conceived literature, consultation and workshops. Current efforts are inadequate. NADA’s efforts need to be supplemented by a cadre of indigenous anti-doping experts.

The AFI has declared that they have drawn up a two-page protocol which would be distributed to all athletes at national camps and training centres. While we await the details, a few caveats. First, as a policy, this will be separate from the Anti-Doping Rules and will have to be implemented in silos. Second, the infringement of policy can lead to a disciplinary action but not an anti-doping sanction. Third, an impenetrable infrastructure needs to be put in place first, so that cases of sabotage (simply planting a needle in a competitor’s room) does not become rampant.

Finally, there is an argument for restorative, rather than simply retributive justice. A framework must be created to constructively counsel athletes to understand the real causes, degrees of fault and administrative lapses. Merely subjecting them to an arduous legal process before NADA is not a long-term solution. We must recognise the socio-cultural reality of our sportspersons. Quite a few are from semi-urban or rural backgrounds. To them, sports is the only route to a better economic status. Literacy and language are serious impediments. They are subject to the whims and dictates of administrators. Amidst such intense pressure, they compete and carry our nation’s hopes. But when they err, or are accused of doing so, we disclaim all responsibility. Sports federations, more famous for politicking, must take this blame upfront.

Making doping a criminal offence, as was once proposed, is an untenable idea which would subject athletes to an already crippled criminal justice system. A nation with a burgeoning young population cannot let inertia put it on a murky sporting track.

The writer an advocate, Supreme Court and Delhi High Court, is also a sports lawyer

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