KhelAdhikar

Play it Even

Who is the bigger loser?

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By Naman Lohiya (4th year student at Gujarat National Law University)

 

Prologue

“Both the sportspersons (Sushil Kumar and Narsingh Yadav) appear to be equally placed and due to lack of any mala fide in the reasons for each of their selections, the court cannot be dragged into this. It must be resolved by the designated sports authorities.”

But are there designated sports authorities equipped to adequately resolve sporting disputes of varying nature in India? The spot for Rio Olympics in the 74-kg freestyle wrestling category has seen it all. It highlights the dismal (rather non-existent) state of dispute resolution for sports in India.

Background

 Scene 1

Sushil Kumar, a familiar name for Indians in wrestling, has won a Bronze Medal at the 2008 Beijing Olympics and a Silver Medal at the 2012 London Olympics amongst several other accolades for India. Notably, he was the Indian flag-bearer at the 2012 Olympics opening ceremony. It therefore came as a shock when he was dropped from the Wrestling Federation of India’s (“WFI”) Preparatory camp  for the 2016 Rio Olympics. To top it, the Federation denied that it dropped Kumar from the list, merely a few days before actually dropping him. The Federation in its justification claimed only quota-place earning wrestlers were included in the Camp.

Quota system at Olympics functions owing to limited availability of qualification slots at the Olympic Games. Based on performance in certain sport-specific recognized international tournament, quotas are allotted. Interestingly, quotas are allotted not on the basis of ranking of athletes but those of countries (represented by athletes) at those specified tournaments. It logically follows, as mandated by the rules, that quotas are allotted to a country and not an individual wrestler. Therefore, a country has the discretion to allot the berth to the wrestler that it deems fit.

Narsingh Yadav was not only India’s sole medal winner at the 2015 Las Vegas World Wrestling Championship, he also secured a slot for India. Sushil Kumar was unable to participate in the event owing to an injury. However, Kumar expressed his willingness to participate at the 2016 Rio Games and accordingly made representation to the WFI to conduct trials.

Scene 2

Upon rejection of his request, he moved the Delhi High Court. The Delhi High Court seemed to have taken a conservative view of the matter.  It approached the case from the narrow perspective of adjudicating and determining the administrative powers of National Sport Federations (“NSF”).

This Court is of the view that a writ Court will not interfere in the exercise of discretion of the National Sports Federation and substitute its own judgment except where the discretion is shown to have been exercised in an arbitrary, capricious, perverse manner or contrary to settled principles or practices.

The Court was determined to stay within the contours of the National Sports Code, 2011, which in opinion of Manmohan J., gave full autonomy and discretion to NSFs and does not restrict it. It however only obligates NSFs to judiciously select players to represent India, which seems flexible and rather subjective. Such autonomy has the potential of giving unbridled authority to NSFs and in absence of any reviewing body, might as well work contrary to the desired outcome. The Court finally declared the petitioner’s plea to be untenable on these grounds and that last minute changes may disturb the mental preparation of the selected sportsperson.

Scene 3

Accordingly, Sushil Kumar’s final attempt yielded no respite to him. However, the curtain was not drawn just as yet. Despite being ultimately cleared by the WFI to represent India at the 2016 Olympics, he tested positive for intake of an anabolic steroid days before the event.Upon an enquiry being conducted by the disciplinary panel of India’s National Anti-Doping Agency (“NADA”), Yadav was cleared of any punishment owing to no fault or negligence of his own.

Naveen Agarwal, NADA’s Director General, on August 1, 2016, read out the relevant portions and highlighted te key points that convinced them that Yadav wasn’t guilty. The Anti-Doping Disciplinary Panel, (“ADDP”), on the basis of two samples taken, was convinced that varying degree of drugs were consumed by Yadav. However, there was widespread belief and a seeming bias that Yadav didn’t willingly consume such prohibited substances. In an apparent trial by media which also seemed to have influenced the Panel’s opinion, the foundation for application of the sabotage defence was laid down.

(Primer on sabotage defence: When owing to no fault or negligence and due care taken by the athlete, if he or she was sabotaged by a competitor then the innocent athlete would be exonerated of any such period of ineligibility accrued due to consumption of such prohibited substances.

“If an Athlete or other Person establishes in an individual case that he or she bears No Fault or Negligence, then the otherwise applicable period of Ineligibility shall be eliminated.”– Rule 10.4 of NADA Anti-Doping Rules)

NADA was convinced of the sabotage defence. On the basis of circumstantial evidence, they concluded that Yadav’s daal and energy drink were spiked, despite Yadav’s adequate care.To much of his dismay, the decision of the ADDP of the Indian NADA was set aside by the Court of Arbitration for Sport (“CAS”).

Scene 4

The World Anti-Doping Agency (“WADA”) filed an application with the CAS Ad Hoc Division against the ADDP’s decision. ADDP challenged CAS’s jurisdiction however it was rejected as the dispute arose ‘in connection’ with the Olympic Games and therefore the decision of ADDP was appealable by CAS under Article 13 of the World Anti-Doping Code (“WADC).

The Panel was affirmative on the basis of two evaluated samples collected from Yadav that prohibited substances (methandienone) were within his system. While the ADDP concluded that no fault or negligence under Article 10.4 of the WADC could be attributed to Yadav, the Panel held that not only the burden of proof was on Yadav but it was also significantly higher and hasn’t been met.

Yadav and ADDP sought to prove that Jithesh (a junior wrestler and member of Sushil Kumar’s entourage) was suspiciously lurking in the kitchen and was possibly the one who spiked the food. However, WADA relied upon Professor Ayotte’s expert opinion to argue that methandienone is insoluble in water and the intake was too high to be a one-time ingestion. Therefore, the CAS found it fairly easy to hold that Yadav’s body contained the prohibited substances. The real bone of contention was Yadav’s sabotage defence under Article 10.4 of WADC. CAS weighed circumstantial evidence against scientific evidence. The Ad Hoc Division further held that there was existence of a mere theory of sabotage however no real evidence existed.Reliance was also placed on the Van Snick and Gasquet case wherein the athletes were exonerated of any guilt as both the athletes had no reason to ingest cocaine and had evidence that could be assessed by the Panel. Therefore their sabotage defence was successful in both of the aforementioned cases.

 The burden of proof on Yadav was therefore not satisfied as the evidence he produced was not preferred. The Panel held that there is insufficiency of evidence and motive to conclude the same. Therefore the ‘sabotage’ defence was deemed inapplicable and Yadav was suspended for four years.

A complaint was subsequently filed with the Central Bureau of Investigation (“CBI”) on the grounds of foul play by Yadav.

Takeaway

 If one were to look at the situation holistically, the biggest losers were not the involved sportspersons or the agency, but India as a whole. The situation may be marked as a colossal failure and a reminder of the need for an appropriate and a functional dispute resolution mechanism for sportspersons.

First, the Delhi HC evidently took a narrow view and overplayed the importance of autonomy of NSFs in the case. Greater discretion than necessary may have been accorded to the WFI. The Court did not feel that there was a need for an express policy, i.e. in this case whether trials are or aren’t supposed to be conducted uniformly for all major events. The policy was allowed to exist in practice and upon determination of the NSF. The con of failure to call for such an express policy is that as the doping probe evolved and Yadav was disqualified from contesting in the Olympics, India did not have a replacement to fill in the spot.

Second, the CBI has and continues to treat the matter similar to any other case. The CBI obviously seems to have failed to consider the special nature of the case. A sportsperson has a short career and has significantly more to lose owing to time delays than any other ordinary person. Despite the case being registered two years ago, Narsingh Yadav has claimed that no development in terms of investigation has been made by the CBI. This has obviously jeorpadized the two years he may have spent being wrongfully suspended and another two to come. A conclusion by the CAS Ad Hoc Division was based on the evidence presented in a short span of time. They were not equipped with investigation and failure to investigate by the CBI only further adversely affects the interests of a sportsperson deemed to not be guilty by the NADA in India.

Third, the NADA’s decision was obviously and easily overturned by the Ad Hoc Division. This is not only embarrassing to India internationally but also shows the inefficiency and incompetence of the top body responsible for anti-doping in India. This comes at a time when India has been the country with the third highest number of athletes to have been disqualified owing to doping for the past three years.It could significantly impair the integrity of Indian sporting associations locally as well as globally if mechanisms do not allow the most deserving sportspersons from India to represent the country internationally. Such maladministration on the part of Indian agencies may in effect work opposite the objective of promoting natural human potential in sport.

Fourth, the actions of the High Court, CBI and the NADA makes a rigid base for laying down a case for adopting global standards of dispute resolution in sport. Most NSFs, for starters, do not provide for constitution of a special tribunal or body to adjudicate disputes. Such disputes are mostly taken to the same persons managing the organisation, performing administrative actions. They at best, ordinarily appear to exist as makeshift adjudicating authority. The autonomy granted to NSFs coupled with rampant corruption in India further opens up a Pandora’s box. The decisions taken by NSFs are generally laden with bias, drenched in inefficient bureaucracy and do not cater the needs of deserving sportspersons. Moreover, a clear division between the adjudicating authority and the administrators of NSFs is essential to impartial and fair decision making and if executed perfectly, may also allow bodies to apply lex sportiva.

Inclusion of clauses in the Codes or Constitutions of NSFs providing for CAS as an adjudicatory authority may also be beneficial in a slightly unconventional way. The Delhi High Court in Rajiv Dutta v. Union of India was approached due to concerns over an alleged illegal suspension and more importantly absence of remedy against decisions of such NSFs. The Court identified the lack of guidelines and while dismissing the petition, directed the Union of India (Ministry of Youth Affairs and Sports) to give an opportunity of hearing to the petitioner to present a case for provision of remedy of appeal to CAS.

Furthermore, understandably the process of approaching CAS for Indian sportspersons would be expensive and mostly untenable. This may further strengthen the case for sports tribunals in India. Inclusion of CAS may at least aid in setting soft standards owing to the fear of decisions being challenged. The NSFs or the government would also ensure that sport tribunals or similar bodies have suitable benches with relevant experience in sports and related dispute resolution process. Moreover, the domestic sports adjudicating bodies would function on principles greatly recognised as internationally fair mostly set before the CAS. An efficient way of providing the sportspersons with effective means of attaining remedy may be to allow third party funding in the process. Interested parties such as those promoting sports or even those acting in quest for profitable opportunities may prove beneficial for potentially deserving sportspersons.

Conclusion

“I am not asking them to give me a clean chit. I’m just asking them to see if the case can be speeded up, or if there is any update. An athlete’s career is very short, and I have already lost two important years.”- Narsingh Yadav

In any case, the series of events highlighted above clearly demonstrate the need for sports tribunals in India. They would be purposed with ensuring setting of fair policies in various NSFs, ensuring the non-violation and supporting interests of sportspersons and function autonomously to end the red-tapism and bureaucracy.

India missed a chance to potentially win a medal at the backdrop of frustrating performance of the game, owed largely to being unorganised. To add to it, the efforts to tackle the cause of it or even to find the culprit are not praiseworthy but on the contrary have been disappointing.

Most countries globally which perform at Olympics allow for dispute resolution before the Court of Arbitration. Moreover, all major games such as Commonwealth Games and Olympic Games are subject to constitution of a special CAS Ad Hoc Division. Certain premier bodies such as Indian Olympic Committee do contain an appeal provision to the CAS. There has even been an attempt to constitute an Indian Court of Arbitration for Sports in 2011, the progress and fate of which remains unreported and therefore unknown.

The idea seeking to establish sports tribunals and appeal mechanism has been in the loop for years. The current Prime Minister has even constituted a Task Force to effectively improve India’s performance at the Olympics. In absence an informed body responsible for adjudicating, reviewing policies and setting standards, there is little hope for an efficient improvement in performance. India cannot afford to learn from the mistakes it keeps repeating.

Categories: Dispute Resolution, Ethics and Governance

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