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WADA v Narsingh Yadav - Who's to Blame?

 (photo credits: PTI Photo)

After contradictory reports and statements were made in the media, the saga of Narsingh Yadav gains some clarity with the publication of the CAS decision overturning the decision of the Anti-Doping Disciplinary Panel (ADDP) of the National Anti-Doping Agency (NADA) exonerating him.¹

Narsingh Yadav’s disqualification after his having been sent to Rio cost India a shot at an Olympic medal in the 74kg category in the men’s freestyle wrestling event. The question being asked, naturally, is who is to blame? The CAS decision does shed some light.

I.

The undisputed facts are these. Narsingh Yadav was training at the Sports Authority of India (SAI) training facility at Sonepat. On 6 June 2016, he left to attend a training camp in Bulgaria and returned on 23 June. On 25 June and 5 July, urine samples were collected from Narsingh to be tested for banned substances. In July, the samples were tested, and the presence of metabolites of methandienone was detected (methandienone is a Prohibited Substance under the WADA Code and if its metabolites and markers are found in an athlete’s body, it is as good as a finding of the substance itself). Narsingh was provisionally suspended. The ADDP of NADA held hearings between 23 and 29 July, and delivered its decision on 1 August clearing Narsingh as being a victim of sabotage and therefore shouldering no fault. It bears mentioning here that under the NADA Code 2015 (as under the WADA Code 2015, which NADA has limited room to adapt or amend), if a prohibited substance is found in an athlete’s body for whatever reason, the athlete can be said to have doped, unless he or she can can either disprove the presence of the prohibited substance or establish that he or she bore no fault for the prohibited substance being present.²

The presence of the substance was not disputed by Narsingh. However, he insisted that his drink had been contaminated by Jitesh, a wrestler training at a rival akhara (run by Sushil Kumar’s father-in-law and where Sushil Kumar himself trains). A wrestling partner of Narsingh’s, Chandan, alleged that the food prepared for Narsingh had been contaminated with a powder and hence he threw it away. However, he did not mention this to Narsingh at the time. While Narsingh left for Bulgaria the following day, this meant that the alleged sabotage attempt was not reported for about a month.

Narsingh’s roommate and training partner, Sandeep Yadav, had also been tested on 25 June, and his sample was also found to be contaminated, though with a slightly different substance (methandienone, rather than metabolites of methandienone). Three kitchen workers testified before the ADDP that they had seen Jitesh in the kitchen, with one having seen him pour a powder into the curry and another having seen the curry “frothing unusually”. However, this batch was thrown away before being consumed and so could not be the source of the prohibited substance which entered Narsingh’s system.

Narsingh alleged that the methandienone had been added to his drink during a training session, and provided NADA with a list of food and nutritional supplements that he was taking. However, the National Dope Testing Laboratory (NDTL’s) report stated that it had not detected any banned substance in any of the supplements. On the basis of this report, the ADDP held that Narsingh had established No Fault or Negligence. The Comment to Article 10.4 (“Elimination of the Period of Ineligibility where there is No Fault or Negligence”) of the NADA Code 2015 states that “[Article 10.4 and 10.5.2] will only apply in exceptional circumstances, for example where an Athlete could prove that, despite all due care, he or she was sabotaged by a competitor” (emphasis added). It is difficult to argue that Narsingh had taken all due care, given that the first alleged attempted sabotage was not reported until after the first dope test, and given that he did not take steps to protect his food, as fellow wrestler Yogeshwar Dutt did, by avoiding the food in the SAI common kitchen,³ and it is difficult to see how NADA arrived at a No Fault or Negligence ruling in the circumstances. It has been alleged that the media attention and raising of the issue in Parliament prompted the placing of political pressure on NADA that may have influenced its decision.⁴

II.

Article 10.2.1.1. of the 2015 WADA Code provides for a four year ban unless the athlete can establish that the anti-doping rule violation was not intentional, and WADA routinely appeals decisions of National Anti-Doping Organisations in which the maximum penalty of four years is not imposed.⁵ It was inevitable that WADA would appeal this seemingly unjustified decision of the ADDP. WADA made an application before the Ad hoc Division of CAS established to adjudicate disputes at the Rio Olympics.

The ongoing competition requires the Ad hoc Division to arrive at its decision quickly, sometimes within 24 hours, which is a necessary compromise to the thoroughness of the decision making process. However, Narsingh was left especially under-prepared to make his case. WADA filed its appeal on 13 August at 19:00 Rio time. It was only confirmed that Narsingh was aware of the application on 15 August at 16:30. 15 August being Independence Day and so a public holiday in India, Narsingh’s lawyer in India did not receive the application even as late as 20:00 on 15 August Rio time or 04:30 on 16 August IST (Rio being eight and a half hours behind India time). Narsingh filed his answer on 16 August at 08:45 Rio time or 17:15 IST.⁶ The hearing commenced at 09:00 Rio time. This left Narsingh’s counsel with at most 12 and a half hours to prepare and file the Answer as well as prepare for oral submissions, despite WADA having filed it about 60 hours before the hearing commenced. Here, the Indian Olympic Association (IOA) and NADA must be faulted for not facilitating the procurement of legal counsel for Narsingh sooner, or for rejecting the pro bono counsel stationed in Rio and offered to the Respondents. NADA eventually raised only procedural issues before CAS.

Consequently, no expert evidence could be produced by Narsingh’s counsel. On the other hand, WADA employs several experts, and was the Applicant besides, and had Dr. Christiane Ayotte, the director of a doping detection laboratory, to testify. Dr. Ayotte testified that: (a) methandienone would not completely dissolve in a drink, even if it had been ground down, hence Narsingh would have detected it in his drink; (b) the concentrations of methandienone were not consistent with a few micrograms having been ingested as a dispersed powder in a drink taken even the day before (since it was argued that the drink must have been spiked during a training session on either 23 or 24 June), and were more consistent with the methandienone being ingested in a therapeutic dose, and (c) by the time the second sample of 5 July was taken, the concentration of the long term metabolite was too high to be consistent with a single ingestion. In response, Narsingh’s counsel could merely argue that the supplement consumed by Narsingh was not completely soluble, and when mixed with water would create floating fragments, making the presence of the added methandienone undetectable by the naked eye. The CAS Panel found no reason to disbelieve Dr. Ayotte.

The evidence cast significant doubt on the version that the banned substance was added to Narsingh’s drink during training, and if this version was rejected, no probable source of the prohibited substance could be identified. It was irrelevant whether Narsingh intentionally doped or not; he could not prove that he had taken all due care and thus could no prove that he bore No Fault or Negligence (no penalty) or No Significant Fault or Negligence (two year penalty). While the Panel can rely on circumstantial evidence, the standards of proof in such cases are extremely high. In Puerta v ITF,⁷ the Panel held that the Player had not proved No Fault or Negligence when he failed to replace his glass of water or drink from a bottle after a brief visit to the changing room, during which time his glass got switched with his wife’s, which contained residue of her prescribed medication. The Panel in Narsingh’s case, however, discussed the cases of ITF v Gasquet,⁸ where the Panel held that the player acted without fault or negligence when cocaine entered his body by his act of kissing a woman who, unbeknownst to him, had taken cocaine,⁹ and Van Snick v FIJ,¹⁰ where it was found that sabotage was the likeliest cause for the presence of cocaine metabolites in the body of the athlete.¹¹ However, in both of those cases, the Panel found that the athlete had no cause to ingest the prohibited substance (cocaine offers no competitive advantage in the small doses detected) and crucially, the source could not be identified. This did not make the theory of sabotage credible.

III.

Thus, if blame must be apportioned for India’s automatic disqualification from the 74kg category in the men’s freestyle wrestling event, who must bear it?

Certainly, Narsingh himself shares some blame, since, even if he did not intentionally dope (and some of the evidence does suggest that he did), he did not guard his food with the level of care expected of an elite athlete. Some of the evidence does suggest that an attempt at sabotage was made; however, that evidence was never seriously challenged – it seems that the NADA counsel never got the chance to cross-examine the witnesses produced by Narsingh when the matter was before the ADDP,¹² and the witnesses did not appear in person or face cross-examination during the CAS hearing – and in any case, since the food was thrown away, it did not establish the source of the methandienone. Narsingh’s wrestling partner, Chandan, inexplicably failed to mention the attempt to Narsingh. The IOA and NADA were late in facilitating Narsingh’s access to legal counsel. And the ADDP of NADA produced false hope by delivering what appears on the face of it to be an unjustified decision.

Some of the blame must also go to Wrestling Federation of India (WFI). Yes, they followed the tradition of sending the wrestler who secured the Olympic quota (a tradition that has not always been followed), but they did not consider the embarrassment that would have followed – and did follow – the decision being overturned. The reason for the quota going to the country and not the wrestler is because of the sport being uncertain, with chances of injuries and rises and dips in form,¹³ and given the risk and controversy, the WFI might have gone with Sushil Kumar (medal winner at Beijing 2008 and London 2012), Parveen Rana (the WFI’s original backup after Narsingh’s samples tested positive), or Amit Dhankhar (a younger wrestler, and gold medallist at the 2011 and 2013 Commonwealth Wrestling Championships).

1World Anti-Doping Agency (WADA) v Narsingh Yadav & National Anti-Doping Agency (NADA), CAS OG 16/25.

2National Anti-Doping Agency, ‘Anti Doping Rules 2015’, Article 2.1, http://www.nada.nic.in/View/Downloads/writereaddata/NADA_Anti_Doping_Rules_2015.pdf.

3Jonathan Selvaraj, ‘Sushil Kumar-Narsingh Yadav saga: A tale of rivalry, conspiracy and aspiration’ The Indian Express (2 August 2016) http://indianexpress.com/sports/rio-2016-olympics/narsingh-yadav-sushil-kumar-saga-a-tale-of-rivalry-conspiracy-and-aspiration-2946995/.

4K P Mohan, ‘A Long Road Ahead for Narsingh Yadav’ The Wire (21 August 2016) http://thewire.in/60525/a-long-road-ahead-for-narsingh-yadav/.

5Antoine Duval and others, ‘The World Anti-Doping Code 2015: ASSER International Sports Law Blog symposium’ (2016) 16(1) ISLJ 99, 102.

6The Award says that the Answer was filed on 15 August at 08:45, but this is certainly a typographical error.

7Mariano Puerta v International Tennis Federation (ITF), CAS/2006/A/1025.

8International Tennis Federation (ITF) v Richard Gasquet, CAS 2009/A/1926.

9The Panel in ITF v Gasquet would have arrived at a finding of No Fault. However, the Player merely prayed for a dismissal of the appeal of WADA from the decision of the ITF Tribunal finding No Significant Fault. Hence, the Player still faced penalty.

10Charline Van Snick v Federation Internationale de Judo (FIJ), TAS 2014/A/3475.

11The Award is rendered only in French, and French speakers may find it profitable to consult the text at www.tas-cas.org/fileadmin/user_upload/sentence_3475__final__internet.pdf. A press release by CAS in English may be found at Court of Arbitration for Sport, ‘The CAS annuls the suspension of Charline Van Snick’ http://www.tas-cas.org/fileadmin/user_upload/Media20Release20_English_203475.pdf.

12K P Mohan, see above.

13Sukhwant Basra, ‘Yogeshwar Dutt’s tame loss shows what’s wrong with Indian wrestling right now’ Hindustan Times (21 August 2016) http://www.hindustantimes.com/olympics/yogeshwar-dutt-s-tame-loss-shows-what-s-wrong-with-indian-wrestling-right-now/story-f0oKzXdsXL4phmlxSH4jHL.html.

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Laishram Sarita Devi's Lasting Impact on Indian Sports Law

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Indian boxer Laishram Sarita Devi recently made the news when she failed to make it past the second round of the Women’s World Boxing Championships held in Astana, Kazakhstan in May along with Indian boxing star M C Mary Kom, thereby failing to qualify for the Rio Olympics.¹

However, readers may remember Sarita Devi when she refused to accept her bronze medal at the 2014 Asian Games at Incheon after being declared the loser in her semifinal bout in a controversial decision. She alleged bias on the part of the judges, and indeed, it appeared that that she had been dominating throughout her bout. Indian Olympic Association (IOA) officials failed to support her and she had to borrow money from a journalist in order to lodge her protest against the decision. The International Boxing Association (AIBA) banned her for a year.

An ad hoc division of the Court of Arbitration of Sport (CAS) was in operation at the Games, but Sarita Devi was perhaps unaware of this. While the IOA later stated that they would support and fund her appeal, her crucial moment to approach the ad hoc division (which decides disputes within 24 hours) was lost.

Mr. Rajiv Dutta, a senior advocate in the Supreme Court, filed Public Interest Litigation (PIL) in the Delhi High Court² against the Department of Sports, the IOA, and Boxing India.³ He argued that there was no appeal for Sarita Devi from the AIBA decision, and in general, that there were no guidelines on resolving disputes with international sports governing bodies. He therefore asked the court to direct the government to direct National Sports Federations (defined in the Draft National Sports Development Bill, 2013) to incorporate a clause for appeal to CAS in their rules and regulations.

The Court merely directed the government to give Mr. Dutta a hearing, but the government considered the petition, and just last month, the Ministry of Youth Affairs and Sports (MYAS), Government of India issued an advisory to all National Sports Federations.⁴ The MYAS not only advised NSFs to establish an “effective, transparent and fair grievance redressal system and mechanism”, but also to provide for an appeal to athletes and support staff from penalties and punishments imposed by international sports governing bodies to CAS.

Both changes, if implemented (and they may well, as most sports governing bodies in India are heavily dependent on government funding), will have far reaching consequences for sports law in India. Many sports governing bodies merely provide for their President or a partisan committee to hear disputes raised by athletes, and if the government intends that NSFs adopt principles of “good governance” (which will entail several procedural safeguards, and certainly the right to legal counsel of one’s choosing, the prevention of personal or institutional bias, and the requirement of reasoned decisions), such mechanisms may not prove fair and impartial enough to pass muster.

It is also important that Indian athletes be provided an appeal to CAS. The structure of global sports is pyramidal, and domestic sporting bodies are bound by the decisions of the international bodies they are affiliated to, but while athletes from the developed world are provided the right to challenge the decisions of such international bodies before a forum that both has the power to strike down unfair regulations and rulings, Indian athletes are often not as lucky. Laishram Sarita Devi’s case is a clear example of that.

However, providing a CAS appeal is meaningless unless the domestic sporting body offers support as well. In the few cases of Indian athletes approaching CAS, it appears that the athletes have not able to secure adequate legal counsel or expert witnesses. For example, in Amar Muralidharan v NADA,⁵ counsel for the athlete failed to convince the panel that a delay of two years during which the athlete remained on provisional suspension (greater than the maximum period of suspension that he could receive upon being found guilty of doping) was a violation of his procedural rights. It appears that there was no reference made to human rights instruments such as the European Convention on Human Rights (to which Switzerland is a signatory), Article 6 of which guarantees the right to a fair trial, or to the Swiss ordre public (public policy), which includes procedural fairness, and which has been cited in other CAS decisions.⁶ Another example would be WADA v Nirupama Devi Laishram,⁷ where judoka Nirupama Devi was unable to produce any expert witnesses in her appeal against her doping ban on account of financial constraints. Financial support from the National Sports Federation would be imperative in such cases. Further, India does not have an established sports law bar that have sufficient knowledge of sporting issues and have experience before fora like the CAS. Even Dutee Chand, who received the support of the Sports Authority of India, and who, to the best of my knowledge, is the only Indian athlete to havewon in the Court of Arbitration for Sport, pleaded that she was put under pressure by her sponsors to undergo medical treatment that would be risky to her health.

In being denied an appeal (for whatever reason), has Laishram Sarita Devi opened the door for more Indian athletes to benefit from a fairer adjudicatory process and an appeal to the CAS? Given the lethargy and corruption in many Indian sports governing bodies, it is equally possible that such reforms as suggested by the government may take years to be implemented. And even once implemented, athletes would require institutional support for the reforms to have any success. However, this is still a big step, and we may remain cautiously optimistic.

*Photo credits: Pradeep Gaur/Mint

1Sarita Devi also failed to qualify for Rio in March 2016 when she lost her quarter-final bout in the Asian/Oceania Olympic Qualifiers in Qian’an, China.

2Rajiv Dutta v Union of India WP(C) 8734/2014, Del HC, decision of 15.01.2016.

3Boxing India was a governing body for Indian amateur boxing that was created after the Indian Amateur Boxing Federation (IABF) was suspended by the AIBA for failing to conduct elections. However, Boxing India was also suspended by AIBA, and the governance of Indian amateur boxing was taken over by an ad hoc committee appointed by the AIBA. This committee will continue until the new body, the Boxing Federation of India, is constituted, conducts elections, and receives recognition from the AIBA.

4Ministry of Youth Affairs and Sports, Government of India, ‘Safeguarding the interests of sportspersons and provision of effective Grievance Redressal System in the Constitution of National Sports Federations’ (Press Information Bureau, 17 June 2016), http://pib.nic.in/newsite/PrintRelease.aspx?relid=146295.

5Amar Muralidharan v National Anti-Doping Agency, National Dope Testing Laboratory, Ministry of Youth Affairs & Sport CAS 2014/A/3639.

6See World Anti-Doping Agency (WADA) v Jessica Hardy & United States Anti-Doping Agency (USADA) CAS 2009/A/1870; UCI v Alberto Contador Velasco & RFEC CAS 2011/A/2384; Fenerbahçe SK v UEFA CAS 2013/A/3139.

7World Anti-Doping Agency (WADA) v Nirupama Devi Laishram & National Anti-Doping Agency of India (NADA) CAS 2012/A/2979.

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The Curious Case of Dutee Chand

Earlier this week, Indian sprinter Dutee Chand qualified for the Rio Olympics in the women’s 100m event, but the journey hasn’t been easy. 

In 2014, she underwent a routine doping test in which it was found that she had unusually high levels of testosterone. Testosterone doping was common in both male and female athletes in the 1980s as the substance contributes to performance, and was difficult to detect as it is produced naturally in the body. However, Dutee Chand had not doped on testosterone, but had a condition called ‘hyperandrogenism’, by which her body naturally produced higher levels of testosterone than is typical in women. The regulations of the International Association of Athletic Federations (IAAF), the world governing body of athletics, prescribed that athletes with testosterone levels above 10nmol/L could not compete in women’s events, and, bound by the regulations, the Athletics Federation of India (AFI) suspended Dutee Chand.

Dutee Chand wrote an impassioned letter, pleading to be allowed to participate as it was no fault of hers that her body produced high testosterone levels, and was no different from other advantages enjoyed by athletes such as height or privileged background. She was born and brought up a woman, identified as a woman, and ought to be allowed to compete with other women. In essence, she pleaded that the Hyperandrogenism Regulations operated as a ‘gender test’ under which she was not considered female enough to compete. Not being allowed to do so would cause her to be shunned in her village. Ridicule and discrimination is commonly faced by female athletes whose femininity comes into question, such as Caster Semenya of South Africa or Santhi Soundarajan from Tamil Nadu, though in both of those cases, the athletes reportedly failed ‘gender tests’. Dutee Chand was offered medical intervention, but she said that did not want to undergo such procedures, which would cause health risks, despite pressure put on her by her sponsor.

The case went up to the Court of Arbitration for Sport (CAS). Before it, the IAAF denied that their Hyperandrogenism Regulations were gender tests, and said that while it recognised that sex in humans is not binary but a continuum, it was necessary to devise a dividing line between male and female categories for sports competitions to prevent unfairness to female athletes who were, on average, less powerful than their male counterparts. However, it was correctly pointed out that the tests only applied to female athletes, and male athletes with unusually high levels of testosterone were not barred from participating with other male athletes. 

Dutee Chand also challenged the scientific basis of the Regulations, contending that it could not be shown that elevated levels of natural testosterone gave elite athletes a performance advantage or that medical science was presently capable of delineating distinct testosterone ranges for male and female athletes. Previous decisions of the CAS had ruled that the CAS could indeed reject a finding of doping if the test used was unscientific. 
CAS ruled that while there was definitely a relationship between testosterone and athletic performance, and while Dutee Chand was unable to show that there was a difference in the effects of endogenous (produced in the body) testosterone and exogenous (introduced into the body by injection or some other method) testosterone, it was unclear to what degree hyperandrogenic female athletes enjoyed over other female athletes. Therefore, it could not be said that female athletes having levels of testosterone above 10nmol/L would enjoy a competitive advantage over other female athletes equivalent to a male athlete, rather than a marginal advantage equivalent to any other factor that contributed to athletic performance like height, etc. 

On that basis, CAS has suspended the application of the Hyperandrogenism Regulations for two years during which time the IAAF may produce concrete evidence of the magnitude of the competitive advantage enjoyed by hyperandrogenic female athletes over other females. In the meantime, Dutee Chand qualified for the Rio Olympics and has also won gold medals at the recent National Open Athletics Championships, but if the IAAF is able to establish that her level of testosterone gives female athletes an advantage equivalent to that of a male athlete, the bar on her competing could well be restored thereafter. 

This decision of CAS is heartening for female athletes who may face humiliation for their failure to appear “female enough” and will force sports governing bodies to account for outliers like Dutee Chand in categorising athletes as male or female. After all, elite level sport is filled with athletes who display not only extraordinary hard work, but also extraordinary genetics, like Michael Phelps or Tiger Woods. 

Another point bears mentioning. Dutee Chand is the only Indian athlete to have been successful before CAS. Contesting a case before CAS is highly expensive, costing tens of thousands of Swiss francs in arbitrators’ fees and expenses alone (though an athlete may apply for legal aid which covers the court fees and includes free legal counsel) and winning a case often hinges on producing superior evidence by calling in medical experts and sports scientists, and may require engaging a foreign lawyer. A foreign lawyer may be required for his training in Swiss law, because CAS, while an international tribunal, is based in Switzerland, and relies on Swiss law to supplement the legal framework created by the rules and regulations of the relevant sports governing body, or may be required because of a lack of expertise in the field of sports law in India. In this case, Dutee Chand produced three expert witnesses and engaged a Canadian law firm. Without support, Dutee Chand could not have won this case. While Indian sports authorities are notorious for not adequately supporting their athletes, in this case, the Sports Authority of India (SAI), in whose facility Dutee Chand trained, financially supported her and urged the AFI to support her appeal to CAS if they felt compelled to follow the IAAF’s regulations.

References: Dutee Chand v Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF) CAS 2014/A/3759, http://www.tas-cas.org/fileadmin/user_upload/award_internet.pdf
Photo credit: Express Photo

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What We Can Learn from the Orders Passed by the BCCI Ombudsman to Date

Conflict of interest has always been a fact that Indian cricket has lived with, with selectors running coaching academies and being associated with IPL franchises. In particular, there was considerable uneasiness with Mr. N Srinivasan’s simultaneously being President of the BCCI and the CEO of India Cements, which owned Chennai Super Kings. However, there were no official move to remedy this situation (in fact, an amendment to the BCCI Regulations, which had a clause to prevent conflict of interest, was passed clandestinely to exclude the IPL and Champions League T20 in order to protect Mr. Srinivasan)¹ until it emerged in the IPL betting scandal that Mr. Srinivasan’s son-in-law, Mr. Gurunath Meiyappan, had placed bets on the outcomes of games and passed match sensitive information to bookies.

In November 2015, there were major reforms in the BCCI, and two events of relevance to this article took place. The first was that new conflict of interest norms were introduced, which among several things prevents administrators and their near relatives from being associated with companies that have entered into commercial agreements with the BCCI or its Affiliates, prevents coaches of the Indian national team and national selectors from being associated with private coaching academies, and prevents current players from having business interests in companies managing players.² The second was that Justice A P Shah was appointed the BCCI Ombudsman in November 2015. In the past seven months, he has been quite busy, and has passed orders in 30 matters to date. I have given these names so as to easily distinguish them.

The ombudsman’s jurisdiction extends to hearing complaints of acts of indiscipline or misconduct or violation of BCCI rules and regulations by administrators, as well as complaints of conflict of interest by administrators, current and retired cricketers, and BCCI staff. This is a fairly narrow jurisdiction. Nevertheless, a wide variety of complaints have been made to the ombudsman that fall outside his jurisdiction,³ which suggests a certain regard for his powers (or the complainants are spurred on by the Supreme Court’s overstepping its bounds in the case of Board of Control for Cricket in India v Cricket Association of Bihar to dictate terms to the BCCI)⁴.

As a contract, the BCCI regulations ought to be interpreted as any other contract, applying general principles of contract law whilst keeping in mind the subject matter of the contract as an indicator to the intention of the parties. However, when the words of a text fail to provide a resolution to a dispute, it is not unheard of that the deciding authority create jurisprudential norms to fill the textual gap.⁵

The ombudsman has by and large not been troubled by such problems. The BCCI Regulations can generally be interpreted literally without fuss. The ombudsman has refused to allow retrospective application of the rules when the Rules have not provided for such, and a conflict of interest that may have existed earlier but was no longer subsisting prior to the date of application was not held as such.⁶ He has also interpreted the locus standi rules strictly. Rule 3(C) of the BCCI Conflict of Interest Rules states, “Current Cricketers shall not have any conflict arising with the BCCI sponsors including the apparel sponsor.” This was interpreted strictly to mean that any dispute relating to a current cricketer’s conflict of interest vis a vis a BCCI sponsor can only be brought by the BCCI or an official sponsor.⁷ The Rules forbid conflicts of interest, but do not provide for any penalty in case a conflict is found. Accordingly, when a person has been found to be in violation of the Rules, the person concerned has merely been ordered to step down from one or the other post.⁸

However, while the Rules do not provide for any further action to be taken, the ombudsman has in cases passed further orders for their proper enforcement. For instance, in re Amay Khurasiya and Madhya Pradesh Cricket Association,⁹ Mr. Amay Khurasia, whilst being chief coach for the MPCA, was also a ‘mentor’ for a coaching academy named after himself. While not found to be in violation of the Rules, he was asked to provide an undertaking that he would not associate with any cricket academy and post on Facebook that he was not associated with the academy.¹⁰ Similarly, the ombudsman has made recommendations in some orders, such as that persons bound by the Conflict of Interest Rules make be required to make standard disclosures of their affiliations with academies, sports management companies, apparel manufacturers, etc,¹¹ or that the BCCI direct its affiliates to enact measures to promote transparency.¹² In several cases, he has forwarded matters to the BCCI President which are not within his jurisdiction but which may nevertheless be of concern to the BCCI, such as allegations of misuse of development funds,¹³ questions relating to DRS and the WADA Code,¹⁴ suspension of State associations.¹⁵

At other times, however, the ombudsman has refrained from making any norms and has instead sought guidance and clarification on the Rules from the BCCI itself. In re Rahul Sanghvi,¹⁶ Mr. Sanghvi was Team Manager for the Mumbai Indians when he was asked to a part of the DDCA selection panel for the Ranji Trophy and under-23 teams. The Rules, whilst providing for a number of scenarios in which a conflict of interest would arise, did not specify whether a retired cricketer who is a part of the management of an IPL team could be a coach or selector for a unit affiliated to the BCCI. The BCCI clarified that a person could not simultaneously have a long term or annual contract with an affiliated unit and a position with an IPL team, but if the appointment was only for a season and he was not contracted with the BCCI or affiliated unit and the IPL team at the same time (I think this means that if the two periods in which he was expected to perform his duties did not clash), it would be permitted. This meant that Rahul Sanghvi was in violation of the Rules; however, as his contract was due to expire that very month, he was permitted to complete it. This rule was later applied in re Sanjay Bangar,¹⁷ when Sanjay Bangar was permitted to be India batting coach as well as head coach of Kings XI Punjab as his BCCI contract was due to expire and the IPL to begin thereafter. However, in none of the above cases was a BCCI administrator the impugned party, and such a policy of seeking guidance from the BCCI may be compromised by the vested interest of the officials of the BCCI in the matter.

In the small pond of Indian sports law, the decisions of the BCCI ombudsman will go a long way to regulating how the BCCI handles conflicts of interest and other issues. They will also help develop a body of Indian sports law that has repercussions outside the BCCI and which may influence the working of the Sports Appellate Tribunal sought to be created under the Sports Development Bill. They are therefore worth following.

1See Board of Control for Cricket in India v Cricket Association of Bihar (2015) 3 SCC 251

2http://www.bcci.tv/news/2015/bcci-news/11912/bcci-rules-on-conflict-of-interest

3Justice Shah describes some of the more ludicrous ones that didn’t merit the passing of orders here: Neeru Bhatia, ‘Reverse sweep’ The Week (28 February 2016) <http://www.theweek.in/theweek/sports/bcci-ombudsman-ap-shah-already-has-his-hands-full.html>

4See Satchit Bhogle, ‘Amenability of Indian Domestic Sports Governing Bodies to Judicial Review’ (2017) Marquette Sports Law Review (forthcoming)

5Allan Erbsen, ‘The Substance and Illusion of Lex Sportiva’ in Ian S Blackshaw and others (eds), The Court of Arbitration for Sport: 1984-2004 (TMC Asser Press 2006) 442 (pointing out that CAS panels have inferred the power to create norms to fill textual gaps)

6In re Sharad Pawar and IS Bindra, App 2/2016, order of 16.01.2016; In re Nishant Arora, App 4/2016, order of 29.02.2016

7In re MS Dhoni, App 30/2016, order of 17.04.2016

8In re KS Viswanathan, App 15/2016, order of 29.02.2016; In re RP Shah, App 6/2016, order of 31.03.2016

9App 21/2016, order of 15.05.2016

10A similar distinction was made between mentoring and coaching in re Vijay Dahiya, App 7/2015, order of 12.03.2016

11In re Harbhajan Singh, App 3/2016, order of 17.02.2016

12In re National Cricket Club, Kolkata, App 1/2015, order of 17.03.2016

13In re Office Bearers of Uttar Pradesh Cricket Association, App 8/2016, order of 23.01.2016

14In re Questions in Public Interest, App 9/2016, order of 23.01.2016

15In re Rajasthan Cricket Association, App 22/2016, order of 18.02.2016

16App 8/2015, order of 12.03.2016

17App 24/2016, order of 22.03.2016

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Everything you need to know about Sushil Kumar's Rio Olympics bid

(this post first appeared in a modified form on the Ringside View)

The 66kg weight category for freestyle wrestling, which was present in both the 2008 Beijing Olympics and the 2012 London Olympics, has been removed for the upcoming 2016 Rio Olympics. This has made life difficult for Sushil Kumar, who has competed for most of his career in the 66kg category, winning Olympic medals in both Beijing and London as well the world title in 2010 and gold at the 2010 and 2014 Commonwealth Games. If he competes, it will have to be in the 74kg category as he declined to compete in the 65kg category to make way for fellow Olympic and Commonwealth medallist, Yogeshwar Dutt, who has traditionally competed in the 60kg category (also removed for Rio).

What stands in his way is Narsingh Yadav, Wrestling World Championship medallist in the 74kg category.

India has secured a quota of eight places for wrestling for the Rio Olympics (six for men’s wrestling), of which the 74kg men’s freestyle berth was thanks to Narsingh’s bronze medal at the 2015 World Championships. However, the Olympic quota is awarded to the country and not to the wrestler who secured it, and Sushil Kumar has asked for a trial to determine who will represent India in the weight category. On the other hand, the Wrestling Federation of India (WFI) has traditionally not held trials and the winner of the quota has always gone on to compete in the Olympics (an exception was in 1996, when trials were conducted for the 48kg men’s Greco-Roman category, though in that case Kaka Pawar secured the quota but Pappu Yadav was the federation’s initial selection).

Sushil Kumar has argued that trials are necessary to judge whether an athlete is in form going into a major tournament, and has cited the fact that reigning Olympic and world champion, Jordan Burroughs of the United States, had to undergo trials to represent the US in Rio. The WFI is worried that if they accept Sushil’s demand, other athletes may come forward to contest the WFI’s picks for other categories.

A similar question has gone to court before. In 2014, a number of wrestlers including Amit Dhankhar and Rahul Aware moved the Delhi High Court for the conducting of trials for the Commonwealth Games.¹ The WFI in turn argued that it was not necessary to hold trials before every event. The Court found that according to guidelines incorporated in the National Sports Code formulated by the Ministry of Youth Affairs and Sports (binding on all National Sports Federations), it was in fact necessary to hold selection trials before major international events like the Olympics, Commonwealth Games, etc. It was only because the final list of names had already been sent to the Commonwealth Games Committee and a training camp in preparation for the Games was already in session that the holding of trials was not ordered.

Sushil Kumar has now moved the Delhi HC. It was initially reported that the WFI had sent the IOA a list of probables which did not feature Sushil Kumar’s name. Subsequently, however, the WFI has stated that it did not send any list and that Sushil Kumar is not out of the running. WFI president Brij Bhushan Sharan Singh has stated that it is the federation’s parampara to send the wrestler who has secured the berth, and has expressed reluctance to conduct trials. Nevertheless, Sushil Kumar has a good chance of getting his chance in a trial if the court decides his case quickly.

 

1Amit Kumar Dhankhar v Union of India WP (C) 3914/2014, Delhi HC, decided 3 July 2014

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