Senior Advocate, Arbitrator, Mediator and Country Representative of the International Bar Association (IBA) Mediation Committee for India
16, Todarmal Road (Near Bengali Market), New Delhi – 110001 (INDIA)
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Mr. Rajiv Dutta, Senior Advocate
Mr. Daniel George, Advocate
The World Anti-Doping Agency
Doping, as a phenomenon has always been present within the sporting arena. The desire to achieve the height of sporting excellence drives athletes to take recourse to certain stimulants which may confer certain benefits which may be illegal in its application and might confer certain advantages which might not be otherwise possible to achieve through ordinary means. However, there was a huge increase in Doping Rule Violations particularly after the 1980′s the IOC convened a World Conference on Doping in Sports in Lausanne in 1999 which produced a Declaration on Doping in Sports. One of the provisions of the Lausanne Declaration was in respect of creating an international independent anti-doping agency. Therefore, in terms of the declaration, the World Anti-Doping Agency was created on 10.11.1999 to promote and coordinate the fight against doping in international sports.
The World Anti Doping Agency is one of the most important institutions that have been incorporated by States and Sporting Regimes acting in concert. It signifies a level of private and public participation that is hard to surpass and is emblematic of the emergence of a hybrid form of Governance in the global sports arena. Along with the establishment of WADA, came the governing code, The World Anti Doping Code (WADC), which regulates the manner in which the Foundation Board, in conjunction with other Committees exert supervisory control over the field of anti-doping within the International Sporting Arena. The Code was formally adopted at the World Conference on Doping in Sports held in Copenhagen on March 5, 2003. Subsequently, with growing awareness and with the ever-changing doping environment, the Code was revised in 2009 and 2015. At present, the World Anti Doping Code, 2015, adopted w.e.f. 01.01.2015 holds the field and regulates anti-doping activities.
The WADC works in conjunction with five International Standards aimed at encouraging harmonisation between anti-doping organisations. These are (i) the Prohibited List (ii) the International Standards for Testing (iii) International Standards for Laboratories (iv) Therapeutic Use Exemptions (TUE’s) and (v) Protection of Privacy and Personal Information. These standards have been subject of lengthy consultations amongst WADA stakeholders and are mandatory for all stakeholders of the Code. Amongst these standards, the Prohibited List is the “cornerstone” of the Code. WADC also harmonises the extant policies and set a determinant criteria to be universally followed by all interested parties. Internationally accepted principles such as principle of fair hearing are followed to grant right of hearing to any athlete accused of rule violation.
To put things in perspective, the preamble of the World Anti Doping Code states that it has been enacted to protect the Athletes’ fundamental right to participate in doping free Sports and thus promote health, fairness and equality for athletes worldwide and to ensure harmonised, coordinated and effective anti-doping programs at the International and National level with regard to detection, deterrence, and prevention of doping.
The 2015 Code aims to strengthen and intensify controls over anti-doping and to impose greater penalty over Rule violations as spelt in the International Standards.
WADA has the typical structure of most foundations, being comprised of a Foundation Board (which is the supreme decision making authority and is responsible for coordinating and directing the manner in which doping rules are being enforced). The Foundation Board delegates the actual management and running of the Agency, including the performance of activities and the administration of assets, to the Executive Committee of WADA, which is WADA’s ultimate policy making body. There is also an Executive Committee within the organisational structure of WADA and also comprises of various expert sub-committees who advice the Board on various aspects.
In spite of its formally private nature, the WADA carries out functions that are of a public nature. These include (i) promoting and coordinating at the international level the fight against doping in sports including through in-and-out-of competition tests. (ii) Reinforcing, at the international level, ethical principles for the practise of doping-free sport, and thereby protecting the health of the athletes. (iii) encouraging, supporting, coordinating, and where necessary, actually undertaking, with full cooperation of the IOC, International Federations and National Olympic Committees, the organisation of unannounced out-of-competition testing (iv) devising and developing anti-doping education and prevention programs at the international level (v) promoting and coordinating research in the fight against doping in sport. In spite of all these functions, the most important role of WADA as a regulator is that of a institution which establishes norms and standards for the regulation of anti-doping activities. WADA carries out significant normative functions and also produces “soft-law” in the form recommendations and adoption of good practises. WADA plays an important role during all international sporting events, monitoring and effecting anti-doping tests through the office of an “independent observer”.
Furthermore, Model Rules have been framed under which, pursuant to Article 23.2 of the 2015 WADC, each NOC is required to ensure the presence of a National Anti-Doping Agency within their domestic jurisdiction. If there is no NADA, then either the NOC would function as an interim institution which takes over the functions of the NADA, or the Government would be called upon to establish the institution.
The NADA functions as a functionary of WADA and can therefore, take all steps as carried out by WADA. The Indian Anti-Doping Agency was recently in the news due to an unannounced in-and-out-of competition testing that was carried on 21 weightlifters based on which it suspended all such weightlifters.