Indian cricketers? refusal to consent to the ICC-stipulated WADA drug-testing policies is being defended as the BCCI standing up for the players. But BCCI’s clout notwithstanding, there are complications here. First, some kind of dope testing mechanism has to be there. Second, the alternative provided by BCCI is impractical. Third, it is extremely unlikely that WADA will modify or alter its regulations unless the others refuse to comply, but most other leagues and sports bodies have already agreed to the rules.
BCCI?s solution is that cricket operate an independent doping laboratory and commission. This will be impossible to implement, and will effectively put an end to the eligibility of cricket for the Olympics or any other global sports forum. Legally, the ICC can do as BCCI suggests: it is, for all intents and purposes, an independent organisation with little interaction with governments, ministries, or regulatory authorities. The ICC can choose which national team it will allow into the fold, the BCCI conceivably call itself a private body, and operate as one.
An independent anti-doping agency for cricket isn?t as easy as replacing Steve Bucknor. It is expensive, requires significant R&D, a global presence, the support of authorities and lawmakers, and above all, a perception that it is uniform, unbiased, and an accurate indication of players? compliance with the applicable rules and laws that govern his or her sport. It is also prohibitively expensive. Public perception is what most of this is about, and that?s what makes this topic so tricky.
The particular rule that has caused much aggravation: a player must inform WADA of his/her whereabouts for at least an hour every day, approximately three months in advance; this is to facilitate random testing. This may be on tenuous ground from an invasion of privacy and constitutional rights standpoint. If it ever goes to the courts, especially in the US, it may be in trouble.
But BCCI?s/Indian cricketers? critique should have been made when the rules were first announced by WADA and it should have been done at the ICC level, not BCCI?s.
The basic issue is this: using performance-enhancing drugs violates the basic tenets of any contract or understanding that an athlete has with his or her league, association, state and country board, or tournament. It is a breach of contract, and a material one at that. Using drugs is more serious than just a contractual breach however. It can be tantamount to fraud, and if an athlete lies about using steroids, it is actually considered perjury; breaking the fair play oath is a serious violation of the moral and legal code of conduct. Actual knowledge or imputed knowledge is material only to the extent of the suspension or expulsion from active competition.
The legal recourse that athletes have is the constitutional rights each country grants its citizens, including but not limited to the right to privacy. Another right that the athletes may feel has been impinged upon is the right to be free from indentured servitude. Over-testing could be viewed as a restraint to trade, since optimality is questionable if an athlete is so accountable to his/her national doping authorities.
The tricky part is that the mirror has two sides. While a majority of the athletes who are complaining are unique outstanding physical specimens, there are always a few who use drugs. While the athletes stand for their rights, and want to nip this increased scrutiny in the bud, the fact remains that most drug violations take place not during competitions, but during out-of-competition training. There are numerous drugs that are untraceable within 24 hours of their consumption. Yet if they are consumed over time, they help enhance performance to a great extent. The new rules have been enforced to curb just that. WADA and sports bodies need for sports to be clean; the only question is where to draw the line.
BCCI has taken a stand, and it remains to be seen how the ICC reacts because WADA will not, and perhaps should not, change its stand. One can see both sides, and feel for the players as well as BCCI, but emotions will not supersede procedure: the timing is far from ideal, and it puts the Board firmly on a collision course with WADA, the sports ministry (perhaps), and conceivably, the ICC.
More likely than not, and unfairly, the sport and the Board will be seen to be using their leverage to impose their will, as opposed to merely standing up for players. BCCI should remember it is trying to go further than even FIFA.
?The author is a sports and entertainment attorney at J Sagar Associates. Views are personal