11 Oct 2009

WADA 'whereabouts' clause: Exploring the controversy !!!

The plan of International Cricket Council (ICC) of imposing the World Anti Doping Authority (WADA) rules on doping in international cricket seems not only to have backfired but also having generated much controversy as cricket itself. Be that as it may be, in our quest for examining the legal perspectives of things, we herein undertake to analyze the genesis, reasons for controversy and the legal barriers which face the effective implementation of the WADA rules. 

Even though 'doping' is not new to sports and athletes, WADA as an organisation is fairly one and its history can be traced back to the last decade which is explained by the WADA website in the following terms;
After the events that shook the world of cycling in the summer of 1998, the IOC decided to convene a World Conference on Doping, bringing together all parties involved in the fight against doping. The World Conference on Doping in Sport held in Lausanne on 2-4 February 1999 produced the Lausanne Declaration on Doping in Sport. This document provided for the creation of an independent international anti-doping agency to be fully operational for the Games of the XXVII Olympiad in Sydney in 2000.Pursuant to the terms of the Lausanne Declaration, the World Anti-Doping Agency was established on 10 November 1999 in Lausanne to promote and coordinate the fight against doping in sport internationally. WADA was set up as a foundation under the initiative of the IOC with the support and participation of intergovernmental organizations, governments, public authorities, and other public and private bodies fighting against doping in sport. The agency consists of equal representatives from the Olympic Movement and public authorities.
It was in this perspective that WADA formulated detailed rules and regulations towards its two fold objectives; (i) "To protect the Athletes' fundamental right to participate in doping-free sport and thus promote health, fairness and equality for Athletes worldwide, and (ii) To ensure harmonized, coordinated and effective anti-doping programs at the international and national level with regard to detection, deterrence and prevention of doping." The Code, first of its kind, was promulgated in 2003 and the version which operates toward is of 2009 effective from first of January this year. 

About the Code, WADA professes that "the Code is the fundamental and universal document upon which the World Anti-Doping Program in sport is based. The purpose of the Code is to advance the anti-doping effort through universal harmonization of core anti-doping elements. It is intended to be specific enough to achieve complete harmonization on issues where uniformity is required, yet general enough in other areas to permit flexibility on how agreed-upon anti-doping principles are implemented."

One may have a look at the complete code to find that its the edifice on the basis of which doping in international sports is sought to be regulated, rather eliminated. However we are concerned with the root of controversy: the so-called 'whereabouts clause' of the anti-doping rules. The relevant clause stipulates that;
Athletes or other Persons shall be responsible for knowing what constitutes an anti-doping rule violation and the substances and methods which have been included on the Prohibited List. 
The following constitute anti-doping rule violations:
2.4 Violation of applicable requirements regarding Athlete availability for Out-of-competition Testing, including failure to file required whereabouts information and missed tests which are declared based on rules which comply with the International Standard for Testing. Any combination of three missed tests and/or filing failures within an eighteen-month period as determined by Anti-Doping Organizations with jurisdiction over the Athlete shall constitute an anti-doping rule violation.
Therefore, failure to provide the required whereabouts information regarding the availability of the sportsperson during the out-of-competition period is considered to be a violation of the anti-doping rules. The same Code further prescribes the whereabouts information requirement as under;
14.3 Athlete Whereabouts Information: As further provided in the International Standard for Testing, Athletes who have been identified by their International Federation or National Anti-Doping Organization for inclusion in a Registered Testing Pool shall provide accurate, current location information. The International Federations and National Anti-Doping Organizations shall coordinate the identification of Athletes and the collecting of current location information and shall submit these to WADA. This information will be accessible, through ADAMS where reasonably feasible, to other Anti-Doping Organizations having jurisdiction to test the Athlete as provided in Article 15. This information shall be maintained in strict confidence at all times; shall be used exclusively for purposes of planning, coordinating or conducting Testing; and shall be destroyed after it is no longer relevant for these purposes.
Therefore the sportspersons are required to inform their accurate current location information to the WADA authorities even out-of-competition such that the tests which are scheduled during those periods can be carried out. By when then WADA code applies to Olympics etc., why this fuss in cricket. Because Article 20.3 of the Code makes it peremptory on the part of International Federations (and ICC is one such) "to require all Athletes and each Athlete Support Personnel who participates as coach, trainer, manager, team staff, official, medical or paramedical personnel in a Competition or activity authorized or organized by the International Federation or one of its member organizations to agree to be bound by anti-doping rules in conformity with the Code as a condition of such participation." Therefore the ICC is obliged to ensure that the players taking part in its competitions abide by the WADA Anti-Doping Code. This is why the ICC required the member national cricket associations to sign up their players for WADA and start following its Code.

Things however took a different turn when the players of the Indian Cricket team refused to agree to the Code alleging it was in violation of their right to privacy guaranteed under the Indian Constitution and could compromise on their security. While the issue of player-safety is one subjective factor to the player and the Board, the issue that the so-called whereabouts clause is a violation of their right to privacy is a bit hard to digest given the law on this issued declared by the Supreme Court of India and also despite the fact that WADA takes full note the right to privacy of the athletes under their respective jurisdictions and to this effect provides in its Code as under;
14.6 Data Privacy: When performing obligations under the Code, Anti-Doping Organizations may collect, store, process or disclose personal information relating to Athletes and third parties. Each Anti-Doping Organization shall ensure that it complies with applicable data protection and privacy laws with respect to their handling of such information, as well as the International Standard for the protection of privacy that WADA shall adopt to ensure Athletes and non-athletes are fully informed of and, where necessary, agree to the handling of their personal information in connection with anti-doping activities arising under the Code.
Thus the objection raised by the Indian cricket team must have been on a rationale much higher than what WADA provides for otherwise there was hardly any scope of contest. Let us examine the merit in this allegation.

To begin with, one would be intrigued to note that there is no such specific 'right of privacy' under the Indian Constitution. The nearest equivalent (and perhaps also the most generic of rights) is Article 21 of the Constitution which only states that "no person shall be deprived of his life or personal liberty except according to the procedure established by law". Though judicial interpretation, it has come to be established that this fundamental right is one of wide magnitude and the 'right to privacy' is only an off-shoot of this provision. It has also been held time and again that 'right to livelihood' is an integral part and facet of the right to life. Therefore to deprive one of his livelihood in a manner which is opposed to a civilized treatment would be violative of this fundamental right.

The right to privacy, if one can say so, can be traced as emanating from a 1975 decision of the Supreme Court in Govind v. State of Madhya Pradesh. Speaking in the context of the challenge made to the validity of the Regulations framed by the State on Surveillance of habitual offenders and having quoted extensively on the position of the law prevailing in other jurisdictions, the Supreme Court observed as under;
Individual  autonomy,  perhaps the central  concern  of  any system of limited government, is protected in part under our Constitution by explicit constitutional guarantees. In the application  of the  Constitution our contemplation cannot only be  of what has  been  but what may be. Time works changes and  brings into existence new condition subtler and far reaching  means of  invading privacy will make it possible to be  heard in the street what is whispered in the closet. Yes too  broad a, definition of privacy raises serious questions about this propriety  of  judicial reliance on a right  that  is not explicit  in the Constitution of course,  privacy  primarily  concerns  the  individuals. It therefore  relates  to  and overlaps  with the concept, of liberty. The  most  serious advocate  of  privacy must confess that there  are serious problems  of  defining the essence and scope of the  right. Privacy interest  in autonomy must also be  placed  in the context of other right and values. Any right to privacy must encompass and protect the personal intimacies  of the home, the family  marriage, motherhood, procreation .and child rearing. This catalogue approach  to the question is obviously not as instructive as it does not give analytical picture of that distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the  concept has  been  the    assertion that a claimed  right must  be  a fundamental  right  implicit  in  the  concept of ordered liberty. Rights   and freedoms of  citizens are set  forth  in the Constitution in order' to guarantee that the individual, his personality  and those things stamped with his personality shall  be  free from official interference  except  where  a reasonable  basis  for intrusion exists. 'Liberty  against government" a phrase coined by Professor  Corwin  expresses this idea  forcefully. In  this  sense,  many   of the fundamental   rights  of  citizens  can be   described as contributing to the right to privacy. 
However, on a word of caution, the Court also noted that this right could not be viewed in isolation and rather was required to be balanced in the context of other competing interests and therefore if the so-called obstructions to these privacy were well placed, they could indeed override the individual'a right. It was on such account that even though the Court recognized the right to privacy of the so-called habitual offender, according to the Court the concern to protect the society from such people with known antecedents far outweighed the individual's right to privacy and therefore the challenge to the regulations was turned down by the Court. 

There have been a number of other decisions also wherein this right has been found to be worth a mention, especially against journalists seeking access to particular photographs; rights of a patient not to have his medical status disclosed to others; unauthorised tapping of telephones of third parties; etc. However the legal position is arguably clear that there is no blatant and unfettered right of privacy under the existing Indian law. 

Therefore what does one say of the stand adopted by the Indian authorities; is it the correct enunciation of the legal position existing in India? According to the advice meted out by the legal experts advising the BCCI, the answer seems to be in the affirmative. Yet it is only the course of time (and a challenge in the court) that will exactly test the proposition. However the approach yet begs the question that how can the clause be an invasion on privacy if the bigger competing interest is to keep the sports clean of doping menace? If the clause is found to be invasive, let the players not sign and also let they not participate for if that the disclosure be a part of the 'conditions of play', they can't cut the cake and eat it too. Even the Supreme Court recognizes (as quoted above) that the right of privacy is not uncontrolled and unfettered against all other rights which the society has to regulate is own being. In fact even the reliance placed upon Article 21 is not without scrutiny for the jurisprudence in this regard is equally well settled that it only protects against procedural violations and if a substantive law does take away a right, there is no scope of argument against it.

Further, one is compelled to ask that if the clause requiring the sportsperson to provide the whereabouts indeed a violation of the Right of Privacy of the Indian sportsperson, why did the Indian National Anti-Doping Authority (headed by no less than the Sport Minister of Government of India) accept the WADA Code at its very first meeting and still has not considered going back to WADA seeking a review of the conditions?

Nonetheless the current situation is that following its players objections, BCCI  (choosing to disagree with the official stand of the Indian Government) placed its objections to the whereabouts clause to ICC and ICC has now suspended the operation of the whereabouts clause and has sought the involvement of WADA to find an alternative to the so-called constitutional issue facing the Indian Crickets. But yet, as we stated this, one has to really figure out in what context it is claimed that there is an invasion of the privacy of the sportspersons. It might be a case of practical difficulties, clashing egos but to say a constitutional issue, one needs to atleast state the foundational claims thereto. 

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