Trends & Observations


Trends

An analysis of the cases summarised points towards certain trends worth highlighting:

a. More often than not (i.e. 67% of the time), Indian parties are forced to take their case to the CAS and 100% of such ‘forced’ cases are doping cases.

This happens when WADA decides to appeal a decision delivered by either of the NADA ADDP or ADAP. Interestingly, save one instance, all cases that do not fall within the category of doping, have all been initiated by Indian parties (see: Nature of Dispute).

b. The Indian party has been unsuccessful 80% of the time.

In other words that is 12 out of 15 cases analysed. The other 3 cases involved Indian parties on both sides (see: Amar Muralidharan v. NADA, Dutee Chand v. AFI and IAAF and IHF v. FIH and Hockey India ), meaning one Indian party was successful at the expense of another.

c. When WADA appeals, WADA wins.

This might be for a number of reasons.

First, WADA has the resources to enforce anti-doping regulations through expert scientific evidence and highly specialized lawyers.

Second, NADA who is often jointly impleaded as a respondent (together with the athlete) very rarely puts in submissions in defense of the previous instance decisions. This either points towards a lack of resources at NADA or an unwillingness to stand by the decisions it reaches.

Third, athletes are similarly apathetic, rarely putting up a strong defense. Again, this can be due to a lack of resources to mount a suitable challenge or a general resignation to their fate, knowing they have violated the rules. Notably, an Indian athlete has never succeeded in his or her claim for no significant fault or negligence.

Fourth, it might be that the ADDP and ADAP are not carrying out the doping control process and/or applying anti-doping regulations in a manner consistent with international practice. For example, in the case of Inderjeet Singh, NADA despite being respondents jointly with the athlete, agreed with WADA’s submissions, unwilling to defend the decision of the ADAP. By way of another example, NADA’s conduct was heavily criticized by the CAS in the Muralidharan case – ironically the only time NADA has been successful at the CAS.

Fifth, the substances being consumed by athletes are not those which point towards inadvertent doping. The use of exogeneous anabolic steroids is evident – with MHA and methandienone being the most popular.

d. Indian arbitrators are rarely appointed.

This is a chicken-and-egg situation. It is unclear whether the low number of Indian parties that have cases before the CAS results in a low rate of appointment of Indian arbitrators or vice versa (or whether there is any correlation between the two at all – although presumably there is, as parties tend to appoint arbitrators from a familiar legal system).

Historically, there have been just two Indian arbitrators whose decisions have been published (one decision each). None of these two are currently on the list. The two arbitrators on the current list, have no published decisions to their name.


Observations

As Lindholm notes, “to have geographically well-distributed litigants is not the final or ultimate measurement of the international nature of a dispute resolution institution. However, if an institution that is intended to be international in nature suffers from a distinct lack of geographical diversity among its litigants, further investigations are prudent

Lindholm looks at three factors which could affect the frequency of litigants (by nation) at the CAS:

The first is population size in that the larger the population of a country, the more frequent the appearance of parties from there appear at the CAS. Were this to hold true, Indian parties ought to have been the among the most frequent, however, for a country of 1.3 billion, the number of published CAS cases per million people in India is 0.012.

The second factor is the economic situation of a country, or more specifically, the commercialization and sophistication of professional sport in a country. Nations with more money in sports (and a stronger sporting ecosystem) are more likely to have parties litigate at the CAS.

The third factor, it is argued, is the kind of sport that is popular in a country. Sport-wise, the CAS is dominated by football cases. However, most of the fandom in India is cricket centric – for the most part, channeled through the Indian Premier League.

Thus, it is submitted that a combination of the second and third factors is the primary reason for the lack of Indian representation at the CAS. This makes further sense when looking at Italy, Australia, USA, France and Spain who make up the top 5[1].

However, other factors such as physical distance from Lausanne and cost of proceedings (the cost of a CAS proceeding, and quality legal representation would probably be more than what most Indian athletes earn per annum) cannot be ignored.

Notwithstanding the above, there is a growing diversity of litigants at the CAS, a growth in which India is certainly playing its part.

Disclaimer: The contents of this portal are the views of the author(s) in their individual capacity and do not represent the views of any other individual, organisation or entity.


[1] J. Lindholm (2019), “The Court of Arbitration for Sport and Its Jurisprudence”, ASSER International Sports Law Series: The Hague at pages 306-308.

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