NADA fails to apply appropriate rule; panel overlooks flaw

Does the National Anti-Doping Agency (NADA) follow its own rules or that laid down by the World Anti-Doping Agency (WADA)?

Do Indian disciplinary panels understand these rules to the extent of dispensing justice?

We have seen a disciplinary panel reducing a sanction for steroid offence from the standard four years to just one year in the case of a weightlifter even when the athlete produced a medical prescription that contained the wrong drug!

We have also seen several other cases where panels have given contentious decisions.

Now, sample this. A cyclist was given a two-year sanction for an MHA offence when he had committed two similar offences in 2014 and 2015 and going by the rules the four-year sanction prescribed in the 2015 Code should at least have been discussed. It was not. Everyone concerned seemed to have just ignored the 2015 violation.

Cyclist Amit Kumar of the Services was ordered to undergo a two-year suspension even though he committed an offence in 2015 when the new Code and a new set of sanctions had kicked in.

He has finished his two-year suspension at the beginning of this month,

Of the 16 dope offenders in the National Games in Kerala in 2015, the Punjab cyclist was the only one to have been handed out a sanction under the 2009 Code; the rest of the cases were dealt with under the 2015 Code.

Right clubbing, wrong application of rules

How did this happen? Amit first tested positive at the National road cycling championship at Jamkhandi, Karnataka in December, 2014. Then he tested positive again at the National Games in Kerala in February, 2015. On both occasions the substance detected was methylhexaneaime (MHA), a stimulant.

His two offences were apparently clubbed (no harm done there) when they were brought before a panel headed by Mr. Sanjay Mani Tripathi. The others in the panel were Mrs. Damayanti Tambay and Dr Bikash Medhi.

The normal practice in such cases has been to list the details of the sample collection,  substance found, plea of the athlete, hearing dates etc in two separate documents while delivering an order. Here there was just one. No details of the National Games report were given.

Instead the order said:

“Athlete Amit Kumar (Sports Discipline-cycling) has been found in doping for violation (sic) for Article 2.1 of Anti-Doping Rules of NADA 2010 and 2015 respectively for finding of prohibited substance methylhexaneamine (MHA), stimulant on two occasions as under:

i)                   In competition 19^th National Road Cycling Championships 2014-15 held at Jamkhandi, sample was collected on 27-12-2014 vide sample code no. 2967997;

ii)                In competition 35th National Games-Kerala held at Trivandrum, Kerala, sample was collected on 07-02-2015 vide code no. 297109.

The athlete claimed he had consumed supplements and alleged inordinate delays in getting intimation about his anti-doping rule violations. He claimed the first intimation was received after 56 days and the second one after 67 days.

The dates in the order however do not support the athlete’s contention.

A provisional hearing was held for the first offence in 21 days of NADA issuing notice. For the second, a provisional hearing was held 14 days after issuing notice as per the order.

The laboratory documentation package was delayed in both instances. NDTL had its own explanations for the delay in completing the testing process as well as in supplying documentation packages. The panel was satisfied with the explanations and found no reason to believe that there could have been anything that could have materially affected the outcome of the tests.

The athlete made several allegations including a claim that he was forced to sign documents by NADA before provisional suspension for his first offence which was eventually shown as “voluntary”.

The cyclist raised several objections about the lab procedures and reporting but the panel rejected them all.

Eventually the panel handed out a two-year suspension based on the 2009 rules. In the end there was no mention about the National Games sample testing positive or about the need to treat the combination of two offences as one.

Since the athlete had apparently received intimation about his first offence only after competing in the National Games (in fact two days after his event), Amit couldn’t have been faulted for either competing nor penalized with a second offence. It had to be just one offence.

The rules

But what do rules say when two such offences occur close to each other?

10.7.4 Additional Rules for Certain Potential Multiple

Violations

10.7.4.1 For purposes of imposing sanctions

under Article 10.7, an anti-doping rule

violation will only be considered a second

violation if the Anti-Doping Organization

can establish that the Athlete or other

Person committed the second antidoping

rule violation after the Athlete or other Person received notice pursuant

to Article 7, or after the Anti-Doping

Organization made reasonable efforts to

give notice of the first anti-doping rule

violation. If the Anti-Doping Organization

cannot establish this, the violations

shall be considered together as one

single first violation, and the sanction

imposed shall be based on the violation

that carries the more severe sanction.

The above rule makes it clear that such cases should be treated as just one first violation. But the sanction shall be based on the violation that carries the more severe penalty. Going by the 2009 Code it was two years and by the 2015 Code it was four years if it could be proved it was intentional.

The panel couldn’t have wished away the National Games offence. It apparently did. The NADA couldn’t have forgotten about the second offence or about the rule relating to such combinations. Apparently, it did.
MHA being a specified stimulant it was NADA's responsibility to show that the violation was intentional in order to seek a four-year sanction. It got four-year suspensions in a few other cases in the National Games, notably that of cyclist Amrit Singh (stimulant Oxilofrine) and boxer Mazhar Hussain (diuretic furosemide) for 'specified substances".
The Tripathi panel order stated: "Under Article 10, ineligibility of Two (2) Years is imposed on Mr. Amit Kumar, Jr Warrant Officer, MT/Fit, Sports Section, 260 Signal Unit, Air Force Station, Patiala for the violation of Article 2.1 of Anti Doping Rules, NADA, 2010." No mention of 2015 rules!

If you happened to be a cyclist and checked out the rules on your federation’s website, you would have got outdated NADA rules and the 2009 WADA Code.

There is a need to ‘educate’ the hearing panel members. And there is a need to help NADA familiarize at least with its own rules if not with the rather complicated rules covering all aspects of anti-doping as laid down by WADA.

Unless NADA has a legal department, or at least a standing counsel, it would be difficult for it to effectively present its case before hearing panels and to review the orders and take appropriate follow-up action if necessary.