Prescriptions sufficient to get reduced sanctions (Part II)

(Part I is here)
Kabaddi player Simarjit Singh of Punjab was tested during the all-India Police championships (volleyball cluster) in Jodhpur in March 2016. He tested positive for 19-norandrosterone (nandrolone) and received a reduced sanction of two years, effective from April 21, 2016.

He informed NADA and subsequently the hearing panel that he had suffered because of acute prolapse of inter-vertebral disc (PIVD) and a doctor in Amritsar had prescribed him nandrolone injection. He said he was not aware of the consequences of the drugs prescribed by Dr Vikas Bhandari. It was not clear when Simarjit underwent treatment with steroids.

Simarjit also said he had won several medals for the country and had never taken any prohibited substance nor had been found positive in the past.

NADA contended that the athlete had been competing at the international level and was familiar with anti-doping rules and that he had produced “fake, manufactured prescription”. It said this was the result of an “afterthought process”.

The panel headed by Mr. Ramnath noted that the athlete had “filed Outpatient Department register wherein at serial No. 872 his name has been mentioned and the certificate of the doctor giving nandrolone decanoate and the compound in the said injection correlate with the adverse analytical finding and is not contradicted. Therefore, intention of cheating is missing from the side of the athlete. The athlete should have mentioned in the Doping Control Form at the time of sample collection but the same was not done.

“Secondly, the athlete has not obtained TUE certificate which he should have done for the fair conduct of the athlete (sic) as it all lacking (sic)”.

The panel ruled that this came under “No significant fault or negligence” and accordingly slapped a reduced sanction of two years on the athlete.

By stating that intention to cheat was missing the panel seemed to have reached a conclusion that could straightaway reduce the sanction to two years (unintentional ingestion in the case of a non-specified substance) but stopped short of doing that.

Instead, only article 10.5.2 was applied to cut down the suspension by half.

NADA could not prove that the documents were fake as it alleged. NADA does not have the staff to investigate such cases and as has been seen in recent cases the doctor member of the hearing panel often had to contact the doctor mentioned in defence by the athlete to verify whether such prescriptions had indeed been given.

Anchal Yadav

Discus thrower Anchal Yadav of Delhi tested positive for stanozolol at the National schools athletics championships at Kozhikode, Kerala, on January 30, 2016. She was slapped with a two-year suspension from 7 March, 2016.

She told a panel headed by Mr. Sanjay Mani Tripathi that she was prescribed tab Winstrol (stanozolol) for knee pain by Dr Shashi Bhusan Yadav, Meerut, in November, 2015.

 Dr Yadav later confirmed that he had given such a prescription when enquired to by the doctor member of the panel, Dr. P. S. M. Chandran.

The panel concluded that since the athlete had taken the medicine for treatment and her claim was supported by prescription it was not an “intentional” offence and hence the period of ineligibility would be two years.

Like in a few other cases, the panel noted that the athlete should have taken “extreme precautions” and should also have applied for TUE from NADA. Again, like in several other cases, it was noted that the athlete did not mention the medicines on the doping control form.

Interestingly, as mentioned in several orders of the NADDP, the Tripathi panel also wrote: “It is each athlete’s personal duty to ensure that no prohibited substance or its metabolites or markers (are) found to be present in their bodily specimens. It is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping rule violation under article 2.1”

Perhaps this particular portion from the Code is being repeated almost in every other order in an effort to drive home the point about the “strict liability” principle. But is this principle being adhered to?

An anti-doping authority does not have to prove “intent” when the substance is, say, a steroid. It becomes the athlete’s responsibility to show that it was “unintentional”. The prescriptions are coming in handy to prove this point in the post-2015 Code scenario.

Hockey player gets steroid injection

In the case of hockey player Jarmanpreet Singh of Punjab, who has completed his two-year suspension recently, the doctor not only certified the prescriptions he had given but also conveyed to the panel that he had administered injection metadec (nandrolone) to the 19-year-old player without disclosing what the injection was.

Jarmanpreet had tested positive for nandrolone in the Hockey India League in January 2015. He had approached Dr G. S. Kaler of the Kaler Hospital, Amritsar, with a complaint of lower back ache while training. He was prescribed some medicines on December 25, 2014 and on his second visit on Jan 4, 2015 he was administered the metadec injection. He received a suspension of two years.

The panel headed by Mr. Rajeev Kapoor was told that the athlete and his father, who took his son to the doctor, told the latter that he was a national-level player and no banned drug should be prescribed to him.

The panel was also told by the player that he had received anti-doping education twice in the past.

Athlete’s lawyer Vidushpat Singhania told the panel that a CAS decision in 2005 had held in the case of a ice hockey player from Belarus that the administration of nandrolone in an emergency situation could be construed as “no fault or negligence”.

It turned out that the Belarus player, without his knowledge, had suffered a “heart failure”, according to the defence put up by his lawyers and medical personnel, and he had to be administered the nandrolone injection in hospital. (It was explained and accepted by the CAS panel that nandrolone was used for such heart conditions in Belarus unlike in Western Europe).

The player could have been expected to apply for a retroactive TUE in the situation that necessitated the administration of nandrolone without his knowledge. But he did not. The CAS panel ruled in favour of the Belarus ice hockey player and completely reprieved him.

It is well known that in emergency situations medical personnel can administer banned drugs to sportspersons. There is also a provision to apply for a retroactive TUE which is generally granted without much fuss after going through hospital procedures and the nature of the injury or condition of an athlete.
(See WADA’s explanations about emergency situations and retroactive TUE here)

The Jarmanpreet case was referred to the TUE panel by NADA. NADA told the hearing panel that the TUE committee meeting on 12 Sept, 2015 observed that the prescribed prohibited medicine “is not indicated for conditions diagnosed and is not in agreement with the standard protocols for management of such an ailment. It is respectfully submitted that Dr G. S. Kaler has not certified that such medicines can be given in cases of ailment being suffered by the athlete, which itself creates a cloud on the submissions made by the athlete”

NADA claimed that the player was not able to establish he had shown utmost caution while being administered the medicines in order to claim that he bore “no fault or negligence”.

NADA also brought in the decision by the appeal panel in the Sharadha Narayana case where the Justice C. K. Mahajan-headed panel ruled in 2011 that athletes could not “hide behind the ignorance of doctors.”

Doubts raised

In the Jarmanpreet case, the panel wrote: “The panel has heard the submissions of both parties and came to the conclusion that the alleged certificate which is made the basis of defence of the athlete has been produced by the athlete but the same appears to be issued at request of the athlete in which unusual averments were inserted by the doctors which, in normal course of issuing of certificate never seen in ordinary course (sic). Though Dr G. S. Kaler acknowledged his prescription and certificate etc even the same was got verified and confirmed by the NADA officials.”

Despite the above para in which the panel has seemingly raised some doubts, it ruled that the offence was unintentional and the rule violation came under the category that provided for a two-year sanction. The panel did not go for further reduction under “no significant fault or negligence”.

The Prescription v TUE debate is bound to prolong unless NADA seriously gets down to improving its ‘athletes outreach’ programme and its website which should provide a fund of information to the athletes related to doping and anti-doping rules. Athletes must be educated about seeking TUEs in order to take medicines that could be of utmost importance to their health. And also to avoid being charged for rule violations.They also could be educated about the precautions to be taken (say for example advising the doctor about his/her status as a sportsperson) while dealing with emergency situations and admission to hospitals if they are conscious.

Panels have continued to insert paras that simply state an athlete should have taken a TUE but failed to do so. What purpose this serves is difficult to guess. 

Someone also needs to brief disciplinary panel chairpersons that it is irrelevant today to mention “aggravating circumstances” after that clause has gone out of the Code since the beginning of 2015. Almost every other order has a line that says: “No aggravating circumstances have been alleged for enhanced sanctions by the NADA”.

That clause was present in the previous Code for situations where a panel could impose a stiffer sanction than the standard two-year one. The clause was rarely put into use by hearing panels, though, around the world. “Aggravating circumstances” included anti-doping rule violations involving multiple banned substances, especially steroids. In India, there were many who were caught for multiple steroids but escaped with just the two-year sanction. The ""aggravating circumstances"clause was removed to bring in the standard four-year sanction for first-time offenders.

(Concluded)

Updated: 14 March, 2017

Addendum, March 23, 2017:

CAS slapped four-year ban on Mhaskar Meghali, costs on NADA and athlete

WADA appealed the Mhaskar Meghali decision before the Court of Arbitration for Sport (CAS) which in a decision dated 20 Sept, 2016 set aside the Indian ADDP decision and imposed a four-year ban on the Railway weightlifter.

The sole arbitrator of CAS ruled that the ADDP had reached an “erroneous decision”. It awarded costs amounting to 1000 Swiss Francs (approx Rs 65,900) to be jointly borne by NADA and the athlete towards legal costs incurred by WADA in the proceedings before CAS.

Mr. Christoph Vedder of Germany, the sole arbitrator, noted that the athlete had failed to establish how the banned substance (methandienone) entered her body. It was argued by WADA and accepted by the arbitrator that the medicines she took (nandrolone and Depmedrol) did not contain methandienone.

WADA contended that mere protestations and suggestions by the athlete about having used supplements or medicines were not sufficient to establish ‘no significant fault or negligence’ and the athlete first had to prove how the banned substance entered his or her body.

WADA also stated that methandienone has been the “prevalent prohibited substance” in the sport of weightlifting as shown by many decisions and was manifestly performance-enhancing in this particular sport.

NADA did not respond to the notice sent by CAS while the athlete sent a written statement (beyond the deadline prescribed, but considered by the arbitrator nevertheless)  alleging ‘sabotage’ which she could not substantiate. Since the respondents did not seek a hearing the arbitrator decided the case solely on the written submissions.

Because of the complexities of gathering information related to ADDP decisions in India as well as the paucity of information on the CAS website, such developments as the Meghali decision by CAS, go unreported in our country. In turn, the lawyers representing athletes or NADA in various cases, are denied the benefit of crucial CAS decisions that help set benchmarks for future reference.