A rare case at CAS

If we thought last September that the 'Indian MHA saga' was set to complete quickly, we were wrong. 

Four years and four months after the stimulant, methylhexaneamine (MHA), came to haunt some of the top sportspersons of the country, just ahead of the New Delhi Commonwealth Games, one among the ‘batch of 11’ MHA cases is still unresolved.

Of the 11 MHA cases that went into disciplinary procedures in September, 2010, one, that of swimmer Amar Muralidharan, is yet to be decided despite the Indian panels having disposed of the case.

The last of the MHA case appeals from the 2010 batch to be disposed of at the national level was that of swimmer Richa Mishra in October last year.

CAS hearing on Jan 16

Amar Muralidharan’s case will come up, yet again in appeal, this time before the Court of Arbitration for Sport (CAS) at a sitting in Abu Dhabi this Friday, January 16.

Muralidharan’s appeal to CAS, to be heard by a single arbitrator, is a rare instance of a ‘national-level’ athlete approaching the highest court in sports arbitration. It was a case that was heard and dismissed by an appeal panel at the national level.

The details of the grounds on which Muralidharan has filed his appeal with CAS are not known. From the information gathered from sources it would seem that the swimmer has again stressed on the points that came up at his hearings in India. These primarily relate to ‘chain of custody’ of the sample and the confusion generated by the National Dope Testing Laboratory (NDTL) in allotting laboratory code numbers that mixed up the names of Muralidharan and another swimmer Jyotsana Pansare.

One additional point that seems to have been made relates to the composition of the National Anti-Doping Appeal Panel (NADAP). As per the then existing rules of the National Anti Doping Agency (NADA) such a panel had to be composed of four members.

Since 2009, the NADAP has been composed of three members only. The Muralidharan case was also heard by a three-member panel, headed by Justice M. L. Varma (retd.). The other members of the panel were Dr V. K. Sharma and former table tennis international Indu Puri.

Rules amended

The NADA rules of 2010 (based on the 2009 WADA Code) stipulated that the appeal panel would comprise a chair, a legal practitioner, one medical practitioner, a sports administrator and a “renowned athlete who has retired from active sports”.

The WADA model rules for 2009 did not specify the number of persons to be nominated to an appeal panel. It was presumed that just like in the case of disciplinary panel it would be a three-member panel.

How the discrepancy came about in the composition of the NADAP and how for five years different panels functioned without checking up the rules will remain a matter of conjecture.

The latest NADA rules, based on the revised Code of 2015, have amended the provisions to specify that it would be a three-member panel. The third member would either be a sports administrator or a sportsperson.

Whether this discrepancy would be viewed seriously by the CAS arbitrator is to be seen only.

Muralidharan argued before the disciplinary panel that the ‘chain of custody’ during the four-day period the sample took from Jaipur to Delhi was in doubt and that there were variations in the pH of the ‘A’ and ‘B’ samples.

The most important point stressed during the disciplinary panel proceedings seemed to be the discrepancy in the lab code that was mixed up with that of Pansare. Muralidharan tended to argue, through his lawyer, R. K. Anand, that there could be a doubt as to the contention that his sample had tested positive for MHA.

The same points were brought up before the appeal panel also where Amar Muralidharan’s father, Cdr.  Muralidharan, argued the case. The NADAP noted that the disciplinary panel had gone into all the aspects related  to ‘mix-up’ of code numbers etc and rejected them.

CAS in the past had invariably taken a dim view of procedural irregularities by laboratories or anti-doping agencies and there could be possibilities on this front if jurisdiction is established.

CAS jurisdiction

The NADA, one of the respondents in the appeal before CAS (the others are the NDTL and the Ministry of Youth Affairs and Sports), is expected to base its defence on the argument that Muralidharan was a ‘national-level’ athlete and he did not have the right to appeal to CAS. Conversely CAS did not have jurisdiction over this matter according to NADA argument.

NADA is expected to argue that having exhausted his right of appeal before the Justice Varma panel, the swimmer did not have the right to seek another appeal.

The International Swimming Federation (FINA) anti-doping rules define an ‘international-level’ athlete as one who is in its Registered Testing Pool (RTP). The top-12 swimmers is each event are included in the RTP by FINA.

One could not readily find precedents that could be compared to the Muralidharan appeal in CAS. The one that could come close to a comparison is that of South African marathon runner Gert Thys.

Thys who tested positive for steroid 19-norandrosterone after winning the 2006 Seoul international marathon, was suspended for 32 months by Athletics South Africa (ASA). The hearing process took more than two years.

The South African athlete went in appeal to CAS which annulled the ASA disciplinary panel decision. CAS found procedural irregularities in the tests conducted at the Seoul laboratory and ruled in the athlete’s favour.

Gert Thys precedent

Despite ASA’s contention that Thys was not an ‘international-level’ athlete at the time of the doping infraction, CAS entertained the appeal on the argument that the IAAF anti-doping administrator had written a letter to Thys to “offer” a “settlement” for a two-year ban if the athlete admitted his offence. He also pointed out that even after CAS arbitration there could be an appeal before CAS and it could end up in protracted, expensive processes. CAS construed this as an arbitration window being offered.

ASA went in appeal to the Swiss Federal Tribunal. CAS being located in Lausanne, the Swiss Tribunal had jurisdiction over its decisions in a civil suit.

The Tribunal ruled in favour of ASA and set aside the CAS verdict, stating that CAS did not have jurisdiction over a ‘national-level’ athlete which Thys was found to be within the rules of the IAAF at the time of the Seoul marathon 2006.

Swiss court ruling

“When the CAS found that the Respondent was to be denied the status of an International-Level Athlete and therefore it had no jurisdiction according to Art. 60.11 of the IAAF Competition Rules, it did not violate the law”, the court said.

“The CAS wrongly found that it had jurisdiction on the basis of the April 10, 2008 letter. Its jurisdiction cannot rely on the applicable Federation Regulations either. The award of the CAS of July 24, 2009 is accordingly to be annulled as a consequence of the appeal being allowed and the CAS must be found to lack jurisdiction,” the court stated.

Well, the case did not end there! Thys went back to the South African Institute of Drug Free Sports (SAIDS), which was the appellate authority over a ‘national-level’ athlete. The matter was, however, delayed at SAIDS.

When WADA found that ‘due process’ was not being gone through in South Africa, it went in appeal to support the athlete in CAS and sought setting aside of his suspension. ASA gave up at this stage and informed CAS that it did not have the financial capacity to defend a case in CAS but it would abide by any decision by the court.

CAS upheld WADA appeal in 2012, nearly six years after the marathoner tested positive, and stated that Thys's due process rights are “seemingly being ignored" in South Africa. It agreed with the WADA that he needed to be reprieved under the circumstances even though it noted that the athlete had tested positive.

Thys’s case drove home the point that a ‘national-level’ athlete did not have the right of appeal at CAS, an argument that was upheld by the Swiss Federal Court. If there happened to be a second appeal in this case, under different circumstances, it was done by a party (WADA) that had the right of appeal before CAS.

Since CAS has admitted Amar Muralidharan’s appeal, it is to be presumed it could lead to an interesting argument over jurisdiction just as in the case of Thys.

The Padma Bhushan controversy

Was Saina Nehwal trying to seek the Padma Bhushan? Or was she simply trying to find out from the Sports Ministry why her ‘application’ for the award had not been forwarded to the Home Ministry? That she tried to enquire from the ministry through a series of Tweets indicated what her intentions were.

The badminton star, an Olympic bronze medal winner, has since clarified that her intention was not to “demand” the award but to find out why her name was not considered by the Sports Ministry. We should leave it at that.

That in the process Saina mentioned Sushil Kumar, whose name by then had already been forwarded by the Sports Ministry, only helped present (unfortunately) a ‘negative’ picture of the Hyderabad player.

Varied reactions

Reactions have varied on the Padma Bhushan controversy. As usual those who charge the political set-up with making a mockery of State awards have attacked the Government, questioned the system and argued that at least sportspersons need to be treated with honour and dignity and only true merit should be recognized by the system rather than ‘lobbying’ being of prime significance.

Several sportspersons on the other hand have wondered (despite Saina’s query “Who am I to demand an award”) how someone could “demand” an award or question a ministry’s recommendation or even try to argue about the ‘premature choice’ of a fellow Olympic medallist (Sushil Kumar).

Mercifully, most seemed to agree that Sushil Kumar, the Delhi wrestler who owns two back-to-back Olympic medals, and a World Championship gold, apart from several other medals and honours, was way ahead of Saina in stature and achievements, if that was indeed the debating point, and would deserve to get the award if he was eventually chosen. The technicalities were of course that could be looked into by the panel and/or the Home Ministry.

A few have opined that the awards, often susceptible to political manipulation, should be of no great relevance to any one, while some others have complimented Saina for “standing up” to the authorities and showing the courage to question their ways. Saina has surely highlighted the deficiencies in the system, though one should not assume that it is the badminton star alone who has suffered in respect of civilian awards.

By the way, rather interestingly, Saina got the Padma Shri in 2010, ahead of Sushil Kumar, though the latter by then had won an Olympic bronze (Beijing 2008).

Before we try to analyze the issue in greater detail, and discuss a few important aspects related to the Padma awards, one crucial point needs to be mentioned  straightaway. The awardees for 2015 are yet to be announced. Saina is only one of the few _or several as the case may be_sportspersons whose names have been recommended. So, too, Sushil Kumar.  (The awards are expected to be announced on the night of January 25)

It is a moot point whether the selection committee would ignore the stipulation of deadline in Saina’s case (there is no provision to do so even as a ‘special case’ as the Sports Ministry described it) or that of the five-year gap rule that prohibits a Padma awardee being given a higher award that could affect Sushil Kumar (there is a provision to waive this rule if the committee so desires).

We don’t know who the other contenders are among sportspersons for the Padma Bhushan this year.

Shooting in the dark

In this no-holds-barred attack against the system, commentators, television channel anchors and ‘experts’ who express their opinion during discussions, editorial writers and others have overlooked several facts. And those do not relate to whether Saina deserves the award or not, whether the ‘application’ had reached the ministry in time or not, whether wrestler Sushil Kumar fulfils the criteria or not, but on certain basic facts of the Padma awards scheme itself. In this the Sports Ministry has not helped matters. It has only complicated them as we will soon see.

The most important point in this whole unsavoury episode that had been missed by Saina, Sports Ministry, and critics has been the simple truth no one needs to “apply” to receive a Padma award.

Everyone from critics to ‘experts’ to former internationals to the common man have been fed this news through these past few days that no one would believe otherwise.

The word ‘apply’ or ‘application’ is missing in the Padma awards scheme. In contrast it figures five times in the Arjuna award scheme. For more than a decade, the Arjuna award scheme has been demanding ‘applications’ from prospective awardees.

The Arjuna awardee proforma has a space for an undertaking by the athlete being proposed to the effect that no disciplinary action had been taken against him/her for age fraud or doping etc.

Application v recommendation

The Home Ministry normally checks with the awardee-designate once the selections are made about the acceptance of the award by the individual. The rest of the formalities are completed by the Home Ministry in time for the awards ceremony.

Since the Arjuna award scheme required a signature from a candidate, over a period of time it became ‘application for Arjuna award’ rather than ‘recommendation’. Aspiring athletes talked about ‘applying’ for the Arjuna rather than being recommended for the highest sports honour of the country. Unfortunately through these past few decades, nothing had been done to correct this.

It is natural only then that sportspersons, and several others, believe that Padma awards also require an ‘application’ from a prospective candidate. It does require a short resume of the achievements of the candidate but that could be filled up by the agency/individual who is recommending the person or else obtained from the candidate and furnished with the nomination.

 It is not necessary that a recommendation for a Padma award for a sportsperson has to be made by the Sports Ministry. This is where the confusion and controversy has arisen in the latest episode.

The Sports Ministry is not a ‘routing agency’, it is a ‘recommending agency’ just like all Central ministries and departments, like all State Governments  or Governors or  Chief Ministers are, like all Members of Parliament, like all private agencies or any citizen of this country. Anyone can recommend any one for a Padma award. You may even recommend self.

Last year there were as many as 576 self recommendations among 1878 nominations.

Whether such a recommendation would have any chance of getting the nod from the selection committee appointed by the Prime Minister is a moot point.

The Padma awards search committee can also recommend names for the consideration of the selection panel.
Unlike the Arjuna award, which, for some strange reasons, had been made year-specific (previous four years), the Padma awards are not bestowed for performance or achievements for a particular year or set of years. Thus any attempt to argue that Saina had a productive 2014 in comparison to a "lean" year for Sushil Kumar is meaningless and misses the point altogether.

Is this a post office?

By giving so much of importance to the question of Saina Nehwal’s  nomination from the Badminton Association of India (BAI) not having reached the ministry in time to beat the deadline of September 15, 2014 (as claimed by it), the Sports Ministry gave the impression to the world that it could only ‘forward’ an application and was otherwise incapable of making a choice of its own to finally recommend the same to the Home Ministry. In fact it would be a lot better if the Sports Ministry were to perform the role of a "recommending authority" in its true sense rather than function as a 'forwarding post'.

Had it been making a recommendation or a few recommendations out of several nominations received, it could have simply stated that from the valid nominations received prior to the deadline it had made its recommendation/s to the Home Ministry and that is where it rested. Instead it announced that it had recommended the name of Sushil Kumar and, as a special case, that of Saina Nehwal.
Such an announcement has not been known in respect of Padma awards in the past. There was no need to make an announcement as though the ministry was attempting to 'correct' a grave mistake made by it.

There is nothing in the rules or precedents that suggest that a higher Padma award becomes due after a certain number of years or medals, in the case of sportspersons. You become eligible, that is all. Eligibility should also not mean that some agency has to recommend your case.

Were there other recommendations this year from National Sports Federations or the Indian Olympic Association (IOA) or any other agency that the Sports Ministry had received for the Padma Bhushan and had rejected? We do not know at this point and might come to know of it only when the Home Ministry releases the complete list in future.

(There was a brief intervention by boxer Vijender Singh to place himself as another possible candidate for the Padma Bhushan that put the ministry in poor light., Vijender later denied that he had ever proposed his candidature, for, he argued on TV that an award, if demanded and gained, would not be worth anything at all. Perhaps Vijender helped everyone concerned put things in perspective, not only on the deadline and other technical issues but also on the worth of an award that is sought not bestowed. Vijender's posturing also highlighted the futility and dangers of authorities relaxing rules and regulations in response to publicly-aired criticism. For, the Home Ministry cannot be expected to keep the deadline hanging for 'late-comers' to join the fray.)

Bring clarity

It is time the Sports Ministry clarified its procedures regarding Padma Awards nominations. Will it be forwarding all the nominations that it receives for the Padma awards for a year? Or else will it make its own choice of candidates from among the nominations received for various categories and then make its recommendations to the Home Ministry?

If the latter course is adopted, it would be logical and fair to advise all parties concerned that a mere submission of a nomination to the Sports Ministry would not be a guarantee for it to be forwarded to the Home Ministry so that candidates or their proposers are free to pursue different channels.

The media, the critics, the TV panelists all took it for granted that the ultimate clincher was a recommendation from the sports ministry, forgetting the fact that a recommendation for a sportsperson could come from anyone, any State Government for example. Whether a recommendation from a concerned ministry would add weight to a nomination for an award is a debatable point, but what we can make out from last year’s awardees list is that it is not always the case.

Gopi had AP backing

Last year Leander Paes and Pullela Gopi Chand were upgraded to Padma Bhushan. Paes was recommended by the Sports Ministry, 17 years after he won a historic bronze in the Atlanta Olympics, and after countless Grand Slam doubles titles, not to speak of success in the Asian Games, while Gopi Chand was nominated by the Andhra Pradesh Government. The Sports Ministry made five other ‘unsuccessful’ recommendations including one for the late wrestler K. D. Jadhav who won India’s first ever individual medal in the Olympics back in 1952 though there is no provision to give the award posthumously unless a special case is made out and death had occurred within a year of the selection. Jadhav had died in 1984.

What prevents the Sports Ministry_or for that matter the Padma awards search committee_ from recommending any of these great icons of Indian sports who are yet to be bestowed the Padma Bhushan_Prakash Padukone, P. T. Usha, Balbir Singh (triple Olympic gold in hockey), Rajyvardhan Singh Rathore, Anju Bobby George, Ajitpal Singh, Bishan Singh Bedi and Pankaj Advani?

The above is just a small list of some of the outstanding Indian sports stars, some of them yesteryears heroes and almost forgotten, but who have contributed a great deal to Indian sports through the years, some not just by their performances on the field, but off it, too. There are others, too, who might deserve a look-in who have not been mentioned here.

Inspiring the youth

Padukone and Usha inspired a generation of young Indians to aspire for glory and were also engaged later in their lives in coaching budding talent. Usha is still engaged in that task with her trainee, Tintu Luka having won a silver in the last Asian Games.

Rathore it was who showed the way for Indian sportspersons that Indians could also win something other than a bronze in the Olympics, and Anju George proved, by taking the bronze in the Paris World championships in 2003 that an Indian athlete can after all win a medal in a global championships. Never before had someone else done that in Indian athletics.

Balbir Singh, apart from figuring in three Olympic gold-medal winning hockey teams has had the distinction of being the manager of the World Cup winning team in 1975 plus of being the National coach.

We haven’t touched all of the other Olympic medal-winning sportspersons since giving a list of possible candidates for any category of Padma award is not the intention of this blog. It is to drive home the point that a recommendation from the Sports Ministry is not the be-all and end-all in a Padma award nomination. Whether right or wrong, it had never been so and we have had a former Sports Minister (M. S. Gill) complain once that his ministry’s recommendations were being ignored for the final choice.

The Padma awards in sports cannot and should not be moulded into a medals format or a championship-based points system as they have rather unsuccessfully tried out for the Arjuna award with disastrous consequences.

By giving importance to Tweets and Press statements by an “aggrieved” athlete, the Sports Ministry has sadly given the impression to the country at large that there are no more deserving cases from the past to be considered for higher civilian awards.

Or is it that the Sports Ministry is waiting for an “application”?
(amended 9 January, 2015)