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.