The National Anti Doping Agency (NADA) might have learnt a few lessons from the recent appeal of swimmer Amar Muralidharan in the Court of Arbitration for Sport (CAS) that was dismissed.
The end of the CAS
proceedings has brought closure to the tale of methylhexaneamine (MHA) cases that
rocked the nation prior to the 2010 Commonwealth Games and that took many
twists and turns through a long-winding hearing process.
Though NADA successfully
defended the two-year sanction the National Anti Doping Disciplinary Panel had
ordered and the Anti Doping Appeal Panel had upheld against the swimmer, it was
penalised by CAS which slapped costs on it to be shared equally with the athlete, it has been reported.
The prime reason
for such a rare step by CAS, it was learnt, was the delay that the athlete had
to suffer in getting his case completed as he and ten other dope offenders in
the famous MHA cases were put through an agonizing and unprecedented waiting
period before the final verdict was given at the national level.
This was an
extra-ordinary bunch of cases that went on for a long period of time,
aggravated by the inaction of the Government in appointing members to the appeal
panel at the end of 2013 that led to further delays in the proceedings.
(At the time of writing the same situation was available with panel members having retired by the end of
2014 and not a single new case having been taken up since January 2015)
Lack of jurisdiction
The sole
arbitrator who heard the appeal at CAS’s alternative hearing centre in Abu
Dhabi on January 16 last, also took note of NADA’s unsuccessful motion to get
the appeal dismissed on ‘lack of jurisdiction’ since NADA did not object to CAS’s
jurisdiction at the outset or even while signing the order of procedure.
Indeed there
could yet be a debate about the lack of jurisdiction and the penalization of
NADA on account of undue delay, especially the statement that “…the
Appellant was notified of the anti-doping rule violation on 20 September 2010.
The Appellant was then heard for the first time two years later on 21
September 2012.”
Muralidharan as well as the other ten MHA offenders were
heard in September 2010 as well as through 2011 and 2012 before the verdict was
given by a panel headed by Judge Dinesh Dayal. How a discrepancy occurred in
the order of the disciplinary panel that led to a conclusion by the CAS
arbitrator that the athlete had to wait for two years to be heard for the first
time is inexplicable.
Misleading documentation
Though the order of the Indian panel does state that
the athlete was notified in September 2010 and the date of hearing was
September 21, 2012 the fact remained that the last-mentioned date happened to be the
final date of hearing in all 11 cases.
Had the complete order of the Indian disciplinary
panel been available_there is no reason to doubt that it wouldn’t have been_and
had anyone cared to go through it, one would have noted references to other
dates in the order that could have established that the case had been going on
much earlier than September 2012.
There could be
several arguments about the delays that led to a wait of more than two years at
the first hearing stage and another two years at the appeal stage. Whosoever
caused it, NADA will pay for it as well as for its failure to provide a
“complete and accurate laboratory documentation package” to the athlete though
that document was generated by the laboratory.
NADA’s way of tackling delaying tactics
The intention
here is not just to highlight the plight of NADA which may have to shell out more
than Rs 7-8 lakhs at a conservative estimate by way of costs, apart from having
incurred the expenses for a team led by its Director General to be present at
the hearing, but to drive home a point that has come up in the revised
anti-doping rules of NADA, based on the 2015 WADA Code.
From now on_the
rules came into effect on January 1, 2015_defence lawyers may have to think
twice before trying to drag the case unnecessarily on trivial issues. They may
have to curb their tendency of seeking explanations on each and every page of
the laboratory documentation package or grilingl witnesses on the security
aspect of the lab and its lay-out etc.
Why should there
be a curb on defence lawyers in seeking any amount of explanations or asking any
number of witnesses to be produced if the attempt is to defend the athlete who
is faced with a doping charge? After all, this right of the defence was upheld by
the Justice Varma-headed appeal panel in all the MHA cases as legitimate as he
and co-members of the panel found that more than 300 days could be accounted
for in the MHA cases as “delays not attributable to the athlete” and they could
be given relief under article 10.9.3. The NADA lawyers had unsuccessfully
argued that there had been deliberate attempts by the defence lawyer to delay
matters.
Several of the
MHA offenders benefited from this exercise of calculating ‘delays not attributable
to the athlete’. Muralidharan did not make such a plea and hence his appeal against his two-year
suspension with a commencement date of 5 November 2012 was dismissed by the
National appeal panel on 2 June, 2014. His sample collection date happened to
be 26 August 2010.
Revised rules
The revised NADA rules state:
“8.3.6 Unless otherwise agreed
between the parties, the Anti-Doping Disciplinary Panel shall provide a single
hearing to athleteor person against whom the case is brought “8.3.7 The athlete
may submit their written submissions with all documents they are relying in
support of his/her case before the Anti-Doping Disciplinary Panel within 20
days from the date of receipt of the notice for the constitution of Panel. The
same may be supplied in advance in five (5) copies to the office of Anti-Doping
Disciplinary Panel. NADA may also file response to the submissions made by the
Athlete within 20 days time after receiving the Reply of the
Athlete.
“8.3.8 The parties will get an
opportunity of a single hearing before the hearing panel. However the hearing
panel, at its discretion, may grant adjournments, subject to the condition that
the party seeking adjournment would have to bear the cost of the hearing viz.
sitting fee and travel expense of the Chairman and Members.
“8.3.9 Hearing pursuant to this
Article should be completed expeditiously and in all cases within three (3)
months of the completion of the result management process described in Article 7
(Result Management), save where exceptional circumstances apply.”
NADA should be complimented for
bringing in these stipulations which are not part of the Model Rules for NADOs
prescribed by the WADA, but which NADA was competent to incorporate. Well before the Muralidharan case was taken up by the CAS arbitrator, there had been feeling that there had to be some method by which delaying tactics could be curbed. The eventual CAS award in the latest case might have just highlighted the folly of not having formulated laid-down procedures to hear cases all these years.
An adjournment could be costly
The above rules would mean there
could be adjournments if the party seeking the adjournment is willing to pay
for the services of the chairman and panel members beyond a single day’s
hearing. Provided of course the panel agrees.
Obviously the hearings will not
go on for years from now on!
Similar rules have been framed
for the Anti Doping Appeal Panel also. The idea of completing the documentation
exercise well before the hearing takes place is very welcome. Quite often in
the past we have seen a party coming to a hearing without having provided a
copy of its submission to the other party. On other occasions, lawyers just
refuse to turn up and seek an adjournment through a junior colleague.
There could have been a provision in the latest rules to list witnesses including experts by either party during the written
submissions stage and a rider that additional witnesses could be allowed subject
to the ruling by the panel..
This single hearing should not be
confused with the provision of a ‘single hearing before CAS’ now available in the
2015 WADA Code since that refers to a direct first hearing option available
even for a ‘national-level’ athlete if all the parties including those with a
right of appeal at first instance hearing agree to such a procedure.
