Amidst the flurry of positive dope tests for the
cardiac drug meldonium, the issue of lifetime ban in anti-doping measures has
unwittingly been brought into focus.
For the past four-five days the news of Russian
swimmer Yuliya Efimova testing positive for meldonium has been reported with almost every report dealing with the multiple world champion and Olympic medallist mentioning that she could face a lifetime ban.
Can she be sanctioned like that under the 2015 Code?
No provision
There is no provision in the Code to impose a life-ban
on an athlete who tests positive a second time.
The Russian world champion swimmer, having tested positive for DHEA in 2014 and having undergone a 16-month suspension could also be facing a second charge in case the meldonium offence is established and she is indeed proven guilty.
Almost
every report during the past few days has suggested that she could end up with a
life-ban, perhaps without checking up whether there is a provision to ban her for life for a second offence in the 2015 rules.
Of course a doping offence, whether the first one or
the second or third, will have to be proved before a disciplinary tribunal. It
is possible Efimova, a strong Olympic medal contender for Russia in Rio, may
get off this melodonium infraction without much damage. At least she has
maintained that she would be able to prove that she was completely innocent.
“"I
categorically reject the accusation of doping," AP quoted Efimova as
saying in a statement on Monday. "At the current time, we are preparing
for a hearing into my case. We intend to have the charge completely dismissed
and to prove that I didn't break anti-doping rules, and I continue to train
with the hope that I will compete at the Olympic Games in Rio."
We are not going to
look into the latest doping issue surrounding the four-time world champion and
Olympic bronze medallist. But only on the possibility of a lifetime ban should
she be found guilty as reports have indicated.
“Efimova faces lifetime
ban” has been a routine headline the past few days. Here is one
I have been wondering for a few months now why WADA
has removed the lifetime ban for a second doping offence and why there had been
little debate on the topic for more than a year now. Obviously not many have
realized that a life-ban will become rarer from now on.
What the rules say
Just to make sure that the lifetime ban provision was
not there for a second violation, I checked up the Code again.
This is what it has to say on a second ani-doping rule violation:
10.7 Multiple Violations
10.7.1 For an Athlete or
other Person’s second anti-doping
rule violation, the period of Ineligibility
shall be the greater of:
(a) six months;
(b) one-half of the period of Ineligibility
imposed
for the first anti-doping rule
violation without
taking into account any reduction
under Article
10.6; or
(c) twice the period of Ineligibility
otherwise
applicable to the second
anti-doping rule
violation treated as if it were a
first violation,
without taking into account any
reduction under
Article 10.6.
The period of Ineligibility established
above may then be
further reduced by the application
of Article 10.6.
Confusing
This sounds a bit complicated if not confusing, but
what is clear is there cannot be anything more than “twice the period of
ineligibility” otherwise applicable to a particular type of offence. There is
no mention of a life-ban for a second offence.
Even if we assume that ‘twice’ can be eight years or more than twice could be 10 years it cannot be “lifetime” ban.
Where does “life ban” come in in the 2015 Code?
10.7.2 A third anti-doping rule
violation will always
result in a lifetime period of Ineligibility,
except
if the third violation fulfills the
condition for
elimination or reduction of the
period of
Ineligibility under Article 10.4
or 10.5, or involves
a violation of Article 2.4. In
these particular
cases, the period of Ineligibility
shall be from
eight years to lifetime Ineligibility.
For violation of articles 2.7 (trafficking) or 2.8 (administration
or attempted administration) punishment can go up to a lifetime ban even for a first
offence.
A simple reading of the Code thus provides a clear
understanding that there is no life ban for a second offence which has been the
standard for several years in the past and which got changed to “eight years to
life” in 2007.
However, between 2007 and 2014 there were only a
limited number of cases where the maximum of life-ban was imposed for a second
offence. Disciplinary panels tended to take a lenient view most of the time,
resulting in more ‘eight-year suspensions’ than ‘lifetime bans’.
No option of life-ban
That option is no longer there now. It could be eight
years if there is only a ‘standard’ violation, meaning the offence had it been
first would have been sanctioned with a four-year ban. Depending on how a panel
would treat a case under the relevant articles and provide relief as may
be available in the rules if a case is properly presented an athlete can hope
to get further reduction.
From January 1, 2009, when it came into existence till
December 31, 2014, the National Anti-Doping Agency (NADA) of India has been
able to get only one verdict of life-ban from nine cases that it successfully argued
for sanctions in instances of second anti-doping rule violations. That was of
one track and field athlete who walked out of a hearing in 2010, suggesting that the panel
may impose any sanction including lifetime ban.
There was one more in which an Indian panel would be
shown to have imposed a life-ban, that of weightlifter Shailaja Pujari in November
2010. But that was only a mere formality since by then she had been life-banned
by the International Weightlifting Federation (IWF) which had handled a
separate ‘positive’ report arising out of a test conducted by it in India. She had
undergone a suspension previously in 2006.
The Olympic Movement Anti-Doping Code (OMADC), the
precursor to the WADC, had the provision for life-ban for a second offence. So
too the 2003 WADC, the first set of anti-doping rules under WADA. By 2007 it
got diluted to “eight years to life”, with panels given the authority to
determine the degree of fault. From 2009 through to 2014 the provision
continued till it got changed again for the 2015 Code.
Between 2007 and 2014 the Code contained a provision
for “aggravating” circumstances that could be sanctioned by a suspension up to
four years. Not many anti-doping authorities used this provision, though, to
punish athletes. Under the ‘aggravated sanction’ clause two such instances could lead to
a life-ban or even one ‘standard’ coupled with an ‘aggravated’ one.
The ‘aggravated’ clause could have been utilized to
sanction use of multiple drugs, apart from a few other instances, but in India,
the clause was rarely, if ever, brought in, with cases involving the use of even three steroids and a stimulant taking the routine course and ending in two-year
sanctions.
Demand for stiffer sanctions
Even as some of the countries and several athletes
across sports have kept demanding that there be lifetime bans for even
first-time offenders, rules do not provide for such bans even for second-time
offenders.
Possible legal hurdles, based on the principle of “proportionality”
have always been cited as the reason for not pursuing harsher penalties. But
with so many clauses that could be utilized to gain lighter sanctions, the ‘clean’
athletes must be getting increasingly frustrated. After all no one would be
able to recreate the ambience of an Olympic arena, the feel of the podium and
the medal around one’s neck when after protracted legal battles or re-testing
of samples during a 10-year period the odd athlete could be stripped of a medal
and another one upgraded and bestowed the honour.
With meldonium threatening to breach all records for 'positive' results for one substance in a particular year, and offenders ready to defend themselves strongly against possible sanctions, those who still believe in dope-free sport must be hoping that more deterrent sanctions would be brought in sooner than later to deal with dope cheats.
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