The National Anti-Doping Disciplinary Panel has issued
another contentious decision. It has imposed a two-year sanction on an athlete
who tested positive for steroid stanozolol in an out-of-competition dope test
conducted by the International Association of Athletics Federations (IAAF) in
April last year.
A steroid offence can get a lesser sanction than a
standard sanction of four years but such instances are rare and such decisions are invariably based on irrefutable evidence and convincing arguments.
In the present case the decision, dated 9 March, 2016 to impose a milder sanction rested on the fact
that the athlete had written down the name of the supplement that he had
consumed and that, according to the hearing panel, showed he had no intention
to cheat. It was presumed that the supplement was contaminated by stanozolol
and it caused the positive test.
The standard sanction for a steroid offence under the
2015 Code is a four-year suspension unless the athlete can establish that the
commission of the anti-doping rule violation was “not intentional” in which
case it will be two years. For a ‘specified substance’ also the sanction would
be two years unless the anti-doping authority can prove that the anti-doing
rule violation was “intentional”. Steroids do not come under the category of
‘specified substance’.
This was a case in which the authority to pursue part
of the ‘results management’ process was delegated to the National Anti-Doping
Agency (NADA) by the Athletics Federation of India (AFI). Just as in the case
of two of the woman 400m runners in 2011, Mandeep Kaur and Jauna Murmu, this
was a test conducted by the IAAF at Patiala. The athlete happened to be a
national-level shot putter.
AFI delegates authority
Again, just as in the Mandeep-Murmu instance, the AFI
passed on the hearing process to be completed by NADA. In the case of Mandeep
and Murmu, along with four other quarter-milers, the eventual verdict of
two-year suspension was handed down by the Court of Arbitration for Sport (CAS)
to which the IAAF appealed when the Indian panels imposed one-year sanctions
for the steroid infractions.
The top Indian woman quarter-milers took the plea that
they had consumed a supplement (ginseng) supplied by the foreign coach of the
team and that could have been contaminated. The Sports Authority of India
(SAI)_and not the NADA_got the supplement tested at the National Dope Testing
Laboratory (NDTL) and the tests returned positive results for steroids
methandienone and stanozolol. The women were finally penalized since they,
according to the CAS arbitrator, could not establish “No significant fault or
negligence”.
In the present case, that of the Chandigarh shot
putter, the plea once again was he had consumed dietary supplement and that
might have caused the ‘positive’ result for stanozolol since it could have been
contaminated. The athlete stated that he had written down the name of the
supplement in the doping control form and that, the panel was to crucially
observe, was a clear indication that the athlete did not have any intention to
cheat. The athlete argued, through his counsel, that he had always been taking
supplements and had never in the past returned a ‘positive’ dope test.
Under the 2015 rules, this could have been a
“contamination” plea and theoretically could have ended up with as little as a
‘reprimand’, the least of the punishments possible under article 10.5.1.2 (‘contaminated
products’).
But it did not though the athlete’s lawyer did try to
argue the case under “no significant fault or negligence” rule. But seemed to have been guided eventually by what the panel itself suggested.
The details of all the written submissions made by the
athlete’s lawyer and NADA are not available. But the order by the panel headed
by Mr. Ramnath does give a good idea about how the arguments went and how the
panel arrived at its eventual conclusions and decision.
The order stated: “The pane has also deeply gone
through the relevant citation of both parties, again the question of intention
of the athlete is very material whether he intent (sic) to cheat. Here, in the
present case the athlete from the very beginning i.e. at the filing of doping
control form has mentioned of taking nutritional supplements, ‘Tri Troubles’ as
athlete is not well educated it means that he had taken in fact ‘Tri Tribulus’
supplement and not the ‘Tri Troubles’. This substance is a nutritional
substance which has a unique growth formula and is not banned rather it was
recommended and purchased by Indian Weightlifting Federation by inviting
quotations (photocopy of letter dated 11.12.2012 of Sahdev Yadv Secretary
General, Indian Weightlifting Federation was filed from the side of the athlete
wherein in the list of supplements at serial No. 23 Tri Complex Tribulus was
mentioned). On the other hand, the Counsel for NADA did not show any
document/evidence that this supplement is banned.”
Banned or approved supplements?
Several key points emerge from the above statement.
The athlete had consumed Tri Tribulus, a herbal supplement derived from
Tribulus terrestris. The panel has noted that the substance is a “nutritional
substance” which was not “banned”. It was, on the contrary, recommended by the
Indian Weightlifting Federation.
No one apparently told the panel that there is no
“banned nutritional substance”. WADA only bans drugs and doping methods, not
supplements. WADA also does not ban brand names, only generic drugs. For
example, stanozolol is among the banned steroids, not Winstrol, one of the more
popular drugs available in the market that contains stanozolol.
NADA should have told the panel that it cannot “show
any document/evidence” that the supplement (Tri Tribulus) was banned since it was
not in the business of either approving or banning supplements. Or for that
matter WADA was not in the business of approving or banning supplements.
Quite often we hear the mention of “WADA-approved”
supplements during dope hearings. There are no such supplements in the world.
WADA warns athletes about the use of dietary supplements because of their
propensity to get contaminated by banned drugs. All the anti-doping agencies
including National Anti-Doping Organisations (NADOs) are also supposed to warn
athletes about such dangers.
While guiding athletes towards the use of supplements
some of the anti-doping agencies make it clear that it is ultimately the sole
responsibility of the athlete to make sure the substance is safe.
Athletes are responsible for what goes into their
systems. “I didn’t know “ can never be a clinching argument in a doping case.
Coming back to the order of the panel that took note
of the mention of Tribulus in the doping control form, it goes on to say “…therefore
the possibility of contaminated nutritional supplement Tri Tribulus which the
athlete was consuming, cannot be ruled out, however the great burden lies upon
the athlete to show that he had consumed contaminated supplement Tri Tribulus.
The …Counsel for NADA has submitted that they have not filed any cash memo or
not mentioned the name of the shop from where he has purchased and, therefore,
he cannot be given any benefit of provisions of “No significant fault or
negligence”. But the panel is of the view that it is very difficult for the
athlete to keep cash memo etc as he was not knowing at the time of purchasing
the nutritional supplement Tri Tribulus that it will contain contaminated
supplement.”
What the panel apparently wanted to say in the last
sentence above was the athlete couldn’t have known at the time of purchasing the
supplement (Tri Tribulus) that it would contain a banned substance/steroid.
No testing of supplement
The main point here seemed to have been missed by the
panel as well as NADA. There is only a claim that the supplement must have been
“contaminated”. No one tested it! No one seemed to have sought a test! NADA did
not ask for a test. The panel did not seek a test to find out whether the
supplement was contaminated by stanozolol. The panel would have been within its
rights to demand such a test. It did not.
The panel wrote: “However it is the duty of the
athlete to explain how the prohibited substance entered in his body, for that to some extent he is able to show that
contaminated substance stanozolol entered into his body through Tri Tribulus (emphasis
mine) supplement which he consumed regularly. If he would not have
mentioned Tri Tribulus supplement in the doping control form, the position
would have become different and he would have been guilty of taking the said
substance with intention to cheat. Therefore panel has come to the conclusion
that the athlete did not consume the substance with intention to cheat and
therefore the athlete case comes under clause 40.2 (b) of the IAAF anti-doping
rules 2015 where period of ineligibility has been two years only.”
The panel obviously is uncertain about how the
prohibited substance entered the athlete’s body. Otherwise it would not have
stated “to some extent he is able to show”.
Precedents
There was one case in India of a female judoka who was reported
for methylhexaneamine in 2012. She was exonerated on the argument that the
substance must have come from beauty aid products. The decision was upheld by
the Indian appeal panel, but was eventually overturned by the Court of
Arbitration for Sport (CAS) and she given a two-year suspension.
Interestingly, NADA tried to bring in laboratory
investigation report rather late during the appeal stage of judoka’s case but
was not allowed. The lab report stated that MHA was not present in the beauty aid
products that the athlete had applied. The company gave a signed statement that its products did not contain MHA.
It was widely believed at that time that geranium plant and roots contained MHA. Later in another case, that of a woman swimmer, once again the theory that soaps, shampoos etc may contain geranium which in turn could mean MHA, was proposed and accepted. The swimmer was given a reduced sanction by an appeal panel without testing any product and without NADA advancing what was known to it through laboratory tests in the judoka's case.
It was widely believed at that time that geranium plant and roots contained MHA. Later in another case, that of a woman swimmer, once again the theory that soaps, shampoos etc may contain geranium which in turn could mean MHA, was proposed and accepted. The swimmer was given a reduced sanction by an appeal panel without testing any product and without NADA advancing what was known to it through laboratory tests in the judoka's case.
In the present case the lawyer representing the
athlete mentioned a couple of cases in the athlete’s defence. One of them
involved a British rugby player who tested positive for 1-3,dimethylbutylamine,
a stimulant, in an in-competition test. The player claimed that his positive
test had come out of his use of a supplement.
Many of his arguments were accepted by the UKAD which
did not claim that the player had used a doping substance “intentionally”.
The UKAD only pressed for a six-month suspension for
the level of negligence shown by the player. It accepted that the prohibited
substance had come from the supplement only. But before doing so, it tested the
product from a tub of left-over stuff given by the player and the laboratory
reported that the substance he tested positive for (dimethylbutylamine) was indeed present in
the supplement.
The player received a six-month suspension. He was able to satisfy the panel that he had taken certain basic precautions before purchasing the supplement and consuming it.
The player received a six-month suspension. He was able to satisfy the panel that he had taken certain basic precautions before purchasing the supplement and consuming it.
There could be dozens of cases like these across the
world including in India where either the anti-doping agency would have tested the supplement and
found out what it contained or else a panel would have ordered such a test and
satisfied itself what its ingredients were or else an athlete would have on
his/her own got the tests done to defend oneself.
The mere presence of the banned substance in a supplement alone may
not, however, help an athlete escape sanction or get reduced punishment since degree of
fault or negligence would also be assessed if a 'no significant fault or negligence'argument is taken. That is what happened in the case
of the six woman quarter-milers when their cases went up to CAS in 2012.
Had the substance been tested in this case and found
to be contaminated the athlete could have fallen back on the ''Contaminated
Products' rule introduced in the 2015 Code which might have enabled him get a simple ‘reprimand’ and no
suspension.
His lawyer was keen to proceed on the “No significant
fault or negligence” argument. But the panel stated, rather surprisingly: “The
argument of the learned counsel for the athlete that his case may be taken
under the rules of “No Significant Fault or Negligence” does not appeal to our
mind, as the panel has already reached to (sic) the conclusion that the athlete
was not having intention to cheat.”
A particular line of defence did not "appeal" to a hearing panel!
A particular line of defence did not "appeal" to a hearing panel!
Pertinently neither NADA nor WADA (or IAAF) has
appealed this decision which may well set a precedent about supplements use.
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Other recent debatable decisions:
Click here for Prescription v TUE
Click here for Same class of substance, two vastly different sanctions
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Other recent debatable decisions:
Click here for Prescription v TUE
Click here for Same class of substance, two vastly different sanctions
