Another contentious decision

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.

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.

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!

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