Sabotage theory rejected and yet athlete given concession

Can an athlete allege “sabotage”, fail to prove it in an ant-doping rule violation case and still establish that his or her positive case for a steroid had come from an “unintentional” ingestion of the prohibited substance?

Yes, if one were to go by a decision handed down by the National Anti-Doping Disciplinary Panel (NADDP) in April last year.

Commonwealth Games gold medallist Geeta Rani, whose two-year suspension has been challenged in the National Anti-Doping Appeal Panel (NADAP), seemed to have gained the “leniency” from the hearing panel at the first instance because of her background as an international medal-winning weightlifter and the words of praise other weightlifters, coaches and a senior officer had to offer during the proceedings.

Pending before appeal panel

According to a recent National Anti-Doping Agency (NADA) newsletter, Geeta Rani’s case at the appeal panel had been adjourned for “want of certain information from NDTL”. We don’t know the details of the information sought.

Even as the NADAP waits for that information in deciding about the appeal (see addendum below to read about the appeal and relevant matters), it is pertinent to have a look at the disciplinary panel order if only to have an understanding about how Indian hearing panels interpret anti-doping rules. This decision has not been publicized so far to the best of one's belief and it does provide an interesting insight into the level of arguments that take place in the hearings in doping cases in the country.

Geeta Rani, 2006 Commonwealth Games gold medallist in the over-75kg category, first tested positive for steroid methandienone at the National Games in Thrissur,  Kerala in February, 2015. She tested positive a second time for the same substance at the All-India Police Championships in New Delhi in March.

Since notice for her first offence had not been sent by the time she competed in the Police meet, the two offences were treated as one, as per rules. A panel headed by Mr. Jasmeet Singh heard her in both cases. The other members were hockey stalwart Ashok Kumar and Dr. L. K. Gupta.

The orders in the two cases were issued separately but they were similar in arguments and conclusions. Six sittings were held from December 2015 through to March 2016 before the decision was pronounced.

“Sabotaged by competitor”

Mr. Vanshdeep Dalmia, counsel for Geeta Rani, submitted that the athlete was “sabotaged by the competitor Nanshita Devi.”

“The athlete has been unable to show any conclusive proof of an act of sabotage by her competitor Nanshita Devi who allegedly contaminated the drink consumed by the athlete with the prohibited substance” wrote the panel in its order.

“The athlete has been unsuccessful in showing any act of sabotage or any reason for Nashita Devi to take a step that would so adversely affect the career of the athlete. However, the athlete has produced 5 witnesses who were extensively examined and cross-examined”

The five witnesses were: Khajan Singh, Asian Games medal-winning swimmer and DIG, Sports/overall in-charge of CRPF camp; K. Amarnadh, weightlifter and coach, Ms Sukhbir Kaur, coach, CRPF women’s weightlifting team and international weightlifters Parshmita Mangaraj and Pratima Kumari.

Khajan Singh, who in the past had served as a member of the appeal panel, stated, according to the order, that Geeta Rani was cheated as per his enquiries. On cross-examination he conceded that his was only an informal enquiry among coaches, athletes etc.

The coaches and the fellow weightlifters while endorsing Geeta Rani’s impeccable credentials and her “clean record”, however, did not support the argument that Nanshita Devi had a background of indulging in sabotage.

“The evidence led by the athlete is contradictory. Mr. Khajan Singh has supported the athlete while the other witnesses have not found anything suspicious about the behavior of Nanshita Devi, but the allegation that Ms. Nanshita Devi has spiked the drink of the athlete still remains unsubstantiated. A careful analysis of the evidences (sic) shows the non-conclusive nature (sic) of the evidences (sic) and it is unclear whether there was any act of sabotage by the athlete’s competitor and is at best a preponderance of probability (sic). Hence the contention of “sabotage” alleged by the athlete deserves to be rejected”.

Unintentional or not?

Having come to the above conclusion, the panel had to find a reason to agree with the contention of the athlete that the ingestion of the banned steroid was unintentional and had occurred without her knowledge. It finds none in the end and yet gives the benefit of a reduction of the standard sanction of four years by half!

“Another important question that arises and draws our attention is whether the consumption of steroid was intentional or unintentional. Again, relying on the evidences (sic) and cross-examination of witnesses shows the impeccable reputation of the athlete and no one has any doubt on her capacity or the sportsman spirit,” the order said.

“The athlete has never before been tested positive in the many dope tests that she has gone through and since she does not compete in international tournaments and there is no reason for her to consume a steroid at this point in her career after achieving such great heights in her career

“While the witnesses have said that they never really found anything suspicious about Nanshita Devi before or after this accusation by the athlete they all seem to be adamant about their belief and trust in the athlete and positive about the fact that the athlete can never indulge in any such activity willingly (sic). Thus in this view of the matter (sic), we have no hesitation to say that this act of the athlete is not intentional”.

The rule says if the substance is not a specified substance (for example steroids) an athlete has to establish that the anti-doping rule violation was not intentional. If it is a specified substance (for example certain classes of stimulants) the anti-doping organization has to establish that the violation was intentional.  In both these cases an athlete can get a four-year sanction for a first-time offence. Otherwise it is two years.

Conclusions

The panel goes onto state in its concluding comments:

“For the reasons we have elaborated in the preceding paragraphs namely that the athlete was tested positive for a prohibited substance which she claims she did not consume and was administered to her without her knowledge. The athlete has been successful in showing the panel that the consumption of the prohibited steroid namely “17-b-amethylnorandrost-1.212-triene-3-one (metabolite of methandienone) anabolic steroid”  entered her body unintentionally and without her knowledge, we are of the view that anti-doping rule violation are (sic) not intentional and hence the period of ineligibility would be two years as per in Article 10.2.2 (sic)”.

How the substance was “administered to her without her knowledge”, a conclusion made by the panel, has not been explained.

How the athlete had been “successful in showing the panel” how the substance entered her body has also not been explained.

After all its conclusions and rejection of the defence’s arguments the panel concludes that everything that needed to be established had been done and we rule it as an offence meriting two years suspension.

The panel mercifully does not reduce it further. It goes into the possibility of applying article 10.5.2 (no significant fault or negligence) that could have further reduced the sanction but rules it out.

A “sabotage” theory being so clearly rejected by a panel which eventually accepts the very same theory to provide a lenient sanction must be rare in anti-doping history.

Deposition of a few coaches and fellow athletes about an athlete not having tested positive in the past or having a good record etc cannot be (and never is) a reason for reducing sanctions. A very large majority of the athletes who get caught are first-time offenders.

We await the decision of the appeal panel in this interesting case that, going by the NADDP decision, once again shows the lack of understanding of the rules and their interpretations from all sides concerned. 
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Addendum, Feb 18, 2017:
Geeta Rani appealed the order of the NADDP with the national appeal panel while the World Anti-Doping Agency (WADA) also appealed the decision at the Court of Arbitration for Sport (CAS), Lausanne, according to sources. 
The athlete obviously appealed to get further reduction of the sanction while WADA, not unexpectedly, was looking for a stiffer sanction. The standard sanction in the 2015 Code is four years.
Like it happened in the case of two Indians in 2011, sprinter Sharadha Narayana and weightlifter Pradeep Sharma, WADA has, at the request of NADA, sought and got a stay from CAS to allow the appeal panel proceedings at the national level. Quite often in the past WADA, which has the right of appeal at CAS as well as the national appeal panel, has appealed such cases at the national level.
In 2011, the Indian appeal panel headed by Justice C. K. Mahajan (retd) had refused to hear a WADA appeal when it was told that a similar appeal had also been filed by WADA before the CAS in the cases of Sharadha and Sharma. WADA explained that this was standard practice and only in the eventuality of the appeal being rejected in India would it pursue the CAS appeal. Justice Mahajan, however, refused to entertain such pleas and ensured that the ones before CAS were withdrawn before he started hearing the cases of Sharadha and Sharma. 
Interestingly, in both cases the Mahajan panel reversed the disciplinary panel verdict of exoneration and imposed the full sanction of two years. Shardha had tested positive for stanozolol and Sharma for testosterone.
Both produced medical evidence to argue their cases, but eventually Justice Mahajan ruled that athletes cannot hide behind the ignorance of the doctors about anti-doping rules in order to escape sanctions.
Incidentally, Khajan Singh was a member of both the panels headed by Justice Mahajan that ruled two-year sanctions for the athletes.