Panel wanders into NADA domain; rewards athlete for ‘substantial assistance’

Just a week ago, I had raised this question in a piece on the understanding of the anti-doping rules by the National Anti-Doping Agency (NADA) and the disciplinary panels.

Do our panels understand these rules well enough to dispense justice?

The more one browses through orders of the National Anti-Doping Disciplinary Panel (NADDP) and the National Anti-Doping Appeal Panel (NADAP) (as and when one is able to lay one’s hands on such documents) the more convinced one becomes about the need for the World Anti-Doping Agency (WADA) to hold workshops or refresher courses for panel members in our country to get familiarized with the WADA Code and the NADA anti-doping rules.

Take for instance the NADDP decision in the case of Tamil Nadu athlete Deepan Chakravarthi. The 400m runner was charged with an anti-doping rule violation in the all-India inter-University athletics championships held at Patiala in December, 2015. He took the silver in the 400m there.

He tested positive for stanozolol, an anabolic steroid. A four-year sanction looked extremely likely unless the athlete came up with some evidence by which he could establish it was an “unintentional” offence.

Supplements taken

Chakravarthi told a panel headed by Ms Gourikaruna Mohanti that he had taken some supplements on the “advice of coach”. The other members of the panel were Dr L. K. Gupta and Ms. Poonam Chopra.

Chakravarthi had two positive results from samples taken within a gap of three days, on December 31, 2015 and January 3, 2016. Since his adverse report could not have been found and reported to him within that short time, the offence was treated as one single violation as rules stipulate.

If the largely accepted practice in recent months had been to submit medical records and seek leniency, the panel itself in this case seemed to have stumbled onto a new clause which perhaps has been pressed for the first time in India to reduce the otherwise prescribed sanction.

The article in question is 10.6.1 Substantial assistance in discovering or establishing anti-doping rule violations.

One was happy to note that finally an athlete’s deposition had led to either a coach or a member of the support staff being hauled up by NADA before a disciplinary panel.

But on a second reading of the article one also realized that this was not in the ADDP’s domain; this was something which NADA had to decide and pursue.

The relevant article

The whole article is quoted in the order given by the Ms. Mohanti panel. It is relevant to go through the rather lengthy article here:

10.6.1.1 NADA may, prior to a final appellate decision under Article 13 or the expiration of the time to appeal suspend a part of the period of ineligibility imposed in an individual case in which it has results management authority where the athlete or other person has provided substantial assistance to an anti-doping organization, criminal authority or professional disciplinary body which results in: (i) the anti-doping organization discovering or bringing  forward an anti-doping rule violation by another person, or (ii) which results in a criminal or disciplinary body discovering or bringing forward a criminal offense or the breach of professional rules committed by another person and the information provided by the person providing substantial assistance is made available to NADA. After a final appellate decision under Article 13 or the expiration of time to appeal, NADA may only suspend a part of the otherwise applicable period of ineligibility with the approval of WADA and the applicable International Federation. The extent to which the otherwise applicable period of ineligibility may be suspended shall be based on the seriousness of the anti-doping rule violation committed by the athlete or the other person and the significance of the substantial assistance provided by the athlete or other person to the effort to eliminate doping in sport. No more than three-quarters of the otherwise applicable period of ineligibility may be suspended. If the otherwise applicable period of ineligibility is a lifetime, the non-suspended period under this article must be no less than eight years. If the athlete or other person fails to continue to cooperate and to provide the complete and credible substantial assistance upon which a suspension of the period of ineligibility was based NADA shall reinstate the original period of ineligibility. If NADA decides to reinstate a suspended period of ineligibility that decision may be appealed by any person entitled to appeal under Article 13.”

The order went onto state: “In view of the admissions and substantial assistance provided by athlete a case has been made out of substantial assistance as contemplated under Article 10.6.4. The period of ineligibility is therefore reduced to three-quarters of four years i.e. one (1) year. The athlete is directed to co-operate with NADA in providing any further assistance regarding the investigation.”

Forgetting for a moment that this was not the responsibility of the ADDP to bring in the ‘substantial assistance’ clause or to reduce the otherwise applicable sanction, one also has to look at what the athlete had deposed that prompted the panel to consider this clause.

In his written statement to NADA the athlete stated that he had not taken any prohibited substance knowingly. He also stated that his coach Rajsekar used to “give him supplements saying they were energy and vitamin tablets.” He also said that the coach had given similar supplements to other elite athletes training under the club.

Chakravarthi told the panel the same things. He said his coach used to give him and other athletes what was termed as “energy drinks”. He said he was not aware of the contents of the said drink and he had full faith in his coach. His version was corroborated by an unspecified number of fellow trainees in his club. No one apparently told the panel that the coach was supplying steroids or other performance-enhancing substances. 

The panel came to the conclusion, based on the evidence, or at least what it calls ‘evidence’, that prima facie it looked to be a case of “aiding and abetting doping violations by the said coach”.

NADA asked to probe

The panel issued directions to NADA on 22 Nov 2016 to “conduct discreet inquiry and probe into the alleged doping violation (sic) by the coach in USF Club, Chennai, in order to establish the accuracy of allegations made by the athlete.”

NADA gave a written reply (contents not known) which was taken on record. The panel noted that summoning of the coach at “this stage is premature and would negate the very purpose of a discreet inquiry”. The panel said the coach could be summoned at a later stage.

It is not known whether NADA conducted any follow-up investigation. Instead it has filed an appeal before the National appeal panel against the one-year sanction imposed. The appeal is a clear indication NADA is not going to pursue “investigation” for which it does not have any staff but press for a four-year ban.

The athlete having stated that the coach had told him to stop the supplements a month prior to competition indicated that it was deliberate doping, NADA had argued before the panel.

Even if NADA failed to tell the disciplinary panel that the “substantial assistance” clause could come into play only after the panel pronounced its verdict and it was not within the panel’s jurisdiction or responsibility to reduce the suspension period based on this clause, it has a second chance now.

All that the NADA would be required to do before the appeal panel would be to re-read Article 10.6.1.1 reproduced in the disciplinary panel order, and state that NADA, and not any panel, has to exercise its authority to provide this concession to the athlete provided certain crucial conditions were met.

Athletes often put the blame on their coaches when confronted with anti-doping rule violation charges. “My coach gave tablets” or “my coach advised me to buy supplements” is an oft-repeated explanation. Half the time it could be true also though proof is hard to come by. 
It may be recalled that all the six woman 400m runners charged in the famous 2011 doping scandal blamed the Ukrainian coach for having supplied the ginseng that they claimed led to the positive dope tests for steroids. No action was taken against coach Yuriy Ogorodnik who was allowed to leave the country quickly after the scandal broke. He was brought back to prepare the longer relay teams for the Rio Olympics with a top AFI official insisting that he was never blamed by the athletes!

Chakravarthi’s case once again brings into focus the inadequate Indian anti-doping apparatus. Something is missing here. One can understand panels or NADA missing the right interpretation of a complicated WADA rule. But this was simple, just a question of domain. Both the disciplinary panel and NADA missed it.
(updated 24 March, 2017)

Note: 26 Oct, 2018: It seems there was no appeal by any agency in this case. The original decision of the disciplinary panel, as listed on the NADA website, says one year suspension. It stands.

Is it going to be redrafted sports code or Bill?

The National Sports Development Code is in the news again.

Nothing surprising there. It hits the headlines periodically, especially when almost everyone in the country, bar the sports officials, are clamouring for more accountability and transparency in the functioning of the National Sports Federations (NSFs).

The Sports Code, compiled first in 2011, clubbing the 1975 Government guidelines with a series of government notifications through the years, is supposed to be a substitute for the National Sports Development Bill.

The draft for such a Bill was brought forward by the then Sports Minister Ajay Maken in 2011 but it was shot down by the Cabinet and the ministry asked to redraft the document. Since then there had been several attempts to revive the draft Bill though without success.
The last one heard about the draft Bill (till the Attorney General mentioned a fresh move by the Centre during the cricket case hearings in the Supreme Court) was in July 2013 when Justice Mukul Mudgal who headed a committee that redrafted the 2011 draft, submitted its report to the Union Sports Ministry.

Mahajan committee report stayed

But the Sports Code remained and the draft Bill continued to be put on the backburner. The ministry formed a committee under Justice C. K. Mahajan (retd.) in 2015 to redraft the Sports Code. But Rahul Mehra, the lawyer-turned-sports activist who has brought about a whole lot of changes in the structure and functioning of the NSFs, obtained a stay against the finalization of Justice Mahajan headed committee’s report.

In the wake of the Lodha Committee report on cricket reforms and the Supreme Court ruling there were demands that the rest of the National sports bodies also follow the changes enforced by the SC in the case of cricket.

Aggravating the situation for the Indian Olympic Association (IOA) and the NSFs was an ill-timed attempt by the former to bring in two of the “tainted” officials, Suresh Kalmadi and Abhay Chautala, as Life Presidents of the IOA. A hurried decision to this effect at its Chennai meeting had to be backtracked when the Government intervened and suspended its “deemed recognition” of the IOA.

The ministry’s response came on predictable lines. It formed yet another committee, this time headed by the man who drafted the 2011 code and presented the Government view before the International Olympic Committee (IOC) in Lausanne in 2010, Injeti Srinivas.

Srinivas currently holds dual charge of Secretary, Sports Ministry, and Director General, Sports Authority of India (SAI) which he was till elevated to the Secretary’s post.

Srinivas knows the IOA and the NSFs inside out; he also knows the Olympic Charter and the history of government control or legislation in sports in other countries, not to speak of the basic principles of good governance which the IOC endorses. In short, he is the most experienced bureaucrat in the Government today who can handle one of the knottiest issues Indian sports has faced over four decades_the extent of autonomy of the NSFs including the IOA.

Before the ministry could announce the recommendations of the Srinivas committee which also included badminton legend Prakash Padukone, Mehra approached the Delhi High Court once again and obtained another stay against the committee publishing its “findings”. (He has now said through a tweet the court has asked the ministry to submit the redrafted code) 

The redrafted Sports Code would not be confined to just tenure or age restrictions of officials, but as we have seen in the past and as we are seeing in respect of the BCCI and state units’ discomfort in implementing the Lodha panel stipulations currently, it all comes down to tenure and age guidelines for the most part.

Will the Srinivas committee opt for the Lodha formula? That is three years each of three terms with a three-year cooling off period after each term? Or will it go by the existing Government guideline (for non-cricket bodies) of two terms of four years each with the President of the Federation getting a third term?

The third term for the president was a concession granted by the then Sports Minister M. S. Gill. The 70-year stipulation was also brought in during his time.

Can there be more concessions to the NSFs? Or could there be tougher stipulations on the lines of the BCCI reforms ordered by the Lodha panel?

Twenty-eight sportspersons have filed a writ petition in the Supreme Court urging it to extend Lodha panel recommendations to the rest of the national sports federations.

The disclosure by the Attorney General in Supreme Court that the Government was mulling a legislation to provide more autonomy to the federations took almost everyone by surprise. Could the ministry have formed a committee to redraft the sports code even as it was redrafting the Sports Bill that had been put in cold storage?

Sports Minister Goel has ruled out the possibility of diluting the code in recent reports. He was of the opinion that eventually his ministry would come up with a code that would be acceptable to all the NSFs?

The feeling has yet persisted that the attempt was to bail out the BCCI. How, is a question that only the ministry can answer unless we wait for the code or the Bill to get its final shape and is announced.

Before the draft Bill is taken up by the Government it will have to sort out the issue of Concurrent List. Sports is a state subject. By bringing it into Concurrent List, a move made sometime in the 1980s also, the Centre would be able to legislate on sports without any limitations.

Minister Goel was quoted in recent reports that the process of bringing sports into the Concurrent List had reached a decisive stage. Surprisingly, he also told Parliament in a written reply in December last that there was no move.

An Act of Parliament will provide more teeth to the ministry’s guidelines though courts have till now endorsed the authority of the government to enforce the stipulations in the Sports Code as far as the NSFs were concerned.

Though the Centre’s powers to enact legislation in sports dealing with national federations and India’s representation in the international arena etc had been re-iterated it is the state-level sports bodies that have continued to pose a question. For this the Centre needs the support of the States.

However, a Central Government Act is not something that the IOC would welcome, especially if it contains stipulations on the tenure and election process etc of the national federations and the NOC.

In the past the Government had tried to brush aside suggestions, though informally, that the IOC would tangle in any way with regard to its guidelines for the functioning of the NSFs including the IOA. Its belief was that India was too large a democracy, too big a nation, too important a country for the IOC to meddle with.

That belief was rudely shattered in December 2012 when the IOC suspended the IOA. Even now, in several media reports, that suspension is attributed to the election of Abhay Chautala and Lalit Bhanot as president and secretary of the IOA when they were faced with charges of financial irregularities, but the fact remained the IOC said at that time that it was primarily due to ‘government interference”. The fact also remained that the IOA was suspended even before it held its elections. In short it was a combination of factors that contributed to the IOC sanction.

IOC resists encroachment

The IOC has always resisted any attempt by governments to impose rules from outside, either through legislation or through norms laid down in documents such as the sports code. Thought it wants NOCs and federations to incorporate principles of good governance that may include tenure restrictions it also wants them to have the freedom to be governed by its own rules without a Government Act dictating such a course of action. Towards that purpose it has always expressed its willingness to engage authorities in a dialogue.

Though the National Federations had agreed in principle to incorporate the Sports Code in toto not many have done that by amending their constitutions. Even when they have included certain rules they have done away with some others.

The Athletics Federation of India (AFI), for example, has three categories of membership, determined by points earned by their athletes in national meets, Olympic representation etc. Category I member has three votes in the General Assembly, Category II has two and the rest, mainly comprising institutional units, one vote each.

From the 1975 guidelines, the government had stipulated the policy of one-state-one-vote, something that the Lodha panel has also enforced, thus curtailing the voting rights of such a cricketing powerhouse as Mumbai.

The IOA continues to have State Olympic Associations as its members with full voting rights, much against the demands of the Sports Ministry and the wishes of the IOC. The vote-bank politics of the IOA perforce provides a lifeline to these state units which come alive only during the National Games in most cases.

What the Charter says

The Olympic Charter says an NOC may comprise National Federations governing sports in the Olympic programme, IOC members, if any in that country, and athletes’ representatives. It may also include federations outside the Olympic programme but recognized by the IOC.

The top two officials of the IOA at the moment (N. Ramachandran and Rajiv Mehta) are both outside Olympic sports, something that the Indian NOC cannot be proud of. Mehta's sport, kho-kho, in fact does not even have the IOC recognition.

The IOC had suggested in 2011 that State Olympic associations could be included as associate members in the IOA without voting rights. But by 2013 the IOC was no longer insisting on this stipulation though the government continued to insist that state bodies be kept out of voting.

Through the past six years the Sports Ministry has attempted to dilute the Sports Code, especially the tenure clause. It is to be seen if the redrafted code would tighten the rules even if they do not replicate the Lodha panel reforms for the BCCI. (Lawyer Mehra tweeted on March 21, that he would expose the ‘dirty game’ being played by Government officials in Delhi High Court on March 22 when his PIL on sports is scheduled to come up.

What happens to the revised code prepared by the Mahajan committee? Will the whole effort be wasted in the wake of the Srinivas committee report? Or will it eventually be a hurriedly-redrafted National Sports Development Bill that the ministry may spring?

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NADA fails to apply appropriate rule; panel overlooks flaw

Does the National Anti-Doping Agency (NADA) follow its own rules or that laid down by the World Anti-Doping Agency (WADA)?

Do Indian disciplinary panels understand these rules to the extent of dispensing justice?

We have seen a disciplinary panel reducing a sanction for steroid offence from the standard four years to just one year in the case of a weightlifter even when the athlete produced a medical prescription that contained the wrong drug!

We have also seen several other cases where panels have given contentious decisions.

Now, sample this. A cyclist was given a two-year sanction for an MHA offence when he had committed two similar offences in 2014 and 2015 and going by the rules the four-year sanction prescribed in the 2015 Code should at least have been discussed. It was not. Everyone concerned seemed to have just ignored the 2015 violation.

Cyclist Amit Kumar of the Services was ordered to undergo a two-year suspension even though he committed an offence in 2015 when the new Code and a new set of sanctions had kicked in.

He has finished his two-year suspension at the beginning of this month,

Of the 16 dope offenders in the National Games in Kerala in 2015, the Punjab cyclist was the only one to have been handed out a sanction under the 2009 Code; the rest of the cases were dealt with under the 2015 Code.

Right clubbing, wrong application of rules

How did this happen? Amit first tested positive at the National road cycling championship at Jamkhandi, Karnataka in December, 2014. Then he tested positive again at the National Games in Kerala in February, 2015. On both occasions the substance detected was methylhexaneaime (MHA), a stimulant.

His two offences were apparently clubbed (no harm done there) when they were brought before a panel headed by Mr. Sanjay Mani Tripathi. The others in the panel were Mrs. Damayanti Tambay and Dr Bikash Medhi.

The normal practice in such cases has been to list the details of the sample collection,  substance found, plea of the athlete, hearing dates etc in two separate documents while delivering an order. Here there was just one. No details of the National Games report were given.

Instead the order said:

“Athlete Amit Kumar (Sports Discipline-cycling) has been found in doping for violation (sic) for Article 2.1 of Anti-Doping Rules of NADA 2010 and 2015 respectively for finding of prohibited substance methylhexaneamine (MHA), stimulant on two occasions as under:

i)                   In competition 19^th National Road Cycling Championships 2014-15 held at Jamkhandi, sample was collected on 27-12-2014 vide sample code no. 2967997;

ii)                In competition 35th National Games-Kerala held at Trivandrum, Kerala, sample was collected on 07-02-2015 vide code no. 297109.

The athlete claimed he had consumed supplements and alleged inordinate delays in getting intimation about his anti-doping rule violations. He claimed the first intimation was received after 56 days and the second one after 67 days.

The dates in the order however do not support the athlete’s contention.

A provisional hearing was held for the first offence in 21 days of NADA issuing notice. For the second, a provisional hearing was held 14 days after issuing notice as per the order.

The laboratory documentation package was delayed in both instances. NDTL had its own explanations for the delay in completing the testing process as well as in supplying documentation packages. The panel was satisfied with the explanations and found no reason to believe that there could have been anything that could have materially affected the outcome of the tests.

The athlete made several allegations including a claim that he was forced to sign documents by NADA before provisional suspension for his first offence which was eventually shown as “voluntary”.

The cyclist raised several objections about the lab procedures and reporting but the panel rejected them all.

Eventually the panel handed out a two-year suspension based on the 2009 rules. In the end there was no mention about the National Games sample testing positive or about the need to treat the combination of two offences as one.

Since the athlete had apparently received intimation about his first offence only after competing in the National Games (in fact two days after his event), Amit couldn’t have been faulted for either competing nor penalized with a second offence. It had to be just one offence.

The rules

But what do rules say when two such offences occur close to each other?

10.7.4 Additional Rules for Certain Potential Multiple

Violations

10.7.4.1 For purposes of imposing sanctions

under Article 10.7, an anti-doping rule

violation will only be considered a second

violation if the Anti-Doping Organization

can establish that the Athlete or other

Person committed the second antidoping

rule violation after the Athlete or other Person received notice pursuant

to Article 7, or after the Anti-Doping

Organization made reasonable efforts to

give notice of the first anti-doping rule

violation. If the Anti-Doping Organization

cannot establish this, the violations

shall be considered together as one

single first violation, and the sanction

imposed shall be based on the violation

that carries the more severe sanction.

The above rule makes it clear that such cases should be treated as just one first violation. But the sanction shall be based on the violation that carries the more severe penalty. Going by the 2009 Code it was two years and by the 2015 Code it was four years if it could be proved it was intentional.

The panel couldn’t have wished away the National Games offence. It apparently did. The NADA couldn’t have forgotten about the second offence or about the rule relating to such combinations. Apparently, it did.
MHA being a specified stimulant it was NADA's responsibility to show that the violation was intentional in order to seek a four-year sanction. It got four-year suspensions in a few other cases in the National Games, notably that of cyclist Amrit Singh (stimulant Oxilofrine) and boxer Mazhar Hussain (diuretic furosemide) for 'specified substances".
The Tripathi panel order stated: "Under Article 10, ineligibility of Two (2) Years is imposed on Mr. Amit Kumar, Jr Warrant Officer, MT/Fit, Sports Section, 260 Signal Unit, Air Force Station, Patiala for the violation of Article 2.1 of Anti Doping Rules, NADA, 2010." No mention of 2015 rules!

If you happened to be a cyclist and checked out the rules on your federation’s website, you would have got outdated NADA rules and the 2009 WADA Code.

There is a need to ‘educate’ the hearing panel members. And there is a need to help NADA familiarize at least with its own rules if not with the rather complicated rules covering all aspects of anti-doping as laid down by WADA.

Unless NADA has a legal department, or at least a standing counsel, it would be difficult for it to effectively present its case before hearing panels and to review the orders and take appropriate follow-up action if necessary.

Prescriptions sufficient to get reduced sanctions (Part II)

(Part I is here)
Kabaddi player Simarjit Singh of Punjab was tested during the all-India Police championships (volleyball cluster) in Jodhpur in March 2016. He tested positive for 19-norandrosterone (nandrolone) and received a reduced sanction of two years, effective from April 21, 2016.

He informed NADA and subsequently the hearing panel that he had suffered because of acute prolapse of inter-vertebral disc (PIVD) and a doctor in Amritsar had prescribed him nandrolone injection. He said he was not aware of the consequences of the drugs prescribed by Dr Vikas Bhandari. It was not clear when Simarjit underwent treatment with steroids.

Simarjit also said he had won several medals for the country and had never taken any prohibited substance nor had been found positive in the past.

NADA contended that the athlete had been competing at the international level and was familiar with anti-doping rules and that he had produced “fake, manufactured prescription”. It said this was the result of an “afterthought process”.

The panel headed by Mr. Ramnath noted that the athlete had “filed Outpatient Department register wherein at serial No. 872 his name has been mentioned and the certificate of the doctor giving nandrolone decanoate and the compound in the said injection correlate with the adverse analytical finding and is not contradicted. Therefore, intention of cheating is missing from the side of the athlete. The athlete should have mentioned in the Doping Control Form at the time of sample collection but the same was not done.

“Secondly, the athlete has not obtained TUE certificate which he should have done for the fair conduct of the athlete (sic) as it all lacking (sic)”.

The panel ruled that this came under “No significant fault or negligence” and accordingly slapped a reduced sanction of two years on the athlete.

By stating that intention to cheat was missing the panel seemed to have reached a conclusion that could straightaway reduce the sanction to two years (unintentional ingestion in the case of a non-specified substance) but stopped short of doing that.

Instead, only article 10.5.2 was applied to cut down the suspension by half.

NADA could not prove that the documents were fake as it alleged. NADA does not have the staff to investigate such cases and as has been seen in recent cases the doctor member of the hearing panel often had to contact the doctor mentioned in defence by the athlete to verify whether such prescriptions had indeed been given.

Anchal Yadav

Discus thrower Anchal Yadav of Delhi tested positive for stanozolol at the National schools athletics championships at Kozhikode, Kerala, on January 30, 2016. She was slapped with a two-year suspension from 7 March, 2016.

She told a panel headed by Mr. Sanjay Mani Tripathi that she was prescribed tab Winstrol (stanozolol) for knee pain by Dr Shashi Bhusan Yadav, Meerut, in November, 2015.

 Dr Yadav later confirmed that he had given such a prescription when enquired to by the doctor member of the panel, Dr. P. S. M. Chandran.

The panel concluded that since the athlete had taken the medicine for treatment and her claim was supported by prescription it was not an “intentional” offence and hence the period of ineligibility would be two years.

Like in a few other cases, the panel noted that the athlete should have taken “extreme precautions” and should also have applied for TUE from NADA. Again, like in several other cases, it was noted that the athlete did not mention the medicines on the doping control form.

Interestingly, as mentioned in several orders of the NADDP, the Tripathi panel also wrote: “It is each athlete’s personal duty to ensure that no prohibited substance or its metabolites or markers (are) found to be present in their bodily specimens. It is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping rule violation under article 2.1”

Perhaps this particular portion from the Code is being repeated almost in every other order in an effort to drive home the point about the “strict liability” principle. But is this principle being adhered to?

An anti-doping authority does not have to prove “intent” when the substance is, say, a steroid. It becomes the athlete’s responsibility to show that it was “unintentional”. The prescriptions are coming in handy to prove this point in the post-2015 Code scenario.

Hockey player gets steroid injection

In the case of hockey player Jarmanpreet Singh of Punjab, who has completed his two-year suspension recently, the doctor not only certified the prescriptions he had given but also conveyed to the panel that he had administered injection metadec (nandrolone) to the 19-year-old player without disclosing what the injection was.

Jarmanpreet had tested positive for nandrolone in the Hockey India League in January 2015. He had approached Dr G. S. Kaler of the Kaler Hospital, Amritsar, with a complaint of lower back ache while training. He was prescribed some medicines on December 25, 2014 and on his second visit on Jan 4, 2015 he was administered the metadec injection. He received a suspension of two years.

The panel headed by Mr. Rajeev Kapoor was told that the athlete and his father, who took his son to the doctor, told the latter that he was a national-level player and no banned drug should be prescribed to him.

The panel was also told by the player that he had received anti-doping education twice in the past.

Athlete’s lawyer Vidushpat Singhania told the panel that a CAS decision in 2005 had held in the case of a ice hockey player from Belarus that the administration of nandrolone in an emergency situation could be construed as “no fault or negligence”.

It turned out that the Belarus player, without his knowledge, had suffered a “heart failure”, according to the defence put up by his lawyers and medical personnel, and he had to be administered the nandrolone injection in hospital. (It was explained and accepted by the CAS panel that nandrolone was used for such heart conditions in Belarus unlike in Western Europe).

The player could have been expected to apply for a retroactive TUE in the situation that necessitated the administration of nandrolone without his knowledge. But he did not. The CAS panel ruled in favour of the Belarus ice hockey player and completely reprieved him.

It is well known that in emergency situations medical personnel can administer banned drugs to sportspersons. There is also a provision to apply for a retroactive TUE which is generally granted without much fuss after going through hospital procedures and the nature of the injury or condition of an athlete.
(See WADA’s explanations about emergency situations and retroactive TUE here)

The Jarmanpreet case was referred to the TUE panel by NADA. NADA told the hearing panel that the TUE committee meeting on 12 Sept, 2015 observed that the prescribed prohibited medicine “is not indicated for conditions diagnosed and is not in agreement with the standard protocols for management of such an ailment. It is respectfully submitted that Dr G. S. Kaler has not certified that such medicines can be given in cases of ailment being suffered by the athlete, which itself creates a cloud on the submissions made by the athlete”

NADA claimed that the player was not able to establish he had shown utmost caution while being administered the medicines in order to claim that he bore “no fault or negligence”.

NADA also brought in the decision by the appeal panel in the Sharadha Narayana case where the Justice C. K. Mahajan-headed panel ruled in 2011 that athletes could not “hide behind the ignorance of doctors.”

Doubts raised

In the Jarmanpreet case, the panel wrote: “The panel has heard the submissions of both parties and came to the conclusion that the alleged certificate which is made the basis of defence of the athlete has been produced by the athlete but the same appears to be issued at request of the athlete in which unusual averments were inserted by the doctors which, in normal course of issuing of certificate never seen in ordinary course (sic). Though Dr G. S. Kaler acknowledged his prescription and certificate etc even the same was got verified and confirmed by the NADA officials.”

Despite the above para in which the panel has seemingly raised some doubts, it ruled that the offence was unintentional and the rule violation came under the category that provided for a two-year sanction. The panel did not go for further reduction under “no significant fault or negligence”.

The Prescription v TUE debate is bound to prolong unless NADA seriously gets down to improving its ‘athletes outreach’ programme and its website which should provide a fund of information to the athletes related to doping and anti-doping rules. Athletes must be educated about seeking TUEs in order to take medicines that could be of utmost importance to their health. And also to avoid being charged for rule violations.They also could be educated about the precautions to be taken (say for example advising the doctor about his/her status as a sportsperson) while dealing with emergency situations and admission to hospitals if they are conscious.

Panels have continued to insert paras that simply state an athlete should have taken a TUE but failed to do so. What purpose this serves is difficult to guess. 

Someone also needs to brief disciplinary panel chairpersons that it is irrelevant today to mention “aggravating circumstances” after that clause has gone out of the Code since the beginning of 2015. Almost every other order has a line that says: “No aggravating circumstances have been alleged for enhanced sanctions by the NADA”.

That clause was present in the previous Code for situations where a panel could impose a stiffer sanction than the standard two-year one. The clause was rarely put into use by hearing panels, though, around the world. “Aggravating circumstances” included anti-doping rule violations involving multiple banned substances, especially steroids. In India, there were many who were caught for multiple steroids but escaped with just the two-year sanction. The ""aggravating circumstances"clause was removed to bring in the standard four-year sanction for first-time offenders.

(Concluded)

Updated: 14 March, 2017

Addendum, March 23, 2017:

CAS slapped four-year ban on Mhaskar Meghali, costs on NADA and athlete

WADA appealed the Mhaskar Meghali decision before the Court of Arbitration for Sport (CAS) which in a decision dated 20 Sept, 2016 set aside the Indian ADDP decision and imposed a four-year ban on the Railway weightlifter.

The sole arbitrator of CAS ruled that the ADDP had reached an “erroneous decision”. It awarded costs amounting to 1000 Swiss Francs (approx Rs 65,900) to be jointly borne by NADA and the athlete towards legal costs incurred by WADA in the proceedings before CAS.

Mr. Christoph Vedder of Germany, the sole arbitrator, noted that the athlete had failed to establish how the banned substance (methandienone) entered her body. It was argued by WADA and accepted by the arbitrator that the medicines she took (nandrolone and Depmedrol) did not contain methandienone.

WADA contended that mere protestations and suggestions by the athlete about having used supplements or medicines were not sufficient to establish ‘no significant fault or negligence’ and the athlete first had to prove how the banned substance entered his or her body.

WADA also stated that methandienone has been the “prevalent prohibited substance” in the sport of weightlifting as shown by many decisions and was manifestly performance-enhancing in this particular sport.

NADA did not respond to the notice sent by CAS while the athlete sent a written statement (beyond the deadline prescribed, but considered by the arbitrator nevertheless)  alleging ‘sabotage’ which she could not substantiate. Since the respondents did not seek a hearing the arbitrator decided the case solely on the written submissions.

Because of the complexities of gathering information related to ADDP decisions in India as well as the paucity of information on the CAS website, such developments as the Meghali decision by CAS, go unreported in our country. In turn, the lawyers representing athletes or NADA in various cases, are denied the benefit of crucial CAS decisions that help set benchmarks for future reference.

Prescriptions sufficient to get reduced sanctions (Part I)

Can athletes be charged with doping offences in case they hold valid medical prescriptions to use banned drugs?

Yes.

Can athletes get lenient sanctions in case they have medical prescriptions _but not therapeutic use exemptions (TUEs)_to use banned drugs?

Possible.

There is an increasing tendency among anti-doping disciplinary panels in India to reduce sanctions based on medical prescriptions since the introduction of the 2015 World Anti-Doping Code. The new Code stipulates a standard four-year suspension in contrast to the two-year sanction of the old one and there is enough scope to reduce the punishment to just one year on the strength of a medical prescription or a hospital record.

At least that is what we have seen in India in the past two years though at least some of these decisions might not stand scrutiny at a higher level of disciplinary proceedings if they had been appealed against.

Are TUEs being misused?

A TUE allows an athlete to use prohibited drugs. Fancy Bears, the international hacking group, showed last year (and continues to show) that the TUEs can be misused by athletes to gain undue advantage. Legitimizing drug use through the use of a TUE, at least from the perspective of Fancy Bears, should be as abhorrent as doping itself.

Even as the world discusses the tightening up of the TUE granting process, we in India, should also review whether our disciplinary panels are right in reducing sanctions on the strength of medical prescriptions where TUEs would have been clearly indicated.

If indeed they are then the concessions should be given across the board and athletes told in advance that a prescription would be extremely useful in an anti-doping rule violation case.

Rules related to granting of TUEs have become tougher and tougher through the years and any attempt to get a TUE for the use of say steroids for back aches and knee pain is likely to be viewed without much sympathy. This is not to say that rules are not being bent around the world to accommodate doubtful requests or favourites. Nor is this an attempt to show that medical prescriptions produced so far in anti-doping matters in India could be viewed with suspicion. Or for that matter the doctor members of the hearing panels might have erred in their professional evaluation of such prescriptions.

The revised WADA Code (2015) has left room for interpretation when it comes to sanctions. Prescriptions come in handy in India in this topic of “interpretation”.

The rule says it would be four-year suspension if the substance is not a “specified” one (say steroid) unless the athlete proves the use was “unintentional”. If it is a ‘specified’ substance then the anti-doping authority has to prove that athlete used it intentionally to enhance performance in order to get a four-year sanction. Otherwise it would be two years.

Disciplinary panels in India, at least those prone to accepting medical prescriptions for the use of banned drugs, often come to the conclusion that if a prescription is there the athlete had reason to take a banned drug. The question of ‘cheating’ does not come in here, panels conclude. If that is the case the rule violation pertaining to a steroid abuse is quickly categorized as “unintentional” and thus slotted into the two-year sanction bracket. A panel may further reduce this sanction by applying the “No significant fault or negligent” clause.

Mhaskar Meghali

Take the case of Railway weightlifter Mhaskar Meghali. She tested positive for steroid methandienone at the Railway championships in January, 2015. She argued before a panel headed by lawyer Jasmeet Singh that a doctor (Dr Bharat B. Rathod of Vasai, Maharashtra), had given her a prescription for Deca- Durabolin injection in October, 2014 and Depo-Medrol injection in December, 2014.

Meghali had “severe knee pain”, wrote the panel in its order. It said that since her drug use was supported by medical prescription her offence was not “intentional” and thus she was entitled to two-year sanction under the rules.

The panel then went on to state that since it had established that she bore “no significant fault or negligence” she was entitled to a further reduction under article 10.5.2 which was one half of the otherwise applicable period of ineligibility. That made it one year.

Meghali ended her one-year suspension in February last year.

Let’s now look at what other points the panel mentioned in its order. “On the other hand the panel is also of the view that the athlete should have taken extreme precautions and have applied for the therapeutic use exemption (TUE) certificate to NADA before taking such banned medicine.”

After having written “athlete was not aware of the prohibited medicine prescribed by the doctor”, how could the panel turn around and say she should have exercised caution before “taking such banned medicine”?

But, leave that aside. If she should have taken precautions could she be deemed to have committed “no significant fault or negligence”? Will it not be a “significant fault or negligence”, having direct bearing on an athlete’s doping infraction if he or she fails to exercise caution while taking a medicine?

Across the world, the minimum that a hearing panel looks for from an athlete in a doping case is the attempts of the latter to find out whether the drug that had been prescribed was prohibited or not. This, panels seem to believe these days, could be done at a minimum level through an internet search. That alone normally does not satisfy many of the hearing panels which seek information from the athlete about his/her attempts to contact any sports body, sports doctor, coaches etc to find out the advisability of taking a drug.

In the case of Meghali, after having taken pains to explain in its order how it concluded that the athlete was not at fault for having allowed a banned substance to get into her system, the panel seemed to have forgotten what was the substance that was found out!

Meghali tested positive for methandienone. The Jasmeet panel concluded that she had been prescribed medicines for knee pain and those medicines contained the steroid in question. NADA did not question the reasoning of the learned panel. At least the order doesn’t say it did.

Meghali was administered a Deca-Durabolin injection in October 2014 and a Depo-Medrol injection in December that year, according to the order. Deca-Durabolin, as most of us know (and a large majority of the athletes could also know it is a potent performance-enhancing steroid) is nandrolone decanoate. Depo-Medrol is methylprednisolone, a glucocorticosteroid, used for managing pain and swelling.

Neither Deca-Durabolin nor Depo-Medrol produces methandienone or its metabolites in urine. So, where did the panel get the drug that the Maharashtra woman had tested positive for? Without establishing how methandienone entered her body, how could the panel apply article 10.5.2 and reduce the sanction by half? How could it come to the conclusion of an “unintentional” ingestion of the drug when a medicine other than the one that came out of the dope test had been prescribed by the doctor?

This only show how some of the panels go into anti-doping rule violation cases brought before them. Worse, it shows how poorly NADA prepares in presenting a case before a panel. The mismatch between methandienone and Deca-Durabolin should have been spotted on day one.

Dane Lloyd Pereira

The Mumbai FC player was charged with a 19-norandrsterone (nandrolone) violation in the 2015 I-League. He stated before a panel headed by Jasmeet Singh that he was advised Deca-Drabolin injection by Dr A. B. Pawar, Sukhsagar Hospital and Research Centre, Mumbai, for left knee pain and stiffness which was diagnosed as chronic patellar tendinitis.

NADA argued that the drug concentration was 17 times more than the permitted level of nandrolone (2ng/ml), the athlete had failed to inform the doctor that he was a sportsperson and he neither applied for a TUE nor mentioned the drugs on his doping control form.

The panel accepted Pereira’s contention that the positive test was because of the Deca-Durabolin (nandrolone) injection and he was unaware of the drug or the consequences when he was administered the injections in February, 2015. The dosages or duration of treatment were not mentioned in the order.

The panel, accordingly, ruled that this was a case where the athlete was able to prove that the ingestion of the drug was unintentional and that meant the offence carried a two-year sanction. The panel then went on to reduce it further under article 10.5.2 (“no significant fault or negligence”) and ordered a one-year suspension.

“Should have taken precaution”

Like in several other orders, the panel wrote towards the concluding paragraphs: “On the other hand the panel is also of the view that the athlete should have taken extreme precautions and have applied for therapeutic use exemption (TUE) certificate to NADA before taking such a banned medicine.”

Like in several similar cases the question naturally comes up, if the player had not taken precautions could he be deemed to bear “no significant fault or negligence”?

Does the AIFF have an education programme to familiarise players with anti-doping rules and banned substances? Does the I-League have any such programme? These are questions that naturally crop up.

Neither the AIFF nor the I-League website has any anti-doping information at present. NADA will need to utilize its website for more of education purposes and, through the Sports Ministry, advise and enforce strict compliance by National Federations of providing minimum anti-doping information on their websites. In most cases, ministry’s directives about information being put up on websites go unheeded.

Under the circumstances, if the athletes continue to presume that prescriptions rather than TUE would be required to take banned drugs no one would be able to fault them. 

(Contd) (Part II is here)

(A previous piece on prescription v TUE is here)

CAS ordered a four-year suspension on Pereira on an appeal by WADA in January 2017. 

The sole arbitrator stated:

1. The application of Article 10.2.3 of the NADA Anti-Doping Rules (NADA Rules) and the World Anti-Doping Code (WADA Code) do not require that the athlete knowingly ingested a prohibited substance and therefore had “direct intent” in committing the anti-doping rule violation; it already suffices if the athlete had “indirect intent” or “dolus eventualis” only, i.e. if his or her behaviour is primarily focused on one result, but in case a collateral result materializes, the latter would equally be accepted by the athlete. Accordingly indirect intent is established where the athlete i) knew that there was a significant risk that his conduct might constitute or result in an anti-doping rule violation; and ii) manifestly disregarded that risk. 

 2. An athlete who takes a medication on the package of which a prohibited substance is listed knows or should at least know that the medication contains the prohibited substance. Furthermore, if e.g. the same medication is prescribed to the athlete on four different occasions, the athlete has ample time at his or her disposal to verify whether the medication contains any prohibited substances. If under those circumstances the athlete does not even e.g. perform a simple internet research regarding the medication, but only relies on – wrong – advice by his (team) doctor(s), he or she manifestly disregards the risk and commits the anti-doping rule violation with “indirect intent”. In this context there is an inherent significant risk that medications may contain prohibited substances; this is all the more so with respect to medications that are taken by intramuscular injection and are certainly not administered inadvertently through, e.g. a tablet. 

3. Given that athletes are under a constant duty to personally manage and make certain that any medication administered is permitted under the anti-doping rules, an athlete cannot simply rely on a doctor’s advice; it follows that e.g. the prescription of a particular medicinal product by an athlete’s doctor does not excuse the athlete from investigating to his or her fullest extent that the medication does not contain prohibited substances

4. The finding that a violation was committed intentionally excludes the possibility to eliminate the period of ineligibility based on no fault or negligence or no significant fault or negligence.

The record ratification debate continues

“Is dope-testing of record-breakers in Indian athletics a farce?”

This was my inaugural piece on my blog on May 1, 2014.

Almost three years later, I must repeat that question. With a touch of disappointment that things haven’t improved. Coming as it does when the Athletic Federation of India (AFI) has just raised doubts about the lack of dope-testing information in relation to a clutch of National records set in 2016 this may sound rather harsh. But the truth is the very fact that such doubts have cropped up after months shows how haphazardly this stipulation is being still pursued.

Absence of dope test information

“The EC did not ratify the National Records in (the) absence of Anti-Doping proofs and it will be done at (a) later stage” said an AFI Press release after its Executive Committee meeting in New Delhi on Feb 26.

Later stage? How can postponing such a decision change anything as far as anti-doping records are concerned?

The National records in question mainly came in June and July last year. There were others too as we will see in subsequent paragraphs. But will anyone be able to throw more light on tests done in June and July last year at this point of time?

Let us first look at the two cases of record-breakers mentioned in a recent PTI report, that of sprinter Dutee Chand and long jumper Ankit Sharma. It is being said the dope-testing at these meets has come into question since the Almaty laboratory was suspended by the World Anti-Doping Agency (WADA) last June.

Dutee Chand clocked 11.30 (heats) and 11.24 (second in final) in the 100 metres in the Kozanov Memorial at Almaty on June 25.

WADA’s suspension of the Almaty laboratory’s accreditation for four months was effective from June 24, 2016.

Would the laboratory have accepted samples for testing a day after its accreditation was suspended? Would the Kazakhstan Athletics Federation have engaged the services of the laboratory after the latter’s accreditation was suspended?

Let us for a moment presume that WADA’s announcement, made public only on June 28, was unknown to the Kazakhstan federation (or any other agency that might have been engaged by it) and it arranged to collect samples in the Kozanov meet on June 24 and 25 and submitted the same to the lab.

What was the laboratory supposed to do?

“That all samples not yet analyzed and all samples currently undergoing “A” or “B” confirmation procedures and all samples where a presumptive analytical finding has been reported as of the date of this decision shall be securely transported and with a demonstrable chain of custody to another WADA-accredited laboratory as soon as possible and no later than 14 calendar days following the date of this decision,” stated the decision of the chairman of the WADA Executive Committee.

This means even if the samples were collected in Almaty on June 24 and 25 and sent to the WADA-accredited laboratory there for testing, the lab would have transferred all the samples (even those that were already being tested in case there was a communication gap that prevented the June 24 “effective” date being implemented) to another WADA-accredited laboratory.

Suspended labs don't test

The status of the Almaty lab at the time Dutee set the National records, eclipsing her own 10.33s clocked in New Delhi in April last year, should not thus come in the way of ratifying or not ratifying a national record of India. Because that is not an issue here since the Almaty lab would have either left the completion of the ‘A’ sample testing process to another lab or else transferred the whole sample to the latter.

If the samples were collected (and this is a big ‘if’) in the Almaty meet on June 24 and 25 and these included Dutee Chand’s (another ‘if’) then the AFI can get the information from the Kazakhstan federation or the International Association of Athletics Federations (IAAF). It should have got it by now since dope-testing should be completed within days rather than months and the reports are out promptly rather than held back in suspense.

For an entirely different reason, unrelated to doping and testing, noted athletics statistician Mirko Jalava of Finland had raised doubts over some of the marks set in Almaty. This can be looked up here.

Now let us look at Ankit Sharma’s sensational 8.19m in long jump that was nine centimetres better than Kumaravel Premkumar’s record set in New Delhi in 2013. Premkumar’s dope test then was done more than 24 hours after he finished his competition, much against regulations, but that is a different matter.

Sharma’s NR also came at the Kozanov in Almaty on June 26. He had an 8.17m also within that series that actually bettered the old record.

What can the AFI find out about either the status of the Almaty lab or the fate of Ankit Sharma’s urine sample (if it was collected) eight months after the event?

AFI should have dealt with those records that were supported by dope-testing records or rejected all of them if the intention was (is) to strictly enforce dope-testing for record-breakers. If none was available where it could lay its hands on a dope-testing procedure or a report, then also the logical way out would have been to reject all. Dithering over a set of procedures is not going to help the federation or give confidence to the athletes.

Amidst all this, the world junior record of 86.48m in javelin by Neeraj Chopra last July in the World Under-20 championships cannot be put under the uncertain category. For one it is a world-under-20 record; for another the Chandigarh youngster won the gold at a world meet. A world record in any category would necessarily require a dope test and a medallist at a world meet would also be put through a test.

But should the AFI reject a National record set in the Olympics or World Championships in other cases? “How can you reject a record set in an Olympics” is often the refrain from officials.

The counter question could be “does the AFI have dope-testing records of national-record-breakers in Olympics or World Championships?”

Say for example, does it have the dope-test report of steeplechaser Lalita Babar who clocked a fabulous 9:19.76 in Rio on way to a historic entry into the final?

Did the AFI make a request to the organizers in Rio to test Babar immediately after she finished the race and officials came to know of the national record? Many other countries make such requests and pay up when their athletes set national records in such global meets. There is always a provision to do extra testing if a delegation pays for it.

Simply believing that dope-testing measures would be of the highest order at an Olympics and that would be sufficient to endorse a record set there would be illogical if not foolish, The Independent Observer Team noted that 4125 participants in the Rio Olympics had “no record of any testing in 2016” of which 1913 were in the ten high risk sports identified by the Olympic dope-testing Task Force.

Several other marks also in focus

The question about lack of credible documentation including dope test reports to support the national-record-ratification process should come up in respect of the following marks set abroad also apart from those by Dutee Chand and Ankit Sharma:

Men: 400m: 45.44s Muhammed Anas, Bydgoszcz, Poland, June 24; 45.40s Muhammed Anas, Bydgoszcz, June 25.

110m hurdles: 13.59 Siddhanth Thingalaya, Clermont, May 14, 13.54 Thingalaya, Phoenix, June 11.

4x400m relay: 3:02.17 Indian team, Erzurum, Turkey, 12 June.

20km walk: 1:20:21 (equals NR) Devender Singh, Nomi, Japan, March 20.

Women:

3000m steeplechase: 9:26.55 Sudha Singh, Shanghai, May 14.

4x100m relay: 44.03 Indian team, Beijing May 18; 43.42 Indian team, Almaty, July 4.

In all cases it is essential to find out first whether any dope-testing was conducted at the above meets. If there indeed was dope control then whether Indian athletes were tested. If not whether such athletes were tested at any WADA-accredited laboratory within the stipulated time after an event at the request of AFI or the athlete, under the charge of a competent authority, if indeed such a request was made.

In all such cases the AFI should go by what the concerned authorities have to say and not what the Indian coaches, managers and athletes might have to say about the presence of dope control and about Indian athletes having been tested.

This is not to suggest that any of the other records, especially those set at home, should be okayed without a scrutiny. Of course there are several others from the past which were okayed without a fuss after having raised doubts over them initially not just because of lack of dope-testing but also because of the doubtful nature of “competitions”.

The AFI is understandably finding it difficult to gather information about “negative” dope tests in National meets. The National Anti-Doping Agency (NADA) is not expected to provide that information. Only the ‘positive’ cases are reported and conveyed to athletes and federations unless the information is of relevance in a hearing process or an investigation and is sought by a panel. There might have been a deviation in the recent past but NADA would hopefully have learnt a lesson from that experience.

Thus, there should be nothing that should hold back the Technical Committee from ratifying Renjith Maheswary’s triple jump record of 17.30m in Bengaluru on July11 last if he was dope-tested. If there are other considerations, the AFI should come clean.

This issue of National records and dope-testing has dragged on for years without anyone being the wiser. The AFI must give its ruling and stick to it.