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.