Are NADA statistics indicative of dopers going on the backfoot?

The National Anti-Doping Agency (NADA) says its athlete awareness programme against doping has paid off for the second successive year, bringing down ‘positive’ cases for 2017 to just 69, the lowest in eight years.

“The National Anti-Doping Agency during the calendar year 2017 again exceeded its WADA recommended testing target of 3000”, NADA stated in a press release on January 19. “It even exceeded the testing figures of the calendar year 2016 by about 7 per cent.”

The “achievement” in 2016, Olympic year at that, one hoped, NADA would not use as a yardstick. For, the 2699 urine samples collected that year happened to be the second lowest behind the 2331 in the first year of NADA’s existence, 2009.

“There has been a significant increase in out-of-competition testing as compared to the previous year,” NADA said.

The “significant increase’ was from 1330 urine samples to 1486, an addition of a mere 156 samples. Let us not forget, NADA did 1611 samples in out-of-competition testing in 2015 and 2225 in 2014.

Still a concern

While it may be heartening to note that the ‘positive’ percentage has come down from 2.7% in 2016 to 2.0 per cent in 2017, the fall in overall urine sample numbers should be of concern to everyone who believes in competing fair and square and in the anti-doping movement.

If we go back to April, 2017, it may be recalled, concerned with the rising number of dopers in the country, with India being ranked third for three successive years from 2013, Niti Aayog had suggested that NADA increase the sample numbers to 5000.

NADA, in is enthusiasm, said at that time that it would go for 7000 tests. Now, NADA says: “Niti Ayog had in April recommended to increase the testing figures from the year 2017-18 onwards to up to 5000. NADA has accordingly increased the target which however is subject to enhanced manpower and additional budgetary allocation.”

While jumping for the 7000-sample target, NADA should have realized the budgetary constraints. Sources indicated that NADA was not just under budgetary constraints about a couple of months ago it was also running short of test kits.

But NADA has ambitious plans to boost numbers for the rest of January and for the months of February and March before the close of the financial year.

Most national-level meets in Jan-March?

“As most national level competitions take place during January to March, a large number of tests (about 2000) have been planned for the current quarter as per the Test Plan developed by NADA on the basis of risk assessment and other prescribed parameters,” NADA said in its statement.

Two thousand tests in about 72 days is what NADA is planning now. That would be some sort of a record for NADA itself. But let us first look at the ‘crowded calendar’ ahead of us up to March end.

Last year, NADA did 277 tests from January to March, during the supposedly packed calendar (NDTL testing figures; NADA has been giving out a tally of 1143 samples for the same period. Unless someone clarifies we may have to be satisfied with these figures and keep guessing!)

Let us now look at which all senior National championships are over and which could be ongoing or coming up.

The National championships in basketball are ongoing. Weightlifting National which was scheduled from January 20 (no news yet) may be ongoing and may provide a decent number of samples while basketball can at best contribute a dozen or less. This is based on NADA’s own philosophy of “risk assessment".

The senior National championships in athletics, cycling, swimming, boxing and wrestling are already over. These sports should always figure high in NADA’s “risk assessment” even if they may not be at this point. In an effort to boost numbers towards the additional target of 2000, NADA can pick up around 100 samples from the Khelo India School Games scheduled in Delhi from 31 January.

Last-minute dash to boost numbers

But we may as well ask: Is this last-minute dash to reach a year’s target justifiable in an anti-doping perspective? Mind you, this is not a government department trying to exhaust sanctioned funds before the financial year ends; this is testing target.

NADA’s prime failure in 2017 was in practically ignoring major National meets in athletics. It managed less than 25 samples from the inter-State meet in Guntur (according to athletics officials), skipped the Open National in Chennai, missed the inter-university meet and then missed the National cross-country meet also.

Athletics has been in the forefront of Indian doping during the past few years. It topped the Indian dopers list in 2014 (29) and 2016 (23) and came second to weightlifting (56) in 2015 with 24.

Obviously, athletics and weightlifting should get the maximum attention from NADA. Needless to say, senior National championships should top the target list. Apparently, NADA’s philosophy towards Open National (Sept) was there was no urgency since it had already done the Federation Cup at Patiala (June), three Indian Grand Prix meets and the Asian championships in Bhubaneswar (July). This only betrays an ignorance about how athletes dope and about the role of stimulants in the performance-enhancing area.

With a list of 64 athletes in its Registered Testing Pool (RTP), one would expect NADA to do at least four out-of-competition tests on each of these athletes every year apart from in-competition tests as per its test distribution plan.

The meets should compulsorily include the Fed Cup, Indian Grand Prix, Inter-State, Open National, Inter-University, National racewalking, National cross-country, any other National meet in specific groups (like sprints meet or jumps meet), Junior National and Fed Cup, National schools athletics/National School Games and now Khelo India School Games. If there are 40-plus events at a majority of these meets, one would expect over 100 urine samples being collected by NADA at such meets.

It is time for NADA to shed this attitude of “seven-per-cent-increase over last year”.  Reduction in numbers will invariably bring down number of positives. That should not be the aim either for NADA/Sports Ministry or Niti Aayog in their drive towards getting out of the ‘top-three’ dopers list in the world.

See how the ‘positive’ cases come down as sample numbers are cut in the past two years:

Year	Number of urine samples	Adverse Analytical Findings	Percentage of positive results
2009	2331	67	2.9
2010	2794	107	3.8
2011	3206	116	3.6
2012	3813	138	3.6
2013	4073	93	2.2
2014	4045	99	2.4
2015	4734	110	2.3
2016	2699	73	2.7
2017	3312	69	2.0

Source: WADA & NADA

Indian athletics provided the following number of samples from 2013:

2013-1298, 2014-1171, 2015-1470, 2016-970

Will 2017 match those figures? If not, then what would be the point in having 64 track and field athletes in the RTP? There is no record to show how many of the RTP athletes (41 in May 2015) have been tested so far through the years.

Testing athletes in Rajasthan State meet or West Bengal State meet is no substitute for testing in National championships though in the overall perspective such testing is always welcome. If resources are limited then it would be better for NADA to concentrate on the most vulnerable sport like athletics, weightlifting, wrestling, boxing, swimming and cycling, from an Olympic sport perspective, rather than bodybuilding and powerlifting.

The Weightlifting Federation’s Vice President (now Secretary-General) Sahdev Yadav was quoted in this Indian Express report last year saying: “it ‘defied logic’ that NADA collected samples of only eight players (lifters) out of the 300-odd participants (at the National championships in 2016). Till 2015, he claimed, the dope officers would collect ‘more than 60 samples.”

‘Risk assessment’ and ‘target testing’ would have lost much of their meaning if major championships in weightlifting and athletics are given a miss or only nominal number of samples are collected at these meets as though performing a ritual. Weightlifting provided 23 positive cases in 2014, 56 in 2015 and 14 in 2016. Athletics produced three major cases (shot putter Inderjeet Singh, sprinter Dharambir Singh and quarter-miler Priyanka Panwar) in the Olympic year.

NADA has to beef up its staff strength, as one keeps pointing out, work out a more meaningful test distribution plan, pursue its RTP testing more vigorously and make sure that no procedural loopholes are left behind for the hard-core doper to escape.

Competing while serving a doping suspension! (Part II)

Part I is here

Provisional suspension

Though, normally there is no provisional suspension for a ‘specified substance’, anti-doping authorities can adopt a rule that permits it to impose such a suspension even for a ‘specified substance’. The BCCI has two back-to-back articles (7.7.1 and 7.7.2) one that does not allow a provisional suspension for a 'specified substance', and, in the very next paragraph,  another one that gives the discretionary power to the BCCI to impose such a suspension for the same category of substance all the same! Thus, the provisional suspension on Pathan from Oct 28 was within rules and authority of the BCCI.

Competing during suspension period!

Though it is laughable that an athlete could have competed while supposedly having been under suspension, there is no specific rule in the WADA Code that prevents such an occurrence if a panel backdates the beginning of a suspension period in such a way without looking into the fact whether the athlete had competed after that date.

Pathan played two Ranji Trophy matches (Oct 6-9, Oct 14-17) for Baroda during the ‘so-called suspension’ period of Aug 15-Jan 8.

The Code says:

10.11.2 (Timely admission): “Where the athlete or other person promptly (which, in all events for an Athlete means before the Athlete competes again) admits the anti-doping rule violation after being confronted with the anti-doping rule violation by the Anti-Doping Organisation, the period of ineligibility may start as early as the date of Sample collection or the date on which another anti-doping rule violation last occurred.”

There is no mention of what happens when a suspension is backdated and includes a period when the athlete has competed.

The Australian football case

The observation by the hearing panel in the Football Federation Australia v Jake Bogoly case of March 2017 is pertinent and interesting, perhaps a rare instance where a panel has questioned the logic behind such backdating when the athlete has competed during the period in question:

(The charges were “attempted use” of steroids and ‘assisting’ in an anti-doping rule violation against Bogoly, dating back to 2013. It is not the charge or the sport or the athlete that is important here from a wider perspective of WADA rule application but the incongruity of rules that allow for such illogical decisions)

The one-man panel of Mr. John Marshall, chairman of the anti-doping tribunal and chair of the Disciplinary and Ethics Committee, FFA, while pointing out the absurdity in allowing such backdating, wrote:

“The second matter is whether backdating can or should be given where the athlete has competed during the period when the sanction would apply if backdated. Backdating would be inconsistent with other aspects of the WADC (eg WADC 10.8 (see reference to commencement of Ineligibility) and also WADC 10.9.2 (“before the Athlete competes again”) & WADC 10.9.5) and lead to potentially absurd results (eg under WADC 10.10.1 & 10.10.2). (Code 2009: 10.10.1, Prohibition against participation during ineligibility; 10.10.2 Violation of the prohibition of participation during ineligibility.)

“The Tribunal is aware of decisions of CAS and other tribunals applying the WADC that have backdated a sanction so as to have commenced while the Athlete was still competing. In none of those which the Tribunal has found has there been any analysis of this anomaly. Nor has there been any explanation of why, as a matter of backdating, an athlete should have the period of Ineligibility commence at a time before the Athlete last competed.

“…It is absurd to say that an Athlete has been given a two-year suspension when in fact the Athlete has competed for 12 months of that period – that is really a one-year suspension and nothing different.”

Disqualification of results:

All results from sample collection date are to be disqualified as per rules unless the panel determines that fairness requires otherwise.

Using this discretionary clause, of “fairness”, the BCCI decided not to annul the results (scores) of Pathan either from sample collection date or even from actual suspension date of August 15, 2017!

The 2015 Code has inserted words to this particular clause to say results during retroactive ineligibility period should also be disqualified.

The Court of Arbitration for Sport (CAS) in its decision dated December 16, 2014, in the case of Russian weightlifter Vladislav Lukanin, wrote:

 “The effect in this case has been to backdate the period of ineligibility so as to commence on 13 May 2011. It would be contrary to fairness and common sense for the Athlete to be able to retain the benefit of his

results over the period from May 2013 while at the same time having the benefit of counting the same period as a part of his period of ineligibility.”

The sole arbitrator, James Robert Reid QC (UK) ordered that all results from April 13, 2011 be annulled. (CAS 2014/A/3734).

(Lukanin’s initial four-year sanction for a doping offence was reduced to two years by the International Weightlifting Federation following change in rules in 2012 while the latter missed an earlier doping offence by the Russian. WADA went in appeal to CAS for enhancing the suspension to eight years for a second offence which CAS upheld. The question then arose about backdating to the end of the two-year suspension period and then to the results achieved since then).

How BCCI arrived at “no significant fault or negligence”

Pathan had cold, cough and fever as per his defence placed before the BCCI through his lawyer Vidushpat Singhania. The player consulted the hotel doctor who prescribed some medicines including Zeet Expectorant, a cough syrup. The Baroda manager sought the help of the hotel reception which in turn sent an employee to get the medicines from nearby chemists.

The prescribed cough syrup, which did not contain a prohibited substance, was not available and instead the hotel employee purchased a substitute after a second chemist suggested the same and sold it.

Much later, neither Pathan nor the team manager could remember the name of the substitute medicine nor could the hotel employee be traced! Nor could any record of purchase be established since there were no vouchers or any record of sales with any of the chemists near the hotel where the Baroda team stayed. Pathan told the BCCI that the medicine “must have been Bro Zeet” which, incidentally, contained terbutaline, the ‘culprit’ behind the positive test.

The BCCI concluded that Pathan was negligent, but the fault and negligence were not “significant” enough when viewed in the totality of circumstances to warrant a more severe sanction than the five-month suspension it eventually imposed.

The most glaring feature of the BCCI decision is the backdating of the player’s ineligibility period to a time he has competed and to allow him to retain all his scores post-sample collection and through the deemed suspension period.

Can this, of an athlete retaining his medal while deemed to be under doping suspension, ever happen in an Olympics?

Will WADA be inclined to go in for appeal at least to have this anomaly corrected if not to argue on the “negligence” aspect or the “degree of fault”? WADA has 21 days from the time the file detailing the BCCI decision would have reached it. If it does find it necessary to file an appeal it would be doing so against a decision by a body that it does not consider as an anti-doping organization, a testing authority, or a ‘results management’ or hearing authority at the national level as per the Code.

Perhaps it is time NADA made another attempt, a more serious one than a few press statements, to bring Indian cricket under its jurisdiction.

(Concluded)

Competing while serving a doping suspension! (Part I)

Yusuf Pathan should feel lucky to have got away with a five-month suspension for a terbutaline infraction, practically the whole of that period backdated to ensure that his cricketing activities would not suffer.

The Board of Control for Cricket in India (BCCI) announced the suspension on January 8, with the ineligibility period ending on January 14, 2018, just six days from the decision. It is very convenient for the Baroda all-rounder since he would be available for the IPL auction on January 27 and 28.

If the general impression in the media about the backdating was about the parties reaching a convenient understanding, keeping in mind the impending IPL tournament, there was justification for it.

On the face of it, the BCCI has gone by the rule book and arrived at a decision, mutually acceptable to it and the player, as permissible under the “agreed sanctions” article of its anti-doping rules. Yet, there are several contentious points and debatable areas in the order signed by the BCCI anti-doping manager, Dr. Abhijit Salvi.

The facts

Pathan was tested after a Vijay Hazare Trophy match between Baroda and Tamil Nadu on March 16, 2017.  He tested positive for the 'specified substance' terbutaline, a Beta-2 Agonist, used in inhaler, tablet, capsule, syrup injection and other forms for bronchial ailments including asthma. The lab report came on April 12. The BCCI made out a charge, however, only on October 27! From October 28, the BCCI provisionally suspended the player from all competitions. On October 29, Pathan accepted the anti-doping rule violation and explained a few things about how the ‘positive’ result could have come about.

Under the BCCI anti-doping rules Article 8.3 (agreed sanctions) when a player promptly admits the anti-doping rule violation and agrees to accept the sanction offered by the BCCI, there will be no formal hearing procedures before a tribunal.

The BCCI backdated the beginning of the ineligibility period of five months to August 15, 2017 without explaining what was of significance about that date from an anti-doping procedural perspective. Accordingly, his suspension ended on January 14, 2018.

The standard sanction for a ‘specified substance’ which terbutaline happens to be, is two years unless the anti-doping authority can prove that the ingestion was intentional. The BCCI stated that it had no basis to contend that the player took terbutaline with an intent to cheat.

Debatable issues

Backdating: The BCCI order states that backdating the start of the ineligibility period was possible under two different articles in its anti-doping rule , one under 10.10.1 (substantial delays in the hearing process or other aspects of doping control not attributable to the cricketer) and the other under 10.10.2 (prompt admission by the player of his ADRV when confronted with it by the BCCI).

Unfortunately, and very pertinently, the BCCI order does not specify which article has been applied for backdating up to which date and which one for further backdating. What is clear is the player was entitled to reduction in the period of ineligibility from his provisional suspension date of October 28.

Though the BCCI had the option of going back to sample collection date (March 16, 2017), August 15 was apparently chosen as the beginning of the suspension period since it would then fulfil the requirement under 10.10.2 that a reduction through backdating should ensure that an athlete would serve at least half of the sanction going forward. The date of imposing a sanction is being presumably considered as Oct 28 here.

But going forward from which date? A date chosen by the authority to enable the player to become eligible in time for an auction for a major competition or going by the rules?

Let’s look at that rule:

10.10.2 Where the Cricketer or Cricketer Support Person promptly (which means, in any event, before the Cricketer competes again) admits the anti-doping rule violation after being confronted with it by the BCCI, the period of Ineligibility subsequently imposed on him/her may be back-dated so that it is deemed to have commenced as far back as the date of last occurrence of the anti-doping rule violation (which, in the case of an Article 2.1 violation, would be on the date of Sample collection). However, this discretion to back-date is subject to the following limit: the Cricketer or Cricketer Support Person must actually serve at least one-half of the period of Ineligibility going forward from the date the Cricketer or Cricketer Support Person accepted the imposition of a sanction, the date of the hearing decision imposing a sanction, or the date the sanction is otherwise imposed., This Article shall not apply where the period of Ineligibility has already been reduced under Article 10.6.3.

“Accepted the imposition of a sanction, the date of the hearing decision imposing a sanction or the date the sanction is otherwise imposed.” That is what the rule says. You have your pick whether the date should be October 28 or January 8.

Forget the ‘prompt admission’ for a while, let’s look at 10.10.1 which deals with ‘substantial delays’. This one doesn’t require the athlete to serve half of the suspension going forward etc.

So, can you just go back to a convenient date and say, “suspension begins from August 15”?

No, you cannot obviously. You will need to provide some reasons for doing so.

Was there ‘substantial delay’ in the hearing process? In Pathan’s case there was no hearing process; none was required since the player admitted his guilt and apparently sought an “agreed sanction”.

Pathan was charged with an anti-doping rule violation on October 27, 2017 and the final decision on his violation announced by the BCCI on January 8. It took two months and 12 days to reach and convey a verdict. It is rather lengthy for an ‘agreed sanction’, but quite within “reasonable” limits in normal anti-doping parlance.

The WADA Code calls for a “fair hearing within a reasonable time”. The ICC and BCCI rules stipulate that a decision shall be announced “as soon as possible after the conclusion of the hearing”.

As for “agreed sanctions”, both ICC and the BCCI rules want this to be sorted out “promptly”.

The Indian National Anti-Doping Agency (NADA) rules demand that a decision be announced within three months of the completion of the ‘results management process”.

The ‘results management’ process includes a review of the laboratory report, initial notification, provisional hearing, ‘B’ sample procedures etc.

It is true that rules do provide for delays to be attributable to “other aspects of doping control” outside the hearing process but it is a fact that normally it is the hearing process that leads to the maximum delay that may result in some concession being granted eventually.

More than 6 months' delay to notify

In Pathan’s case there is no explanation as to why there was a delay of six and a half months from laboratory report to notice of charge. Was it because of the irresponsibility of the BCCI or was it a deliberate attempt to allow the player to continue playing till such time it may become convenient to take a provisional suspension?

In any case, as it transpired, the delay did not result in the player being kept out of the game or being denied his wages or benefits. In fact, the delay gave him the opportunity to play in the IPL.

By seeking information regarding a possible retroactive TUE for the treatment of asthma, if that was the ailment (Pathan replied he did not suffer from asthma), the BCCI could be deemed to have conveyed the adverse finding to the player sometime after the lab report in April, though a formal charge was yet to come at that stage.

Thus, if one looked at ‘prompt admission’, then a player has to undergo half of the suspension period going forward from the date on which the sanction was imposed or accepted. If only “substantial delays” were to be considered then there has to be some explanation as to what these delays were if indeed there were delays and whether the player suffered because of such delays.

Contd Part II