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