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)