Meldonium has a new name!

What is Mnaapohat? 

Google cannot make anything out of it. Yet, news reports  on Feb 23 have carried that word in relation to the Jithin Paul doping suspension for ‘possession’ of a banned substance.

Since Paul, we know, was charged with “possession” of meldonium, we quickly presume Mnaapohat is either meldonium or else some substance that might contain meldonium.

So, let’s check the World Anti-Doping Agency (WADA) Prohibited List 2018. A lot many names there are as unpronounceable as Mnaapohat is, but there is no Mnaapohat.

Mnaapohat indeed is meldonium. On a query from this correspondent, James Ellingworth, who writes for AP Business and Sports, mainly covering Russia and countries around that region, conveyed that it was, as suspected, MILDRONAT in Russian. Mildronat of course is Mildronate, the name under which meldonium that is manufactured in Latvia since 1970, is marketed in Russia and several other former Soviet states.

Mildronate was the name with which Maria Sharapova was familiar when she was charged with a meldonium violation in 2016. She served a 15-month ban, reduced from two years on appeal, and is back on the circuit. Meldonium, however, continues to be identified with the Russian tennis superstar.

NADA could easily have got someone to read out an obvious Russian label and mentioned it in its report, that the substance recovered was meldonium.

Paul, national 400m hurdles champion in 2016, Asian Games participant in 2014, and who was also part of Indian 4x400m relay teams in the recent past, has been slapped with a four-year suspension for “possessing” meldonium injection vials.

This is the first time NADA has brought forward a charge of “possession” of a banned substance by an athlete and, as it turned out, succeeded in getting a sanction. The athlete’s lawyers have indicated that they would appeal. Paul only has one appeal at the national level left. After that WADA and the International Association of Athletics Federations (IAAF) will have the right of appeal at the Court of Arbitration for Sport (CAS).

NADA raid

NADA made the charge that when its officer 'raided' the hostel room occupied by Paul and the 400m runner P. P. Kunhumohammed, he was able to confiscate four different substances, viz Carnitene and  Mnaapohat from Paul and Actovegin and Stimol sachets from Kunhumohammed.

It has not been explained in the order how the recovered substances were attributed to either of the two athletes.

There is a dispute about the quantity of the banned substances as shown on the envelopes in which they were placed and which were signed by the athletes.

L-Carnitine boosts endurance and enhances weight loss while Actovegin, extracted from calf blood, is supposed to help improve stamina. Stimol helps fight fatigue. These three substances are not banned by WADA. Meldonium or Mildronate (Mnaapohat as mentioned in the NADA report as well as the order of the panel) on the other hand, is banned.

Paul claimed that there never was anything called Mnaapohat that was recovered from his room shared with Kunhumohammed. The latter also corroborated that version and so did another athlete, Jeevan K. S. who was reportedly present in the room when the NADA ‘raid’ took place. The athletes claimed that Mnaapohat was never written on the envelopes in their presence. Paul claimed that Mnaapohat was inserted into a small space on one of the envelopes after he had signed it.

NADA claimed otherwise. It dismissed over-writing of number of injection vials as “clerical error” which the panel headed by Mr. Kuldip Singh accepted.

'Procedures not proper'

Paul’s lawyers argued that search and seizure procedures were not conducted as per established practice. They said Paul was never given a copy of the seizure memo giving details of the impounded material. This, they said, was denial of “natural justice”.

NADA also inspected the rooms of shot putter Om Prakash Singh and coaches Radhakrishnan Nair, Mohammed Kunhi, Ashok Kumar and Bhupinder Singh but found nothing, according to the order.

A few important questions arise:

Why did NADA not involve independent witnesses during its search and seizure operations at the NIS, Patiala? At least an NIS officer, a coach from any other discipline, and a police officer or a lawyer might have helped.

Why did it not make a video-recording of the seizures?

Why did it not get all athletes sign on all envelopes?

Why did it not have a separate envelope for Mnaapohat (meldonium), the only substance that was in the Prohibited List?

It is not clear whether NADA has the authority to raid and seize drugs and other substances from the rooms of the athletes or whether law-enforcement agencies are required to be present. May be just a representative from the office of the Drug Controller General of India might have helped. The order does not provide an insight into this aspect.

“Possession of a banned substance” by an athlete or support personnel is difficult to prove.

Code definition

Take for instance the definition that the WADA Code has:

“Possession: The actual, physical Possession, or the constructive Possession (which shall be found only if the Person has exclusive control or intends to exercise control over the Prohibited Substance or Prohibited Method or the premises in which a Prohibited Substance or Prohibited Method exists); provided, however, that if the Person does not have exclusive control over the Prohibited Substance or Prohibited Method or the premises in which a Prohibited Substance or Prohibited Method exists, constructive Possession shall only be found if the Person knew about the presence of the Prohibited Substance or Prohibited Method and intended to exercise control over it. Provided, however, there shall be no anti-doping rule violation based solely on Possession if, prior to receiving notification of any kind that the Person has committed an anti-doping rule violation, the Person has taken concrete action demonstrating that the Person never intended to have Possession and has renounced Possession by explicitly declaring it to an Anti-Doping Organization. Notwithstanding anything to the contrary in this definition, the purchase (including by any electronic or other means) of a Prohibited Substance or Prohibited Method constitutes Possession by the Person who makes the purchase.”

The order does not give us an idea about how “possession” was established. Was the athlete having “exclusive control” of the substance or the premises? (Forgetting for a moment the claim of the athletes that meldonium was never recovered from the room No. 11 of the Milkha Singh Hostel at the NIS)

On the other hand, if the athlete contends that NADA “framed” him and the meldonium that was tested at the laboratory was obtained by the agency, then the question of its origin will come. Was it purchased online since it is not easily available in India? Can it be traced to a location abroad?

This is not the first time NADA has “raided” hostel rooms of athletes at Patiala and Bengaluru. It has happened in the past, though no charge was brought up and we don’t have details of anything that had been impounded if at all.

The question also would arise why NADA should be interested in ‘framing’ an Indian athlete in the national camp. Why not “frame” several others also?

Conspiracy?

There is a mention about a “conspiracy” being alleged by the athlete in the order.

“Athlete further submits that he has been targeted. There are utterances in the camp that there is a conspiracy to unsettle the 4x400 meter men relay team which (h)as performed well during the last 8-10 months”.

This is shocking. Why should there be a conspiracy to unsettle an Indian team? And why just the 4x400m relay team?

The general impression has been NADA has not been diligent in testing track and field athletes, out of competition or in-competition, in recent times.

Obviously, NADA would tighten its “seizure” procedures from now on. Witnesses are a must; a detailed inventory is a must. Instead of just getting signatures on an envelope, NADA would do well to also prepare a separate document, even if hand-written on the spot, and mention drugs recovered and get it signed by athlete/s, witnesses and the NADA officer making the seizure.

Just as this case at the disciplinary panel stage was interesting it would be interesting all over again if an appeal is filed.

Will AFI stick to its selection norms for CWG?

An early Indian track and field season is set to start_Pic courtsey G. Rajaraman

The Commonwealth Games has a quota system for the first time. For 2018, it is a “hybrid and transitional” model. For 2022, it would be through a full quota system. The games in Gold Coast in April would be based on a qualification and 

‘’open-entry’’ system.

Athletics, for example, will continue to have an upper limit of three athletes per event with only the road events (marathon and racewalking) having minimum entry standards. Yet, the overall numbers per country would be determined by an allocated quota.

In the new system of quota allocation for the Commonwealth Games, athletics, at 37, has been sanctioned the maximum number of entries for India by the Commonwealth Games Federation (CGF) under its revised formula, according to a TOI report.

Initially, as per the report, Indian athletics had 30 quota slots but now there are seven more. Strangely, there is also a men-women break-up prescribed by the CGF, 24 men and 13 women. These numbers look lop-sided at the moment, keeping in mind the current standards and the performances four years ago.

3 medals in Glasgow

The last time at Glasgow, the Indian athletics team was 32-member strong. It returned a tally of one gold (discus thrower Vikas Gowda), one silver (discus thrower Seema Antil) and one bronze (triple jumper Arpinder Singh). Around eight to ten medals were projected from the athletics team on that occasion.

Having had a tough time explaining its selection process to the courts, the media and the public last year when a few “automatic” qualifiers (by becoming Asian champions) were excluded from the team to the World Championships in London, the Athletics Federation of India (AFI) has, for a change, announced the selection criteria for the Commonwealth and Asian Games this year in advance.

Unfortunately, while announcing what it termed “qualifying guidelines” for selection to the Commonwealth and Asian Games, the AFI did not specify the ‘qualification period’. Chief coach Bahadur Singh has since explained the rationale.

As explained in an earlier piece , there is nothing rigid about AFI’s selection criteria (for want of a better expression, we will call them ‘selection criteria’). In the past, too, the federation had announced such norms but when the eventual teams were chosen, there never was any guarantee that the criteria would be adhered to.

With the Sports Minister apparently keen to have a sizeable contingent, the AFI might not have to chop and change the team and we can hope that it would fill up the 37 places offered. How it would go about it, is to be seen only.

Will all 37 athletes achieve the norms laid down by the AFI or will there be concessions? If there is concession in one event, can another athlete in another event be expected to keep quiet? Or will he/she approach the courts as Kerala’s P. U. Chithra did last year and Anu Raghvan, also of Kerala, did in the Olympic year?

High criteria

The AFI has kept the CWG criteria high, rather very high in certain events. For example, the women’s 100m. At 11.15s, it looks beyond the reach of even Dutee Chand, who, however, is determined to not only make it to the team but also do her best at the Gold Coast games.

The hitch for Dutee could be not just the criterion but lack of support from the federation as she put it according to this report

In 17 of the 42 individual events at the games, the AFI-stipulated guidelines are better than the Indian national records.

The following are these norms (national records within parenthesis):

Men: 100m 10.16s (10.30s, 10.26s unratified), 200m 20.35s (20.66s), 400m 45.30s (45.32*), 5000m 13:25.00 (13:29.70), 10,000m 28: 00.00 (28:02.89), 3000m steeplechase 8:20.00 (8:30.88), 400m hurdles 49.45s (49.51s), pole vault 5.45m (5.14m*), hammer 71.00m (70.73*), decathlon 8000 (7658).

Women: 100m 11.15s (11.30s, 11.24s unratified), 200m 22.60s (22.82s), 5000m 15:09.00 (15:15.89), marathon 2:30:14 (2:34:43), 100m hurdles 13.05s (13.38), hammer 68.72m (65.25*), javelin 62.50m (61.86m).

(* denotes yet-to-be-ratified performances)

In at least two other men’s events the targets may prove to be stiffer than others, the 1:46.00 in the 800m and the 2:12:50 in men's marathon.

Apart from Sriram Singh who clocked 1:45.77 in the Montreal Olympics final in 1976, the only other Indian athlete to clock a sub-1:46 in the 800m is Jinson Johnson who timed 1:45.98 in Bengaluru to make the grade for the Rio Olympic Games. All others have timings above 1:46 in the all-time lists. Johnson’s second best (1:46.43) is also below the CWG standard.

There is no one close to late Shivnath Singh’s 1978 marathon timing of 2:12:00. Thonakal Gopi (2:15:25) who could be a contender for the CWG slot, irrespective of his timings, and Kheta Ram (2:15.26) are the next best.

In several other events, too, the task for the Indian athletes look a lot tougher than that could have been the case had the CWG come later in the season rather than in April. To once peak in March and then again towards July the same year for the Asian Games is a daunting task, though our athletes are not totally unfamiliar with such double ‘periodisation’.

May prefer Asian Games

Many of the leading athletes may find it more profitable to concentrate on their Asian Games preparations than strain themselves in aiming for the stiff CWG marks. A medal in the Asian Games is easier to achieve than in the CWG in a majority of the events for Indian athletes.

The personal bests of some of the active athletes and the AFI guidelines for the CWG are listed below just to provide an idea about the tough task that awaits the Commonwealth Games aspirants:

Men: 100m-criterion 10.16s (Amiya Mallick 10.26s, V. K. Elakiyadasan 10.31), 200m-20.35s (Elakiyadasan 20.92s), 5000m-13:25.00 (G. Lakshmanan 13:35.69), 10,000m-28:00.00 (G. Lakshmanan 29:16.21), 3000m steeplechase-8:20.00 (Avinash Sable 8:39.81), Pole vault-5.45m (S. Siva 5.14m), Decathlon-8000 points (Abhishek Shetty 6991).

Women: 100m-11.15s (Dutee Chand 11.30s, also a ‘doubtful’ 11.24s in Almaty in 2016), 200m-22.60s (Srabani Nanda 23.34s), 1500m-4:10.00 (P. U. Chithra 4:17.92), 5000m-15:09.00 (L. Suriya 15:39.18), 10,000m-32:30.00 (Sanjivani Jadhav 33:14.16), 100m hurdles-13.05s (Purnima Hembram 13.72s), 400m hurdles-56.00s (Anu Raghavan 57.21s), triple jump-13.90m (N. V. Sheena 13.58m), shot put-17.00m (Navjeet Kaur Dhillon 15.89m), hammer-68.72m (Sarita Prakash 65.25m).

There are others who look capable of achieving these criteria, given the fact that they have either been consistent around such marks or achieved comparable or better marks last year. They include (with marks in 2017):

Men: 400m-45.30s (Muhammed Anas 45.32s), 110m hurdles-13.55s (Siddhanth Thingalaya 13.48s), high jump-2.25m (Tejaswin Shankar 2.26m), Long jump-8.00m (Ankit Sharma 7.96m), triple jump-16.60m (Arpinder Singh 16.75m), shot put-20.20m (Tejinder Pal Singh Toor 20.40m), discus-62.00m (Vikas Gowda 62.35m)

Women: 400m-52.00s (Nirmala Sheoran 51.28s, Jisna Mathew 52.65s, M. R. Poovamma 52.66s), Pole vault-4.00m (Vakharia Khyati 4.10m), high jump-1.90m (Swapna Barman 1.87m), long jump-6.45m (V. Neena 6.54m, Nayana James 6.55m), Heptathlon-5826 (Swapna Braman 5942, Purnima Hembram 5798).

It is not clear at this point whether the Union Sports Ministry would stick to the sixth-place criteria it announced for multi-discipline games in 2015. Except for that in the men’s 5000m (sixth place 13:22.32 as against AFI norm of 13:25.00), all other marks fixed by the AFI for CWG are better than the sixth-place result of the Glasgow Commonwealth Games. In fact, in many events, if the sixth-place criteria were to be applied then there could be more qualifiers than the AFI would be able to accommodate!

Tough to fill up 24 places

Hopefully, the AFI would stick to its guidelines especially after the uproar that the Chithra exclusion caused at the time of the London World championships. Filling up 24 places in the men’s section might be difficult, though, unless the AFI is planning to enter both the relay teams.

The men’s 4x100m guideline has been pegged at 38.35s (fourth place of 2014 games) which is better than the national record of 38.89s that India clocked at the 2010 Commonwealth Games in New Delhi for a surprise bronze. The best by an Indian team in recent times has been the 39.86s that it clocked in Almaty in 2016. The norms in the men and women’s 4x400m, 3:02.17 and 3:32.45 respectively, should be attainable.

Javelin thrower Neeraj Chopra, one should presume, has already clinched his place in the Gold Coast-bound team with his performance of 82.80m at Offenburg, Germany, on Feb 3. The selection criterion is 81.80m. He seems to have stuck to his German base, at least for the time being, instead of coming under the guidance of former world record holder Uwe Hohn who is in India.

Talking of javelin, it is disturbing to note that Devender Singh Kang, who was the lone Indian athlete to make the final at last year’s World Championships, hit a ‘low’ with an effort of 75.87 (gold) at the Asian Games test event at Jakarta this month. Kang had registered a personal best 84.57m at Patiala last year when he also had six other marks over 80 metres. Kang is currently facing an anti-doping rule violation charge though he has not been provisionally suspended which is the case with national women’s shot put record-holder Manpreet Kaur.

Racewalkers selected

The AFI has named four racewalkers for the Commonwealth Games after the National championships in New Delhi. National record holder K. T. Irfan and Rio Olympian Manish Singh Rawat in the men’s 20km, the new national champion Baby Soumya and former national record holder and the most experienced woman walker Khushbir Kaur in the women’s 20km have gained selection. All of them easily surpassed the AFI guidelines. 

Soumya’s improvement from a 1:41 walker to a 1:31 walker is significant. If the Kerala woman maintains form she, along with Khushbir, should be among the medal contenders in Gold Coast.

Indian athletes will have only limited opportunities to make the cut for the Commonwealth Games. The first one comes in the form of the Indian Grand Prix at Patiala on Feb 27. Then there will be the Federation Cup from March 5 to 8. That will be the final ‘selection trials’ for the Commonwealth Games. As in the past, the federation is making it mandatory for athletes to compete in the Fed Cup to gain selection. Those who have achieved the guidelines would be expected to maintain their form close to those marks during the meet. At least on paper, that is the argument. It need not always materialize that way.

Sometime ago, the AFI had held out the threat that those who stayed away from camps would not be eligible to compete in the ‘selection trials’. It is to be seen whether this remains just a threat or not.

The 2016 season produced some stunning performances just in time to make the qualification for the Rio Olympics. We know what happened afterwards. It is to be hoped the Rio Olympic qualification race or even the 2017 World Championships one will not be repeated in attempting to make the Gold Coast cut. One also expects the National Anti-Doping Agency (NADA) to do a thorough job of monitoring the performance of the athletes getting ready for the two games this season. Keeping away from championships, as NADA did last season, will prove disastrous. Inflated performances at home invariably get exposed on the bigger stage.

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