Arbitration proceedings in doping cases can often be long drawn out, complicated and many a time, beyond the comprehension of ordinary mortals.
Take for example the M. R. Poovamma case dating back to February 2021. The Karnataka athlete, a quarter-miler who is a multiple medal-winner in the Asian Games and the Asian championships, was initially suspended for three months for a methylhexaneamine (MHA) violation.
The suspension was extended to two years on an appeal by the National Anti-Doping Agency (NADA) in September 2022.
However, this was not the end of the suspension drama.
In June 2023, NADA wrote to the Athletics Federation of India (AFI) that Poovamma’s suspension had ended and she was eligible to participate. On July 28 and 29, she competed in the 400m at the Sri Lankan National Championships at Diyagama.
NADA woke up again in September this year.
It informed AFI that there was a mistake and Poovamma continued to be under suspension. No dates were specified. It was presumed that the suspension would at least run up to June 2024.
Without the public or the media knowing about it, Poovamma and her lawyers had been working on the possibility of coming back into competition earlier than next year. Poovamma filed an appeal in the Court of Arbitration for Sport (CAS) but had to drop the process because of the huge expenses involved, as per one report by the Press Trust of India.
She eventually went to the Kerala High Court and received immediate relief.
Justice Devan Ramachandran of the High Court ordered that the Anti-Doping Appeal Panel (ADAP) needed to re-examine the case and provide a clarificatory order pertaining to the commencement of the ineligibility period.
ADAP, under the chairmanship of Abhinav Mukerji, conducted a virtual hearing on October 18 and issued a revised order on October 27, allowing Poovamma to return early by backdating the ineligibility period to commence from February 18, 2021.
It meant that by February 17, 2023, Poovamma had completed her two-year suspension.
Poovamma was allowed to run in the 4x400m relay on November 1 as part of the Karnataka team at the ongoing National Games through an interim order of the Anti-Doping Disciplinary Panel (ADDP) which is dealing with a fresh charge against the athlete, of violating article 10.14.1 (Prohibition against participation during ineligibility or provisional suspension).
This latest charge by NADA is astonishing.
Having specifically allowed the athlete to compete ahead of the supposed end of her ineligibility period – thereby enabling Poovamma to participate in the Sri Lankan Nationals – NADA is now trying to bring forward a charge and waste the time of ADDP and the resources of the athlete.
The more serious questions should now arise from the revised decision of ADAP to backdate the start of the ineligibility period.
Had Mr Mukerji specified the date of commencement of suspension in the appeal panel order enhancing the suspension to two years, much of the confusion could have been avoided.
Had NADA, more specifically its Law Officer, pointed out the omission of the starting date right at the beginning, there would have been little debate. He did not feel it necessary to mention any date at the time he corrected his earlier version and said there was a mistake.
ADAP, which did not go into the commencement of the suspension or the need to provide relief to the athlete because of the purported delays in processing the case, has now found enough reason to say that the athlete deserves “some benefit” on account of the delays.
The dates and the delays have been mentioned in detail in the order.
However, it cannot be said that the reasons for all the delays in the disciplinary panel proceedings could only be placed at the doors of NADA and ADDP.
It is a fact, though, that NADA took 17 months to wrap up the Poovamma case before ADDP.
If one were to recall one such instance in a big batch from among dozens of cases from the past, the one involving 11 athletes, incidentally all MHA cases, from 2010, ended only in 2012.
All the athletes received two-year suspensions beginning from the date of the decision. All the results were disqualified from sample collection dates in 2010. The batch included wrestlers, swimmers and track and field athletes among others.
The problem with cases where there is neither a provisional suspension nor a voluntarily accepted suspension by the athlete is going back to the sample collection date for commencement would be illogical, especially in cases where there have been delays.
It would mean, in the end, a “suspended athlete” had been competing all the while.
In the case of individual athletes, disqualification of results would mean the achievement, if any, would be erased. But what about team games? In most team events, a result would not be disqualified unless more than two players are involved.
The majority of the 11 MHA cases in 2010 went to appeal. The appeal panel took another two years to dispose of the petitions.
However, Justice M. L. Varma of the Appeal Panel made sure that the athletes would get some relief. Accordingly, he and his panel calculated each and every case and found that more than 300 days in each of those cases could be termed as “delays not attributable to the athlete”.
The result was by the time the appeals were disposed of, the suspension period was deemed to have ended in most cases. All the results from the sample collection date were disqualified.
As per the rules, the panels have the discretion to adjust the commencement of ineligibility and/or the disqualification of all results or some results from that date based on certain circumstances like delays.
In his order, Justice Ramachandran said, “As I have already said above, the entire controversy in this case pirouette on the question as to from which date would the penalty imposed against the petitioner come into force. This is essentially a question of fact, which can be resolved only based on various documentary and factual inputs I say so because, as rightly argued by Sri. Rajit (Poovamma’s Counsel), Ext.P5 specifically says that the petitioner’s results would stand disqualified from 18.02.2021 and that her medals, points and prizes would stand forfeited for a period of two years from that date.
“Therefore, if the afore contentions of Smt. Mini Gopinath (Union Government Counsel) is to be accepted, then the detriment the petitioner would have to face, prima facie, would run from 18.02.2021, till 16.06.2024, which would be much more than two years. When a penalty is imposed on an Athlete, it is expected to be in force only for the particular period statutorily mandated.
“Here, even though the Competent Appellate Authority ordered that her penalty would be for two years, but without specifying a date for it to commence; and if it is to be assumed - edified on Clause 15.2.2. of the Rules - that it would have to be from the date on which Ext.P4 was settled, namely 16.06.2022, then the observations in Ext.P5 - that her medals points and prices would stand forfeited from 18.02.2021 – certainly appears to be, at first blush, anachronistic.”
Mr Mukerji and the panel observed in ADAP order: “One aspect that NADA would be well advised to take note of is the interpretation in paragraphs 5 and 6 of the order of the Hon’ble High Court that has interpreted the Rules 10.10 and 10.13.2 in a particular way, which interpretation is binding of this Appeal Panel.
“The effect of the ratio of the said judgment is that in cases where the athlete does not accept provisional suspension and an ineligibility period is imposed commencing from the date of the order of the appropriate Panel, the effect of Rule 10.10 of the Rules 2021 would stand obviated else it would amount to retrospective sanction being imposed beyond the prescribed period.”
What the panel said is for NADA to note that the High Court’s order would mean that the effect of article 10.10 (disqualification of results) would stand obviated if a suspension is enforced from the date of the order.
NADA may have to look into legal options, if any.
The Union Government Counsel, as per the order, has not explained to the court that according to the rules, the usual procedure in all such cases was to commence the suspension from the date of the decision, in case there was no provisional suspension, and disqualify all the results from sample collection date.
It would be up to a panel to determine the commencement date of suspension if circumstances existed for some leniency.
This case has shown that NADA should show more diligence in studying orders issued by panels and, if needed, further clarification should be sought in case of doubt (as in this case about the date of commencement).
It must be extremely careful in interpreting or intimating a suspension period to a federation and be capable of arguing cases, not just before the panels but also before courts if the need arises.
NADA’s anti-doping rules are based entirely on the World Anti-Doping Code to which India is a signatory. It should not be difficult to explain or to brief counsels appearing for the Government or its agencies about the rules and case law when situations like these come up.
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