More than three years after he tested positive, shattering his ambitions of becoming an Olympian, shot putter Inderjeet Singh finds himself at the wrong end of a decision by the Court of Arbitration for Sport (CAS) which has set aside his exoneration by an Indian appeal panel and upheld the contention of the World Anti-Doping Agency (WADA) that he ought to be suspended for four years.
The case has taken many twists and turns through these past three years. It is rare that a disciplinary panel would find an athlete guilty of an anti-doping offence, based on two separate urine samples, both reported for adverse analytical findings for steroids, and, on appeal, another panel would find that both results deserved to be thrown out since there were discrepancies in procedures.
Inderjeet had initially alleged ‘sabotage’. Once the case came up before the Anti-Doping Disciplinary Panel (ADDP), the arguments were mainly based on procedural lapses in collection, chain of custody, transportation of sample, testing etc.
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The ADDP rejected all such arguments and handed down a four-year sanction with effect from 25 July 2016, the date of provisional suspension of the athlete. This was in July 2018. The hearing took two years mainly because the panel had to be changed mid-stream since some members had completed their tenure.
Inderjeet appealed to the Anti-Doping Appeal Panel (ADAP) which in a landmark ruling on 14 December 2018, ordered that the ADDP decision be set aside and the athlete be exonerated.
Inderjeet’s counsel, Mr. Anish Dayal, brought in the same arguments that he had put forward before the ADDP, chaired by Mr. Manik Dogra, while presenting his case before the ADAP, headed by Ms. Vibha Datta Makhija.
While the ADDP concluded that even though there were discrepancies in the procedures, the athlete was not able to establish that these departures from International Standards (for laboratories and testing) had led to the adverse analytical finding.
This was the crux of the issue. Did the departures from standards, like his first sample being transported in a bus during the peak of North Indian summer that would raise doubts about temperature control, or that sample being kept in the home refrigerator of the Dope Control Officer (DCO) before being sent to NADA, lead to the adverse analytical finding? Or for that matter the discrepancy in the volume of urine recorded for the second sample in the doping control form and at the time of receipt at the laboratory indicate a serious lapse that could have led to the positive test report?
The first sample was an out-of-competition one collected at Bhiwani, Haryana, on 22 June 2016 and the second an in-competition sample collected during the Inter-State championships in Hyderabad a week later. The second one which happened to have been the first to be tested, initially returned a ‘negative’ result. The first one, in the meantime, returned a positive result for the precursors and metabolites of steroid testosterone. Later the second one, subjected to more sophisticated tests also returned similar results as the first sample.
The World Anti-Doping Agency (WADA) appealed the decision of the Indian appeal panel in February this year to CAS. It argued that the ADAP decision was wrong since the athlete was not able to prove that the discrepancies in procedures could have reasonably led to the adverse analytical findings. In both cases it was pointed out that the seal of the bottles was intact at the time of opening and there was no report to indicate that the seal was tampered with.
In short, the sole arbitrator, Mr. Markus Manninen of Helsinki, Finland, seems to have gone by WADA’s contention that there was no evidence on record to establish that the deviations, if any, in sample collection, transport, chain of custody or testing procedures, could have led the adverse analytical finding.
WADA also brought in expert opinion by Dr Martin Saugy, former Director of the WADA-accredited Lausanne laboratory, to assert that Inderjeet’s steroid ‘passport’ showed values that indicated doping.
It was on the advice received on Anti-Doping Administration and Management System (ADAMS) on deviations in the steroid profile in the athlete biological passport (ABP) that NADA sought IRMS (isotope ratio mass spectrometry) analysis of the Hyderabad sample which confirmed steroid use.
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Could the recent decision of WADA to suspend the New Delhi laboratory have provided some relief to Inderjeet? On 9 September 2019, the athlete sent an e-mail to CAS to bring to its notice the suspension of the National Dope-Testing Laboratory (NDTL), New Delhi, by WADA for a period of six months beginning 20 August for “not conforming to the international norms of testing”.
However, WADA, on being asked to respond to this communication from the athlete, informed CAS that the “non-conformities” that led to the suspension of the laboratory “did not affect the positive analytical results” of the athlete from 22 June and 29 June 2016.
NADA sided with WADA and the latter’s arguments that the ADAP decision was wrong and should be set aside. It also pleaded that it be spared from paying costs. But eventually it was asked to pay costs that could run into several lakh rupees.
The sole arbitrator has not only asked NADA to pay 3,000 Swiss Francs (around Rs 2.13 lakh ) to WADA towards its legal fees and expenses but also slapped the cost of arbitration (to be determined by the CAS office and which could be several times more than WADA’s legal costs) solely on the Indian agency. A similar amount of 3000 Swiss Francs will also have to be paid by Inderjeet Singh towards WADA’s fees.
Mr. Manninen has evidently arrived at this rather harsh decision based on his reading of the NADA anti-doping rules and the latter’s “inability” to appeal the case once the appeal panel in India ruled in favour of the athlete on his appeal.
The CAS arbitrator’s conclusion about the NADA rule (or WADA regulation) is seemingly on the assumption that NADA had an appeal window open in this case even after the appeal panel had disposed of one appeal at the national level. It does not have.
“Pursuant to Article 13 of the NADA Rules, NADA had the right to appeal the Appealed Decision which NADA now considers erroneous. However, NADA chose not to exercise its right and thereby left WADA with the decision whether to appeal. Furthermore, the Appealed Decision was rendered by a tribunal established under the NADA rules, for which NADA is responsible…
“In light of the relevant elements, the Sole Arbitrator finds it reasonable that NADA shall bear the costs of this arbitration. In addition, the Sole Arbitrator holds that NADA and the athlete shall pay the amount of CHF 3,000 each to WADA…”
Article 13 deals with “appeals”. Article 13.2.1 is related to “appeals involving international-level athletes or international events”. These cases could be appealed exclusively to CAS. The “international-level” athlete as per International Association of Athletics Federations (IAAF) definition is one who is under its Registered Testing Pool (RTP) or one who has competed in select international meets designated by it. Inderjeet was not in the IAAF RTP in 2016 nor did he compete in any international event.
Article 13.2.2 deals with “appeals involving other athletes or other persons”. These could be appealed to the national anti-doping appeal panel.
The national appeal panel rendered a verdict on an appeal from the athlete after ADDP sanctioned him with a four-year suspension. The appeal panel exonerated the athlete. That decision was appealed by WADA. NADA had no authority to challenge it in CAS.
Article 13.2.3 states: “For cases under Article 13.2.2, WADA, the International Olympic Committee, the International Paralympic Committee, and the relevant International Federation shall also have the right to appeal to CAS with respect to the decision of the national-level appeal body.” There is no mention of NADA here.
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In the 2011 doping case involving six woman quarter-milers that went up to CAS which imposed two-year sanctions (standard at that time), the appeal was made by the IAF. Half the arbitration costs was slapped on the Athletics Federation of India (AFI) with the other half to be shared among the athletes. NADA was spared at that time. The sole arbitrator then also did not ask the ‘losing party’ to share the appellant’s legal costs.
In the meantime, according to a report in Sportstar , the athlete seems to be contemplating another appeal.
There is no further appeal left for Inderjeet unless his counsel is planning to appeal to the Swiss Federal Tribunal. Normally the SFT does not go into the merits of the case and only deals with certain limited aspects like whether the panel had been duly constituted etc.
The CAS code 2019 says: “The award, notified by the CAS Court Office, shall be final and binding upon the parties subject to recourse available in certain circumstances pursuant to Swiss Law within 30 days from the notification of the award by mail or courier. It may not be challenged by way of an action for setting aside to the extent that the parties have no domicile, habitual residence, or business establishment in Switzerland and that they have expressly excluded all setting aside proceedings in the arbitration agreement or in a subsequent agreement, in particular at the outset of the arbitration.”
Meanwhile, the CAS award, while stating that Inderjeet’s provisional suspension period would be adjusted against the total period of suspension, as is the normal practice, has also annulled all his results from sample collection date “up until the beginning of his provisional suspension””. But there is no mention of his results achieved after the ADAP exonerated him and he started competing again.
At least from the beginning of this year, he has competed in seven meets including one at Bishkek, Kyrgyzstan, while winning all but one of them, the Indian Grand Prix meet at Patiala, in February this year. Among his wins was the Inter-State title at Lucknow in August with a season best 19.73m.