Anti-doping cases: Panels err in handing out sanctions for specified substances

The National Anti-Doping Agency of India has had life easy when it comes to specified substances, as its argument often hinges on a simple statement written in the WADA Code.

'Specified substances' are so categorised as to protect the athlete from severe (four-year suspensions) sanctions. (REPRESENTATIVE IMAGE)   -  Getty Images

The past few weeks have seen surprising verdicts in at least three anti-doping cases in India. All three involved “specified substances” and all ended up in four-year suspensions.

“Specified substances” are so categorised as to protect the athlete from severe (four-year suspensions) sanctions following what could be an inadvertent ingestion of the substance either through a prescribed medication or a contaminated supplement or a routine cough syrup, among other things. The standard sanction for a “specified” substance is two years. Unless the anti-doping agency establishes that the substance was consumed intentionally by the athlete.

Disciplinary and appeal panel decisions could be vastly different for same substances. Circumstances and explanations may differ, and arguments quite often depend on the legal counsels on either side. Moreover, investigations and expert witnesses on either side can come up with irrefutable arguments and present compelling scientific evidence, leaving the panels with the unenviable task of determining a case.

The National Anti-Doping Agency (NADA) of India has had life easy in this respect. Its argument often hinges on a simple statement written in the WADA (World Anti-Doping Agency) Code itself. It is the definition of the “strict liability” principle: “it is not necessary that intent, fault, negligence, or knowing use on the athlete’s part be demonstrated by the Anti-Doping Organization in order to establish an anti-doping rule violation.”

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The strict liability principle is to pin the athlete down on the contention that the athlete is responsible for what is in his/her body. It does not, however, determine the severity of the charge. That is for the anti-doping agency to make, depending on the classification of the substance. Steroids, other anabolic agents, erythropoietin (EPO), growth hormones etc come under the “non-specified” category that may attract four-year sanctions.

Certain types of stimulants, including ephedrine, methylephedrine and pseudoephedrine that are often found in cough and cold medications, come under “specified stimulants”. Other “specified stimulants” include tamoxifen (selective estrogen receptor modulators), methylhexaneamine (made famous by 12 Indian athletes in 2010). Other “specified” substances include diuretics (used often to regulate blood pressure) that are used for increasing urinary excretion thereby helping in reducing weight that may come in useful in weight-specific sport like wrestling and weightlifting.

The idea behind such broad classification was not to penalise athletes too harshly for everything on a similar scale as steroids or growth hormones or Erythropoiesis-stimulating agents (e.g. EPO) among other potent doping agents.

In both categories, WADA also put a rider. If caught for “non-specified” substance, the athlete could establish an accidental or unintentional ingestion to plead for a milder sanction ranging up to two years, while for “specified” substance, the anti-doping agency had to prove that the athlete had intentionally consumed the banned substance in order to enhance performance in which case it could go up to four years. Otherwise, “specified substance” will be sanctioned by two years.

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In the recent cases, that of two weightlifters, Mukul Sharma and Himanshu Kumar Chang, and basketballer Arshpreet Singh Bhullar, who has been an India team member, the substances were “specified”. Sharma and Chang tested positive for tamoxifen, while Bhullar for methylhexaneamine (MHA).

Normally, one would have expected the athletes to get a maximum of two years, keeping in mind the record of NADA in presenting cases before hearing panels without any extra evidence other than the positive dope test result, the description of the substance, the responsibility of the athlete, the ‘strict liability’ principle etc. Of the 16 tamoxifen cases listed on the NADA website where sanctions by disciplinary panels had been announced, six involved two-year suspensions, three went for four years, while seven others which were also for four years involved other prohibited substances apart from tamoxifen. (Bhullar’s case has so far not been publicly announced by NADA. Apart from Sharma and Chang the other four-year sanction was on another weightlifter Baldev Guru).

Bhullar could not establish how MHA got into his system. He mentioned supplements but the panel ruled, practically quoting from NADA’s contentions: “Athlete submitted that he was consuming dietary supplements ….three months before the competition which might have prohibited specified substance or might be contaminated or the presence of specified substance could have been the possible reaction (sic) of these supplements. This stand of the athlete is not corroborated by any expert evidence either documentary or oral. The athlete has not produced any material report to support his contention that the presence of the specified prohibited substance in his body was due to reaction of the dietary supplements…”

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The panel went onto state. “The explanation offered by the athlete for consuming the prohibited substance is unbelievable and unacceptable and it clearly shows that the consumption of these prohibited substances (sic) was intentional to enhance performance and strength”

The athlete was being told his explanations were not convincing while the prime responsibility of how the athlete “intentionally” consumed the substance in order to enhance performance lay with NADA if the punishment was to go beyond two years.

On its part, NADA pointed out there was no mention of at least few supplements that the athlete claimed later on as having consumed, on the doping control form. 

How did NADA establish the basketballer’s ingestion, either through supplements or through any drug, prescribed or otherwise, was intentional? It was its duty to establish “intentional” consumption to seek a four-year sanction.

Bhullar did not appeal this order dated 17 September 2020. The 21-day period for an appeal has long been over. The Punjab player will serve a four-year suspension for a “specified substance”. Who will compensate him? How can careers be destroyed like this? Both the weightlifters appealed their four-year suspensions handed down by the disciplinary panels. Both failed to get a favourable decision from the appeal panel.

Mukul Sharma told the panels he could not exactly explain which supplement or what could have caused the positive result for tamoxifen. The appeal panel noted NADA’s arguments for an “intentional” violation as: The positive result itself, the non-disclosure of the supplements or medication in the doping control form, lack of explanation as to how the substance could have entered the body.

It is not that the appeal panel did not delve into the crux of the Code clause relating to “specified substance”. It wrote in its order: “The onus to establish intention is on NADA, which can be discharged by balance of probability similar to what is required to establish a professional misconduct (Article 3.1).”

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In both its assumption that NADA had proved “intention” and its understanding of standards of proof (Article 3.1), the panel was wrong. NADA’s only arguments related to the absence of a mention of supplements in the doping control form and the lack of explanation regarding how the substance entered the system. The appeal panel goes along with this line of reasoning when it says: “The duty and strict liability imposed under Article 2.1 to ensure that no Prohibited Substance enters his/her body, continues to be on the Athlete, and is not wiped out. As such, the Athlete shall still be under a duty to cogently explain how the Prohibited Substance entered his/her body”.

For an anti-doping authority the standard of proof in all cases is greater than a mere balance of probability but less than proof beyond reasonable doubt. For the athlete the standard is always “balance of probability".

In recent case of Australian swimmer Shayna Jack and a few other CAS (Court of Arbitration for Sport) rulings referred to in the swimmer’s first-instance order by a single CAS arbitrator, it has been argued that the Code does not seek an explanation about how the substance entered the body in determining how to establish “unintentional ingestion”.

Shayna Jack on the podium after winning silver medal in 4x100-meter freestyle final of World Aquatics Championships, Budapest.   -  AP Photo

 

The Jack case happened to be that of Ligandrol, an anabolic substance that comes under the same category as steroids. That two-year suspension, instead of four years which could have been expected, has now been appealed by both the Australian anti-doping agency and WADA in CAS.

We are referring to a set of “specified substances” cases in the Indian context. There is no requirement here for the athlete to explain how the substance entered his/her body. There is no stipulation that demands an athlete should prove “unintentional” use but the final arguments that clinched the verdict conclusively against Sharma suggested that he had failed to explain how tamoxifen entered his body.

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The case of Himanshu Kumar Chang, who tested positive at the National weightlifting championships in 2019, is curious mix of a wrong category of substances and a wrong clause in the rules being applied by the disciplinary panel. The appeal panel, as in the other two cases mentioned here, tries to argue that the route the substance has taken has to be established in all cases.

Chang was charged with an infraction in May 2019. At the provisional hearing, he explained that the positive result had come from a medicine prescribed by his family doctor. When the matter was finally disposed of, the disciplinary panel wrote that it was a “non-specified” substance and the sanction had to be four years based on Article 10.2.1.1 (applied to non-specified substance) and not 10.2.1.2 that gives two years for a “specified substance” which tamoxifen is.

Chang’s lawyer went into appeal based on this erroneous conclusion of the disciplinary panel n plus other points.

“There was no mention of this (the wrong rule mentioned and the thus the wrong sanction ordered) in the appeal panel order,” said lawyer Parth Goswami.

The appeal panel upheld the disciplinary panel’s decision. The points that went against Chang and stressed by NADA were: The athlete knew he was suffering from a medical condition, he took doctor’s advice, took medicine for a long period and yet did not seek a therapeutic use exemption (TUE) from NADA. Moreover, there was no mention of the medicine (Tamodex 20mg) prescribed by his doctor in the doping control form. That, as per NADA, showed his intention to continue using a substance that was banned and for which he had not got a TUE. There was a stage, as per the order, when the athlete applied for a retroactive TUE for the use of the medicine prescribed by his doctor, but he did not press for it. There apparently is no clear indication as to when the athlete stopped taking the medicine.

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His doctor advised the use of it on two occasions, first in December 2018 and then for one month from 10 January 2019. The sample was collected on 28 February 2019. The athlete argued he was under no obligation to write the medicine in the doping control form since it required a list of substances taken during the previous seven days only. He claimed he had stopped it earlier.

Without going into the merits of the arguments about the lack of a TUE (a large number of athletes do not apply for a TUE while they do produce prescriptions at the time of hearing), can an athlete’s suspension for two years or four years hinge on just the absence of a TUE?

Or the claim that there was no reference to the medicine in the doping control form?

Panels tend to explain decisions as though for an athlete to be given a two-year sanction for a “specified substance”, the athlete needs to explain how the substance entered his or her body. That is not stipulated in the rules.

The glaring disparities in interpretation of the rules, within a country or from organisations and panels in different countries should prompt WADA to hold workshops and seminars for the benefit of those who determine the fate of athletes. There is a responsibility for anti-doping organisations also to present cases in such a manner justice rather than a harsher sanction is meted out to the athletes.