Anti-doping authorities have heard many conspiracy theories through the years to explain doping infractions. They have also heard — and continue to hear — a variety of arguments to establish "accidental ingestion" of prohibited substances. However, the "I-don't-know-how-it-happened" argument has rarely been successful in a doping case. Blaming an imaginary adversary also never helps.
Canadian Ben Johnson did it in 1988 when he was caught doping after a sensational world record-breaking (9.79s) win in the 100metre sprint at the Seoul Olympics. He said his energy drink was spiked by a stranger. No one accepted that theory, and he was banned for three years, during which time he admitted to systematic doping. A second positive test in 1993 earned him a life ban.
Ever since the World Anti-Doping Code came into operation in 2004, it has had a clause that took care of sabotage or an "accident" that resulted in an athlete ending up with a positive dope test. The clause was titled 'No fault or negligence'. In the 2009 anti-doping code, it was explained in Article 10.5.1. Today, in the revised Code of 2015, it is listed under Article 10.4.
This article 10.4 was the crucial clause that helped wrestler Narsingh Yadav escape any form of sanction, even a "reprimand", which is the lowest end of punishment in the anti-doping domain. "If an athlete or other person establishes in an individual case that he or she bears 'no fault or negligence', then the otherwise applicable period of ineligibility shall be eliminated," it states.
The clause had an extension in the 2009 Code: "When the prohibited substances or its markers or metabolites is detected in an athlete's sample in violation of Article 2.1 (Presence of Prohibited Substance), the athlete must also establish how the prohibited substance entered his or her system, to have the period of ineligibility eliminated."
This particular condition is available today in the "definitions" part of the revised code. It states that in order for the 'no fault or negligence' clause to be applicable, the athlete should be able to prove that "he or she did not know or suspect, and could not reasonably have known or suspected even, with the exercise of the utmost caution, that he or she had used or been administered the prohibited substances or prohibited method."
But an athlete would be expected to explain how it entered his or her system since the "strict liability" principle stipulates that "it is each athlete's personal duty to ensure that no prohibited substance enters his or her body". "Athletes are responsible for any prohibited substance or its metabolites or markers found to be present in their samples. Accordingly, it is not necessary that intent, fault, negligence or knowing use on the athlete's part be demonstrated in order to establish an anti-doping rule violation under Article 2.1," it states.
No one knows the submissions made by witnesses in writing as well as orally in the Yadav case, which saw "in-camera" deliberations of a dope case hearing for the first time in India since the birth of the National Anti-Doping Agency (NADA) in 2009.
It also saw an extended session among panel members and select witnesses who apparently deposed before them, perhaps in order to corroborate what had been stated in the affidavits earlier. Most pertinently, however, lawyers on either side were not present at this sitting. The NADA lawyer was on record that he did not have any information. Had he been present, it would have been his right to cross-examine the witnesses.
But can a witness come forward and admit that he or she had put a particular banned substance in the food or drink of an athlete? And can that be taken in as evidence enough to reprieve the latter?
Dr PSM Chandran, writing in an article in The Hindustan Times dated 3 August, argues, "The present NADA panel's verdict on Yadav has in a way offered a way out for those accused of doping to escape punishment in future. Anyone who wants to take a banned substance has to ask a colleague to mix it with his food. When a positive emerges, the athlete can claim that he did not take it intentionally, and it might have been administered to him by someone else. To substantiate this argument, his colleague can come before the hearing panel and confess that he did mix the banned substance in the food."
Dr Chandran is the president of the Indian Federation of Sports Medicine, and more significantly, happens to be one of the 15 members of the Anti-Doping Disciplinary Panel (ADDP) appointed by the government of India.
He himself happened to have been a member of a panel a couple of years ago which rejected the contention of an athlete that his tea was mixed with a banned steroid by a member of the staff at a hotel where he was staying. The man who claimed he had indeed mixed such a drug in the tea, deposed before the panel which eventually rejected the argument and imposed a two-year sanction on the athlete.
The explanation for the provision in the code comes in the form of a comment: "They will only apply in exceptional circumstances, for example where an athlete could prove that despite all due care he or she was sabotaged by a competitor."
How did the intruder get inside the SAI Regional Centre where the camp was on, to mix methandienone in the amino drink that Yadav was having during training?
The word "competitor" is important here, and of course the circumstances. How did the intruder get inside the SAI Regional Centre, Sonepat, where the camp was on, to mix methandienone in the amino drink that Yadav was having during training? Was there no one else in the training hall to notice that an intruder was approaching?
Though Yadav's ingestion of the substance is apparently being explained by the "amino drink theory", there has been no explanation about the other Yadav, Sandeep Tulasi, his sparring partner and roommate, who also tested positive for the same steroid. The question naturally arises: Did Sandeep Yadav also take a swig from the contaminated amino drink?
These questions, apart from several others, one presumes, would have been answered to the satisfaction of the hearing panel. NADA has withheld the order of the panel from the media so far, again much against tradition followed since 2009.
A clause related to the 'no fault or negligence' argument is the 'no significant fault or negligence' clause, which is easier to argue and establish. In the pre-2015 rules, under this clause, there could only be reduction of sanction by half the otherwise applicable period of ineligibility. Now, under a sub-clause of "contaminated products", the code allows for a complete reprieve in case it is established that the positive test was caused by a contaminated product which does not give a clue about the drug on its label.
Yadav was initially pinning hopes on the "supplements angle", but the supplement he provided for testing came back negative.
One of the more famous cases of a plea of 'no fault or negligence' happened to be that of French tennis player Richard Gasquet. In 2009, he had claimed that his cocaine positive was the result of his kissing a mysterious "Pamela" in a discotheque. The ITF Tribunal suspended him for two and a half months. WADA appealed to CAS against this decision of the ITF. Pamela's hair provided a positive result for cocaine and the CAS panel agreed with the French player. It upheld the ITF decision. But there was no complete reprieve.
Chinese athlete Sun Yingjie tried to place her trust in a stranger giving her a drink and she consuming it and testing positive. She had won the 10,000m at the Chinese National Games when she was tested, while the day before she had won the Beijing Marathon and cleared her dope test.
Yingjie changed her version of how the substance got inside her later by accusing her friend Yu Haijiang, also an athlete, who she claimed, had slipped the banned drug in her drink. She won a civil case against her friend, in an apparent bid to influence the decision of the anti-doping panel, but failed before the Chinese Athletics Association which banned her for two years in 2006. It also banned her coach Wang Dexian for life since he had an earlier case of doping of another of his trainees.
The 'no fault or negligence' clause is rarely applied successfully in anti-doping rule violation cases. WADA, if it appeals the Yadav case before CAS (it looks very likely that it will), is expected to raise all these points in seeking annulment of the Indian panel's decision. It may be compelled to go in for appeal considering the wide ramifications the decision of the Sanjay Mani Tripathi-headed ADDP will have at least in future doping cases in India.
WADA could be expected to complete the procedures at the earliest instead of waiting for the appeal period at its disposal to reach the deadline, that is within 21 days after receiving all relevant files of the case from NADA. Yadav's bout is on 19 August and he could be expected to be free for all other formalities at least by 18 August.
The CAS ad hoc division regulations say that its panel, drawn from regular panel members of the CAS present in Rio during the Olympics, would dispose of the case in 24 hours unless there are exceptional circumstances. Already the CAS ad hoc division had received 18 cases as on 3 August after it started functioning on 26 July, CAS has stated. Some of the cases had been disposed of.
The CAS panel in Rio may deal with the most urgent matter in a case and, if found necessary, transfer part of the proceedings to a regular CAS panel for a later date. It will also have the authority to grant an interim stay on any matter if deemed fit.
Published Date: Aug 05, 2016 09:48 am | Updated Date: Aug 05, 2016 10:25 am