The National Anti-Doping Disciplinary panel, headed by Dinesh Dayal, has set a high benchmark in anti-doping adjudication by suspending taekwondo player Jitendra Verma for two years for a methylhexaneamine violation.
The June 1 verdict would have set the standard for pending MHA cases and the ones to follow. Twenty-one such cases are either pending before the panels, or are waiting to be brought forward.
Mr. Dayal, a retired Additional District and Sessions Judge, who is a stickler for rules, has made it clear that unless athletes explained how banned substances entered their system, he was not going to show any leniency under either the ‘specified substances' clause or the ‘no fault or negligence' rule.
Eleven of the pending MHA cases are being handled by well-known lawyer R.K. Anand. Postponements and adjournments have marked the hearings in these cases for more than eight months. Hearings are expected to resume next month.
Thanks to the World Anti-Doping Agency (WADA) shifting MHA from ‘non-specified' to ‘specified substances' for 2011, with a legal provision for relief in September last year, some of the athletes were able to compete in the Commonwealth Games and the Asian Games since their provisional suspensions were lifted by the National Anti-Doping Agency (NADA).
Fate of medals
The question that was always being asked, and that has now come into sharper focus, is what happens to any medal, in any competition, some of these athletes might have won since their samples that returned ‘positive' were collected, if eventually they are sanctioned?
Being a ‘specified' stimulant, MHA carries a sanction ranging from a mere warning to a two-year suspension.
Disqualification of results in the competition in question is automatic. Article 10.8 of the NADA anti-doping rules also stipulates disqualification of all the results achieved from sample collection date (“unless fairness requires otherwise”), in case of a proven anti-doping rule violation. This rule has so far not been applied by any of the disciplinary panels or the appeal panel.
The NADA should have been pressing for the application of the particular provision, but it has not. To be fair, even if NADA presses for its application in its plea, it might find it difficult to verify, in all case, whether an athlete had competed following sample collection, prior to provisional suspension, if any.
Among those who did compete after sample collection and who were suspended later were athletes Sukanya Mishra and Om Narain. Their results, prior to the test reports, were not disqualified, though the International federation (IAAF) has annulled them subsequently.
Could there be an escape route for the athletes in the wordings “unless fairness requires otherwise”? There could be, but precedents suggest otherwise.
Last October, in the UK, the National Anti-Doping Appeal Tribunal, while reducing the sanction of athlete Rachel Wallader from two years to four months on an MHA charge, disqualified all her results from sample collection date, May 1, 2010. Her provisional suspension had started on June 5.
In the US, swimmer Sean Mahoney, who was given a six-month suspension for an MHA violation in October last year, also had his results disqualified from sample collection date, June 20. His provisional suspension began on July 17.
In Britain, the suspensions have ranged from four weeks (in the case of professional footballer Simon Mensing) to six months for MHA cases.
In Australia, in contrast, in five MHA cases which were decided up to May 20 last, all were originally suspended for two years. Out of that, rugby player Kurt Foggo has recently won a reprieve from the Court of Arbitration for Sport (CAS) which reduced his suspension to six months.
No athlete has got off easily, however. The ‘strict liability' principle laid down in the WADA Code continues to apply in all cases. And, in further bad news for MHA users, the drug looks likely to be retained in the 2012 list.