NEW DELHI: In a judgment which could have far-reaching implications when deciding cases involving athletes caught doping for ‘non-specified’ substances, the country’s Anti-Doping Appeals Panel (ADAP) on Tuesday let off Asian athletics bronze medallist middle-distance runner Prachi Chaudhary with a reduced punishment, absolving her from the ‘burden of proof’ of establishing that the anti-doping rule violation (ADRV) committed was unintentional after the source of the prohibited performance-enhancing drug in her body remained untraceable.
The ADAP reduced Prachi’s period of ineligibility from four years to two, making her eligible to return to competitions from December 30, 2021. She can now participate in qualifying tournaments for next year’s Commonwealth and Asian Games, apart from other national and international meets. “It’s a big day for me as I have been cleared of doping which I had never committed. I have never thought about doping in my life. Whatever I am today is because of my hard work and commitment. The last two years were difficult for me but my family supported me throughout this phase. I am happy to be back,” Prachi told TOI.
Prachi’s lawyer, Saurabh Mishra informed that the decision assumes significance as the panel has recognised the evolving jurisprudence in anti-doping procedure worldwide, which rules that establishing source of the prohibited substance in an athlete’s sample is not mandatory in order to prove absence of the intent. “I am glad that the hon’ble ADAP accepted our contention and reduced the ban period from four to two years, thereby providing relief to the athlete. It’s the first of its kind case in India of unintentional ADRV and we proved that on the balance of probability. The panel gave its decision on the basis of the totality of the circumstances,” Mishra said.
“An important aspect emerged from this case is that the government should consider creating a mechanism whereby athletes can get their food supplements tested to avoid unintentional doping caused by contaminated supplements etc. The curb on fake and contaminated supplements being sold openly in the market is also required,” he suggested.
The ADAP ruled: “The jurisprudence in the field of anti-doping laws has certainly evolved and the matter is to be considered in the totality of circumstances and on the balance of probabilities”. It noted that the ADDP had committed a “fundamental error” in procedure resulting in the “failure of justice” while rejecting Prachi’s (appellant) request to get her nutritional supplements tested for contamination after her dope failure. The ruling has come as a major embarrassment for the National Anti-Doping Agency (Nada) and the ADDP.
Prachi, an international athlete with a team silver in 4x400m relay at the 2019 Asian athletics meet in Doha, was tested out-of-competition by the Nada team on December 30, 2019 at NIS Patiala. Her ‘A’ sample tested at Qatar’s anti-doping lab in Doha returned adverse analytical finding (AAF) for oxandrolone metabolite, an anabolic androgenic steroid which is a non-specified substance under the Wada’s 2019 prohibited list. Consequently, Nada issued a notice of charge on February 20, 2020 for her dope failure and imposed an ineligibility period of four years with effect from the date of provisional suspension. She was banned until February 19, 2023.
On March 3, 2020, Prachi wrote to Nada requesting testing of her nutritional supplements to ascertain whether they were contaminated. The Uttar Pradesh athlete from Saharanpur received no response from Nada on her request and, later, the ADDP rejected her plea during hearings unlike the previous cases — Nada vs Vinay Chaudhary; Nada vs Narsingh Pancham Yadav; Nada vs Sarita Rani and Nada vs Mandeep Kaur and Juana Murmu.
The three-member ADAP, chaired by Abhinav Mukerji with Dr Vivek Singh and Prashanti Singh as its other two members, ruled in its order: “We see no reason for not entertaining the plea of the appellant to conduct chemical examination/test on nutritional supplements disclosed in the doping control form when in similar cases such pleas have been duly accepted and the tests were conducted at Nada accredited laboratory. We have no hesitation in stating that in the present case, fundamental error in procedure has occasioned a failure of justice. The error in procedure is fundamental and constitutes a failure of justice as it is of such a kind which violates the right to a fair hearing and deprives the party of justice.”
Mishra argued in the case that prior to her sample collection on December 30, 2019, Prachi’s sample was collected on 23.12.2019 where after she requested Nada to disclose results of sample collected which were not made known to her and it was presumed that the result was negative. Prior to that, Prachi underwent in-competition testing in April and May 2019 and both her samples returned negative. The athlete submitted that her present sample was collected on 30.12.2019 when there were no competitions fixed in January first or second week. Her next competition was held in February 2020, wherein fresh samples were collected which returned with negative findings. Therefore, the ADRV was unrelated to sports performance.
Mishra relied upon CAS decisions in Shayna Jack vs Swimming Australia and Arijan Ademi vs UEFA to “substantiate that it is not mandatory for an athlete to establish source of the prohibited substance in their sample to prove absence of intent”.
On the other hand, Manpreet Kaur Bhasin, advocate on behalf of Nada urged that the prohibited substance found in the urine sample is a prohibited non-specified substance and, under Article 2.1.1, it’s an athlete’s responsibility to ensure that no prohibited substance enters her body and further that under the said Article, it is not necessary that intent, fault or negligence is required to be demonstrated to attract the provisions of Article 2.1.1.
It was contended that the appellant has failed to adduce any appropriate explanation with regards to presence of prohibited substance in her urine sample. It was asserted that the appellant has no Therapeutic Use Exemption (TUE) to justify the presence of the aforesaid non-specified substance. It was submitted that the appellant has failed to discharge the burden of proof and further failed to prove that supplements disclosed by the appellant were the source of prohibited substance as she has not brought any credible evidence to substantiate her theories.
The ADAP, after hearing the two sides, further noted in its detailed order that “even though the appellant has not been able to trace and establish the origin of the prohibited substance in her body, the jurisprudence in the field of anti-doping laws has certainly evolved and the matter is to be considered in the totality of circumstances and on the balance of probabilities. As stipulated in Article 10.2.1 of the NADA ADR, the basic duration of the ineligibility period is four years when the ADRV is based on non-specified substances. However, if an athlete is able to prove by a balance of probability that the ADRV was not intentional, the period of ineligibility shall be two years, subject to potential reduction or suspension. The panel agrees that the appellant has met her burden of proof of proving that the ADRV was not intentional. In consequences, the appellant shall, therefore, be sanctioned with a two-year period of ineligibility in accordance with article 10.2.2 of ADR. The sanction of 4 years ineligibility imposed by the anti-doping disciplinary panel is set aside. The appellant is sanctioned for two years ineligibility in accordance with article 10.2.2 which shall start from the date of sample collection i.e. December 30, 2021.”
The ADAP reduced Prachi’s period of ineligibility from four years to two, making her eligible to return to competitions from December 30, 2021. She can now participate in qualifying tournaments for next year’s Commonwealth and Asian Games, apart from other national and international meets. “It’s a big day for me as I have been cleared of doping which I had never committed. I have never thought about doping in my life. Whatever I am today is because of my hard work and commitment. The last two years were difficult for me but my family supported me throughout this phase. I am happy to be back,” Prachi told TOI.
Prachi’s lawyer, Saurabh Mishra informed that the decision assumes significance as the panel has recognised the evolving jurisprudence in anti-doping procedure worldwide, which rules that establishing source of the prohibited substance in an athlete’s sample is not mandatory in order to prove absence of the intent. “I am glad that the hon’ble ADAP accepted our contention and reduced the ban period from four to two years, thereby providing relief to the athlete. It’s the first of its kind case in India of unintentional ADRV and we proved that on the balance of probability. The panel gave its decision on the basis of the totality of the circumstances,” Mishra said.
“An important aspect emerged from this case is that the government should consider creating a mechanism whereby athletes can get their food supplements tested to avoid unintentional doping caused by contaminated supplements etc. The curb on fake and contaminated supplements being sold openly in the market is also required,” he suggested.
The ADAP ruled: “The jurisprudence in the field of anti-doping laws has certainly evolved and the matter is to be considered in the totality of circumstances and on the balance of probabilities”. It noted that the ADDP had committed a “fundamental error” in procedure resulting in the “failure of justice” while rejecting Prachi’s (appellant) request to get her nutritional supplements tested for contamination after her dope failure. The ruling has come as a major embarrassment for the National Anti-Doping Agency (Nada) and the ADDP.
Prachi, an international athlete with a team silver in 4x400m relay at the 2019 Asian athletics meet in Doha, was tested out-of-competition by the Nada team on December 30, 2019 at NIS Patiala. Her ‘A’ sample tested at Qatar’s anti-doping lab in Doha returned adverse analytical finding (AAF) for oxandrolone metabolite, an anabolic androgenic steroid which is a non-specified substance under the Wada’s 2019 prohibited list. Consequently, Nada issued a notice of charge on February 20, 2020 for her dope failure and imposed an ineligibility period of four years with effect from the date of provisional suspension. She was banned until February 19, 2023.
On March 3, 2020, Prachi wrote to Nada requesting testing of her nutritional supplements to ascertain whether they were contaminated. The Uttar Pradesh athlete from Saharanpur received no response from Nada on her request and, later, the ADDP rejected her plea during hearings unlike the previous cases — Nada vs Vinay Chaudhary; Nada vs Narsingh Pancham Yadav; Nada vs Sarita Rani and Nada vs Mandeep Kaur and Juana Murmu.
The three-member ADAP, chaired by Abhinav Mukerji with Dr Vivek Singh and Prashanti Singh as its other two members, ruled in its order: “We see no reason for not entertaining the plea of the appellant to conduct chemical examination/test on nutritional supplements disclosed in the doping control form when in similar cases such pleas have been duly accepted and the tests were conducted at Nada accredited laboratory. We have no hesitation in stating that in the present case, fundamental error in procedure has occasioned a failure of justice. The error in procedure is fundamental and constitutes a failure of justice as it is of such a kind which violates the right to a fair hearing and deprives the party of justice.”
Mishra argued in the case that prior to her sample collection on December 30, 2019, Prachi’s sample was collected on 23.12.2019 where after she requested Nada to disclose results of sample collected which were not made known to her and it was presumed that the result was negative. Prior to that, Prachi underwent in-competition testing in April and May 2019 and both her samples returned negative. The athlete submitted that her present sample was collected on 30.12.2019 when there were no competitions fixed in January first or second week. Her next competition was held in February 2020, wherein fresh samples were collected which returned with negative findings. Therefore, the ADRV was unrelated to sports performance.
Mishra relied upon CAS decisions in Shayna Jack vs Swimming Australia and Arijan Ademi vs UEFA to “substantiate that it is not mandatory for an athlete to establish source of the prohibited substance in their sample to prove absence of intent”.
On the other hand, Manpreet Kaur Bhasin, advocate on behalf of Nada urged that the prohibited substance found in the urine sample is a prohibited non-specified substance and, under Article 2.1.1, it’s an athlete’s responsibility to ensure that no prohibited substance enters her body and further that under the said Article, it is not necessary that intent, fault or negligence is required to be demonstrated to attract the provisions of Article 2.1.1.
It was contended that the appellant has failed to adduce any appropriate explanation with regards to presence of prohibited substance in her urine sample. It was asserted that the appellant has no Therapeutic Use Exemption (TUE) to justify the presence of the aforesaid non-specified substance. It was submitted that the appellant has failed to discharge the burden of proof and further failed to prove that supplements disclosed by the appellant were the source of prohibited substance as she has not brought any credible evidence to substantiate her theories.
The ADAP, after hearing the two sides, further noted in its detailed order that “even though the appellant has not been able to trace and establish the origin of the prohibited substance in her body, the jurisprudence in the field of anti-doping laws has certainly evolved and the matter is to be considered in the totality of circumstances and on the balance of probabilities. As stipulated in Article 10.2.1 of the NADA ADR, the basic duration of the ineligibility period is four years when the ADRV is based on non-specified substances. However, if an athlete is able to prove by a balance of probability that the ADRV was not intentional, the period of ineligibility shall be two years, subject to potential reduction or suspension. The panel agrees that the appellant has met her burden of proof of proving that the ADRV was not intentional. In consequences, the appellant shall, therefore, be sanctioned with a two-year period of ineligibility in accordance with article 10.2.2 of ADR. The sanction of 4 years ineligibility imposed by the anti-doping disciplinary panel is set aside. The appellant is sanctioned for two years ineligibility in accordance with article 10.2.2 which shall start from the date of sample collection i.e. December 30, 2021.”
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