After contradictory reports and statements were made in the media, the saga of Narsingh Yadav gains some clarity with the publication of the CAS decision overturning the decision of the Anti-Doping Disciplinary Panel (ADDP) of the National Anti-Doping Agency (NADA) exonerating him.1
Narsingh
Yadav’s disqualification after his having been sent to Rio cost
India a shot at an Olympic medal in the 74kg category in the men’s
freestyle wrestling event. The question being asked, naturally, is
who is to blame? The CAS decision does shed some light.
I.
The
undisputed facts are these. Narsingh Yadav was training at the Sports
Authority of India (SAI) training facility at Sonepat. On 6 June
2016, he left to attend a training camp in Bulgaria and returned on
23 June. On 25 June and 5 July, urine samples were collected from
Narsingh to be tested for banned substances. In July, the samples
were tested, and the presence of metabolites of methandienone was
detected (methandienone is a Prohibited Substance under the WADA Code
and if its metabolites and markers are found in an athlete’s body,
it is as good as a finding of the substance itself). Narsingh was
provisionally suspended. The ADDP of NADA held hearings between 23
and 29 July, and delivered its decision on 1 August clearing Narsingh
as being a victim of sabotage and therefore shouldering no fault. It
bears mentioning here that under the NADA Code 2015 (as under the
WADA Code 2015, which NADA has limited room to adapt or amend), if a
prohibited substance is found in an athlete’s body for whatever
reason, the athlete can be said to have doped, unless he or she can
can either disprove the presence of the prohibited substance or
establish that he or she bore no fault for the prohibited substance
being present.2
The
presence of the substance was not disputed by Narsingh. However, he
insisted that his drink had been contaminated by Jitesh, a wrestler
training at a rival akhara (run by Sushil Kumar’s
father-in-law and where Sushil Kumar himself trains). A wrestling
partner of Narsingh’s, Chandan, alleged that the food prepared for
Narsingh had been contaminated with a powder and hence he threw it
away. However, he did not mention this to Narsingh at the time. While
Narsingh left for Bulgaria the following day, this meant that the
alleged sabotage attempt was not reported for about a month.
Narsingh’s
roommate and training partner, Sandeep Yadav, had also been tested on
25 June, and his sample was also found to be contaminated, though
with a slightly different substance (methandienone, rather than
metabolites of methandienone). Three kitchen workers testified before
the ADDP that they had seen Jitesh in the kitchen, with one having
seen him pour a powder into the curry and another having seen the
curry “frothing unusually”. However, this batch was thrown away
before being consumed and so could not be the source of the
prohibited substance which entered Narsingh’s system.
Narsingh
alleged that the methandienone had been added to his drink during a
training session, and provided NADA with a list of food and
nutritional supplements that he was taking. However, the National
Dope Testing Laboratory (NDTL’s) report stated that it had not
detected any banned substance in any of the supplements. On the basis
of this report, the ADDP held that Narsingh had established No Fault
or Negligence. The Comment to Article 10.4 (“Elimination of the
Period of Ineligibility where
there is No Fault or Negligence”)
of the NADA Code 2015 states that “[Article 10.4 and 10.5.2] 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” (emphasis added). It is
difficult to argue that Narsingh had taken all due care, given that
the first alleged attempted sabotage was not reported until after the
first dope test, and given that he did not take steps to protect his
food, as fellow wrestler Yogeshwar Dutt did, by avoiding the food in
the SAI common kitchen,3
and it is difficult to see
how NADA arrived at a No Fault or Negligence ruling in the
circumstances. It has been alleged that the media attention and
raising of the issue in Parliament prompted the
placing of political
pressure on NADA
that may
have influenced its
decision.4
II.
Article
10.2.1.1. of the 2015 WADA Code provides for a four year ban unless
the athlete can establish that the anti-doping rule violation was not
intentional, and
WADA routinely appeals decisions of National Anti-Doping
Organisations in which the maximum penalty of four years is not
imposed.5
It was inevitable that WADA would appeal this seemingly unjustified
decision of the ADDP. WADA made an application before the Ad hoc
Division of CAS established to adjudicate disputes at the Rio
Olympics.
The
ongoing competition requires the Ad hoc Division to arrive at its
decision quickly, sometimes within 24 hours, which is a necessary
compromise to the thoroughness of the decision making process.
However, Narsingh was left especially under-prepared to make his
case. WADA filed its appeal on 13 August at 19:00 Rio time. It was
only confirmed that Narsingh was aware of the application on 15
August at 16:30. 15 August being Independence Day and so a public
holiday in India, Narsingh’s lawyer in India did not receive the
application even as late as 20:00 on 15 August Rio time or 04:30 on
16 August IST (Rio being eight and a half hours behind India time).
Narsingh filed his answer on 16 August at 08:45 Rio time or 17:15
IST.6
The hearing commenced at 09:00 Rio time. This left Narsingh’s
counsel with at most 12 and a half hours to prepare and file the
Answer as well as prepare for oral submissions, despite WADA having
filed it about 60 hours before the hearing commenced. Here, the
Indian Olympic Association (IOA) and NADA must be faulted for not
facilitating the procurement of legal counsel for Narsingh sooner, or
for rejecting the pro bono counsel stationed in Rio and offered to
the Respondents. NADA eventually raised only procedural issues before
CAS.
Consequently,
no expert evidence could be produced by Narsingh’s counsel. On the
other hand, WADA employs several experts, and was the Applicant
besides, and had Dr. Christiane Ayotte, the director of a doping
detection laboratory, to testify. Dr. Ayotte testified
that: (a) methandienone would not completely dissolve in a drink,
even if it had been ground down, hence Narsingh would have detected
it in his drink; (b) the concentrations of methandienone were not
consistent with a few micrograms having been ingested as a dispersed
powder in a drink taken even the day before (since it was argued that
the drink must have been spiked during a training session on either
23 or 24 June), and were more
consistent with the methandienone being ingested in a therapeutic
dose, and (c) by the time the
second sample of 5 July was taken, the concentration of the long term
metabolite was too high to be consistent with a single ingestion. In
response, Narsingh’s
counsel could merely argue
that the supplement consumed by Narsingh was not completely soluble,
and when mixed with water would create floating fragments, making the
presence of the added methandienone undetectable by the
naked eye. The
CAS Panel found no reason to disbelieve Dr. Ayotte.
The
evidence cast significant doubt on the version that the banned
substance was added to Narsingh’s drink during training, and
if this version was rejected, no probable source of the prohibited
substance could be identified.
It was irrelevant whether Narsingh intentionally doped or not; he
could not prove that he had taken all due care and thus could no
prove that he bore No Fault or Negligence (no penalty) or No
Significant Fault or Negligence (two year penalty). While
the Panel can rely on circumstantial evidence, the
standards of proof in such
cases are extremely high. In
Puerta v ITF,7
the Panel held that the Player had not proved No Fault or Negligence
when he failed to replace his glass of water or drink from a bottle
after a brief visit to the changing room, during which time his glass
got switched with his wife’s, which contained residue of her
prescribed medication. The
Panel in Narsingh’s case,
however, discussed
the cases
of ITF v Gasquet,8
where the Panel held that the
player acted
without fault or negligence when cocaine entered his body by his act
of kissing a woman who, unbeknownst to him, had taken
cocaine,9
and Van
Snick v FIJ,10
where it was found that sabotage was the likeliest cause for the
presence of cocaine metabolites in the body of the athlete.11
However, in both of those cases, the Panel found that the athlete had
no cause to ingest the prohibited substance (cocaine offers no
competitive advantage in the small doses detected) and crucially, the
source could not be identified. This did not make the theory of
sabotage credible.
III.
Thus,
if blame must be apportioned for India’s automatic disqualification
from the 74kg category in the
men’s freestyle wrestling event, who
must bear it?
Certainly,
Narsingh himself shares some blame, since, even if he did not
intentionally dope (and some of the evidence does suggest that he
did), he did not guard his food with the level of care expected of an
elite athlete. Some of the evidence does suggest that an attempt at
sabotage was made; however, that evidence was never seriously
challenged – it seems that the NADA counsel never got the chance to
cross-examine the witnesses produced by Narsingh when the matter was
before the ADDP,12
and the witnesses did not appear in person or face cross-examination
during the CAS hearing – and in any case, since the food was thrown
away, it did not establish the source of the methandienone.
Narsingh’s wrestling partner, Chandan, inexplicably failed to
mention the attempt to Narsingh. The IOA and NADA were late in
facilitating Narsingh’s access to legal counsel. And the ADDP of
NADA produced false hope by delivering what appears on the face of it
to be an unjustified decision.
Some
of the blame must also go to Wrestling Federation of India (WFI).
Yes, they followed the tradition of sending the wrestler who secured
the Olympic quota (a tradition that has not always been followed),
but they did not consider the embarrassment
that would have followed – and did follow – the decision
being overturned. The reason for the quota going to the country and
not the wrestler is because of the sport being uncertain, with
chances of injuries and rises and dips in form,13
and given the risk and controversy, the WFI might have gone with
Sushil Kumar (medal winner at Beijing 2008 and London 2012), Parveen
Rana (the WFI’s original backup after Narsingh’s samples tested
positive), or Amit Dhankhar (a
younger wrestler, and gold medallist at the 2011 and 2013
Commonwealth Wrestling Championships).
1World
Anti-Doping Agency (WADA) v Narsingh Yadav & National
Anti-Doping Agency (NADA), CAS OG 16/25.
2National
Anti-Doping Agency, ‘Anti Doping Rules 2015’, Article 2.1,
http://www.nada.nic.in/View/Downloads/writereaddata/NADA_Anti_Doping_Rules_2015.pdf.
3Jonathan
Selvaraj, ‘Sushil Kumar-Narsingh Yadav saga: A tale of rivalry,
conspiracy and aspiration’ The Indian Express (2
August 2016)
http://indianexpress.com/sports/rio-2016-olympics/narsingh-yadav-sushil-kumar-saga-a-tale-of-rivalry-conspiracy-and-aspiration-2946995/.
4K
P Mohan, ‘A Long Road Ahead for Narsingh Yadav’ The Wire (21
August 2016)
http://thewire.in/60525/a-long-road-ahead-for-narsingh-yadav/.
5Antoine
Duval and others, ‘The World Anti-Doping Code 2015: ASSER
International Sports Law Blog symposium’ (2016) 16(1) ISLJ 99,
102.
6The
Award says that the Answer was filed on 15 August at 08:45, but this
is certainly a typographical error.
7Mariano
Puerta v International Tennis Federation (ITF), CAS/2006/A/1025.
8International
Tennis Federation (ITF) v Richard Gasquet, CAS 2009/A/1926.
9The
Panel in ITF v Gasquet would have arrived at a finding of No Fault.
However, the Player merely prayed for a dismissal of the appeal of
WADA from the decision of the ITF Tribunal finding No Significant
Fault. Hence, the Player still faced penalty.
10Charline
Van Snick v Federation Internationale de Judo (FIJ), TAS
2014/A/3475.
11The
Award is rendered only in French, and French speakers may find it
profitable to consult the text at
www.tas-cas.org/fileadmin/user_upload/sentence_3475__final__internet.pdf.
A press release by CAS in English may be found at Court of
Arbitration for Sport, ‘The CAS annuls the suspension of Charline
Van Snick’
http://www.tas-cas.org/fileadmin/user_upload/Media20Release20_English_203475.pdf.
12K
P Mohan, see above.
13Sukhwant
Basra, ‘Yogeshwar Dutt’s tame loss shows what’s wrong with
Indian wrestling right now’ Hindustan Times
(21 August 2016)
http://www.hindustantimes.com/olympics/yogeshwar-dutt-s-tame-loss-shows-what-s-wrong-with-indian-wrestling-right-now/story-f0oKzXdsXL4phmlxSH4jHL.html.