WADA v Narsingh Yadav - Who's to Blame?

 (photo credits: PTI Photo)

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.

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The Curious Case of Dutee Chand

Earlier this week, Indian sprinter Dutee Chand qualified for the Rio Olympics in the women’s 100m event, but the journey hasn’t been easy. 

In 2014, she underwent a routine doping test in which it was found that she had unusually high levels of testosterone. Testosterone doping was common in both male and female athletes in the 1980s as the substance contributes to performance, and was difficult to detect as it is produced naturally in the body. However, Dutee Chand had not doped on testosterone, but had a condition called ‘hyperandrogenism’, by which her body naturally produced higher levels of testosterone than is typical in women. The regulations of the International Association of Athletic Federations (IAAF), the world governing body of athletics, prescribed that athletes with testosterone levels above 10nmol/L could not compete in women’s events, and, bound by the regulations, the Athletics Federation of India (AFI) suspended Dutee Chand.

Dutee Chand wrote an impassioned letter, pleading to be allowed to participate as it was no fault of hers that her body produced high testosterone levels, and was no different from other advantages enjoyed by athletes such as height or privileged background. She was born and brought up a woman, identified as a woman, and ought to be allowed to compete with other women. In essence, she pleaded that the Hyperandrogenism Regulations operated as a ‘gender test’ under which she was not considered female enough to compete. Not being allowed to do so would cause her to be shunned in her village. Ridicule and discrimination is commonly faced by female athletes whose femininity comes into question, such as Caster Semenya of South Africa or Santhi Soundarajan from Tamil Nadu, though in both of those cases, the athletes reportedly failed ‘gender tests’. Dutee Chand was offered medical intervention, but she said that did not want to undergo such procedures, which would cause health risks, despite pressure put on her by her sponsor.

The case went up to the Court of Arbitration for Sport (CAS). Before it, the IAAF denied that their Hyperandrogenism Regulations were gender tests, and said that while it recognised that sex in humans is not binary but a continuum, it was necessary to devise a dividing line between male and female categories for sports competitions to prevent unfairness to female athletes who were, on average, less powerful than their male counterparts. However, it was correctly pointed out that the tests only applied to female athletes, and male athletes with unusually high levels of testosterone were not barred from participating with other male athletes. 

Dutee Chand also challenged the scientific basis of the Regulations, contending that it could not be shown that elevated levels of natural testosterone gave elite athletes a performance advantage or that medical science was presently capable of delineating distinct testosterone ranges for male and female athletes. Previous decisions of the CAS had ruled that the CAS could indeed reject a finding of doping if the test used was unscientific. 
CAS ruled that while there was definitely a relationship between testosterone and athletic performance, and while Dutee Chand was unable to show that there was a difference in the effects of endogenous (produced in the body) testosterone and exogenous (introduced into the body by injection or some other method) testosterone, it was unclear to what degree hyperandrogenic female athletes enjoyed over other female athletes. Therefore, it could not be said that female athletes having levels of testosterone above 10nmol/L would enjoy a competitive advantage over other female athletes equivalent to a male athlete, rather than a marginal advantage equivalent to any other factor that contributed to athletic performance like height, etc. 

On that basis, CAS has suspended the application of the Hyperandrogenism Regulations for two years during which time the IAAF may produce concrete evidence of the magnitude of the competitive advantage enjoyed by hyperandrogenic female athletes over other females. In the meantime, Dutee Chand qualified for the Rio Olympics and has also won gold medals at the recent National Open Athletics Championships, but if the IAAF is able to establish that her level of testosterone gives female athletes an advantage equivalent to that of a male athlete, the bar on her competing could well be restored thereafter. 

This decision of CAS is heartening for female athletes who may face humiliation for their failure to appear “female enough” and will force sports governing bodies to account for outliers like Dutee Chand in categorising athletes as male or female. After all, elite level sport is filled with athletes who display not only extraordinary hard work, but also extraordinary genetics, like Michael Phelps or Tiger Woods. 

Another point bears mentioning. Dutee Chand is the only Indian athlete to have been successful before CAS. Contesting a case before CAS is highly expensive, costing tens of thousands of Swiss francs in arbitrators’ fees and expenses alone (though an athlete may apply for legal aid which covers the court fees and includes free legal counsel) and winning a case often hinges on producing superior evidence by calling in medical experts and sports scientists, and may require engaging a foreign lawyer. A foreign lawyer may be required for his training in Swiss law, because CAS, while an international tribunal, is based in Switzerland, and relies on Swiss law to supplement the legal framework created by the rules and regulations of the relevant sports governing body, or may be required because of a lack of expertise in the field of sports law in India. In this case, Dutee Chand produced three expert witnesses and engaged a Canadian law firm. Without support, Dutee Chand could not have won this case. While Indian sports authorities are notorious for not adequately supporting their athletes, in this case, the Sports Authority of India (SAI), in whose facility Dutee Chand trained, financially supported her and urged the AFI to support her appeal to CAS if they felt compelled to follow the IAAF’s regulations.

References: Dutee Chand v Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF) CAS 2014/A/3759, http://www.tas-cas.org/fileadmin/user_upload/award_internet.pdf
Photo credit: Express Photo

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Everything you need to know about Sushil Kumar's Rio Olympics bid

(this post first appeared in a modified form on the Ringside View)

The 66kg weight category for freestyle wrestling, which was present in both the 2008 Beijing Olympics and the 2012 London Olympics, has been removed for the upcoming 2016 Rio Olympics. This has made life difficult for Sushil Kumar, who has competed for most of his career in the 66kg category, winning Olympic medals in both Beijing and London as well the world title in 2010 and gold at the 2010 and 2014 Commonwealth Games. If he competes, it will have to be in the 74kg category as he declined to compete in the 65kg category to make way for fellow Olympic and Commonwealth medallist, Yogeshwar Dutt, who has traditionally competed in the 60kg category (also removed for Rio).

What stands in his way is Narsingh Yadav, Wrestling World Championship medallist in the 74kg category.

India has secured a quota of eight places for wrestling for the Rio Olympics (six for men’s wrestling), of which the 74kg men’s freestyle berth was thanks to Narsingh’s bronze medal at the 2015 World Championships. However, the Olympic quota is awarded to the country and not to the wrestler who secured it, and Sushil Kumar has asked for a trial to determine who will represent India in the weight category. On the other hand, the Wrestling Federation of India (WFI) has traditionally not held trials and the winner of the quota has always gone on to compete in the Olympics (an exception was in 1996, when trials were conducted for the 48kg men’s Greco-Roman category, though in that case Kaka Pawar secured the quota but Pappu Yadav was the federation’s initial selection).

Sushil Kumar has argued that trials are necessary to judge whether an athlete is in form going into a major tournament, and has cited the fact that reigning Olympic and world champion, Jordan Burroughs of the United States, had to undergo trials to represent the US in Rio. The WFI is worried that if they accept Sushil’s demand, other athletes may come forward to contest the WFI’s picks for other categories.

A similar question has gone to court before. In 2014, a number of wrestlers including Amit Dhankhar and Rahul Aware moved the Delhi High Court for the conducting of trials for the Commonwealth Games.¹ The WFI in turn argued that it was not necessary to hold trials before every event. The Court found that according to guidelines incorporated in the National Sports Code formulated by the Ministry of Youth Affairs and Sports (binding on all National Sports Federations), it was in fact necessary to hold selection trials before major international events like the Olympics, Commonwealth Games, etc. It was only because the final list of names had already been sent to the Commonwealth Games Committee and a training camp in preparation for the Games was already in session that the holding of trials was not ordered.

Sushil Kumar has now moved the Delhi HC. It was initially reported that the WFI had sent the IOA a list of probables which did not feature Sushil Kumar’s name. Subsequently, however, the WFI has stated that it did not send any list and that Sushil Kumar is not out of the running. WFI president Brij Bhushan Sharan Singh has stated that it is the federation’s parampara to send the wrestler who has secured the berth, and has expressed reluctance to conduct trials. Nevertheless, Sushil Kumar has a good chance of getting his chance in a trial if the court decides his case quickly.

 

1Amit Kumar Dhankhar v Union of India WP (C) 3914/2014, Delhi HC, decided 3 July 2014

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