The National Anti-Doping Appeal Panel’s (ADAP) decision to set aside the order of the Ant-Doping Disciplinary Panel (ADAP) and reduce the four-year sanction on Javelin Thrower Shivpal Singh to one year has raised eyebrows. The ADAP order comes across as wrong on a few counts and could end up being challenged in the Court of Arbitration for Sport (CAS).
Shivpal Singh tested positive for prohibited substance Metandienone and its metabolites in an out of competition test in September 2021. On August 16, 2022, an ADDP imposed a four-year sanction. The ADAP partially upheld his appeal and reduced his sanction to one year, convinced that he had established he bore both No Significant Fault or Negligence.
If indeed the Panel was convinced that the both No Significant Fault or Negligence were established, it should have let Shivpal Singh go with a mere reprimand and no period of ineligibility. By ordering a one-year period of ineligibility and by advising him to be extra cautious and exercise due diligence, the Appeal Panel appears to contradict itself.
Given that there have been several cases of supplement contamination – including in Indian athletics – the athlete should have exercised greater care in consuming the supplement, more so since he did not buy it himself and since the containers did not have the basic information in the form a batch number and possibly date of expiry.
The ADAP satisfied itself that the athlete had done basic internet search and checked the contents and certification before ingesting the supplement. Try Googling for Muscle Light Prime Testo Booster. Apparently, the athlete searched the net only to see if the ingredients mentioned in the label are prohibited or not.
It seems a travesty that the Appeal Panel overlooked the fact that the supplement was not bought by the athlete. Worse, the Panel ignored the fact that the supplements tested – in the sealed and opened containers – did not have batch numbers. WADA’s International Standard for Results Management guidelines specified that the containers bear the same batch number.
That no batch number is mentioned in the samples of the supplement produced for testing should have been enough grounds to dismiss the appeal. That an athlete who has competed for India should be unaware that it would be risky to consume a supplement that did not have a batch number in the first place is rather unbelievable.
That there was no batch number on the supplement containers sent for testing and the absence of a bill of purchase in the name of the athlete should have been red flags. Besides, the police complaint lodged by the coach and cited as providing Substantial Assistance comes across as a mere after-thought, an attempt to capitalise on an unconnected event from months earlier.
The sample was collected on September 26, 2021. The sample was sent to a WADA-accredited laboratory in Belgium and tested positive for Metandienone and it metabolites. NADA issued a notice of charge on October 21, 2021 and imposed a provisional suspension. Shivpal Singh opted not to get the B sample tested.
In what seemed an unrelated incident, Uttar Pradesh Police raided a food supplement factory in Kidwai Nagar Mohalla in Muzaffarnagar in the first week of October 2021. The police seized huge volumes of two types of powder, neither of which is steroid, 64 boxes of supplements, wrappers and boxes of prominent companies.
It was not until April 13, 2022, that the athlete asked for the supplement to be tested. He offered a sealed container with 60 capsules and an unsealed container with 12 capsules for testing by NDTL. So, the athlete has been so careful as to preserve a fifth of an unsealed container for at least seven months before producing it for testing.
On May 7, 2022, Shivpal Singh’s coach Mintu Ahlawat filed an FIR against the owner/s of Herbal Power Pharmacy for supplying fake supplements. Curiously, the FIR was filed a day after ADDP allowed Shivpal Singh’s request to get the supplement tested and six weeks before NDTL reported that the tests showed presence of Metandienone in the supplement.
Coach Mintu Ahlawat did lodge a police complaint against Herbal Power Pharmacy in May, but a reading of the ADDP order of August 16, 2022, suggests that no attempt was made by the athlete to draw the ADDP’s attention to the likelihood of Herbal Power Pharmacy’s role in the contamination or to claim ‘substantial assistance’.
The athlete’s claim that the coach’s police complaint led to the raids by police and bringing forward a criminal should have been seen against the backdrop of the fact that the raids, seizure of material and arrest of a person happened in October 2021. The athlete’s claims could have been dismissed as having no bearing on the criminal case.
Similarly, it is worth noting that the warning letter issued by the Uttar Pradesh Athletics Association on June 21, 2022, does not find a mention in the ADDP order. Strangely, the ADAP order sees this letter – ostensibly a result of the coach’s police complaint – as the athlete providing substantial assistance.
Be that as it may, for Substantial Assistance, it would be prerogative of NADA India – with the requisite approvals from World Anti-Doping Agency and World Athletics – to consider suspending a portion of the sanction imposed. It is not the mandate of a hearing panel (either the ADDP or the ADAP) to take into account Substantial Assistance when adjudicating a case.
The Appeal Panel’s justification that Shivpal Singh had to comply with coach Mintu Ahlawat’s directions to consume the supplement lest he face disciplinary action in the Indian Air Force makes a mockery of the Anti-Doping Rules.
As early as 10 years ago, CAS laid down that athletes cannot shift their responsibility on to third parties simply by claiming that they were acting under instruction or that they were doing what they were told. “That would be all too simple and would completely frustrate all the efforts being made in the fight against doping,” CAS said in the IAAF vs. Athletics Federation of India and Mandeep Kaur & Jauna Murmu case.
And yes, the ADAP also seemed to be weighed down by the ‘lack of education’ of a Business Administration in a Bhubaneswar university. ADAP was perhaps unaware that CAS has said “Even in the case where athletes may not be deemed informed athletes due to a lack of anti-doping education, they must be aware of the basic risks of contamination of nutritional supplements.” This was in the same case referred above.
“If athletes have been taking a cocktail of supplements despite the numerous warnings in place about taking supplements, have failed to contact the manufacturers directly or arrange for the supplements to be tested before using them, did not seek advice from a qualified doctor or nutritionist, have failed to conduct a basic review of the packaging of the supplements and any basic Internet research about the supplements, they cannot be deemed to have taken any of the reasonable steps expected of them and cannot establish on the facts that they bear no significant fault or negligence,” CAS said.
There a couple of other things that spring forth from the order. And these are no less important.
ADAP appears to cock a snook at out-of-competition testing by listing it among factors which established that Shivpal Singh was neither reckless nor negligent in his obligations towards ensuring he would commit an anti-doping rule violation. It did not seem to occur to the panel that out of competition tests are among the most important anti-doping deterrents.Also, the ADAP has directed NADA to certify shops/establishments as safe sources of supplements. Can NADA be a certifying authority for supplements and outlets? The panel also wanted to see steps taken by NADA to curb spurious supplements in the market. A thinly staffed NADA has enough and more on its plate and cannot be tracking down supply chains.
