Important lessons for athletes on doping sabotage: A review of WADA v. Narsingh YadavSaurabh Mishra
In the months leading up to the Olympic Games, Indian wrestler Narsingh Yadav had been embroiled in a dispute between Sushil Kumar and the Wrestling Federation of India (WFI) over the selection procedure for the Olympic berth, wherein Kumar challenged the WFI’s decision to select Yadav over himself to compete at the Games in the 74kg category. Ultimately, the WFI prevailed and Yadav’s selection for Games was upheld (a full review of that dispute is available here1).
However, in an intriguing turn of events, Yadav tested positive for an anabolic steroid2, which he claimed he had ingested after being sabotaged. The matter was referred to India’s National Anti-Doping Agency (NADA), who accepted his claim of sabotage3 and gave him a clean chit to compete at the Games. However, the World Anti-Doping Agency (WADA) stepped in and appealed the decision to the Court of Arbitration for Sport (CAS)4, asking them to set it aside. Given the proximity to the Games, the matter was heard in Rio by the CAS Ad Hoc Division5.
This article reviews Yadav’s case, looking specifically at:
- The facts of the case
- The domestic hearing by India’s NADA
- The appeal to the CAS Ad Hoc Division
- Author’s comment
On 15 July 2016, Narsingh Yadav (and his roommate and training partner Sandeep), tested positive for prohibited substances6. Yadav tested positive for metabolites of methandienone, while Sandeep’s sample revealed the presence of the parent substance (methandienone) as well7. On 22 July 2016, following a provisional suspension, Yadav’s B sample confirmed the finding of the A sample.
Consequently, Yadav was provisionally suspended by NADA. Subsequent to providing NADA with a list of food and supplements constituting his diet, Yadav filed a police complaint, alleging sabotage, supplements receiving a clean chit from the National Dope Testing Laboratory. Yadav’s contention in this regard was that at the time of collection of his sample – which was 25 June 2016 – he was looking to reduce weight in time for Rio, and Methandienone is a steroid which would have contributed to a weight gain.
The facts of the case assume a dubious tinge owing to the history leading up to the event. The story preceding the decision involves an allegation of sabotage, with Yadav alleging that his energy drink had been intentionally contaminated by a member of Sushil Kumar’s entourage on either 23 or 24 June, 20168. Yadav’s wrestling partner also claimed to have spotted the same person in the kitchen, a restricted area, on 5 June 20169.
Yadav appealed to NADA on the grounds of sabotage and subsequently, the Anti-Doping Disciplinary Panel (ADDP) chose to qualify his case under Article 10.4 of the NADA Anti-Doping Rules, which states that:
“If an Athlete or other Person establishes in an individual case that he or she bears No Fault or Negligence, then the otherwise applicable period of Ineligibility shall be eliminated.” 10
The reference to Article 10.4 clarifies further that the rule is to be applied only in exceptional circumstances in situations where the athlete could ably prove that despite all due care, one had been sabotaged by a competitor. Accepting the defense in this particular case, the ADDP ruled in favour of Narsingh Yadav,11 basing its decision mostly on the fact that the wrestler had no prior history of doping. The ADDP concluded that:
“…the athlete deserves the benefit of Article 10.4 of the Anti-Doping Rules of NADA 2015 as there is no fault or negligence on his part and he is a victim of sabotage done by a competitor.” 12
Following this exoneration however, WADA chose to file an application to the CAS Ad Hoc Division, disputing the ADDP’s ruling.13Since the decision has not been published, it is difficult to analyse ADDP’s reasoning behind such a conclusion. However, WADA duly chose to file an appeal against the ruling, which has been analysed below.
CAS Ad Hoc Proceeding
A copy of the decision is available for reference here.
NADA initially objected to the jurisdiction of CAS in this case, albeit unsuccessfully. The objection was based on primarily two grounds14:
- WADA chose to invoke the jurisdiction of the CAS prior to NADA filing an appeal against the ADDP’s decision.
- Since the sample was collected prior to the Olympic Games, the dispute itself arose from an out-of-competition event and therefore, could not come under the ambit of the CAS Ad Hoc Rules on account of being unrelated to the Olympic Games in Rio.
NADA’s first contention was based on Article 13.1.315 of the NADA Anti-Doping Rules, which enable NADA to appeal the ADDP’s decision. However, CAS observed, since NADA had not appealed the decision within the stipulated time, WADA was free to file an application against the ADDP’s decision as per Article 13.1.3 which states that:
“Where WADA has a right to appeal under Article 13 and no other party has appealed a final decision within NADA’s process, WADA may appeal such decision directly to CAS without having to exhaust other remedies in NADA’s process.”
Therefore, CAS concluded that an exhaustion of local remedies was not a condition precedent to invoking the jurisdiction of the Panel (CAS).
Further, CAS upheld WADA’s contention that the subject matter of the appeal was not the out-of-competition event, and was in fact the decision rendered by the ADDP. The decision cleared Yadav to compete in Rio and hence, the dispute at hand was clearly in connection with the Olympic Games16. Having thereby assumed jurisdiction, CAS moved to the merits of the case.
The primary issue in the case was Yadav’s liability in the given circumstances, and the consequent sanctions to be imposed. While the NADA exonerated Yadav as mentioned above, WADA was of the opinion that the standard of “no fault or negligence” had not been satisfied in this case. Further, it contended that the defense of sabotage had not been adequately established, and that it was more plausible that Yadav had been guilty of doping intentionally:
“The Panel, when assessing this scenario on the balance of probabilities, should conclude that the more likely explanation was that the athlete was doping, not that he was a victim of sabotage…the Athlete must be sanctioned with an ineligibility period of 4 years.” 17
WADA’s submission therefore, was to the effect that the athlete be banned for a period of four years, which is the mandated period of ineligibility as specified under the World Anti-Doping Code (WADA Code).
Contentions and evidence
WADA’s contention in this regard was fairly straightforward. It stated that since the athlete’s sample revealed the presence of substances which features on the Prohibited List18, the Athlete had committed an Anti-Doping Rule Violation (ADRV). In such cases, the burden lies on the athlete to prove that such violation was not intentional. WADA’s allegation was that Narsingh Yadav had intentionally ingested the prohibited substance19. In order to support such a claim, WADA relied upon the expert evidence of Dr. Christiane Ayotte, whose statement has been summarized as follows:
- Methandienone would not completely dissolve in a drink and the athlete would have spotted traces of the same.
- There was a considerable amount of time difference between the ingestion by Narsingh Yadav and his roommate. This contradicts the theory that both their supplements were tampered with at the same training session.
- The concentration of the metabolites in the second sample was too high, and such a reading could not have been the result of one-time ingestion.
- Therefore, it was conceivable that Yadav had engaged in therapeutic dosage, with the prohibited substance administered multiple times. 20
On the basis of Dr. Ayotte’s submissions, WADA contended that on the balance of probabilities, it could be concluded that Yadav was indeed involved in doping, rather than being a victim of sabotage, as he was claiming to be.
While NADA limited its response to the issues of jurisdiction, Narsingh urged the tribunal to consider the circumstantial evidence put forth in support of his theory. He sought to counter WADA’s contention by suggesting that he had been the victim of sabotage on account of Jithesh, the accused, having tampered with his supplement21.
- Yadav submitted that an effort to tamper with his food on 5 June 2016 had been foiled by his training partner, who spotted the accused in the kitchen.
- Since he was training in Bulgaria from 5 June 2016 to 22 June 2016, it was Yadav’s contention that the sabotage occurred upon his return to India, either on 23 or 24 June 2016. He stated that the accused was also present in the facility at the time.
- He cited multiple threats to his life as further evidence of sabotage.
- Crucially, Yadav suggested that the normal supplement did not completely dissolve in the water, and it would not have been possible for him to detect the prohibited substance on a merely visual appraisal.
Narsingh Yadav’s contention therefore was based primarily on the circumstances surrounding the incident, given that the person accused of sabotage was associated with Sushil Kumar, with whom Narsingh had been involved in a selection dispute.
Since Narsingh Yadav had not disputed the presence of the concerned substance in his system, and since the substance features on the Prohibited List issued by WADA, CAS concluded that Yadav had committed an Anti-Doping Rule Violation (ADRV)22. For a violation to be committed, intent is irrelevant, and there is a duty of care imposed upon the athletes. Indeed, Article 2.1.1 of the Anti-Doping Rules states that:
“It is each athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or markers found to be present in their samples. Accordingly, it is not necessary that intent, fault, negligence or knowing use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation under Article 2.1” 23
Once an ADRV has been established, an athlete is liable to be sanctioned with a four-year period of ineligibility in cases where the violation does not involve a "specified substance", unless the athlete can prove that the violation was unintentional24. Hence, as stated above, the onus to prove that the violation was unintentional lay on Narsingh Yadav in this particular case.
However, the tribunal (CAS), upon weighing the expert evidence put forth in support of WADA against the circumstantial evidence forwarded by Yadav, opined that the wrestler failed to discharge this burden. While CAS acknowledged that the sabotage as suggested by Yadav could be a possibility, it rendered the same improbable25. A key factor which led to such a ruling was the fact that Yadav’s entire defense was based strictly upon a theory, and lacked the hard evidence required to establish sabotage.
Therefore, CAS concluded that Narsingh Yadav had indeed been guilty of doping, and imposed the complete sanction of four (4) years26. Further, it stated that any period of ineligibility already served by the athlete is to be credited against the cumulative period27. Additionally, all competitive results obtained by Yadav starting from 25 June 2016 are to be disqualified28.
WADA were well within their rights to appeal the decision of the ADDP, and an impending challenge to the ADDP’s decision should have perhaps been anticipated by NADA. This is more so in light of various reports regarding recently uncovered occurrences of doping on a large scale, which have forced WADA to crackdown on any such instances with increasing severity. The CAS award itself does NADA no favors when it comes to the domestic regulator’s credibility, especially given the fact that the reasons for exonerating Narsingh Yadav have not been made public. Moving forward, NADA’s functioning is likely to be scrutinized on the basis of how this particular incident was handled.
Further, it is clear that there exists an additional responsibility on the athletes themselves, to safeguard against the possibility of ingesting banned substances, whether intentionally or otherwise. An analysis of Narsingh’s conduct prior to the award underlines a clear focus on vigilance from the athletes during the course of preparation, as well as in competition.
Past instances of inadvertent doping were also discussed during the course of the proceeding, with the cases regarding Charline Van Snick29 and Richard Gasquet30 being specifically mentioned. In both the cases, the concerned athlete had been exonerated on account of the burden of proof being satisfied. However, such instances form the exceptions, and not the norm, when it comes to anti-doping violation under the WADA Code. The Code imposes a high standard of care upon the athlete, and a significant burden of proof in case of an Anti-Doping Rule Violation.
Narsingh Yadav clearly failed to satisfy the tribunal on both fronts, and will consequently serve the maximum period of ineligibility. While the wrestler may appeal the decision once the domestic police investigation reveals evidence to support his theory of sabotage, a prima facie appraisal of facts and circumstances does not give rise to optimism regarding the success of any such appeal.
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- Tags: Anti-Doping | Anti-Doping Disciplinary Panel (ADDP) | Court of Arbitration for Sport (CAS) | India | Indian National Anti-Doping Agency | Olympic | Olympic Games Rio de Janeiro 2016 | Paralympic | WADA Prohibited List | World Anti-Doping Agency (WADA) | World Anti-Doping Code (WADC) | Wrestling
- Olympic selection disputes: Sushil Kumar v Wrestling Federation of India
- Life as a CAS arbitrator at the Rio Olympic Games - Mark Hovell - Episode 35
- A summary of the CAS Ad Hoc Division decisions at the Rio Olympic Games
- Rules, scope and jurisdiction of the CAS Ad Hoc and Anti-Doping Divisions at the Olympic Games
About the Author
Saurabh is a lawyer working as counsel for Star India Pvt. Ltd. He is also associated with the Football Players Association of India (FPAI). He received his B.A./LLB from The West Bengal National University of Juridical Sciences, Kolkata, and was a recipient of the Graduate Scholar Award at the Fifth International Conference on Sport and Society in July 2014. He has previously worked with organisations such as Adidas and Atletico de Kolkata, a franchise in the Hero Indian Super League.