World Anti-Doping Agency (WADA) v. Indian National Anti-Doping Agency, Mhaskar Meghali

II. FACTUAL BACKGROUND — A. Background Facts

4. On January 14, 2015, the Athlete was submitted by NADA to a doping control on the occasion of the 1st Women All Indian Railway Weightlifting Championship in Kolkata, India.

5. The analysis of her A-sample with the code number 2966969 was performed by the WADA accredited National Anti-Doping Laboratory of New Delhi and, according to the Analytical Report dated February 6, 2015, revealed the presence of a metabolite of methandienone which is an exogenous anabolic androgenic steroid. Methandienone is listed under S1.1a of the 2015 WADA Prohibited List.

6. The Athlete waived her right to have the B-sample analysed.

7. The Athlete was provisionally suspended on February 9, 2015.

B. Proceedings before the NADA Anti-Doping Disciplinary Panel

8. On December 7, 2015, January 14 and January 18, 2016, hearings took place before the NADA Anti-Doping Disciplinary Panel (ADDP).

9. In the course of these proceedings, the Athlete submitted medical records concerning a knee pain. According to these records, the Athlete was prescribed two medications. The first of these medications, prescribed on October 15, 2015, was Decaburabolin, the only active ingredient of which is nandrolone. Nandrolone is an exogenous anabolic androgenic steroid listed under S1.1a of the 2015 WADA Prohibited List. The second medication, prescribed on December 25, 2015, was Depomedol, which is a corticosteroid prohibited in-competition according to S9 of the 2015 WADA Prohibited List.

10. The Athlete, by letter of August 20, 2015, claimed that she did not dope and contended to be “a victim of jealousy of other players”.

11. As late as March 30, 2016, the ADDP issued its decision. The ADDP found that the Athlete committed an Anti-Doping Rule Violation (ADRV) unintentionally and that she did not bear significant fault or negligence. Therefore, the ADDP imposed a one-year period of ineligibility on the Athlete commencing on February 9, 2015, i.e. the date of the beginning of the provisional

suspension. As a result, the period of ineligibility already had elapsed when the decision was pronounced.

12. WADA was notified with the file of the case including the decision of March 30, 2016, on May 11, 2016.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

13. WADA filed a Statement of Appeal, dated June 1, 2016, against the NADA and the Athlete with the CAS, with respect to the decision rendered by the ADDP on March 30, 2016. Together with its statement of appeal, the Appellant requested the appointment of a sole arbitrator.

14. WADA filed its Appeal Brief on June 13, 2016.

15. By letter of June 14, 2016, to the Parties, the CAS Court Office invited the Respondents to submit, within 20 days from the receipt of the letter, their respective Answers pursuant to Article R55 of the Code of Sports-related Arbitration (the “Code”). The Respondents were notified that the Panel or the Sole Arbitrator may nevertheless proceed with the arbitration and render an award even in the event they failed to file an answer within the prescribed deadline.

16. On June 20, 2016, the CAS Court Office informed the Parties that the President of the Appeals Arbitration Division, in the absence of any objection from the Respondents to the Appellant’s request, had decided to submit the arbitration to a sole arbitrator.

17. By letter of July 5, 2016, the CAS Court Office acknowledged receipt of the Appellant’s payment of its share of the advance of costs for the proceedings and notified the Parties that Christoph Vedder, Professor of Law, Munich, Germany, was appointed Sole Arbitrator.

18. In a letter dated July 11, 2016, the CAS Court Office noted that it had not received any answer or any other communication from the Respondents in this respect. Furthermore, the Parties were invited to declare whether they preferred a hearing to be held or for the Sole Arbitrator to render an award based solely on the written submission. The Parties were advised that, pursuant to Article R57 of the Code, the Sole Arbitrator shall decide whether to hold a hearing or not.

19. By e-mail of July 18, 2016, WADA informed the CAS Court Office that it would prefer to proceed without a hearing. With no response received from the Respondents within the prescribed deadline, the CAS Court Office, by letter of July 20, 2016, notified the Parties that the Sole Arbitrator, according to Article R57 of the Code, had decided to render an award without holding a hearing.

20. On July 21, 2016, the CAS Court Office circulated the Order of Procedure to be signed and returned by the Parties by July 28, 2016. On July 22 and 28, 2016, respectively, the CAS Court Office received the Order of Procedure signed by the Appellant and First Respondent.

21. On July 26, 2016, the CAS Court Office received an “affidavit” from the Athlete dated July 19, 2016.

IV. SUBMISSIONS OF THE PARTIES

22. In its Appeal Brief dated June 13, 2016, WADA submits that the appeal against the decision rendered by the ADDP is admissible. The NADA Anti-Doping Rules (NADA Rules) were applicable and, pursuant to Article 13.2.3 of the same, WADA has the right to appeal. According to Article 13.1.3 of the NADA Rules, WADA was entitled to appeal the contested decision without having to exhaust other internal legal remedies.

23. Since WADA received the case file related to the appealed decision on May 11, 2016, its Statement of Appeal, dated June 1, 2016, was lodged within the 21-day time limit set forth by Article 13.7.1 of the NADA Rules.

24. According to WADA, there is no doubt that the Athlete committed an ADRV. An ADRV pursuant to Article 2.1 of the NADA Rules and Article 2.1 of the International Weightlifting Federation Anti-Doping Regulations (IWF ADR) is established by the presence of a prohibited substance or its metabolites or markers in the Athlete’s body. The analysis of the Athlete’s Asample revealed the presence of a metabolite of methandienone which is an exogenous anabolic androgenic steroid listed under S1.1a of the 2015 WADA Prohibited List. Methandienone is prohibited both in- and out-of-competition. The Athlete waived her right to have her B-sample analysed.

25. WADA mainly contends that the ADDP made erroneous findings and conclusions with regard to the determination of the sanction. According to Article 10.2.1 of the IWF ADR, the period of ineligibility shall be four years unless the Athlete can establish that the ADRV was not intentional.

26. Contrary to the findings of the ADDP, WADA is of the view that the Athlete did not discharge her burden of establishing that the ADRV was not intentional which included that the Athlete should have proven how the substance entered her system. With reference to established case law of the CAS and other anti-doping bodies, WADA contends that it is not sufficient for an athlete to make protestations of innocence or mere suggestions that the substance must have entered her body inadvertently from nutrition supplement, medication or other products which the athlete took during the relevant time. In essence, the origin of the substance must be proven, by a balance of probability, by actual evidence.

27. WADA concludes that, in the present case, the Athlete did not even provide an explanation as to how the substance entered her body. None of the products mentioned in the list of medications prescribed to her for the knee pain which she presented before the ADDP contained methandienone. Since the Athlete failed to provide any explanation as to how the substance found entered her body, WADA contends that the ADRV is to be deemed intentional and the Athlete should be sanctioned with a period of ineligibility of four years.

28. Furthermore, again contrary to the findings of the ADDP, WADA contends that the Athlete could not benefit from the mitigating circumstances of no significant fault or negligence because, for that purpose, it is required that the athletes first have to establish how the

prohibited substance entered his or her body. According to the WADA, the Athlete has not provided any explanation about the origin of the substance found in her A-sample.

29. Finally, WADA states that methandienone has been the prevalent prohibited substance used in the sport of weightlifting as shown by many decisions and is manifestly performance-enhancing in this particular sport.

30. WADA submits the following requests for relief:

“1. The Appeal of WADA is admissible. 2. The decision dated 30 March 2016 rendered by the Anti Doping Disciplinary Panel of NADA in the matter of Mhaskar Meghali is set aside. 3. Mhaskar Meghali is sanctioned with a four-year period of ineligibility starting on the date on which the CAS award enters into force. Any period of provisional suspension or ineligibility effectively served by Mhaskar Meghali before the entry into force of the CAS award, shall be credited against the total period of ineligibility to be served. 4. All competitive results obtained by Mhaskar Meghali from and including 14 January 2015 are disqualified, with all resulting consequences (including forfeiture of medals, points and prizes). 5. WADA is granted an award for costs”.

35. While NADA did not make any submission before the Sole Arbitrator, the Athlete, in her “affidavit” claims that (i) she refused to take anabolic steroids, (ii) “other people” may have “mixed drugs in my edibles in All India Weight-lifting Championship where we stay in a single room”, (iii) she did not know that the medications administered against her knee pain contained banned substances, (iv) she “did not take any illegal supplements intentionally”, and (v) she participated in the Championships only upon request of her coach for the benefit of the team. No specific requests for relief were made. Even though such submission was made outside the time-limit of Article R55 of the Code and should be declared inadmissible, the Sole Arbitrator decides to admit the Athlete’s submission in the file in fairness.