Prescription v TUE

Can an athlete take testosterone without having obtained a therapeutic use exemption (TUE) from the authorities and eventually get a reduced sanction when he is tested and found ‘positive’?

Yes, he can. At least in India that is possible as has been established through an order given by the National Anti-Doping Disciplinary Panel (NADDP) in the case of an athlete last February.

The athlete, a javelin thrower from Punjab, had tested positive for testosterone in the all-India Police Championships in November, 2014. His T/E ratio showed 13.0, well above the prescribed limit of 4.0. Isotope ratio measurement spectrometry (IRMS) analysis confirmed the use of exogenous (outside the body) steroid.

The athlete happened to be a second-time offender. He was handed down a three-year suspension for his second offence, the first one having come in 2009. That was for stanozolol, and he copped a two-year ban then.

The 2014 offence was also handled under the 2009 rules even though the final hearing in the case was held on 7 December, 2015.

Went by doctor's advice

The athlete’s defence mainly hinged on the premise that he had taken medicines as prescribed by his doctor. In his written submission he stated, according to the order, that he “was suffering (sic) from infertility and taking treatment…” The athlete also submitted medical records of his wife to support his arguments. He submitted that he had been taking medicines for his condition “much prior” to the competition in which he tested positive.

The athlete pleaded that he was “not well literate” (sic) as per the order and did not have knowledge of English medicines. His doctor apparently prescribed him Andriol Testocaps (testosterone in capsule form).

The National Anti Doping Agency (NADA) argued before a panel headed by Mr. Ramnath that the athlete did not obtain a TUE for the use of testosterone. It said the athlete had not disclosed in his doping control form that he was undergoing testosterone therapy.

It further argued that the athlete had taken nearly five months to submit his defence and the submissions made by the athlete were afterthoughts and “documents produced on record have been obtained by fraudulent means and should not be taken into consideration.”

NADA also argued that it was the duty of the athlete to ensure that no prohibited substance entered his body and it was also his duty to advise his doctor that he was an athlete and was bound by certain rules.

'Documents authentic'

The panel ruled: “NADA could not establish that medical documents of athlete and his wife are fraudulent/manipulated after athlete was found guilty of violating anti-doping rules 2010. As the perusal of medical documents of athlete are of dated (sic) 07-07-2014 and 10-08-2014 and 27-09-2014 and the consulting doctor is Dr…, MD, Consulting Physician. No evidence was submitted from the side of NADA to show these papers are frivolous. Secondly the medical documents filed by the athlete, of her (sic) wife were original and they are dated 30-06-2014…”

The order, dated 5 Feb, 2016, further stated: “The submission of NADA with regard to non-submission of facts of taking medicines at the time of sample collection while filing the doping control form or not obtaining TUE can be said (sic) maximum lapses on the part of athlete. As the athlete already submitted (sic) in written reply that he was not well educated and did not have knowledge of English medicines and hail from village farmer’s family (sic).”
(A TUE panel, normally comprising doctors, takes up applications for exemptions from athletes for use of banned substances on medical grounds. A TUE granted or rejected by an anti-doping agency can be reviewed by WADA.)

Case of a weightlifter in 2010

In a similar case involving a weightlifter who was also advised testosterone therapy for “infertility”, a disciplinary panel had ruled in August, 2010 that the contention of the athlete was valid and imposed no ineligibility.

On an appeal from WADA, however, an appeal panel headed by Justice C. K. Mahajan (retd), set aside the disciplinary panel ruling in July 2011 and imposed a two-year sanction on the lifter.

Almost simultaneously another case of an athlete, a woman sprinter from Tamil Nadu, had also ended up in similar fashion. That was a case of stanozolol usage, prescribed by a doctor. The disciplinary panel ruled in favour of the athlete; the Mahajan panel ruled otherwise. The sprinter’s stanozolol case was brought into the arguments by NADA during the javelin thrower’s recent case, but it made no impact. The lifter’s case was apparently not mentioned.

The Mahajan panel wrote in the order that imposed a two-year suspension on the weightlifter: “In order to eliminate or reduce the period of ineligibility the respondent has to establish that he bears no fault or negligence for the violation of the Anti Doping Rules and if he is successful then the period of ineligibility shall be eliminated. We are unable to uphold this finding.

“The question that needs to be answered that whether the respondent bore no fault or negligence. The respondent admits during hearing that he took substances that caused adverse analytical finding in the test. Therefore we can safely conclude that the respondent would have discussed treatment therapy with his doctor and its

effects in relation to the Anti Doping Rule violation.

“A sanction cannot be completely eliminated on the basis of no fault or negligence even when the administration of the prohibited substance has been done by the athlete’s physician/doctor without disclosure to the athlete. In order to benefit from an elimination of the period of ineligibility for no fault or negligence, the athlete

must establish that he did not know or suspect and could not reasonably have

known or suspected, even with the exercise of the utmost caution, that he had

used or been administered the prohibited substance.

Athlete's responsibilities

“In the present case the respondent did not establish that he took any

precaution or made any inquiry to assess whether the medical treatment he was following was free from prohibited substances. He did not either demonstrate having informed his doctor that he was an athlete, bound by a duty of care to avoid the ingestion of any prohibited substance. It is true that the medical

treatment was prescribed by the respondent’s doctor. However, the respondent

cannot hide behind his doctor’s ignorance of the Anti Doping rules in order to

escape from sanctions due to Anti Doping Rule violation.

“The medical treatment prescribed by the doctor does not dispense the athlete to control if the medicine he is prescribed contain prohibited substance. The respondent has not established that he exercised utmost caution and therefore that he bore no fault or negligence. The respondent has also not shown any truly exceptional circumstance to warrant reduction of the otherwise applicable period of ineligibility. It is the duty of the athlete to ascertain that the drug he was prescribed for a long period of time does not contain any prohibited substance. If the athlete fails to exercise this caution he should not get the benefit of no fault or negligence/no significant fault or negligence.”

A TUE for testosterone use is very rare in anti-doping parlance. Here in the case of the javelin thrower there was no TUE but medical prescriptions and laboratory investigation reports. Once again, as had been the case in several instances in the past, the “village” background of the athlete and his inability to read and understand the medicines prescribed in English went in favour of the athlete.

Sanction reduced twice

As for arriving at a sanction of three years for a second offence the panel stated: “…the only consideration left before the panel is to see how much ineligibility be reduced under Article 10.7.1 wherein a table has been prescribed for second violation (sic), therefore, for the second violation the panel is of the view to sanction (sic) one half of the period of ineligibility which comes to 3 years for No Significant Fault & Negligence in the table indicated below”.

The table is a reference point for administering sanctions under the 2009 WADA Code. Various combinations of offences have been given in the table. In this case it happened to be one of “No significant fault or negligence” (as deemed by the panel) in combination with a previous offence that could be described as ‘standard’ since a maximum sanction of two years was given in the earlier case.

Now, NSF (no significant fault or negligence) clubbed with ‘St’ (standard) on the table gives a sanction of 6 to 8 years.

The panel apparently came to the conclusion that this six or eight could be further reduced to half if “no significant fault or negligence” had been established.

That amounted to a reduction being granted twice over after having concluded that this was a case “no significant fault or negligence” and based on that conclusion this could be fitted into the 6-8 year bracket.

It is pertinent to point out here that had the panel come to the conclusion that the second offence was also “standard”, then a combination of two “standard” would have meant a sanction of eight years to life.

The panel had to understand from the table meant for sanctions for multiple violations that once the nature of the offence was determined by it as ‘reduced sanction’ (RS), ‘standard’ (St) or ‘no significant fault or negligence’ (NSF) etc and placed against the table to determine what could be the punishment for a second offence, there could be no further reduction except the range prescribed in the table.

In December last year, in a similar case like that of the javelin thrower, an appeal panel upheld the decision of a disciplinary panel which arrived at the same conclusions about reduction of the punishment under the “no significant fault or negligence” rule. In that case, also that of an athlete, it was reduced to four years though the applicable sanction was six to eight years.

Once the appeal panel had set a precedent, it was expected that other panels would follow suit though it was not a binding precedent.

(Updated 5 May 2016)