– By Vidushpat Singhania (Managing Partner, Krida Legal) and Achyuth Jayagopal (Associate, Krida Legal)
The Court of Arbitration of Sport (CAS) rendered its decision in United World Wrestling (UWW) v. Sumit Malik, sanctioning Mr. Malik with a period of ineligibility of 17 months, as against the asserted ineligibility period of 24 months, for an Anti-Doping Rule Violation (ADRV). This case is of particular importance because it is one of the few cases where an Indian athlete has been successful at CAS to get his punishment reduced. A trend which has been seen is that CAS has banned Indian athletes for 4 years and that largely the decisions of the Indian anti-doping panels have been overturned by them. The other reason why this is important, is that the impossible standards that are sometimes propagated by India’s National Anti-Doping Agency, has been corrected at CAS. Wherein admission on affidavit backed by other secondary evidence, was upheld to be a valid proof of consumption and thus the source of the banned substance. Thr third reason which helped in reduction of the punishment was that the sealed and unsealed bottle of the supplement was tested by an outside laboratory and it was found that both the container of the supplements contained the banned product, the results of the same was accepted by CAS.
The wrestler, a gold medal winner at the 2018 Commonwealth Games, was provisionally suspended in June 2021 after a urine sample collected from him during the World Olympic Qualifier in Sofia, Bulgaria returned positive for a specified substance Methylhexanamine (MHA).
Over the next few months, Mr. Malik and the International Testing Agency (ITA) – the delegated third party of the UWW, engaged in correspondence vis-à-vis his positive test. While Mr. Malik contended that MHA had entered his body through the consumption of a contaminated supplement, the ITA rejected his contentions and wrote to Mr. Malik to accept a two-year ban. Mr. Malik, however, refused to accept the proposed period of ineligibility and instead requested for the matter to be referred to the Anti-Doping Division of the CAS (CAS) for adjudication.
At the CAS, UWW conceded that there was no element on record to show that Mr. Malik’s ADRV was intentional. Thus, the starting point of Mr. Malik’s suspension was two years, pursuant to Article 10.2.2 of the UWW Anti-Doping Rules (UWW ADR). However, UWW contended that Mr. Malik was not eligible for a further reduction since he had not established, on a balance of probabilities, the source of MHA in his body. Further, it was UWW’s case that Mr. Malik had not established that he bore “No Significant Fault or Negligence”, a mandatory requirement to get punishment reduced for an anti-doping rule violation.
On the other hand, Mr. Malik maintained that the presence of MHA in his system was attributable to the consumption of a Contaminated Product namely, “B4Sport Pre-Workout”. The testing conducted on both the sealed and unsealed bottles of the supplement, by the Banned Substances Control Group (BSCG) Laboratory revealed the presence of MHA in similar amounts. As per Mr. Malik’s submissions, the supplement was acquired by him from a fellow Indian wrestler, one day prior to the collection of his sample. Mr. Malik contended that he consumed the supplement only upon receiving assurances that the same was free from any prohibited substances. Further, it was contended that prior to the consumption of the supplement, Mr. Malik conducted an internet search to verify the credibility of the manufacturer and cross-checked the ingredients listed on the packaging with the World Anti-Doping Agency (WADA) Prohibited List. It was therefore argued that Mr. Malik’s degree of fault was at most “normal”, which warranted a reduction in the period of ineligibility.
At the outset, the Sole Arbitrator observed that even though the quantity of MHA detected (439,000 ng/g) in the supplement were accepted by both parties to not be trace amounts which might be attributable to cross-contamination, the supplement could still be classified as a Contaminated Product. The UWW ADR defines a “Contaminated Product” as “A product that contains a Prohibited Substance that is not disclosed on the product label or in information available in reasonable Internet search”.
Based on the evidence adduced by the experts of both parties, as also the oral submissions of Mr. Malik, the Sole Arbitrator accepted that the source of MHA in his system was attributable to the consumption of the B4Sport supplement. It is important to note that both experts concurred that the quantity of MHA identified in the supplement could be compatible with the concentration found in Mr. Malik’s sample.
Further, the Sole Arbitrator accepted that Mr. Malik cross-checked the listed ingredients on the supplement with the WADA Prohibited List, and that he saw references to the manufacturer and its affiliated with an international brand, on the label.
However, the Sole Arbitrator was of the view that by consuming a supplement which he had never previously taken, and by failing to conduct an online search to verify the legitimacy of the supplement, Mr. Malik assumed a high level of risk.
Accordingly, the Sole Arbitrator concluded that Mr. Malik’s degree of fault was on the border of “moderate” to “considerable” (based on the classification laid down in the Marin Cilic case, and further, in the Robert Lea case). A 17-month suspension was therefore imposed upon Mr. Malik, and the sanction was backdated to the date of sample collection, i.e., 7 May 2021, considering the serious delays attributable to the UWW in processing the result management process of Mr. Malik.
As things stand, Mr. Malik is eligible to return to professional competition, with his suspension having ended on 6 October 2022.
It was seen previously that the Indian athletes, the anti-doping panels’ and the National Anti-Doping Agency of India, assumed that if the case of an Indian Athlete went to CAS, it is unlikely that the Indian athlete would succeed in his defense. Thus a de-facto four year ban would be imposed with costs. With the Sumit Malik’s case, the perception should now start changing and the Indian anti-doping panel’s, where a just case exist, would get the courage to reduce the punishment of the athlete’s before them.