TAS 2014/A/3639 Amar Muralidharan v. National Anti-Doping Agency of India, National Dope Testing Laboratory, Ministry of Youth Affairs & Sports
CAS 2014/A/3639 Amar Muralidharan vs INADA, NDTL, Ministry of Youth Affairs & Sports
- Aquatics (swimming)
- Doping (methylhexaneamine)
- Objection to CAS jurisdiction
- Standing to appeal
- Departures of the international testing standards and/or the anti-doping rules
- Right of the athlete regarding the B sample
- Requirement regarding the transportation of the sample
1. Under Article R39 of the CAS Code, a panel of arbitrators has express authority to confirm (or reject) CAS jurisdiction. Such authority is reiterated in Article R55 of the CAS Code and confirmed by Article 186(1) of the PILA. According to the Swiss Federal Tribunal, a jurisdictional challenge should be filed in a timely manner (i.e. before entering a defence on the merits (included in – or prior to filing – an answer), failing which the parties are deemed to have accepted jurisdiction. In this respect, waiting until the eve of the hearing to consult with FINA to confirm an athlete’s “legal” status as an Indian swimmer on this threshold jurisdictional issue is careless and cannot stand to overcome the explicit requirements of Article R55 of the CAS Code and Article 186 of the PILA. What is more, if not earlier, the moment a party executes the Order of Procedure without observations or objections on jurisdiction, it also undoubtedly loses its right to raise such a procedural objection.
2. Right to appeal and right to be sued are issues linked to and deriving from the merits of a single case. In case parties to an arbitration mutually agree that such rights are given, they agree on a factual basis that binds an arbitrator. As it is not for an arbitrator to question undisputed facts, it is not for arbitrators to come to a different conclusion than that of the parties.
3. In any doping-related procedure, of critical importance to the adjudication of an appeal is the integrity of the athlete’s test results and corresponding evidentiary data, along with the athlete’s right to defence. In this regard, the existence of certain international testing standards (IST) and anti-doping rules are considered to be so fundamental and central to ensuring the integrity in the administration of sample collection that certain departures therefrom could result in the automatic invalidation of the test results. To demonstrate such departure, the consideration of the evidence presented by the parties concerning the circumstances of the doping test, as well as the transportation, storage, and chain of custody of the sample, should show that violations of the IST and/or of the anti-doping rules, if any, could have reasonably caused the prohibited substance to appear in an athlete’s sample. Errors which are merely mistakes such as clerical mistakes in preparing the Laboratory Document Package and unnecessary delays in handling the athlete’s cases before the Anti-Doping panels are not dispositive on the athlete’s test results.
5. It is undisputed that an athlete – at the least – maintains a fundamental right to be notified of, and be given the opportunity to attend, the opening of his B Sample. Such fundamental rights have been laid down in CAS jurisprudence. Nothing contained within the applicable regulations requires that any national federation, national anti-doping organization, etc. appoint an independent observer in the event an athlete is unable to attend the opening of his B Sample. All that is required is that an athlete be given an opportunity to attend such opening, or have his representative attend on his behalf.
6. The IST requirement that the sample be transported “as soon as practicable” is not unreasonable and in the absence of any evidence from the athlete to prove that the sample was tampered with during this period of time (or that there was a physical mix-up of the samples), the time period during which the sample was transported to the Laboratory and the chain of custody that followed do not constitute a reason on which to make a finding that there has been a fundamental violation of the IST.
In September 2010 the India National Anti-Doping Agency (INADA) has reported an anti-doping rule violation against the Athlete Amar Muralidharan after his A and B samples tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).
Consequently on 5 November 2012 the Anti-Doping Disciplinary Panel of India (ADDPI) decided to impose a 2 year period of ineligibility on the Athlete.
Thereupon on 3 June 2014 the Anti-Doping Appeal Panel (ADAP) confirmed this sanction. Hereafter in June 2014 the Athlete appealed the ADAP decision wit the Court of Arbitration in Sport (CAS).
In his defence the Athlete made the following assertions:
- The A Sample was not handled correctly, although it was a clerical error it makes the A Sample invalid and a violation of the doping rules can not be made only by the positive findings of the B Sample.
- The B sample analysis was not observed by an independent observer, he was part of the disciplinary committee of the INADA.
- The Athlete has been denied access to justice because he has been deprived the prospect of having his suspension, if any, subject to legal review prior to the expiration of the period of ineligibility.
The Respondents contended that:
- The Athlete has been given sufficient opportunity to present his case and has been provided with all documents requested. The arguments brought forth in this appeal are repetitive and were already adjudicated by the ADAP panel.
- The integrity of the Athlete’s sample was adequately maintained throughout the collection procedure, transportation to the testing laboratory, and throughout the testing procedure.
- The observer was independent because he wasn't a member that precede the athlete's case 9 (same name two different persons).
- The error with the sample codes included only sample positive for MHA.
- The positive findings of MHA are not influenced by the pH of the samples.
The Sole Arbitrator deems that INADA and the Laboratory can be criticized on one hand for the clerical mistakes in preparing the Laboratory Document Package, and on the other hand for the unnecessary delays in handling the Athlete’s cases before the panels.
However the Athlete has not established to the comfortable satisfaction of the Sole Arbitrator that the Athlete’s adverse analytical finding could have been caused by a departure from the International standards of testing or the INADA Anti-Doping rules and not by ingestion. Such errors were merely mistakes which are not dispositive on the Athlete’s test results.
Therefore the Court of Arbitration for Sport decides on 8 April 2015 that:
1.) The appeal filed by Mr. Amar Muralidharan on 17 June 2014 is dismissed.
2.) The decision rendered by the NADA Anti-Doping Appeal Panel on 3 June 2014 is upheld.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.
