On 27th October 2017, Yusuf Pathan was charged with the commission of an Anti-Doping Rule Violation (ADRV) under the BCCI Anti-Doping Rules (ADR) Article 2.1 and provisionally suspended pending determination of the charge. Yusuf Pathan responded to the charge by admitting the ADRV and asserting that it was caused by his ingestion of a medication containing Terbutaline that had been mistakenly given to him instead of the medication prescribed for him, which did not contain any prohibited substance.
How BCCI examines Anti-Doping Rule Violation?
The BCCI contracts an independent service provider, IDTM, to collect samples from cricketers who are subject to the BCCI ADR, to be tested for the presence of prohibited substances. For example, prior to this case, Mr. Pathan has previously been drug tested five times by the BCCI, with no adverse analytical findings reported. A urine sample was collected from Mr. Pathan as part of an in-competition doping control immediately after the Vijay Hazare Trophy domestic match between Baroda and Tamil Nadu in New Delhi on 16 March 2017 (the Match). The sample was collected in accordance with the procedures set out in WADA’s International Standard for Testing and Investigations, and was given reference number 3090632.
The BCCI requires lDTM to send all samples collected under the BCCI ADR to a WADA-accredited laboratory to be analysed in accordance with WADA’s International Standard for Laboratories for the presence of substances on WADA’s List of Prohibited Substances. Accordingly, IDTM sent Mr. Pathan’s sample 3090632 to the WADA-accredited National Dope Testing Laboratory in New Delhi, which analysed Mr Pathan’s A sample and on 12 April 2017 reported the presence of terbutaline, which is a beta-2 agonist that is prohibited under category S3 of the 2017 WADA Prohibited List (the Adverse Analytical Finding).
Terbutaline is a drug that is mainly used to treat asthma, including exercise-induced asthma, and the National Dope Testing Laboratory in its report of the Adverse Analytical Finding asked the BCCI to check whether the person providing the sample had a therapeutic use exemption (TUE) to use terbutaline. The BCCI had no record of any such request by Mr. Pathan, but WADA’s International Standard for Therapeutic Use Exemptions allows for the grant of a retroactive TUE in certain circumstances. Therefore, the BCCI contacted Mr. Pathan to find out if he was using a medication containing terbutaline to treat asthma, and (if so) to investigate whether there might be grounds for him to apply for a retroactive TUE to cover such use. However, Mr. Pathan expressed shock at his Adverse Analytical Finding, as he does not have asthma, he has never knowingly ingested terbutaline, and he has tested negative on each occasion that he has been tested in the past. Mr. Pathan advised that he did not know how terbutaline had got into his system. The BCCI asked him to speak to the medical professionals who worked with the teams he played for and who would be responsible for attending to his medical needs. Ultimately it was concluded that he had been given a medication containing terbutaline by mistake, and therefore there were no grounds for a grant of a retroactive TUE for his use of that medication.
In accordance with Article 7.5.5 of the ADR, the BCCI referred the file to an independent Review Board, which reviewed the file to determine whether (a) there was any apparent departure from the International Standard for Testing and Investigations or International Standard for Laboratories that caused the Adverse Analytical Finding; or (b) the Adverse Analytical Finding was consistent with an applicable TUE that had been granted or may be granted as provided in the International Standard for TUEs. The independent Review Board reported no such departures or TUE, meaning that there was a case for Mr. Pathan to answer for an ADRV within the meaning of Article 2.1 of the BCCI ADR (presence in his sample of a prohibited substance for which he did not have a TUE).
Consequently, on 27 October 2017, the BCCI sent a formal notice of charge to Mr. Pathan, asserting the commission of an anti-doping rule violation under BCCI ADR Article 2.1, on the basis that a Prohibited Substance (terbutaline) had been found to be present in his urine sample reference no. 3090632. In addition, exercising the discretion given to it under BCCI ADR Article. Based on the foregoing, the BCCI considers that Mr. Pathan has departed from the rigorous standard of ‘utmost caution’ imposed under the BCCI ADR, but that his departure from that standard is not ’Significant’. Assessing his degree of fault, giving him credit for acceding to this outcome and so avoiding a hearing before the Anti-Doping Tribunal, thereby saving the BCCI time and money that it may deploy elsewhere in its anti-doping efforts, and considering potential comparator cases, including the CAS award in F. v. Athletics Kenya, CAS 2015/A/3899, the BCCI deems a five month period of ineligibility to be appropriate in all of the circumstances of this case.
Under BCCI ADR Article 10.10.3, Mr. Pathan is entitled to full credit against that period of ineligibility for the provisional suspension that he has been serving since 28 October 2017. In addition, there is discretion under BCCI ADR Article 10.102 to back-date the start date of the period of ineligibility still further on account of Mr Pathan’s prompt admission of his ADRV upon being confronted with it by the BCCI, and under BCCI ADR Article 10101 on account of the delays in the results management in this case that are not attributable to Mr. Pathan. In all of the circumstances, the five month period of ineligibility will be deemed to have started to run on 15 August 2017, so that it ends at midnight on 14 January 2018.
During his period of Ineligibility, Mr. Pathan’s status is as set out in BCCI ADR Article 10.11, as follows:No Cricketer or Cricket Support Person who has been declared Ineligible may, during the period of Ineligibility, play, coach or otherwise participate or be involved in any capacity in: (a) a Match or any other function, Event or activity (other than authorised Antidoping education or rehabilitation programs) authorised, organised, sanctioned, recognised or supported in any way by the BCCI or by any body that is a member of, or affiliated to, or licensed by the BCCI; or (b) any Match or any other function, Event or activity authorised or organised by any professional league or any international or national level tournament/Event organisation (whether or not the party authorising or organising the Match or Event in question is a Signatory, any club or other body that is a member of, or affiliated to, or licensed by, a Signatory or a Signatory’s member organisation); (c) any elite or national-level sporting activity funded by a government agency; or (d) a Competition or activity (other than authorised anti-doping education or rehabilitation programmes) authorised or organised by any Signatory, Signatory’s member organisation or a club or other member organisation of a Signatory’s member organisation. Without prejudice to the generality of the foregoing, such Cricketer or Cricketer Support Person shall not, during any period of Ineligibility, be given accreditation for, or otherwise granted access to, any Match, function, Event or activity of the type referred to in this Article and any such accreditation previously issued shall be withdrawn. In addition, the BCCI shall take all steps within its power to have the period of Ineligibility recognised and enforced by all other relevant parties, including all other Signatories pursuant to Article 15.
In addition, in accordance with BCCl ADR Article 9, all individual results obtained by Mr. Pathan during the Match are Disqualified, along with forfeiture of any individual medals or other prizes awarded to him. In the circumstances, under BCCl ADR Article 10.8, the BCCl accepts that 3 individual results obtained by Mr. Pathan from the date of sample collection up until his provisional suspension on 28 October 2017 should go; be Disqualified. Each of the ICC and the World Anti-Doping Agency has a right to appeal this decision in accordance with BCCl ADR Article 13. In accordance with BCCl ADR Article 8.3, Mr. Pathan is deemed to have waived his right of appeal against this decision.”