Tuesday, December 05, 2006


I just finished reading the Appeals Committee report so let's get right into this. As always, I'm going to try to break this down into manageable categories.

Justice Fakhruddin G. Ebrahim
Anyone remember this guy? How can you forget? 11 years ago, this same man exonerated Salim Malik on match-fixing and bribery charges, which is kind of like exonerating Nawaz Sharif on charges of being fat or George Bush on charges of being stupid. Now I'm no lawyer (though I did watch The Practice religously for about three seasons and Ally Mcbeal for two), but how was this allowed to happen? How was a guy who was so supremely wrong about most important legal matter in the sport's history allowed to preside over an appeals committee on the second most important legal matter in the sport's history? Shouldn't there be some sort of process by which these committees are chosen? Shouldn't said process include a clause which goes something like "If you thought Salim Malik (Salim Malik!!) was not guilty of match fixing, we have to reason to doubt your intelligence and legal skills and therefore you cannot serve, much less preside over, this committee"? I know I'm not the only one who remember this guy's role in the Salim Malik affair. Why was he picked? Is it because his history suggests a leniency towards Pakistani cricketers? Can someone please clarify this?

The legal issues
Herein lies the crux of the debate. There are three issues to consider here. First, Asif's and Shoaib's defense against the charges. Second, the applicability of ICC/WADA regulations and the difference between them and PCB regulations. Third, the plausiblity and viability of Asif's and Shoaib's version of events. Let's tackle each of these one by one.

Shoaib's defense has three facets to it. One, he was on a high protein diet and had a rigorous workout schedule, a combination which could have caused the positive tests. Two, he was taking numerous over-the-counter nutritional supplements that were not banned and the supplements could have contained nandrolone. Three, he was never warned or told about any anti-doping regulations and so could not have been expected to know about them with any degree of certainty. Remember this paragraph. I'm going to return to it later.

Asif's defense was much simpler, or in the words of the committee "more circumscribed". His basic claim is that he was taking supplements, that he didn't know what they contained and that he discontinued their use immediately when the physiotherapist Darryn Lifson told him to do so.

Let's move on to the PCB vs. the ICC/WADA regulations question. This is one of the two main points on which the justification for the Appeals Committee verdcit rests, so it's important we peruse this carefully. In paragraphs 12 and 13 of the report, the committee says that the first committee (the one that found them guilty and banned them) erroneously used WADA regulations when it should have used the PCB anti-doping code. The matter was under the jurisdiction of the PCB because the tests were conducted internally and not by the sport's governing body, the ICC. As such, "there is no doubt in [their] minds that the PCB Anti Doping Regulations are applicable to the present case of Shoaib Akhtar and Muhammad Asif who were tested in Pakistan by the PCB under its Regulations and not by any other international sports body."

Why does it matter what anti-doping regulations the original committee used? It boils down to the question of whether or not these cases had "exceptional circumstances". According to the Appeals Committee, the regulations on "exceptional circumstances" used by the ICC and the PCB exist on a "significantly different plane". Let's see if that claim is true. Here is the relevant PCB regulation:
Exceptional circumstances exist if...(b)the player held an honest and reasonable belief in a state of facts which, if they existed, would mean that the player did not commit a doping offence.

Here is the relevant ICC regulation:
If the Cricketer establishes in a individual case involving an Anti Doping Code violation under Clause 3.1 (presence of Prohibited Substance or its Metabolites or Markers) or Use of a Prohibited Substance or Prohibited Method under Clause 3.2 that he bears No Fault or Negligence [means that the Cricketer establishing that he did not know or suspect and could not reasonably have known or suspected even with the exercise of utmost caution, that he had Used or been administered the Prohibited Substance or Prohibited Method] for the violation, he shall be found to have committed no violation...

Now, you tell me: do those two regulations exist on a "significantly different plane"? I really don't think so. The only difference I see are the words "utmost caution" in the ICC code which aren't mentioned in the PCB code. This is an important term, but I don't think it's cause for thinking the regulations exist on a "significantly different plane". The PCB regulations seem to say "He's innocent if he didn't know and proves he didn't know." The ICC regulations seem to say "He's innocent if he didn't know despite trying his best to know, and proves both that he didn't know and that he tried his best to know." That's not significantly different.

Where there is a significant difference is where the responsibility lies if a cricketer gets caught. Here's the PCB's code:
The PCB aims to prevent the use of performance enhancing drugs and doping practices in Cricket...by (b) educating and informing persons about drugs in sport issues.

Here's the ICC's code:
It is each Cricket Player's personal duty to ensure that no Prohibited Substance enters his body. Cricket Player's are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their bodily Specimens. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Cricket Player's part be demonstrated in order to establish an anti-doping violation under Clause 3.1.

This is perhaps the most important legal distinction between the ICC's code, largely derived from WADA's, and the PCB's. The ICC is saying "It's the player's responsibility to know what the hell is going on." The PCB is saying "It's our responsibility to make sure the players know what the hell is going on." For the lawyers of Shoaib and Asif, this distinction is half the case. If, given the PCB's own regulations, their lawyers can show that the PCB did not live up to its responsibilities, then its game, set, match. And as we will soon see, showing that the PCB did not live up to its responsibilities isn't particularly difficult (or "taxing" as Rameez Raja might say).

We can now go to the third and final point: the plausibility and viability of Shoaib's and Asif's defense. Let's talk about Shoaib first. His defense, if you remember, was (a) he was on a high protein diet and had a rigorous workout schedule (b) he used over-the-counter supplments that might have contained nandrolone and (c) he was never given any information on the intake of supplements. We can throw (a) out immediately for two reasons. One, there are plenty of other cricketers on high-protein diets who have rigorous workout schedules and none of them test positive for drugs. Two, this defense is not relevant to the central argument his lawyers make, which is that it was the PCB's fault because they didn't supply enough information to the players. On the other hand, (b) and (c) deserve closer scrutiny. There are two questions one needs to ask here. First, if given the number of supplements Shoaib was taking (for the record, they are Blaze Xtreme, Nitron 5, Size On, T-Bomb II, Promax 50 and Viper), is it reasonable to have expected him to ask for information on any of them from the army of trainers and doctors both the PCB and he employ? I say yes. Second, given that Shoaib has been playing international cricket since 1998, has played county cricket (which is run infinitely more professionally than the PCB runs Pakistan cricket) and various ICC tournaments (World Cups, ICCCTs), is it reasonable to expect that he has had more than just one information source, i.e. the PCB, on questions of drugs and supplements? I say yes again. Given that the answers to the previous two questions mean that Shoaib bears at least some responsibility for his failing a drug test, can we say that his ban being reduced to nothing from 24 months is justifiable? I say hell no. Shoaib Akhtar should not be wearing a Pakistan shirt. He should have been banned for at least a year, if not more.

What about Asif? Here's where the incompetence of the PCB is on full display. Asif was not a regular member of the national team until early 2006. In response to the question of how many times the players were made aware of the PCB's anti-doping measures in the last year, the PCB's Anti-Doping Control Officer Dr. Sohail Saleem said "not even once". So how was Asif supposed to know about the dangers of nutritional supplements? Well there's the WADA publication titled "Athlete Guide", which contains warnings on supplements. Did any of our players ever read "Athlete Guide"? Nope. Dr. Sohail Saleem says that when he received the publication, he handed 24 copies to physiotherapist Darryn Lifson. Lifson says he handed the publications to the players, but doesn't remember if Asif and Shoaib were present when he did so. He further says that though drugs and anti-doping measures are his responsibility, nutritional supplements are not. Whose responsibility are they? Trainer Murray Stevenson's he says. Ok, fine. What do you have to say about that, Mr. Stevenson? "I tell players about the diet that they should follow but not about any dietary supplements for which I have no responsibility. I have no responsibility in matters relating to drug and anti drug regulations." Given these farcical statements, I think it's safe to say that Asif bore no responsibility for not knowing what he was taking. Moreover, since even the ICC regulations stipulate that if someone had no idea, then he doesn't deserve any punishment (as opposed to the WADA regulations, which say that under the same circumstances, a punishment can be reduced but not completely striken), we can say the overturning of Asif's ban was justified.

The fall out
Reactions to this entire episode will fall into, broadly speaking, two categories. One will be the Australian/British/Indian media and their supporters, who will say the entire thing was just a ploy, that there was no way in hell Pakistan was going to go to the Caribbean for the World Cup without its two best bowlers, that its typical of us, that we're Paki-cheats and so on. The other will be the "Here we come, Australia, game on!" reaction of the majority of Pakistani fans who're ecstatic that Shoaib and Asif got off and don't care how it happened.

Both reactions are misplaced. I don't think this entire episode was one brilliant conspiracy; that gives way too much credit to the PCB when they're actually a bunch of bumbling idiots who couldn't conspire to kill a cockroach without setting a building on fire. It also is not a case of "typical Pakistan, not punishing its players" because the original punishments were universally deemed as appropriate and I really do think Nasim Ashraf et al were prepared to go to the Windies without Shoaib/Asif to prove a point. Nonetheless, I know very well that we've just bought ourselves at least 12 months worth of unfair coverage from the three major countries because of this. If Asif had been let go but Shoaib punished, with say an 18-month ban and a hefty fine, the world might still have believed us. But from a combined three years down to zero? That just confirms everything they've always thought about us. Can't do anything about it, so no point worrying about it, I guess.

What about the Pakistani fans who are over the moon? I wish I could say I'm as euphoric as them, but I'm not. Treating this as a purely cricketing matter ("our World Cup chances are gone, yaar!") was completely missing the point. I was quite happy with the original bans because it meant we were putting principle over on-the-field results, exactly the reason we garnered so much sympathy when it came to L'affaire Hair. Unfortunately, at least in Shoaib's case, it seems that principles have taken quite a hit here. And for that I'm truly sorry.

What next?
If I'm Shoaib or Asif, I'm going on the internet right now and finding out exactly how long Nandrolone stays in the body. Let's remember the ICC retains the right to test any player at any time in an ICC mandated competition. That means that they can test Shoaib and Asif at the World Cup (or maybe even earlier, I'm not 100% sure about this) in which case the judge, jury and executioner will be ICC people, not PCB people. If that happens, and Nandrolone is found in their systems, you can expect two year bans for them both, because trust me, the ICC is not going to be pleased with this verdict.

What about our team? Well, it's game on, isn't it? Shoaib, Asif, Gully and Dani as an attack on South African pitches? Most captains will take that, I think. So much now depends on whether or not we can put this episode behind us. To that end, and also because someone needs to bear responsibility for this, I want to see heads roll. If the PCB has agreed that Shoaib and Asif are innocent, then by extension that must mean someone else is guilty. I want one of Stevenson or Lifson fired. I want Dr. Sohail Saleem gone. I want accountability. This was a big fucking deal, and for everyone to just go back to their little roles, all hunky-dory, is unacceptable.


f-machine said...

I think a significant factor here is the fact that Woolmer suspected something and got these tests carried out. Why would Woolmer have been suspicious had Shoaib been doing what athletes do and only training hard and taking protein supplements?

The appeals committee would have only looked at the facts in the case. Apparently there was evidence to suggest that the PCB had not educated their players properly. There was no evidence presented that someone else HAD educated Shoaib and even if they did it was the PCB's responsibility and since they failed that responsibility the players cannot be punished
according to the PCB regulations.

So I believe that it is a fair verdict according to the rules. However, like you said, its very negligent of Shoaib to be putting so much junk into his body without consulting a professional and that tells me that he either took steroids intentionally or didn't care enough to find out. In either case, he deserves to be punished.

Having said that I don't think he can be punished due to the involvement of lawyers who will fight the case on technical details and legalities and completely ignore the broader picture.

I find it laughable that the PCB are being accused of a grand conspiracy theory and staging the whole thing. Please. Like you said, that's giving them wayyyyyy too much credit. As with most things Pakistani, the whole affair was grossly mismanaged and conducted in the most hasty manner possible without regard to due procedure.

Oh and Asif. Poor guy. I mean do you really want to punish a guy who said that he didn't take a lawyer to the first hearing because he didn't know you could take lawyers to hearings and then credited his mother's prayers for his acquittal! Bechara Allah mian kee gaiy just let him be I say!

Anonymous said...

It's a really stupid legal technicality on which they were exonerated - the fact remains that they both took performance enhancing drugs. Maybe it wasn't a grand conspiracy, but I think the fact that no one is surprised speaks volumes about what the rest of the world thinks of how the PCB and Pakistani cricket in general operates.

f-machine said...

Not really. If you look at the technical legalities alone then its perfectly legitimate. The PCB is NOT a signatory to the WADA and the testing was done internally outside the bounds of the ICC so their rules don't apply and so the PCB rules and regulations must apply. As it turns out the PCB violated all kinds of WADA and ICC rules during the testing and immediately afterwards including revealing the names of the players involved. So the procedure was carried out under PCB rules while the punishment was handed out under WADA rules which is quite inconsistent. I'm not sure why you would, but if you chose to apply the WADA code throughout then the testing would have been declared invalid so there was no question of a WADA punishment (pending a retest of course).

"the fact remains that they both took performance enhancing drugs" -- That fact doesn't remain anywhere because over-the-counter protein supplements have been known to contain contaminants that produce positive drug results.

Anonymous said...

So the debate remains but no fact about anybody taking drugs remains.

Ahsan said...

Hang on. It's not because of a "stupid legal technicality" that they were exonerated. Even the ICC doping code, which differs from the WADA code in this regard, says that if it can be demonstrated that the player had no idea ("reasonable and honest belief") that they violated the drug policy, then they are free to go (this is the "exceptional circumstances") No reasonable person can deny this was the state of affairs for Asif. Thus the overturning of his ban was entirely justified.

On the other hand, Shoaib should not be in a Pakistan shirt, as I already mentioned in the original post. It is reasonable to assume, as I said, that having been in the team so long, and having played county cricket as well as ICC tournaments, that he would have had more information about nutritional supplements than someone who just relied on the PCB would. Furthermore, given the NUMBER of nutritional supplements he was taking, the onus was on him to make sure there was nothing wrong with them. Let's remember, he also has a personal doctor and trainer, so that only makes his case weaker and my case stronger. Shoaib Akhtar should not be playing for Pakistan.

Nikhil said...

I think Osman Saimuddin does sums up my take on the affair best, "Set aside details for a moment: the first broad message conveyed - possibly the most significant - is that two players who have tested positive for a banned substance have been let off without any punishment at all. Even granting them the benefit of doubt and acknowledging that there was no intent, nothing at all, not even a piddling fine or a slap on the wrists? For ignorance at least?"

Also, "What happens, as one reader rightly asked, if the players test positive during the ICC World Cup now, knowing that nandrolone remains traceable in the bloodstream for a considerable period of time after it has been ingested?"

What indeed?

Ahsan said...

Yes I agree with much of what OS says (as usual). I agree that Asif should have at least been fined, and I suppose, not allowed to return until the SA tour or perhaps the WC.

My opinion on Shoaib is well established and I don't need to repeat it.

About "what happens", if you read my post, I already mentioned that I think there's nothing stopping the ICC from testing them and banning them, though that will throw up another appeal and godknows how much other dust. We'll have to wait and see in that regard.

Look, I should reiterate that the way this entire thing was handled, including the punishments (from a combined 36 months to 0!!), has left me very dissatsified. I'm closer to your opinion on this than I am to the typical Pakistani reaction, which is "Who cares how they got off, thank God they can play in the WC, all I care about is winning". It's funny that the same people who were talking about "principles" and "how dare anyone label us cheats" after L'affaire Hair suddenly have forgotten about principles and what this means for our standing in the cricket world.