Today, Egyptian’s four-time Paralympic champion Fatma Omar will attend an appeal hearing against the International Paralympic Committee (IPC) at the Court of Arbitration for Sport (CAS).
Omar’s appeal will focus on reducing two-year suspension to enable her to compete at the 2016 Paralympics in Rio de Janeiro. Her sanction started on May 6 2014, after the 2014 IPC Powerlifting World Championships. Egyptian Paralympic Committee insisted that Omar did not knowingly violate doping rules, as she took the prescribed medication under a doctor’s supervision.
This is one of spate of suspensions for powerlifters. Most of powerlifters’ sanctions have included a fine of 1500 euro and two-year ineligibility period for participations in IPC events. All the athletes, however, have a chance to appeal their suspensions.
About two years ago, there were two powerlifters’ doping cases which brought different decisions. Firstly, Colombia’s Ivan Palacio who failed a drug test during the 2014 Para South American Games successfully appealed the Hearing Panel, following the section 10.5 of the IPC’s Anti-Doping Code : ‘Reduction of period of ineligibility based on no significant fault or negligence’. The Hearing Panel accepted that he did not intend to enhance his performance, but it was only for the legitimate medical purposes. Consequently, his suspension and fine were reduced to half.
Similarly, when Uzbekistan’s Ruza Kuzieva took positive for Methandienone, the Uzbekistan Paralympic Committee also claimed her ‘negligence’, as saying that she just took anti-flue medicine without confirming any doping drugs before the 2013 Fazaa International Powerlifting Competition in Dubai. The Hearing Panel, however, considered that ‘she failed to provide evidence that circumstances in her case study were truly exceptional.’ Kuzieva was also able to apply for the appeal procedure at the CAS, but she did not take further action.
Egyptian Paralympic Committee and Omar set the appeal procedure at CAS, so it reveals that she might also have a lack of evidence to prove her medical purpose during a hearing, organised by the Hearing Body including IPC Anti-Doping Committee and the Hearing Panel.
The best outcome will be to eliminate her penalty altogether, as bringing her claim of ‘exceptional circumstances’ under section 10.4 of the IPC’s Anti-Doping Code handbook: ‘elimination of the period of ineligibility where there is no fault or negligence’. She, however, who already failed a doping test might be a challenge to be applicable to this section.
Next possible option is to claim section 10.5 ‘Reduction of period of ineligibility based on no significant fault or negligence’ with the evidence of her ‘prescribed medicine’, as as Colombian and Uzbekistani powerlifters did. If successful, she will be eligible for participations in the international competitions, only after up to one-year suspension.
Lastly, third possibility is a Therapeutic Use Exemption (TUE) which is section 4.4 from the World Anti-Doping Code (WADC), not from the IPC’s Anti-Doping Code.
“The argument may follow the line that my doctor prescribed me Clomiphene for a particular medical condition and in such circumstances the ‘use of a prohibited substance … shall not be considered an anti-doping violation (4.4.1),” David Thorpe, Senior Lecturer of the UTS Law, said.
He, meanwhile, added that it seems quite apparent that Omar did not apply for a TUE, because this is only applicable for a person suffering from an ailment ‘as soon as the need arises’ (section 22.214.171.124 WADC).
David Thorpe also empahsised that Omar is facing several difficulties in attempting to have her offence downgraded or dismissed for ‘exceptional circumstances’.
“Firstly, the athlete remains prima facie responsible for prohibited substances that enter her body. And secondly, the athlete is responsible where support staff, such as a medico, contribute to the presence of the banned substance in the athlete’s body.”
Article 2.2 Anti-Doping Rule Violation of WADA also states that, “It is each athlete’s personal duty to ensure that no prohibited substance enters his or her body and that no prohibited method is used.”
Thorpe said that it will be a key whether she is able to prove a lack of knowledge that prohibited substance had been administered.
“If the doctor gave it to her in a packet to self-administer she would be expected to read the packet and inquire through the relevant doping agencies of her country if there was a substance of which she was unfamiliar. She would have to be able to show that the medico did not inform her – a situation which may carry significant implications for the doctor.”
Egyptian powerlifter Fatma Omar has been suspended for two years by the IPC, as she tested positive for Clomiphene (anti-estrogenic substance) with her urine sample at the 2014 IPC Powerlifting World Championships, where she won gold as well as set the world record. Omar was disqualified for doping violation, and she is not able to participate in Rio 2016.
David Thorpe, Senior Lecturer, Faculty of Law at the University of Technology, Sydney (UTS), contributed substantially to this article.