The NADA Disciplinary Panel hearing the case of 12 dope-tainted athletes, including seven in Commonwealth Games squad, remained inconclusive and said participation of the athletes in the mega event was left to their respective federations.
Twelve athletes had tested positive for methylhexaneamine and the NADA panel had lifted the provisional suspension on ten of them on September 22 after the WADA decided to shift the banned stimulant from 'non-specified' to 'specified' substance in the 2011 list of prohibited substances.
Wrestlers Rajiv Tomar, Mausam Khatri, Sumit and Gursharanpreet Kaur, swimmers Richa Misra and Jyotsana Pansare were the in the Commonwealth Games squad but their respective federations had announced replacements.
Shot Putter Shaurabh Vij's name is still in the Commonwealth Games squad though a reserve has been named by the Athletics Federation of India.
The NADA panel also lifted the provisional suspension on weightlifter Sanamacha Chanu and swimmer Amar Muralidharan, who were not present on September 22. The panel posted the matter for next hearing on October 21.
Interestingly, the NADA had not sent the order lifting the provisional suspension of the athletes to the respective federations and it did that only today.
Counsel for the athletes, Ragini Nayak, said her clients are now eligible to take part in the Commonwealth Games if their federations take them back.
"The athletes are now eligible to take part in the Commonwealth Games as the suspension has been lifted. It is like no suspension has been imposed at all. But the only doubt on the minds of panel members could be that any medal won by these athletes could be taken back if they are handed a ban in the next hearing," she said.
She also said that even a warning without imposing a ban would have made the athletes ineligible for the Games as it did not exonerate them from guilt.
"If you are warned you are admitting that you have committed some offence," she added.
The athletes, however, suffered a setback with the NADA panel ruling that the tests conducted by NADA during the selection trials for the Commonwealth Games were in-competition tests.
Counsel for the athletes had argued that the tests could not be considered in-competition as they had competed to participate in another event -- Commonwealth Games.
The three-member panel, however, was divided on the ruling with two members -- former national badminton champion Dinesh Khanna and doctor N K Khadiya -- holding that the tests were in-competition.
Panel chairman Dinesh Dayal, retired additional district judge, however, held that the tests were not in-competition as they were not held in reference to any specific competition.
Referring to the FILA (world body on wrestling) Anti-Doping Regulations 2009, Khanna and Khadiya wrote in their order, "The sample collection process which takes place 12 hours before a competition in which the athlete is scheduled to participate through the end of such competition
is 'in competition' testing.
"We can't agree with the argument that 'competition' only means the final race, match, game or singular athletic event," they said.
"Since the samples were collected on the same day of the selection trials it must be held that the tests were in-competition," they wrote.
In his dissenting opinion, Dayal said according to NADA Anti-Doping Rules, the "athlete has to be selected for testing in connection with a specific competition in order to qualify the test for in-competition test".
"As per FILA Regulations, the sample collection process must relate to some competition only then the test can be called an in-competition test," he wrote.
"I therefore hold that the dope testing process relating to these athletes was not in-competition. Since methylhexaneamine in substance which is banned in-competition I find that these athletes have not committed any dope control violation," he said.
The athletes expressed hope that they would now be able to take part in the Commonwealth Games.
"Now that the provisional suspension has been lifted we are hopeful that the federation would take us back," said swimmer Richa Mishra.
Rajiv Tomar submitted to the panel that he will not care if he was handed two-year ban or any other ban but would be hugely disappointed if he misses the Commonwealth Games.
"It is a matter of taking part in the Commonwealth Games or not. I don't care if I am handed ban of two years or for life. I want to take part in the Commonwealth Games," said Tomar, who was conferred the Arjuna Award in August.
