Introduction

On Tuesday 20th August 2024, an independent tribunal (“the Tribunal”) convened by Sports Resolutions considered that the men’s world number one tennis player, Jannik Sinner, bears ‘No Fault or Negligence’ for two Anti-Rule Doping Violations (“ARDVs”). The decision is an important case in the ongoing evolution of anti-doping jurisprudence, particularly in the context of inadvertent doping violations. This blog post, written by Spencer Turner, provides an analysis of the decision. Dr David Sharpe KC sat as the Independent Tribunal’s Chair. Spencer Turner and Dr David Sharpe KC are both members of the 12KBW Sports Law Team. The decision of the Tribunal can be read here.

World Anti-Doping Code

The Tennis Anti-Doping Programme (“TADP”) is a comprehensive set of rules governing anti-doping measures in tennis, established under the World Anti-Doping Code (“WADC”). The WADC serves as the foundation for anti-doping policies across various sports worldwide, aiming to harmonise regulations and ensure fair play. The International Tennis Integrity Agency (“ITIA”), acting as the delegated authority under the International Tennis Federation (“ITF”), is responsible for the administration and enforcement of the TADP. The TADP incorporates strict liability for any ADRV, meaning that an athlete can be held accountable for the presence of a prohibited substance in their body, regardless of intent or knowledge. In particular TADP Articles 2.1 and 2.2 provide that “it is not necessary to demonstrate intent, Fault, Negligence or knowing Using on the Player’s part in order to establish an [ADRV …]; nor is the Player’s lack of intent, Fault, Negligence or knowledge a defence to an assertion [or] a charge that an [ADRV …] has been committed”.

Previous decisions under the WADC and TADP have consistently upheld the principle of strict liability, placing the burden on athletes to ensure that no prohibited substances enter their bodies. However, the WADC also provides mechanisms for reducing or eliminating sanctions if the athlete can demonstrate that the ADRV was unintentional and that they bore no fault or negligence or no significant fault or negligence. Cases such as CAS 2016/A/4643 (Maria Sharapova v ITF) and CAS 2009/A/1926 and 1930 (ITF v Richard Gasquet) provide a foundation for understanding how these principles are applied, particularly in cases involving inadvertent contamination.

Factual Background and the Tribunal’s Decision

Jannik Sinner was charged with ADRVs under Articles 2.1 and/or 2.2 of the TADP following the detection of Clostebol metabolites in his urine samples collected during the BNP Paribas Open in Indian Wells and subsequently before the Miami Open. Clostebol is classified as a S1 anabolic androgenic steroid, prohibited under the WADC, and its presence in an athlete’s sample constitutes a strict liability violation.

Sinner did not dispute the presence of Clostebol metabolites in his samples but argued that their presence was due to inadvertent contamination from his physiotherapist, Mr Giacomo Naldi. According to Sinner, Mr Naldi had used a topical spray containing Clostebol to treat a cut on his finger. This spray, Trofodermin, was subsequently transferred to Sinner during routine physiotherapy sessions, without Sinner’s knowledge or suspicion.

The Tribunal considered the factual matrix presented by both the ITIA and Sinner’s representatives. It was uncontested that Sinner had no knowledge of the Clostebol in the Trofodermin spray, nor was he aware of the potential for contamination during his physiotherapy sessions. The Tribunal found that Sinner’s explanation was plausible and accepted that the contamination occurred as described.

The key issue for the Tribunal was whether Sinner could benefit from the provisions of Article 10.5 of the TADP, which allows for the elimination of a sanction if the athlete can demonstrate no fault or negligence. The terms “No Fault or Negligence” and “No Significant Fault or Negligence” are defined in TADP Appendix One as:

“No Fault or Negligence. The Player or other Person establishing that they did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that they had Used or been administered the Prohibited Substance or Prohibited Method or otherwise violated an anti-doping rule. Except in the case of a Protected Person or Recreational Athlete, for any violation of Article 2.1 the Player must also establish how the Prohibited Substance entered their system.

No Significant Fault or Negligence. The Player or other Person establishing that their Fault or Negligence, when viewed in the totality of the circumstances and taking into account the criteria for No Fault or Negligence, was not significant in relation to the Anti-Doping Rule Violation. Except in the case of a Protected Person or Recreational Athlete, for any violation of Article 2.1 the Player must also establish how the Prohibited Substance entered their system.”

The Tribunal also considered the application of the WADC Comment to Article 10.5, which addresses the responsibility of athletes for the actions of their support personnel and states:

“No Fault or Negligence would not apply in the following circumstances … (b) the Administration of a Prohibited Substance by the Athlete’s personal physician or training without disclosure to the Athlete (Athletes are responsible for their choice of medical personnel and for advising medical personnel that they cannot be given any Prohibited Substance”

Analysis of the Tribunal’s Decision

The Tribunal’s decision is a significant addition to the body of anti-doping jurisprudence, particularly in its interpretation and application of strict liability under TADP and WADC.

One of the cornerstone principles of anti-doping law is strict liability, which holds athletes responsible for any prohibited substance found in their bodies, regardless of intent or knowledge. This principle was central to the Tribunal’s reasoning in Sinner’s case, where the presence of Clostebol metabolites in his urine samples was undisputed. However, strict liability is not absolute; the WADC and TADP provide mechanisms for reducing or eliminating sanctions if an athlete can demonstrate that they bore no fault or negligence, or no significant fault or negligence.

The Tribunal in Sinner’s case accepted that the athlete had no knowledge of the presence of Clostebol and had taken reasonable steps to ensure compliance with anti-doping regulations. The crux of the Tribunal’s decision rested on the interpretation of “no fault or negligence” under Article 10.5 of the TADP, which allows for the elimination of a sanction if the athlete can prove they did not know, and could not reasonably have known, that they had ingested or been administered a prohibited substance.

The Tribunal’s decision to eliminate Sinner’s sanction was heavily influenced by how Article 10.5 has been interpreted in previous cases. This article is pivotal in anti-doping cases where an athlete argues that they had no fault or negligence in the commission of an ADRV. The article requires the athlete to establish that they could not have reasonably known or suspected that they were using or being administered a prohibited substance, even with the exercise of utmost caution.

In the case of CAS 2016/A/4643 (Maria Sharapova v ITF), the Court of Arbitration for Sport (CAS) applied Article 10.5 of the WADC to reduce her period of ineligibility from two years to 15 months. Sharapova had ingested Meldonium, a substance added to the prohibited list only a few weeks before her positive test. The CAS panel found that while Sharapova bore some degree of fault for not checking the updated list of prohibited substances, her fault was not significant because she had relied on advice from her medical team. The reduction in her sanction was based on her partial fault, recognising that she had not exercised the utmost caution required under the WADC.

In contrast, Sinner’s case did not involve a reduction of a sanction but rather the elimination of one. The Tribunal distinguished Sinner’s case from Sharapova’s by emphasising the different factual matrix: Sinner was unaware of the presence of Clostebol because it was transferred to him inadvertently by his physiotherapist, and he had no reason to suspect that a prohibited substance could be involved. The Tribunal was satisfied that Sinner had exercised the utmost caution in his anti-doping practices by carefully selecting and supervising his support team, all of whom were well-versed in anti-doping responsibilities.

The Tribunal’s reliance on CAS 2009/A/1926 & 1930 (ITF v Richard Gasquet) is also noteworthy. In Gasquet’s case, the CAS accepted his explanation that he had ingested cocaine through kissing a woman who had used the drug. The CAS found that Gasquet had not acted negligently because he could not have reasonably foreseen the risk of cocaine entering his system through kissing. At ¶69 of that decision, the Panel noted that:

“The Panel states that under the given circumstances, even if the Player exercised the utmost caution, he could not have been aware of the consequences of kissing a girl who he had met in a totally unsuspicious environment. It was simply impossible for the Player, even when exercising the utmost caution, to know that in kissing Pamela, he could be contaminated with cocaine.”

The decision in Gasquet’s case is a useful precedent which shows how a panel might interpret “utmost caution” in circumstances where an athlete is unaware of the risk of ingesting a prohibited substance.

Applying the reasoning in Gasquet’s case, the Tribunal in Sinner’s case concluded that the athlete had no reason to suspect that his physiotherapist’s use of a topical spray for personal use would lead to the contamination of his samples. Sinner’s case was deemed even more compelling than Gasquet’s because the source of contamination was a medical product used by a trusted member of Sinner’s support team, rather than an incidental social interaction. The Tribunal also determined that Sinner was totally unaware of the presence or use of the topical spray because he had specifically asked his physiotherapist if he had used anything to treat his finger injury and was told ‘no’ which was correct at that time. This context significantly bolstered Sinner’s argument that he bore no fault or negligence.

The decision also engaged with the jurisprudence surrounding the delegation of anti-doping responsibilities to support personnel, as discussed in CAS 2017/A/5015 (FIS v Johaug). In that case, Norwegian cross-country skier Therese Johaug was sanctioned after using a lip balm containing Clostebol, which had been recommended by her team doctor. The CAS upheld the suspension, emphasising that athletes cannot entirely delegate their anti-doping responsibilities, even to medical professionals. The principle that athletes are ultimately responsible for ensuring that no prohibited substances enter their bodies was reinforced.

However, Sinner’s case is distinct from Johaug in critical respects. While Johaug directly administered the substance based on her doctor’s advice, Sinner was a passive recipient of the prohibited substance through inadvertent contamination. The Tribunal acknowledged that while athletes must supervise their support teams, the circumstances in Sinner’s case were such that he could not have foreseen the contamination risk. This nuanced interpretation of delegation and responsibility was crucial to the Tribunal’s decision to absolve Sinner of fault.

Comparative Analysis

This case adds to a growing body of case law in respect of inadvertent doping violations. I have provided a table below to summarise those decisions and how they were applied in Sinner’s case. These comparisons highlight the evolution of how tribunals and CAS panels interpret strict liability, fault, and negligence in the context of inadvertent doping violations (click table to enlarge):

Conclusions

The Tribunal’s decision to eliminate Sinner’s sanction was based on a careful analysis of the facts and a nuanced interpretation of anti-doping rules. Central to this decision was the Tribunal’s application of Article 10.5 of the TADP, which requires an athlete to prove that they did not know, and could not reasonably have known, that they were using a prohibited substance.

The Tribunal was persuaded by the extensive evidence provided by Sinner and his team, which demonstrated that Sinner had exercised the “utmost caution” in his anti-doping practices. This included hiring a qualified support team, ensuring that they were informed about anti-doping rules, and maintaining a high level of vigilance in his own practices. The inadvertent contamination by Clostebol occurred without Sinner’s knowledge, through a product that was not intended for his use, and which he had no reason to suspect was being used by his physiotherapist.

In its ruling, the Tribunal emphasised the importance of context in determining fault or negligence. While strict liability is a fundamental principle of anti-doping law, the Tribunal recognised that it must be balanced against the realities of professional sports, where athletes rely on their support teams for medical and physiological care. The Tribunal’s decision to absolve Sinner of fault reflects a broader understanding that athletes cannot always anticipate every risk, especially when they have taken reasonable precautions.

The decision in the case of Jannik Sinner is an important decision in the context of the interpretation and application of anti-doping laws. It underscores the challenges athletes face in maintaining compliance with stringent anti-doping regulations while navigating the complexities of professional sports. This ruling not only reinforces the principles of strict liability and the responsibilities of athletes and their support teams but also highlights the importance of context and fairness in the adjudication of anti-doping violations.

As anti-doping jurisprudence continues to evolve, this case will likely no doubt act as a reference point for future decisions, particularly in cases involving inadvertent contamination. Athletes, legal practitioners, and regulatory bodies alike will need to consider the implications of this ruling as they navigate the ever-complex landscape of anti-doping enforcement.