Published 11 October 2009
By Gary Rice, Beauchamps Solicitors
An International Tennis Federation Independent Anti-Doping Tribunal recently found that Richard Gasquet was guilty of an anti-doping rule violation, but found that he had ingested cocaine when kissing a woman in a night club.
The Tribunal found that Gasquet and a mystery woman known only as Pamela “kissed mouth to mouth about 7 times…each kiss lasting about 5 to 10 seconds”. In June a French newspaper had published an interview with Pamela in which she denied taking cocaine on the night in question, but ultimately she refused to proffer any evidence before the Tribunal. The decision for its implications as regards the defences available in anti-doping cases.
The World Anti-Doping Code provides for the reduction of a “period of ineligibility” (i.e. suspension) where the athlete can show “No Fault or Negligence” or “No Significant Fault or Negligence”. In the case of a prohibited substance which is a specified substance (which is considered less serious), these defences allow for a reduction, but not an elimination, of the period of ineligibility. It is often difficult for an athlete to bring himself within either defence. In order to rely on No Fault or Negligence or No Significant Fault or Negligence, the athlete must first establish on the balance of probability how the prohibited substance entered his system. The Tribunal accepted that on the balance of probability it came from kissing Pamela. The amount of cocaine found in Gasquet’s sample was very small – in the region of 5 mg, with an amount of 1 mg having the appearance and size of “a single grain of refined salt”. Hair analysis conducted by Gasquet’s expert witnesses excluded the possibility that he was a regular social user and it made any allegation of recreational use unlikely. The evidence also showed that the level of cocaine in Gasquet’s sample was so small that it was more than likely ingested within the 12 hour period prior to the test.
In order to establish no fault or negligence, an athlete must establish 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 had been administered with the prohibited substance. Gasquet’s conduct that evening was found not to be completely free from fault. He ought to have known that the club in question were notorious for the use of recreational drugs. In order to establish no significant fault or negligence, a player would have to show that although his conduct was not completely free from fault, it was not significant in relation to the doping offence in issue. As cocaine is a prohibited substance only when found during “in-competition”, a finding of no significant fault or negligence allows the period of ineligibility to be reduced to one year. However, the Tribunal found that even a period of ineligibility of one year would be disproportionate to the offence committed. It relied on the Court of Arbitration for Sport’s decision in Peurta. v. ITF (CAS 2006/A/1025) which found that any sanction must be just and proportionate and that if it is not, the sanction may be challenged. The Tribunal found that any period of ineligibility would be grossly disproportionate punishment for a player who did not compete in the competition concerned (he withdrew because of injury), had already decided not to compete when the contamination occurred, and had made that decision for the very good reason that he was injured and not to avoid testing. The International Tennis Federation suggested that such a decision would open the floodgates and would unnecessarily eviscerate the strict liability principle that underlies the World Anti-Doping Code. This argument was not accepted by the Tribunal. Although the decision might be questioned, it would seem to have been an exceptional case in which the circumstances allowed the appellant to establish that the quantity of cocaine ingested was so small that it could not have come from recreational use. This decision also highlights the discord which exists in the sports world over the inclusion of cocaine as a prohibited substance “in-competition” and not as a specified substance.
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