When the appeal deadline was just a few hours away and Jannik Sinner was seemingly ready to put to rest the doping saga that had been hanging over his head for the last six months, the World Anti Doping Agency (WADA) sent an announcement from their Montreal headquarter that an appeal would be filed to CAS (Court of Arbitration for Sport in Lausanne, Switzerland) against the decision of “No fault or negligence” taken last August by the Independent Tribunal of Sports Resolution. According to the minimalist press released by WADA, the conclusion of the Independent Tribunal on Sinner’s case “is not correct under the applicable rules.”
The noise caused by the world No. 1’s positivity that had waned out in recent weeks was once again rattling the tennis world to its very core, reviving a discussion that seemed to have died down.
What will now happen to Sinner? What does the Italian champion risk? More importantly, what does it mean that WADA believes Sinner should be suspended for one to two years?
The appeal to CAS
The institution of the Court of Arbitration for Sport was founded in 1984 by the International Olympic Committee (IOC) and became progressively independent from the IOC (which initially funded it entirely) by creating a specialized division for doping cases in 2016.
It is possible to request to CAS a straight-out arbitration or an appeal, after all other attempts at legal remedy have failed, as is the case here. The entity requesting the appeal to CAS must send a written request, the parties initially communicate with each other in writing until a hearing takes place where both sides have the chance to present their case.
The hearing is held before three arbitrators who can be selected from those included in the CAS list. Each of the two parties involved can choose one arbitrator. The panel of three will then in turn appoint one of the arbitrators as chairman. While the decision for an arbitration is usually announced a few weeks after the hearing, in the case of an appeal the decision is announced on the same day.
The CAS decision can be appealed to the Swiss Federal Court, but the decision is rarely overturned except for procedural errors by the panel. Reversals rarely occur on the merits of the case.
What WADA must prove
The statement by WADA seems to indicate that the Anti-Doping authority does not intend to challenge the reconstruction of the events provided by Sinner’s team to the Independent Tribunal and accepted by the judges but claims that the application of the rules was not carried out correctly. According to WADA, in fact, a certain degree of negligence must be attributed to Sinner, and according to Article 10.6.2 of the Tennis Anti-Doping Program (TADP), the disqualification period varies from a maximum of two years to a minimum of half depending on the degree of fault found in the athlete.
According to the Independent Tribunal, Sinner had not been found negligent because his actions in the period immediately preceding the positive tests on March 10th and March 18th were considered sufficient to create a situation within his team that could reasonably prevent unintentional contamination. Sinner had hired i a team of professionals placed under contract with clauses specifying their role in the participation to the anti-doping program. Fitness trainer Umberto Ferrara, a professional with several years of experience and a degree in pharmacy, had been appointed as the head of the team for anti-doping compliance. In addition, immediately after the incident that caused physiotherapist Giacomo Naldi to cut his left pinky finger, Sinner questioned Naldi about the nature of the injury and the use of any medication to treat the wound. Naldi reportedly confirmed to Sinner that no medication had been used to heal the wound, and only at a later stage Ferrara got involved and suggested the use of Trofodermin (an over-the-counter drug in Italy that contains the banned substance Clostebol).
During the first trial, Sinner’s behaviour was deemed sufficient to exonerate him from any fault or negligence for the accidental contamination, but WADA does not see it the same way, and believes that Sinner should have done more. But what else should he have done?
For the purpose of this analysis, the reconstruction of events provided by Sinner’s team will be considered accurate, since it has not been disputed by any party involved so far.
First of all, WADA might say that since Naldi suggested that he used Trofodermin on the wound and bandaged the injured finger for a rather long period of time (around 10 days), Sinner should have asked Naldi again, during the recovery period, whether he was using any medication to accelerate the healing. The fact that Sinner’s concern was limited to a single question, which coincidentally came before the use of the prohibited drug, could be considered negligent behavior on Sinner’s part.
Moreover, WADA could also focus on the very presence of Trofodermin inside Ferrara’s medicine bag and more generally in the accommodation Sinner shared with his team in Indian Wells during the tournament. In fact, one of the most stunning passages in the account of events by Sinner team is how a professional of Ferrara’s experience could have simply gone to an Italian pharmacy to buy a drug notoriously on the list of banned substances and then take it with him to California during a tournament when he would be working closely with Sinner.
Had this behavior by Ferrara violated the terms of his contract with Sinner? Or was the possession of banned substances by a staff member during an away game essentially allowed within Sinner’s team? If the second assumption were to be the correct one, then WADA could argue, not without some reason, that Sinner had not taken sufficient precautions not to come into contact with prohibited substances.
If, on the other hand, the contract between Sinner and his team included a clause mandating a “sterile zone” (i.e., free of banned substances) around the athlete, a clause that Ferrara would then have violated, then WADA’s focus could shift to how Sinner enforced this rule: did he trust his staff to behave according to the rules, or were there control mechanisms in place? The absence of these control mechanisms could be construed as a certain degree of negligence by the Italian player.
Sinner’s possible defense
In scenarios such as those mentioned above, Sinner could have to prove that the preventive actions described by WADA would have been physically impossible to carry out, totally unreasonable, or would have broken some other law in force where the team was located and/or in force in the jurisdiction of reference of the contract that ties Sinner to his team members. For example, if a member of Sinner’s team suffered from a medical condition that required the taking of a drug containing a prohibited substance, it might be very difficult (if not illegal) for Sinner to enforce the absence of that drug among the employee’s personal effects.
One of the key passages of Sinner’s defense in the first-degree trial was the unintentional contamination caused by a rather confusing interaction between Ferrara and Naldi. Their accounts to the Independent Tribunal were discordant, and this was attributed to the fact that Naldi had just arrived in California from Italy and had not yet smoothed out the 9-hour time difference. Is it legitimate to think that Sinner should have interfered in a private exchange between them (an exchange that he probably did not even know had occurred) in order to protect his legitimate business interests?
If that’s the case, should Sinner then be informed of all interactions among members of his team? Is this reasonable or even legal?
Gray area and a high degree of discretion
As can be seen, there are many elements currently unknown to us that could influence the outcome of the hearing, and that leave ample room for the arbitrators’ discretion. The assessment of the many steps that Sinner could legitimately have taken to prevent this unintentional contamination is up to the panel, and it can be evaluated in many possible ways.. From this point of view, it is easy to foresee how this entails a non-insignificant degree of risk for Sinner, who could become the victim of really very onerous standards of caution that the three judges might consider as “reasonable” to confirm the verdict of “no fault or negligence.”
The saga is far from over, it will probably be several months before the appeal hearing takes place, and the attitude of the panel members will be crucial.
What is really unclear in this whole affair is the reason for WADA’s decision to invest considerable resources in pursuing an appeal on a case that has been generally accepted as an accidental contamination. WADA’s main mission “should be” to fight doping, that is the voluntary use of banned substances to improve athletic performances. And this is not the case.
WADA’s website, however, describes the organization’s mission as “the development, harmonization and coordination of anti-doping rules and policies among all sports and all countries,” and from this perspective the initiative could set an important precedent for determining what is the acceptable “due diligence” to be carried out by an athlete in order to be considered without fault or negligence in the case of accidental contamination.
