Despite winning two Grand Slams and becoming the no. 1 men’s singles player in the world this year, Jannik Sinner remains in the spotlight for reasons beyond his on-court success.
On 26 September 2024, the World Anti-Doping Agency, (‘WADA’), lodged its appeal with the Court of Arbitration for Sport, (‘CAS’), over the Independent Tribunal’s decision to not sanction Sinner for his anti-doping rule violations, (‘ADRVs’). The Tribunal determined that while Sinner had committed 2 ADRVs under Tennis’ Anti-Doping Programme, (‘TADP’), he bore no fault or negligence for such. Thus, it did not impose any period of ineligibility against him. However, WADA asserts that the Tribunal erred in making its finding of “no fault or negligence” and is seeking a 1-2-year period of ineligibility. It remains to be seen how CAS will resolve these conflicting positions over the finding and applicable sanction, if any. The appeals process is expected to last several months.
Background
In March 2024, 2 urine samples collected from Sinner tested positive for the presence of Clostebol metabolites.[1] Due to Clostebol being an anabolic steroid and a ‘prohibited substance’ under Section S1 of WADA’s Prohibited List, the International Tennis Integrity Agency, (‘ITIA’), charged Sinner with having committed ADRVs under Articles 2.1 and/or 2.2 of TADP, (see below).
In the hearing before the Tribunal (convened by the ITIA), Sinner accepted the presence of Clostebol metabolites in his urine and admitted that he was in breach of Articles 2.1 and 2.2 of TADP. However, he contended that he bore no (significant) fault or negligence for the commission of the ADRVs and, thus, sought that either no period of ineligibility be imposed or that it be reduced.
To analyse Sinner’s contentions in more depth, it is first necessary to consider the relevant legal framework.
Legal Framework: Commission of ADRVs and Sanctions
The ITIA charged Sinner with the commission of ADRVs under Articles 2.1 and/or 2.2 of TADP, both of which are strict liability offences:
- Article 2.1 sets out that, unless the player can establish a therapeutic use exemption, (‘TUE’),[2] the presence of any prohibited substance, its metabolites or its markers in a player’s urine sample will constitute an ADRV.
- Article 2.2 provides that, unless the player can establish a TUE,[3] the (attempted) use of a prohibited substance will constitute an ADRV.
The benchmark sanction for breaches of Article 2.1 and/or 2.2 of TADP is a 4-year ineligibility period. However, this period can be reduced or eliminated if the player can satisfy various criteria.
The first criterion relates to intention. If a player can rebut the presumption of intentionality in relation to the commission of the ADRV, the period will be reduced to 2 years.
The second criterion relates to whether the violation is the player’s first doping offence or not. If it is, then the player may seek to rely on Article 10.5 or 10.6 of TADP:
- Article 10.5 provides that if a player establishes that they bear “no fault or negligence” for the commission of the ADRV, the period of ineligibility will be eliminated.
- Article 10.6 provides that the period of ineligibility will be reduced where there has been “no significant fault or negligence” by the player for the ADRV.
It is these criteria and the application of them by the Tribunal that lie at the heart of the conflicting positions between the Tribunal and WADA.
Evidence & Decision of the Tribunal
Concerning the first criterion, Sinner successfully rebutted the presumption of intentionality. He and his team convinced the Tribunal that, on the balance of probabilities, the Clostebol had entered Sinner’s system because of unintended and unknown transdermal contamination from his physiotherapist, a Mr Naldi.[4]
From 5-13 March 2024, Mr Naldi had been using an over-the-counter spray (available in Italy) to treat a small wound on his own finger. During these same 8 days, he had also been providing full body massages to Sinner and bandaging Sinner’s feet. Unbeknown to both Mr Naldi and Sinner, the spray contained Clostebol. In addition to this, Sinner asserted that he did not know that the spray was involved at any stage of his massage/treatment.
Given Sinner’s explanation, which was deemed to be highly plausible by the independent experts, combined with it being Sinner’s first anti-doping offence, the Tribunal went on to analyse whether Sinner had established, under Article 10.5 of TADP, that he bore no fault or negligence for the commission of the ADRV.
In making its decision, the Tribunal noted the definition (as set out in Appendix One of TADP) of the term: “no fault or negligence”. The key parts are that the player must 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”. The player must also prove the origin of the prohibited substance.
Weighing all the evidence, the Tribunal determined that Sinner did not and could not reasonably have known or suspected even with the utmost cation that Mr Naldi had used Clostebol or that it was possible for such to have been inadvertently transferred to him during massages and/or treatment. Further, the Tribunal accepted that Sinner had taken great care in choosing his support team and ensuring that they understood and respected their anti-doping responsibilities and so took the view that Sinner had exercised the utmost caution. Therefore, as he had done everything possible to avoid a positive test result, the Tribunal concluded that Sinner bore no fault or negligence in relation to the commission of the 2 ADRVs. It also concluded that Sinner could avail himself of the full relief provided in Article 10.5 of TADP, thereby eliminating any period of ineligibility.[5]
Given its conclusion, the Tribunal did not go on to conduct any analysis based on Article 10.6 of TADP. It did not consider the issue of ‘no significant fault or negligence’. Without further details as to the specific grounds of WADA’s appeal, it remains to be seen whether this point may fall within its remit.
More generally, it remains to be seen how CAS will resolve this appeal regarding the finding made and lack of sanction applied by the Tribunal with each anti-doping case turning on its own facts.
Controversy
Having looked at the legal issues, it is now interesting to consider the controversy surrounding this case. While the explanation proferred by Sinner would always be subject to some degree of public debate (even if such is unfounded), the bigger problem for tennis is that of alleged preferential treatment or at least the perception thereof.
Various current and former tennis players have raised concerns with Sinner’s case. Their concerns centre on the speed with which Sinner’s temporary suspensions were lifted and the lack of publicity surrounding the process.
On 4 April 2024, the ITIA notified Sinner that an AAF had been reported in relation his first sample, that of 10 March 2024. Accordingly, the ITIA imposed a mandatory provisional suspension on Sinner with immediate effect. On the same day, Sinner filed an urgent application for the provisional suspension to be lifted. The application was granted on 5 April 2024.
On 17 April 2024, the ITIA notified Sinner that AAF had been reported in relation to his second sample, that of 18 March 2024. Once, again the ITIA imposed a mandatory provisional suspension with immediate effect. On the same day, Sinner filed an urgent application for the provisional suspension to be lifted. It was granted on 20 April 2024.
Unlike other high-profile anti-doping cases, which are often disclosed by the ITIA immediately following a player’s failed test(s) and result in the player concerned finding themselves in the middle of a media storm, Sinner’s case was kept private until the Tribunal reached its conclusion.
These concerns over fairness and transparency will need to be addressed by the ITIA both for its own credibility but also for the integrity of professional tennis more generally.
By Meg Cochrane, Barrister
7 October 2024
[1] The first sample, collected in-competition on 10 March 2024, returned an adverse analytical finding, (‘AAF’), for Clostebol in a (gravity-adjusted) concentration of 86 pg/ml. The second sample, collected out-of-competition on 18 March 2024, returned an AAF for the same substance in a concentration of 76 pg/ml. Evidence provided to the Tribunal by independent experts concluded that the small quantities of Clostebol in both samples would not have any doping, or performance-enhancing effect on Sinner.
[2] Under Article 4.4 of TADP.
[3] ibid.
[4] This finding, which the ITIA also came to, was based on: (i) documentary and testamentary evidence provided by Sinner, (ii) the transcripts of 10 interviews carried out by ITIA investigators with Sinner and members of his team, and (iii) opinions from 3 independent anti-doping experts.