CAS 2009/A/1782 Filippo Volandri v. International Tennis Federation (ITF)
- Tennis
- Doping (Salbutamol)
- CAS scope of review
- Burden of proof
- Degree of fault of the player
1. By adopting and implementing the principle of consistency with the WADAC and by adopting the commitment to “incorporate without any substantive changes” the provision of the WADAC which recognize inter alia the unrestricted scope of review of the CAS Panel as provided under R57 of the CAS Code, the 2008 ITF Programme actually solves by itself the question of the co-existence of its two apparently conflicting provisions regarding the CAS scope of review. In order to exercise its power of review (as apparently allowed by the 2008 ITF Programme), the CAS must be able to examine the formal aspects of the appealed decisions but also, above all, to evaluate – sometimes even de novo – all facts and legal issues involved in the dispute.
2. According to the ITF Programme, the fact that a player has established, on the balance of probabilities, how the specified substance entered his body and has also established, to the comfortable satisfaction of the hearing body, that his ingestion of the specified substance was not intended to enhance his sporting performance or to mask the use of another prohibited substance only allows the player to benefit from the possible elimination or reduction of the period of suspension but is irrelevant with regard to the occurrence or non occurrence of the adverse analytical finding. As the player has not offered any persuasive evidence of how the concentration found in his urine could be the result of the therapeutic use, he has not succeeded in discharging the onus on him and, hence, must be considered as having committed a doping offence.
3. The degree of a player's fault is minor if the threshold of 1,000 ng/mL is just exceeded. Furthermore, the fact that the player has never previously been found guilty of an anti-doping rule violation, and more importantly, the fact that the procedures before the IF were slow and suffered from inconsistencies, with the result that the player was left in a state of uncertainty of over 8 months before formally being charged with a doping offence, must be taken into account to assess the player's degree of fault. Such a long period is unacceptable and incompatible with the intention of the anti-doping regime that matters should be dealt with speedily.
On 15 January 2009 the International Tennis Federation (ITF) decided to impose a 3 month period of ineligibility on the Italian tennis player Filippo Volandri, including disqualification of results, after his A and B samples tested positive for the prohibited substance Salbutamol in a concentration above the threshold set in his TUE.
In first instance the ITF accepted that the violation was not intentional and that the Athlete had used too much Salbutamol as treatment for the severe asthma he suffered.
Hereafter in February 2009 the Athlete appealed the ITF Decision with the Court of Arbitration for Sport (CAS). He requested the Panel to annul the Appealed Decision and to restore his disqualified competition results.
Following assessment of the facts in this case the CAS Panel determines that although the ITF knew of the adverse analytical findings, it chose not to inform the Athlete and to let the latter take part in 19 tournaments before formally charging him with a doping offence. Such a long period is unacceptable and incompatible with the intention of the anti-doping regime that matters should be dealt with speedily.
The Panel was taken aback when it saw that on 18 September 2008 (more than 6 months after the sampling collection) the ITF requested Mr Filippo Volandri to provide details on
- a) the time at which he last urinated prior to providing sample on 13 March 2008;
- b) the time(s) at which he used his inhaler on 13 March 2008; and
- c) the number of puffs he took on each of those occasions.
It is obvious that the Athlete was not in the position to answer to such questions precisely, because of ITF’s fault and was therefore deprived of the right to fair evidence proceedings, which emerges from the right to be heard, the right to a fair trial and the principle of equal treatment, which are fundamental and which were disregarded in the present case.
Based on the above considerations, the Panel is of the opinion that fairness requires that:
- a) a reprimand is imposed upon Mr Filippo Volandri;
- b) that no period of ineligibility is imposed on the tennis player; and
- c) that his individual result in respect of the 2008 Indian Wells tournament only is disqualified, and in consequence, the prize money and ranking points obtained by him through his participation in that event are forfeited.
Therefore the Court of Arbitration for Sport decides on 12 November 2009 that:
1.) The appeal of Mr Filippo Volandri against the decision of the ITF Independent Anti-Doping Tribunal dated 15 January 2009 is partially upheld.
2.) The decision issued by the ITF Independent Anti-Doping Tribunal on 15 January 2009 is set aside.
3.) On these grounds:
- a.) Mr Filippo Volandri is found guilty of the anti-doping offence specified in the notice of charge set out in the ITF’s letter to the player dated 13 November 2008.
- b.) A reprimand is imposed upon Mr Volandri.
- c.) No period of ineligibility is imposed on Mr Volandri.
