CAS 2008/A/1488 Laura Pous v/ International Tennis Federatioo (ITF)
CAS 2008/A/1488 P. v. International Tennis Federation (ITF)
- Tennis
- Doping (hydrocholorthiazide; amiloride)
- Duty of care of the athlete
- Significant fault or negligence
- Application of the transitional provisions of the 2009 WADA Code
1. In consideration of the fact that athletes are under a constant duty to personally manage and make certain that any medication being administered is permitted under the anti-doping rules, the prescription of a particular medicinal product by the athlete’s doctor does not excuse the athlete from investigating to their fullest extent that the medication does not contain prohibited substances. If the doctor is not a specialist in sports medicine and not aware of anti-doping regulations, it is of even greater importance that the athlete be significantly more diligent in his/her efforts to ensure that the medication being administered does not conflict with the Code.
2. While it is understandable for an athlete to trust his/her medical professional, reliance on others and on one’s own ignorance as to the nature of the medication being prescribed does not satisfy the duty of care as set out in the definitions that must be exhibited to benefit from finding No Significant Fault or Negligence. It is of little relevance to the determination of fault that the product was prescribed with “professional diligence” and “with a clear therapeutic intention”. To allow athletes to shirk their responsibilities under the anti-doping rules by not questioning or investigating substances entering their body would result in the erosion of the established strict regulatory standard and increased circumvention of anti-doping rules.
3. A player’s ignorance or naivety cannot be the basis upon which he or she is allowed to circumvent the very stringent and onerous doping provisions. There must be some clear and definitive standard of compliance to which all athletes are held accountable.
4. In cases where a final decision finding an anti-doping violation has been rendered prior to 1st January 2009, but the athlete is still serving his/her period of ineligibility, the athlete may apply to the relevant body for reconsideration of the sanction in light of the 2009 WADA Code.
In September 2007 the International Tennis Federation (ITF) reported an anti-doping rule violation against the Spanish tennis player Laura Pous after her sample tested positive for the prohibited substances Amiloride and Hydrochlorothiazide. The Athlete explained that the source of the positive test was a prescribed medication she had used as treatment for her condition.
Consequently the ITF Independent Anti-Doping Tribunal decided on 25 January 2008 to impose a 2 year period of ineligibility on the Athlete. Hereafter the Athlete appealed the ITF Deciscion with the Court of Arbitration for Sport (CAS).
The ITF acknowledged that the Athlete had demonstrated the source of the prohibited substances, yet it contended that she had acted with significant fault or negligence.
The Athlete admitted the violation and denied the intentional use of the substances. She requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.
In view of the evidence the Panel establishes that the Athlete's doctor was not a specialist in sports medicine and had no anti-doping knowledge. In this situation the Athlete had not duly informed him that she was an athlete subject to doping control, nor provided to him the List of Prohibited Substances.
Further the Panel determines that the Athlete failed to check her medication, nor mentioned this on the Doping Control Form. The Panel concludes that she truly acted ignorant of all the readily available resources at her disposal.
Therefore the Court of Arbitration for Sport decides on 22 August 2008:
1.) The appeal filed on 20 July 2008 by P. against the decision issued on 25 January 2008 by the ITF’s Independent Anti-Doping Tribunal is denied.
2.) The decision issued on 25 January 2008 by the ITF’s Independent Anti-Doping Tribunal is upheld.
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