CAS 2005/A/951 Guillermo Cañas v. ATP Tour, revised award of 23 May 2007
Related case:
- ITF 2005 ATP vs Guillermo Cañas
August 7, 2005 - Swiss Federal Court 4P.172_2006 Guillermo Cañas vs ATP Tour & CAS
22 March 2007
- Tennis
- Doping (hydrochlorothiazide)
- Burdens and standards of proof
- Duty of utmost caution
- Level of fault or negligence
1. Under the ATP Rules, once it has been established that a Prohibited Substance was present in the player’s specimen, there is a Doping Offense. The burden of proof then shifts to the player to establish by a balance of probability, first how the prohibited substance entered his system, and second that he bears No Fault or Negligence, or in the alternative No Significant Fault or Negligence, for the Doping Offense in order for the two years period of ineligibility to be eliminated or reduced.
2. A player is being clearly negligent when relying blindly on the system set up to take care of him at a Tournament site, assuming that it is foolproof. The player has a duty of utmost caution after visiting the Tournament doctor, when actually ingesting medications. It would be normal for him to rely on the trustworthiness and knowledge of the Tournament doctor if the doctor handed the medications to him, but any professional athlete these days has to be wary when, as in this case, he receives medications which, he knows, have gone through several hands. Thus, the player cannot establish that he bears No Fault or Negligence for the Doping Offense.
3. What is determinative of the level of fault or negligence is not only what the player actually knew or expected but also what he could have suspected.
In March 2005, the Association of Tennis Professionals (ATP) has reported an anti-doping rule violation against the Athlete Guillermo Cañas after his A and B samples tested positive for the prohibited substance hydrochlorothiazide (HCT). After notification the Athlete was heard for the ATP Anti-Doping Tribunal.
The Athlete stated that he had no idea how he took the prohibited substance. Arriving at the tournament he suffered from a sore throat and symptoms of a cold or influenza. He went for a prescription at the offices of the ATP physicians and before using he didn't read the label.
The Athlete argued that it is likely that the prescription of the ATP physicians is the source of the contamination, which would mean the ATP is the origin of the contamination. The small amounts of the prohibited substances prove it was not taken to eliminate other doping substances. The urine was insufficiently diluted to have traces of other substances, this is a technical violation of the Anti-Doping
The ATP Tribunal concluded that not has been established how the prohibited substance had entered his body. There is no evidence that the contamination is caused by the medicine he claimed to have used. He also didn’t reseach the ingredients of the medication before using. Therefore the ATP Anti-Doping Tribunal decided on 7 August 2005 to impose a 2 year period of ineligibility on the Athlete, starting on 11 June 2005.
Hereafter in August 2005 the Athlete appealed the ATP decision of 7 August 2005 with the Court of Arbitration for Sport (CAS).
Considering the evidence and statements the Panel finds that the Athlete has established that he bears No Significant Fault or Negligence in this exceptional case although he acted negligently in ingesting a banned substance.
The majority of the Panel rejected the Athlete’s arguments regarding EU law. Assuming that EU law would be applicable to the present case, as alleged by the Athlete and such application of EU law has not been specifically agreed by the parties, the Panel is of the view that the present decision does not violate EU law.
Thefore the Court of Arbitration for Sport decides on 23 May 2007:
1.) The appeal filed by the Athlete Mr Guillermo Cañas on 29 August 2005 is partially upheld.
2.) Mr Guillermo Cañas has committed a Doping Offense during the “Abierto Mexicano de Tenis” held in Acapulco, Mexico on 21 February 2005 and his results from the competition shall be disqualified. Any prize money collected at such Tournament not previously returned to ATP Tour shall be returned to ATP Tour within 7 days of the date of this award.
3.) Mr Cañas shall be ineligible to compete on the ATP Tour for the fifteen months period beginning from 11 June 2005.
4.) To the extent that ATP Tour has collected prize money for competitions in which Appellant competed after the Tournament, those amounts shall be returned to Appellant by ATP Tour within 7 days of the date of this award.
5.) The award is pronounced without costs, except for the Court Office fee of CHF 500.- already paid by the Appellant and to be retained by the CAS.
6.) Each party shall bear its own costs.
Hereafter the Athlete appealed the original CAS decision of 23 May 2006 (CAS 2005/A/951) with the Swiss Federal Court.
On 22 March 2007, the Swiss Federal Court determined that the Appellant’s right to be heard was disregarded by the CAS Panel and on that basis, the Swiss Federal Court annulled the Panel’s award (Swiss Federal Court 4P.172_2006 Guillermo Cañas vs ATP Tour & CAS).
In the light of the judgment of the Swiss Federal Tribunal, the CAS Panel has reviewed the submissions and evidence originally submitted by the parties and hereby issues a new revised award (23 May 2007) in substitution of the award rendered on 23 May 2006.
