CAS 2011/A/2518 Robert Kendrick v. International Tennis Federation (ITF)
Related case:
ITF 2011 ITF vs Robert Kendrick
July 29, 2011
- Tennis
- Doping (methylhexaneamine)
- Specified substance
- Scope of the panel’s powers in an appeal procedure
- No Fault or Negligence
- No Significant Fault or Negligence
1. Where, as is the case with Article R57 of the Code, rules or legislation confer on an appellate body full power to review the facts and the law, no deference to the tribunal below is required beyond the customary caution appropriate where the tribunal had a particular advantage, such as technical expertise or the opportunity to assess the credibility of witnesses. This is not, of course to say that the independence, expertise and quality of the first instance tribunal or the quality of its decision will be irrelevant to a CAS panel. The more cogent and well-reasoned the decision itself, the less likely a CAS panel would be to overrule it; nor will a CAS panel concern itself in its appellate capacity with the periphery rather than the core of such a decision. However, the fact that a CAS panel might not lightly overrule the decision of a first instance tribunal, would not mean that there is in principle any inhibition on its power to do so.
2. To succeed with a plea of “No Fault or Negligence”, an athlete must show that he or she used “utmost caution” to keep him- or herself clean of any prohibited substances, i.e. that the athlete did not know or suspect, and could not reasonably have known or suspected, even with the exercise of utmost caution, that he or she had ingested the prohibited substance. The athlete must show that he or she has fully complied with this duty of utmost caution, that is, that he or she has made every conceivable effort to avoid taking a prohibited substance and that the substance got into his or her system despite all due care on his or part.
3. The major difference regarding a plea of “No Significant Fault or Negligence” in a Specified Substance case compared to a Prohibited Substance case is that there is no 50% cap limiting a panel’s discretion to reduce the presumptive period of ineligibility. Instead, the Panel can make whatever reduction it considers properly reflects the athlete’s degree of fault, within the zero to 24 month spectrum. The analysis of relative fault is exactly the same that is made by reference to the degree to which the athlete has departed from the standards of behaviour expected of him or her.
On 29 July 2011 the ITF Independent Anti-Doping Tribunal decided to impose a 12 month period of inelgibility on the Athlete after his sample tested positive for the prohibited substance 4-Methylhexan-2-amine (methylhexaneamine, 1,3-dimethylamylamine, 1,3 DMAA). Undisputed in this case was that the violation was not intentional and that the Athlete used the product Zija to counteract the negative effects of jetlag.
Hereafter the Athlete appealed the ITF Decision with the Court of Arbitration for Sport (CAS). The Athlete admitted the violations and requested the Panel for a reduced sanction.
The Panel assessed and addressed whether there should be any deferece to the Appealed Decision and whether the Athlete's degree of fault merits a reduction or change of the period of ineligibility of 12 months imposed by the ITF Decision.
Having regard to all of the circumstances, including the evidence which was not before the ITF panel, the CAS Panel finds that the 12 month sanction imposed by the ITF Decision was too severe. This Panel has not, however, been persuaded that a 3 month sanction, put forward by the Athlete, would be appropriate.
Having regard to Athlete’s degree of fault and, to both the mitigating and aggravating factors in this case, the Panel concludes that an appropriate sanction would be a period of Ineligibility of 8 months.
Therefore the Court of Arbitration for Sport decides on 10 November 2011:
1.) The appeal filed by Mr Robert Kendrick on 2 August 2011 against the International Tennis Federation (ITF) concerning the decision taken by the International Tennis Federation Independent Anti-Doping Tribunal on 29 July 2011 is partially upheld.
2.) The decision of the International Tennis Federation Independent Anti-Doping Tribunal of 29 July 2011 is set aside.
3.) Mr Robert Kendrick is suspended for a period of eight months from 22 May 2011.
4.) Mr Robert Kendrick’s individual results obtained at the French Open 2011 are disqualified. The 10 ranking points and EUR 15,000 in prize money obtained by Mr Robert Kendrick at the French Open 2011 are forfeited.
5.) Mr Robert Kendrick is permitted to retain the prize money obtained by him from his participation in the subsequent UNICEF Open.
(…)
8.) All other or further claims are dismissed.
