CAS 2006/A/1025 Mariano Puerta v/ International Tennis Federation (ITF)
Related cases:
- ITF 2005 ITF vs Mariano Puerta
December 21, 2005 - ITF 2003 Mariano Puerta vs ATP Tour
January 1, 2001
- Tennis
- Doping (etilefrine)
- Applicable law
- Relevance of the concentration of prohibited substance
- Duty of utmost caution placed on the athlete as well as his/her entourage
- Sanction for two offences committed with “No Significant Fault or Negligence”
- Filling of a lacuna in the World Anti-Doping Code (WADC)
- Flexibility of the WADC to satisfy the principle of proportionality
1. The rules of a Swiss private law entity such as WADA should comply with Swiss law. Therefore, if the ITF Programme provides that it is to be governed by and construed in accordance with English law, but that provision in the ITF Programme is expressly stated to be subject to the requirement to interpret the Programme “in a manner that is consistent with the applicable provisions of the Code [WADC]”, those provisions must be interpreted as requiring to construe the WADC in a manner which is consistent with Swiss law, as the law with which the WADC must comply. Construing the WADC in that way means that the WADC is not subject to the vagaries of myriad systems of law throughout the world, but is capable of a uniform and consistent construction wherever it is applied. Any other construction would negate, or, at the very least, seriously weaken, the purpose and objective of the WADA and its signatories.
2. Any concentration of etilefrine found as the prohibited substance in an athlete’s urine will be reported as an adverse analytical finding and be subject to sanctions. The concentration of the prohibited substance may be evidence, however, as to how the substance entered the athlete’s body and may also provide an indication as to whether or not it was intended to enhance performance. Therefore, it also has relevance to the issue of fault and negligence, as a high concentration could indicate the presence of intent or a substantial degree of negligence.
3. Athletes must be aware at all time that they must drink from clean glasses, especially in the last minutes before a major competition. It is also essential for an athlete’s entourage to be as aware as an athlete of the necessity of taking the utmost caution as to what an athlete eats and drinks.
4. For the purpose of imposing a sanction for a second offence, the WADC does not distinguish between more significant and less significant breaches. In a case in which the two offences have been found to have been committed with “No Significant Fault or Negligence”, an eight year sanction is not just and proportionate, especially if, due to the particular circumstances of the case, this sanction is indistinguishable from a lifetime ban. Therefore, in such a case, a panel must be allowed to impose a lesser period of ineligibility.
5. In all but the very rare case, the WADC imposes a regime that provides a just and proportionate sanction, and one in which, by giving the athlete the opportunity to prove either “No Fault or Negligence” or “No Significant Fault or Negligence”, the particular circumstances of an individual case can be properly taken into account. However, in the very rare case in which the WADC does not provide a just and proportionate sanction, there is a gap or lacuna which is to be filled by a panel, not exercising a discretion, but applying the overarching principle of justice and proportionality on which all systems of law, and the WADC itself, are based.
6. The WADC contains some flexibility to enable a panel to satisfy the general legal principle of proportionality. However, the scope of flexibility is clearly defined and is deliberately limited so as to avoid situations where a wide range of factors and circumstances, including those completely at odds with the very purpose of a uniformly and consistently applied anti-doping framework are taken into account. The period of ineligibility may be reduced or eliminated only i) in the case of exceptional circumstances, and ii) in the case of Specified Substances.
On 21 December 2005 the Tribunal of the International Tennis Federation (ITF) decided to impose an 8 year period of ineligibility on the Argentine tennis player Mariano Puerta for his second anti-doping rule violation after his A and B samples tested positive for the prohibited substance Etilefrine in a low concentration.
In first instance the ITF Tribunal accepted that the violation was not intentional and that the Athlete acted with No Significant Fault or Negligence. Nevertheless in accordance with the WADA Code the ITF Tribunal was unable to impose a reduced sanction.
Hereafter in February 2006 the Athlete appealed the ITF decision with the Court of Arbitration for Sport (CAS).
The Athlete claimed that the Etilefrine entered his system as a result of his inadvertent and unknowing ingestion of the liquid residue of his wife’s Effortil medication when he re-used his glass in the cafeteria just before the start of the final match. Additionally, he asserted that neither the ITF nor the ITF Tribunal was able to propose an “evidenced alternative explanation” for the inadvertent ingestion of the substance.
In the Panel’s view, the circumstances which arise in the present case differ notably from any previous CAS case. The Panel deems that the Athlete did not ingest or use a medicine consciously not knowing that the product at hand could contain prohibited substances. Accidentally the medicine used by his wife happened to enter his body.
In such rare circumstances, the Panel considers the 8 years period of Ineligibility as disproportionate. A 2 year period of ineligibility appears to the Panel to be the only just and proportionate sanction.
Therefore the Court of Arbitration for Sport decides on 12 July 2006 that:
1.) The appeal filed by Mr Mariano Puerta is partially upheld.
2.) The decision of the International Tennis Federation Independent Anti-Doping Tribunal dated 21 December 2005 is partially annulled.
3.) All results achieved by Mr Mariano Puerta in both the singles and doubles competitions must be disqualified in respect of the French Open, and in consequence, the prize money (half the prize money awarded to the doubles pair, in the case of the doubles competition) and ranking points obtained by Mr Mariano Puerta must be forfeited.
4.) All individual results of Mr Mariano Puerta in all competitions subsequent to the French Open must be disqualified and all prize money and ranking points in respect of those competitions must be forfeited.
5.) Mr Mariano Puerta shall be declared ineligible for competition for two years starting from 5 June 2005.
6.) (…).
