CAS 2020/A/7536 Ashley Kratzer v. International Tennis Federation (ITF)
Related case:
ITF 2020 ITF vs Ashley Kratzer
October 28, 2020
- Tennis
- Doping (GHRP-6)
- Duty of particular care of an athlete when applying medications
- Distinction between “reckless” and “oblivious” conduct
1. It is well-known in the world of sport that particular care is required from an athlete when applying or administering substances for therapeutic purposes, because the danger of a prohibited substance entering the athlete’s system is particularly high in such context, i.e. significant.
2. In order to qualify a behavior as “intentional” the person concerned must have accepted or consented to the realization of the offence or at least accepted it for the sake of the desired goal. On the other hand, a conduct is negligent or oblivious only, if the offender does not agree with the occurrence of the offence that is recognized as possible and, in addition, credibly – not only vaguely – trusts that the offence will not materialize. Thus, in order to separate negligence from (indirect) intent one must – in particular – look at this voluntative element. Of course, such element is difficult to determine ex post. However, as a general rule one may say that the more remote the realization of the offence is in the offender’s mind, the less he or she may be deemed to have accepted it and, thus, to have acted intentionally within the above meaning. Whether a certain behavior is “reckless” or only “oblivious” must be decided based on all relevant circumstances. Both types of behaviors are only separated by a very thin line.
On 28 October 2020 the ITF Independent Tribunal decided to impose a 4 year period of ineligibility on the American tennis player Ashley Kratzer after she tested positive for the prohibited substance GHRP-6.
In First Instance the Athlete demonstrated that she suffered from a longstanding, severe blistering problem on her heels, toes and sides of her feet. During her stay in China in April 2019 and thereafter she had used an effective Cream provided in an unlabelled bottle. Analysis of this Cream revealed that it contained a significant amount of GHRP-6.
Although the Tribunal accepted that the Athlete had not deliberately used the prohibited substance it deemed that she engaged in conduct knowing that there was a significant risk that it might result in an anti-doping rule violation and that she manifestly disregarded that risk.
Hereafter in November 2020 the Athlete appealed the ITF Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Sole Arbitrator Panel to set aside the ITF Decision of 28 October and for the imposition of a reduced sanction.
Undisputed between the Parties are the positive test results for GHRP-6 and that the Athlete had committed an anti-doping rule violation. What is contested between the Parties is the appropriate period of ineligibility as a consequence of this anti-doping rule violation.
The Athlete denied that she intentionally tried to cheat or that she knew that the Cream contained a prohibited substance while it only was used as medical treatment for her severe blistering problems. She asserted that did not know that there was a risk of an anti-doping rule violation and consequently that she manifestly had disregarded such risk.
The Sole Arbitrator concludes that it is more likely than not that the Athlete recognized her conduct to be akin to self-medication and that she knew that there was a significant doping risk when applying or administering substances for therapeutic purposes.
Considering the circumstances in this case the Sole Arbitrator finds that during her stay in China in April 2019 the Athlete did not act intentionally or recklessly. However in view of her conduct in the months after she had returned from China the Sole Arbitrator deems that she indeed acted intentionally.
Therefore the Court of Arbitration for Sport decides on 15 June 2021 that:
1. The appeal filed by Ms Ashley Kratzer on 18 November 2020 against the International Tennis Federation with respect to the decision rendered by the Independent Tribunal on 28 October 2020 is dismissed.
2. All results obtained by Ms. Ashley Kratzer from 28 March 2020 are disqualified, with all resulting consequences, including forfeiture of any titles, ranking points, and prize money obtained at the Oracle Challengers Tournament in Newport Beach, California, USA.
3. The Award is pronounced without costs with the exception of the Court Office fee, already paid by Ms Ashley and which is retained by CAS.
4. Ms. Ashley Kratzer is ordered to pay the International Tennis Federation a total amount of CHF 4,000 (four thousand Swiss francs) as contribution towards the expenses incurred in connection with these arbitration proceedings.
5. All other motions or prayers for relief are dismissed.
