related cases:
CAS 2006_A_1025 Mariano Puerta vs ITF
July 12, 2006
ITF 2005 ITF vs Mariano Puerta
December 21, 2005
Player appealed against decision of the ATP Tour. During a doping test his A and B-sample revealed the prohibited substance clenbuterol. The ATP has adopted rules, the ATP Tour 2003 Official Rulebook, which is applicable to this case.
The lab reported the results of the doping test to the Anti-Doping program administrator(APA), he selects a review board (RB). The RB determines that the A-sample was positive and a medical Liaison (ML) contacts the player for further information. After consideration the B-sample was also tested. The B-sample was also positive on clenbuterol, the player is informed and advised to be in suspension till the hearing took place within the 60-day guideline. The hearing was held on December 1, 2003, the player provided written statements from himself, his brother, his fiancée, his attending physician, a friend and an expert report and a consultant in medical biochemistry. The player and his physician where cross-examined by the ATP-counsel.
Clenbuterol is considered as an anti-asthma medication that is also a powerful anabolic agent. Player has proof he suffered from an asthma attack and he will ask for a therapeutic use exemption. He didn't know the prohibited substance was in his medicine. The question remains if this can be regarded as special circumstances. The player had a moderate asthma attack and he didn't report this, his situation was solved with pills such treatment does not indicate an emergency situation. His physician can still apply for a exemption for the use of his medicine.
The tribunal also concludes that the RB did take appropriate steps to make a reasonable and well-documented decision on whether the A-sample should be disqualified.
The player submits that the APA did not administer the RB process with diligence when it permitted one member to miss the conference call.
The tribunal finds that the principle of proportionality ought to be applied to the forfeiture of prize money because the doping violation was had no performance enhancing effect.
The special circumstances the player claims for not knowing he used a prohibited substance is not valid. Elite Athletes are well aware of the problems for sport in the clandestine use of performance enhancing drugs. Especially with medicine he has to make inquiries as to what medicine had been prescribed. Also avoiding the substance was possible if he had told the physician that he was a professional tennis athlete.
Decision:
The sanction will be a suspension of 9 months, inclusive of the voluntary suspension and will end on July 1, 2004.
Ranking points and prize money earned at the tournament are to be forfeited. Only the prize money of the tournament in which the positive analytical result was found will apply to the principle of proportionality.
