17 Dec 2009
CAS 2009/A/1926 International Tennis Federation (ITF) v. Richard Gasquet
CAS 2009/A/1930 World Anti-Doping Agency (WADA) v. ITF & Richard Gasquet
CAS 2009/A/1926 International Tennis Federation (ITF) v. Richard Gasquet & CAS 2009/A/1930 World Anti-Doping Agency (WADA) v. ITF & Richard Gasquet
ITF 2009 ITF vs Richard Gasquet
July 15, 2009
SDRCC 2016 CCES vs Shawnacy Barber
August 11, 2016
Choice of law by the parties and ordre public
CAS full power of review “in order to do justice”
Meaning of the balance of probability test
No fault or negligence and principle of ne ultra petita
1. The application of the (rules of) law chosen by the parties has its confines in the ordre public. Usually, the term ordre public is thereby divested of its purely Swiss character and is understood in the sense of a universal, international or transnational sense. The ordre public proviso is meant to prevent a decision conflicting with basic legal or moral principles that apply supranationally. This, in turn, is to be assumed if the application of the rules of law agreed by the parties were to breach fundamental legal doctrines or were simply incompatible with the system of law and values
2. The concept of “in order to do justice” means that the Panel is a fortiori allowed to review the appealed decision if it is arbitrary, i.e. if it severely fails to consider fixed rules, a clear and undisputed legal principle or breaches a fundamental principle. A decision may be considered arbitrary also if it harms in a deplorable way a feeling of justice or of fairness or if it is based on improper considerations or lacks a plausible explanation of the connection between the facts found and the decision issued. In order to exercise such a review, the CAS must be able to examine the formal aspects of the appealed decisions but also, above all, to evaluate – sometimes even de novo – all facts and legal issues involved in the dispute.
3. In case the Panel is offered several alternative explanations for the ingestion of the prohibited substance but it is satisfied that one of them is more likely than not to have occurred, the Athlete is deemed to have met the required standard of proof regarding the means of ingestion of the prohibited substance. It remains irrelevant that there may also be other possibilities of ingestion, as long as they are considered by the Panel to be less likely to have occurred. In other words, for the Panel to be satisfied that a means of ingestion is demonstrated on a balance of probability simply means, in percentage terms, that it is satisfied that there is a 51% chance of it having occurred. The Athlete thus only needs to show that one specific way of ingestion is marginally more likely than not to have occurred.
4. Upon the finding that the Athlete acted with no fault or negligence, the Panel normally has to overrule the decision of the Tribunal imposing a period of ineligibility and to replace the challenged decision with the decision that no period of ineligibility should be imposed on the Athlete for his doping offence. However, the Panel is bound by the principle ne eat iudex ultra petita partium and is thus not in a position to grant the Athlete more than what he asked for, if the Athlete only asked for the appeals to be dismissed and did not express a request for the decision of the Tribunal to be overruled and set aside.
In April 2009 the International Tennis Federation (ITF) has reported an anti-doping rule violation against the Athlete Richard Gasquet after his A and B samples tested positive for the prohibited substance cocaine in a low concentration.
After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the ITF Independent Anti-Doping Tribunal.
The Athlete denied the intentional use of cocaine asserted that he tested positive for cocaine after he had kissed a woman in a club who had been ingesting cocaine prior to their rendezvous.
the Athlete argued that if there was a doping offence, the Athlete could establish “No Fault or Negligence” or alternatively “No Significant Fault or Negligence”. Further, he argued that there should be no period of ineligibility because the circumstances of the offence – accidental contamination in a social setting after the Athlete had decided to withdraw from the competition through injury - were such that any ban would be grossly disproportionate to the offence and therefore unlawful.
Also in June 2009 the Athlete filed a complaint with the French prosecuting authority, alleging against the woman that a harmful substance had been administered to him, contrary to the French penal code. A criminal complaint was, at some point in time, also filed by the woman against the athlete for defamation.
The French newspaper, Aujourd’hui, published an interview with the woman that reportedly took place the afternoon before, and in which she denied having either taken or been offered any cocaine during the evening of the rendezvous. However, she admitted having taken cocaine on previous occasions in her life. Furthermore, she asserted that she had kissed the Athlete only briefly and not mouth to mouth, and that she was willing to give evidence and undergo a hair test herself.
On September 2009, the public prosecutor’s department of Paris issued a communiqué stating that the proceedings initiated by the Athete on 4 June 2009 against the woman for administration of a harmful substance to him had been closed, as no criminal offence had been revealed. The communiqué furthermore noted that the toxicological examination carried out on “a young lady heard during this procedure” revealed that she regularly consumed cocaine, and that she would be subject to a therapeutic order from the public prosecutor’s department.
The ITF Tribunal Panel accepted that the Athlete has discharged the onus on him of establishing, on the balance of probability, how cocaine entered his system. The Panel noted that the most likely explanation is that advanced by the Athlete, namely that cocaine was transferred to the Athlete from mouth to mouth kissing with the woman. The Panel ruled that this explanation is more likely than not to be the correct one.
The Panel holded that in this case, the Athlete’s inadvertent ingestion of cocaine occurred in circumstances in which the degree of his fault was very small, as small as the miniscule quantity consumed.
On 15 July 2009 the ITF Tribunal decided to impose a 2 months and 15 days period of ineligibility on the Athlete for the time already served, starting on the date of the provisional suspension until the date of the decision. Also Athlete’s results in competitions in Barcelona and Rome during April 2009, should remain undisturbed and the prize money and ranking points obtained by the Athlete in those competitions should not be forfeited.
Hereafter in Autust 2009 the ITF and WADA appealed the decision of the ITF Independent Anti-Doping Tribunal of 15 July 2009 with the Court of Aribitration of Sport (CAS).
The ITF and WADA requested the Panel to annul the decision of the ITF Independent Anti-Doping Tribunal and to impose a period of ineligibility of not more than 2 years and not less than 1 year.
On a balance of probability, the CAS Panel concludes that it is more likely than not that the Athlete’s contamination with cocaine resulted from kissing the woman. Any other source is either less likely than the kissing to have resulted in the contamination, or is even entirely impossible. The Panel thus concludes that the Athete has met the required standard of proof, such as stipulated in Art. K.6.2 of the Programme and Art. 3.1 of the WADA Code, with regard to the way of ingestion.
Futher the Panel states that under the given circumstances, even if the Athlete exercised the utmost caution, he could not have been aware of the consequences of kissing a girl who he had met in a totally unsuspicious environment. It was simply impossible for the Athlete, even when exercising the utmost caution, to know that in kissing the woman, he could be contaminated with cocaine. The Athlete therefore acted without fault or negligence.
The Court of Arbitration for Sport decides on 17 december 2009:
1.) The appeal of the International Tennis Federation (ITF) against the decision of the Anti-Doping Tribunal convened under the ITF regulations dated 15 July 2009 regarding the tennis Athlete Richard Gasquet is dismissed.
2.) The appeal of the World Anti-Doping Agency (WADA) against the decision of the Anti-Doping Tribunal convened under the ITF regulations dated 15 July 2009 regarding the tennis Athlete Richard Gasquet is dismissed.
6.) All other motions or petitions for relief are dismissed.