What is challenged is whether it’s proper to determine that Sinner does, by definition, bears “no fault or negligence” in relation to having tested positive for Clostebol. To untie that knot, one must also answer the question of whether Sinner discharged his non-delegable duty to exercise utmost caution.
Specifically, Sinner’s case concerns the conduct of his employed fitness coach and the narrative of him purchasing, in Italy, an over-the-counter medical spray labelled Trofodermin. That product contains Clostebol.
On the evidence put before the ITIA tribunal, the fitness coach apparently gave the spray to Sinner’s employed physiotherapist to treat a cut on the physiotherapist’s hand, accidently inflicted by a wayward scalpel.
The physiotherapist used the spray but didn’t bother to check the label against any WADA prohibited list. Which would have been of no importance, but the physiotherapist gave Sinner a series of “full body massages” over a period of nine days, while he was using the spray.
Relevant to WADA’s appeal is that to prove a defence of “no fault or negligence” an athlete must prove that, relevantly, they exercised utmost caution but nonetheless were administered or did use the prohibited substance.
In a situation like Sinner’s, with his posse of employed staff, he’s vicariously responsible for their actions. It’s no straightforward excuse for an elite athlete to assert that they placed faith in a doctor or physiotherapist, and thus it’s all their fault and not the athlete’s.
The WADA code’s definition of “no fault or negligence” states quite explicitly the relevant threshold. Sinner must prove that he didn’t know or suspect, and couldn’t reasonably have known or suspected even with the exercise of utmost caution, that he used or was administered the prohibited substance. Contrastingly, fault is defined to include any lack of care appropriate to a particular situation.
Crucially, what then is actually meant by saying that it’s on the athlete to demonstrate they couldn’t reasonably have known or suspected, even with the exercise of utmost caution, that someone (in this case, an employed physiotherapist) had infected them with a prohibited substance? The answer is determinative. That’s WADA’s appeal in a nutshell.
The conditions to prove the no-fault defence are rigorous, and rightly so given that proving “no fault or negligence” leads by consequence to no sanction apart from the results in any competition at which the doping tests were conducted. The exceptionality of the defence is consistent with the fundamental duty imposed on all athletes, that they are ultimately responsible for what is found in their bodies.
A salient example is
the CAS judgement involving tennis player Mariano Puerta, who tested positive for a banned stimulant at the 2005 French Open. Puerta and his wife were dining in the players’ cafeteria before the men’s final, which Puerta lost to Nadal. Puerta was drinking from his own glass, which he filled with water from a sealed bottle. At some point, he went to the bathroom.
While he was gone, his wife used the same glass to mix and drink a medication she was prescribed, which contained a stimulant prohibited in sport. The medicine was colourless, odourless and flavourless.
When he returned to the table, unaware of what his wife had done, Puerta poured more water into the glass and drank it. Later, Puerta gave a urine sample that tested positive for the prohibited stimulant. The CAS determined that Puerta ingested the substance accidentally and inadvertently, and that the circumstances of the case were extraordinary.
Notwithstanding, the CAS downed Puerta’s contention that he bore “no fault or negligence”. Specifically, the CAS factored in that Puerta knew his wife used the medication , while also reasoning that “athletes must be aware at all times that they must drink from clean glasses”.
Focusing back on Sinner, it’s difficult to see how the player did absolutely everything which the player could’ve done, but yet nonetheless tested positive.
Sinner could have taken proactive steps to audit the supplements, medications and products brought into their shared home by his entourage.
The player could have asked for written declarations from his entourage, detailing all medications each member was using. The player could have explicitly reiterated to his staff the importance of vigilance regarding the use of over-the-counter medications, and particularly those exchanged between staff members. He could have asked the physiotherapist to sanitise his hands.
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As soon as you can conclude that Sinner could have taken further steps to protect his own position, as soon as you determine that while he might have exercised a high degree of caution even though he left stones unturned, then he hasn’t exercised utmost caution and thus shouldn’t have available to him any get-out-of-jail-free card.
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