Smash It

I toyed with calling this article ‘forty love’, but I think ‘smash it’ is more apt given Richard Keys’ resignation this week.

It’s really hard to face an anti-doping charge and walk away without a suspension. Ask Richard Gasquet.  In the Summer of 2009, an International Tennis Federation Independent Anti-Doping Tribunal found that Gasquet was guilty of an anti-doping rule violation, even though it accepted he had not taken cocaine himself but had ingested it when kissing a woman in a night club. The Tribunal found that Gasquet and a mystery woman known only as Pamela “kissed mouth to mouth about 7 times….each kiss lasting 5 to 10 seconds”. Too much information (apparently the kids just say TMI these days)?

The World Anti-Doping Code provides for the reduction of a “period of ineligibility” (i.e. suspension) where the player can show “No Fault or Negligence” or “No Significant Fault or Negligence”. In the case of a prohibited substance which is a specified substance (which is considered less serious), these defences allow for a reduction, but not an elimination, of the suspension. In order to rely on no fault or negligence or no significant fault or negligence, the player must first establish on the balance of probability how the prohibited substance entered his system.    

The Tribunal accepted that on the balance of probability it came from kissing Pamela. The amount of cocaine found in Gasquet’s sample was very small – in the region of 5 mg, with an amount of 1 mg having the appearance and size of “a single grain of refined salt”. Hair analysis conducted by Gasquet’s expert witnesses excluded the possibility that he was a regular social user. The evidence also showed that the level of cocaine in his sample was so small that it was more than likely ingested in the twelve-hour period prior to the test.  

 

In order to establish no fault or negligence, a player must show he did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he had used or had been administered with the prohibited substance. Gasquet’s conduct that evening was found not to be completely free from fault. He ought to have known that the club in question were notorious for the use of recreational drugs. In order to establish no significant fault or negligence, a player would have to show that although his conduct was not completely free from fault, it was not significant in relation to the doping offence in issue. Although the rules are more flexible now, at the time a finding of no significant fault or negligence didn’t allow the suspension to be reduced below one year.

However, the Tribunal found that even a period of ineligibility of one year would be disproportionate to the offence committed. It relied on the Court of Arbitration for Sport’s decision ineurta v ITF which found that any sanction must be just and proportionate and that if it is not, the sanction may be challenged. The Tribunal found that any period of ineligibility would be grossly disproportionate punishment for a player who did not compete in the competition concerned (he withdrew because of injury), had already decided not to compete when the contamination occurred, and had made that decision for the very good reason that he was injured and not to avoid testing.

Pamela refused to give any evidence to the Tribunal, but when interviewed by a French newspaper, denied ever taking cocaine. Never mind significant fault or negligence, I wonder if Gasquet had a significant other at the time and whether Gasquet he is familiar with the offside rule. It states as follows – if being unfaithful to your significant other, do not later use the episode of cheating to prove you didn’t cheat at tennis.