In the case of Mariano Puerta
Court: International Tennis Federation, Independent Anti-Doping Tribunal
Judge: Tribunal - Tim Kerr QC, Dr Jose Antonio Pascual Esteban and Dr Inggard Lereim
Date of judgment: 21 Dec 2005
Summary: Sports law - Doping offence – World Anti-Doping Code - Tennis player - “No fault” and “no significant fault” defences –Effect of proportionality arguments on penalties
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In 2005 Puerta was the losing finalist in the French Open but tested positive for etilefrine, a prohibited substance under the World Anti-Doping Code (“the Code”), which entered into force on 1 January 2004. Charges were brought under the ITF Anti-Doping Programme 2005, which provided that proceedings before the Tribunal were to be governed by English law and interpreted consistently with the Code. The player had tested positive for clenbuterol, an anabolic agent prohibited under earlier anti-doping rules and had been banned for 2 years. The Code specified that in the case of a second offence, a lifetime ban was to be imposed, unless the player established a defence of No Fault or Negligence, in which case the period of ineligibility could be reduced to no ban at all. If the player established No Significant Fault or Negligence, an 8 year ban was provided for under the Programme.
Whether the player established either of the ‘no fault’ defences – whether this was a second offence within the meaning of the Code; and if so whether proportionality principles operate to disapply or modify the Code.
Puerta established only that No Significant Fault or Negligence applied. The Tribunal accepted that the likely cause of the doping was the presence of etilefrine in a medicine taken by his wife, that he had not ingested the medicine deliberately and that the low concentrations of the drug in his blood had had no effect on his performance. However, he had not taken the necessary care to ensure that he did not become contaminated and had not established No Fault or Negligence. The proper construction of the Rules did not require the first offence to have been committed under the Code, the adverse finding under the previous regime being sufficient. As to proportionality, the Tribunal held that it was required to reach a proportionate result on the facts, but that the Code made proportionality arguments more difficult to run. Even though the penalty was tantamount to a lifetime ban, it was held not to be disproportionate to impose an 8 year ban and to require forfeiture of prize money.
As the Tribunal accepted, this case presented it with a stark choice: how far the deterrent effects and wider public interest in uniform and in stiff penalties should override the circumstances of individual cases where application of the rules could produce harsh results. An appeal to the CAS is likely.