Forgive me Father, if I have Sinned.

Foot fault or drug cheat?

 

Or has he?

Much has already been written and said about world ranked men’s No 1 tennis player Jannik Sinner’s anti-doping violation in August of 2024.

After having tested positive to an anabolic steroid called clostebol (a play thing of East Germany’s state sponsored doping programs of the 70’s and 80’s) Sinner was hit with a feather duster rather than a sledgehammer from the International Tennis Integrity Agency that is responsible for the management of Tennis’ Anti Doping Program.

Headlines in the media such as “Sinner cleared after twice testing positive for banned substance clostebol”, “Jannik Sinner failed drug tests: Curious case of Italian player banned despite same defence” and “Jannik Sinner drugs controversy: World No. 1 escapes punishment as ITIA clears him despite 2 failed tests” did the rounds of global media outlets.

Social media was full of opinions with many posts screaming the likes of : “wtf” and “he is as guilty as hell”, and “ how did he get off so lightly”

Rarely without an opinion, tennis legend John McEnroe immediately described the decision as “shocking” and called for punishment to be “uniform” for those that transgress.

“I don’t know how they differentiate between one person saying he was unaware of it and someone else who says the same thing gets suspended. I think Halep said that and she suspended for 18 months, and Sinner said he unknowingly had this and then he’s not suspended.

Uniform sanctions for the “same thing” is shaky at best. Adverse Analytical Findings vary considerably in each case between the type of prohibited substance ingested, the level of concentration in the urine sample and the circumstances in which it was ingested. You need to look at each case individually.

On the other side of the globe, Australia’s tennis celebrity Nick Kyrgios responded to the news of the Sinner decision by posting on X:

“Ridiculous – whether it was accidental or planned. You get tested twice with a banned substance … you should be gone for 2 years. Your performance was enhanced,”

I doubt many of the media and certainly not McEnroe and Kyrgios have read the 33 page judgement of the Independent Tribunal chaired by David Sharpe KC. If they had the would understand Sinner’s actions could easily be attributed to  something more akin to a foot fault than that of a drug cheat.

Before we delve into the facts, a brief summary of the law is warranted.

  The Law

      • Clostebol is a Prohibited Substance under the Tennis Anti-Doping Programme (TADP);

      • The International Tennis Integrity Agency (ITTA) is the body that is responsible for the management and administration of the TADP.

      • Doping Violations to be proven do not require the ITTA to prove the source of the drug – just that it was in Sinner’s system. It’s called strict liability.  The    ITTA don’t need to prove intention, fault, negligence on Sinner’s part to prove the doping offence occurred.

      • Once it’s proven the metabolites for the banned substance were in Sinner’s system (which Sinner readily admitted they were) its then up to Sinner to prove he either had a Therapeutic Exemption Use (medical clearance) or that he was inadvertently contaminated by the Prohibited Substance despite having used “utmost caution” to be cleared;

      • A finding of Fault or Negligence attracts a period of suspension from the game for 4 years. This is established if the Tribunal finds that Sinner knew or suspected he has used the banned substance. Many athletes who are unable to locate the source of the contamination or provide a explanation of how the prohibited substance was ingested into their system are given 4 year suspensions from their sport;

      • If Sinner can show the consumption was not intentional there can be a finding of No Significant Fault or Negligence. This attracts a suspension of up to 2 years. Not intentional is established if the Tribunal finds Sinner’s fault or negligence was not significant. i.e. He took “utmost care”.

      • Sinner contended there was No Fault or Negligence whatsoever – significant or otherwise – and that therefore according to the TADP there should be no suspension. For Sinner to be successful in a plea of No Fault or Negligence he must not only identify a potential source he must also demonstrate that the source of contamination has caused the positive urine test. He must prove this on the balance of probabilities. That is a high legal threshold to establish in order to be found innocent. Sinner needs to show not only how the prohibited substance came to be in his body but also when the substance got into his system Sinner needs to prove he did not know or suspect and could not reasonably have known or suspected even with the exercise utmost caution, that he had used the prohibited substance.  
     
      • It is Sinner’s duty to ensure no prohibited substance is in his body. He is also responsible for the actions of his friends, coaches, relatives or other members of his team who he has entrusted as part of the anti-doping responsibilities to.

     The Findings as to Fact

    So what actually transpired so as to enable the Tribunal to exercise apparent leniency?

    Here is where it gets interesting. The Tribunal found, based on the evidence presented:

     

      • In February 2024 Sinner’s fitness trainer purchased a medical spray called Trofodermin which is used to heal cuts to the skin over the counter from a pharmacy in Italy. It is used widely in Italy. The fitness trainer produced a bank statement ( not receipt) evidencing a purchase from the pharmacy show he made a purchase at the Italian pharmacy at that time. (Trofodermin contains the prohibited substance Trofodermin);
      •  
      • On 3 March 2024 Sinner’s physiotherapy (separate person to the fitness trainer referred to above) cut his finger and bandaged it up.

        • Sinner was not aware of his physio’s cut finger until that evening when he saw the physio’s finger bandaged during a physio session with him. Sinner asked the physio if he was taking anything for it. The physio replied “No”.

          • On 5 March 2024 the fitness trainer advised the physio to apply the Trofodermin to his wound which the physio did for the period 5 March to 13 March 2024. The fitness trainer however warned the physio not to apply it anywhere near Sinner.  During this time the physio gave full body massages to Sinner.

            • The physio was not aware the substance had a prohibited substance in it.

              • Sinner suffers from a skin condition called Psorasiform Dermatitis on his feet and back. This condition causes itchiness and often leads to scratching that in turn lead to small cuts and sores on his back and feet.

                • On the evening of the 9th of March, the physio gave Sinner a 1.5 hour massage with oils over his full body and feet. He again treated Sinner’s ankles and feet that next morning (having earlier that same day applied the Trofodermin Spray to his own finger.) He did not recall washing his hands prior to the massage of Sinner.

                  • Sinner was drug tested that evening of the 10th of March.

                    • Sinner accepted the Clostebol was in his system at the time of the 2 positive tests;

                      • Sinner had been regularly tested (once a month in the 12 months leading up to the March testing) and never produced an adverse analytical finding;

                        • Three (3) independent scientific experts (two of them retained by the International Tennis integrity Agency  that brought the charges ) confirmed inadvertent contamination from the physio’s treatment in the period between 54 March and 13 March in the manner described could explain the presence of Clostebol in Sinner’s system. In giving such evidence 2 of the experts did not even know it was Sinner who was the subject of their analysis.

                      One Professor found:

                      “the likelihood …. Is really high. The roughly estimate concentration of 100 pg/ml is a small concentration and could be obtained by cross contamination as published in the scientific literature.”

                      Another of the experts concluded the explanation was:

                       “entirely plausible… and even if administered intentionally the minute amounts likely to have been administered would not have had any relevant doping or performance enhancing effect upon the player.”

                          • The ITIA accepted that Sinner’s explanation of how the prohibited substance entered his body was more likely than not accurate. This is significant because the Agency bringing the charges agreed with Sinner’s explanation.

                            • Sinner himself had taken steps to ensure all support staff were aware of the risks of cross contamination of products although he had delated authority to his fitness trainer to ensure all products did not contain a Prohibited Substance.

                           Decision

                          The hearing appears to have been a lengthy hybrid process with representatives attending in person and witnesses via video link.

                          The Tribunal found Sinner was unaware that :

                              • his fitness trainer was in possession of Trofodermin Spray

                              • his physio was using the Spray

                              • there was any anti-doping risk arising from the massage treatments.

                            Further and equally as important it found Sinner had no reason to suspect:

                                • his fitness trainer was in possession of Trofodermin Spray

                                • his physio was using the Spray.

                                • there was any anti-doping risk arising from the massage treatments.

                              It found that Sinner had no Fault or Negligence in the matter because:

                              “…. The Player was inadvertently cross contaminated by the Prohibited Substance during a message by a physiotherapist who had used a spray containing Clostebol to treat his own would of which the Player was not aware and could not have been aware within the factual matrix presented in the evidence.”

                              The Tribunal ruled that there was No Fault or Negligence, that the period of ineligibility should be eliminated and any medals , titles, ranking points and Prize Money obtained during the event in India Wells, USA should be forfeited.

                               Analysis

                              Having read the judgement and the findings as to fact by the Tribunal it’s hard for any fair minded observer to argue with their decision or the level of sanction imposed.

                               The anti-doping laws make it clear athletes are responsible for the actions of their support staff – coaches, doctors, trainers, physio’s, managers etc. But to what extent must an athlete go to in order to ensure his/her team are doing everything correct ? What is the line between when the athlete is no longer responsible for the wrongdoings of  his/her support staff and the support staff himself is liable? This decision goes some way to answering this.

                              Para 89 of the Judgement gives insight : Sinner “ acknowledges that he has an obligation to be responsible for his team’s actions, but he had discharged that responsibility by all of the measures he has taken in carefully selecting his team members, imposing professional obligations upon them, impressing upon them the importance of complying with the TADP regulations and ensuring that they all have relevant information to carry out heir role.  Having taken those precautions the player should not be held responsible the mistake of  his fitness trainer or physio.”

                              The case is also useful in differentiating between contamination due to a recommendation or advice from a medical or allied health practitioner and one in which contamination occurs by such a practitioner without knowledge or consent of the athlete.

                              Whilst an athlete can’t be expected to be exonerated simply because a banned substance was provided by a trusted medical or allied health practitioner this case can be differentiated from that principle because it dealt with contamination by a substance not even consented to by Sinner .

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