CAS 2013_A_3327 Marin Čilić vs ITF

• CAS 2013/A/3327 Marin Cilic v. International Tennis Federation (ITF)
• CAS 2013/A/3335 International Tennis Federation (ITF) v. Marin Cilic

Related case:

ITF 2013 ITF vs Marin Čilić
September 23, 2013

• Tennis
• Doping (nikethamide)
• Principles applicable to the length of the period of ineligibility
• Circumstances in which a full standard of care apply to the athlete
• Circumstances in which a lighter standard of care apply to the athlete, with exceptions
• Subjective element of the level of fault in an anti-doping rule violation
• Elements other than fault and violation of the principle of proportionality
  
  

1. The decisive criterion based on which the period of ineligibility shall be determined within the applicable range of sanctions is fault. There are three degrees of fault which can be applied to the possible sanction range of 0 – 24 months: (a) significant degree of or considerable fault, with a sanction range from 16 to 24 months, and a “standard” significant fault leading to a suspension of 20 months; (b) normal degree of fault, with a sanction range from 8 to 16 months, and a “standard” normal degree of fault leading to a suspension of 12 months; (c) light degree of fault, with a sanction range from 0 to 8 months, and a “standard” light degree of fault leading to a suspension of 4 months. In order to determine into which category of fault a particular case might fall, it is helpful to consider both the objective and the subjective level of fault. The objective element describes what standard of care could have been expected from a reasonable person in the athlete’s situation. The subjective element describes what could have been expected from that particular athlete, in light of his personal capacities. The objective element should be foremost in determining into which of the three relevant categories a particular case falls. The subjective element can then be used to move a particular athlete up or down within that category. In exceptional cases, it may be that the subjective elements are so significant that they move a particular athlete not only to the extremity of a particular category, but also into a different category altogether. That would be the exception to the rule, however.

2. An athlete can be reasonably expected to follow all of the following steps:
(i) read the label of the product used (or otherwise ascertain the ingredients),
(ii) cross-check all the ingredients on the label with the list of prohibited substances,
(iii) make an internet search of the product,
(iv) ensure the product is reliably sourced and
(v) consult appropriate experts in these matters and instruct them diligently before consuming the product, in the following circumstances:
- (a) for substances that are prohibited at all times (both in and out-of-competition), because these products are particularly likely to distort competition, and
- (b) for substances prohibited in-competition only, when the prohibited substance is taken by the athlete in-competition.

3. When the substance prohibited in-competition is taken by the athlete out-of-competition (but the athlete tests positive in-competition), a lighter standard of care should apply, as the illicit behaviour lies in the fact that the athlete returned to competition too early, or at least earlier than when the substance he had taken out-of-competition had cleared his system for drug testing purposes in competition. In such cases, the level of fault is different from the outset. Requiring from an athlete not to ingest the substance at all would be to enlarge the list of substances prohibited at all times to include the substances contained in the in-competition list. However, two exceptions, calling for a higher duty of care, should be made: - (a) where the product that is advertised/sold/distributed as “performance enhancing”, and
- (b) where the product is a medicine designed for a therapeutic purpose, as medicines are known to have prohibited substances in them. The principle underlying the two exceptions is that they are instances of an athlete who could easily make the link between the intake of the substance and the risks being run.

4. Matters which can be taken into account in determining the level of subjective fault can for example be: an athlete’s youth and/or inexperience; language or environmental problems encountered by the athlete; the extent of anti-doping education received by the athlete (or the extent of anti-doping education which was reasonably accessible by the athlete); any other “personal impairments” such as those suffered by
(i) an athlete who has taken a certain product over a long period of time without incident;
(ii) an athlete who has previously checked the product’s ingredients;
(iii) an athlete who is suffering from a high degree of stress;
(iv) an athlete whose level of awareness has been reduced by a careless but understandable mistake.

5. Elements other than fault should – in principle –not be taken into account since it would be contrary to the rules. Only in the event that the outcome would violate the principle of proportionality such that it would constitute a breach of public policy should a tribunal depart from the clear wording of the text.

On 23 September 2013 the ITF Independent Anti-Doping Tribunal decided to impose a 9 month period of ineligibility on the Athlete Marin Čilić after his A and B samples tested positive for the prohibited substance nikethamide.

Hereafter in September 2013 the Athlete and ITF appealed the ITF Tribunal decision with the Court of Arbitration for Sport (CAS).

The Athlete argued that he ingested the substance out-of-competition whereas the substance is forbidden only in-competion. Therefore he did not commit any anti-doping rule violation. Also the Coramine glucose supplement was not a product which was sold as performance enhancing.

The CAS Panel concludes that the Athlete did take some precautions before using the supplement and finds that is conduct is a standard case of a light degree of fault with mitigating circumstances.

Thefore the Court of Arbitration for Sport decides on 11 April 2014 that:

1. The appeal filed by Mr Marin Čilić on 24 September 2013 is partially upheld.
2. The appeal filed by the International Tennis Federation on 26 September 2013 is dismissed.
3. The International Tennis Federation Independent Anti-Doping Tribunal's decision on sanction (found at subparagraphs (2), (3) and (6) of paragraphs 108) of 23 September 2013 is set aside and replaced with the following:
   

   a.) Mr Cilic's individual results shall be disqualified in respect of the BMW Open in Munich, and in consequence any prize money and ranking points obtained by Mr. Čilić through his participation in that event must be forfeited;
   b.) Mr Marin Čilić is declared ineligible from participating in any capacity in any event or activity (other than authorised anti-doping education or rehabilitation programmes) or competition authorised, organised or sanctioned by the ITF or any of the other bodies referred to in Article 10.10,l(a) of the Programme for a period of four months commencing on 23 September 2013. The period of Provisional Suspension (26 June 2013 until 23 September 2013) served by Mr Čilić shall be credited against the total period of ineligibility to be served.

4. All results, ranking points and prize money earned between 2 May 2013 and 25 June 2013 (inclusive) are undisturbed (and therefore reinstated).
5. The ITF makes a contribution to the Athlete's expenses and legal fees in the amount of CHF5’000.
6. All other motions or prayers for relief are dismissed.