On one side of the court is Jannik Sinner – world No.1 and reigning Australian Open champion. On the other side is Nick Kyrgios.
This is not Rod Laver Arena. This is the court of public opinion. Kyrgios is not alone on his side of the net, for Novak Djokovic, too, has been frustrated with the handling of Sinner’s doping case.
Should Sinner have been banned for failing a drug test? Should he be here at all?
First, the background.
Jannik Sinner during a practice session at Melbourne Park on Tuesday.Credit: Paul Rovere
Sinner tested positive to a banned substance during the ATP Masters 1000 at Indian Wells on March 10 last year, then again eight days later for low levels of banned anabolic agent Clostebol. He was provisionally banned, and immediately appealed the ban.
Sinner’s legal team was quickly able to establish the source of the banned drug. His physio had hurt his hand and bought an over-the-counter spray in Italy to treat the injury. While he was using the spray for his hand he was also treating Sinner, and the drug transferred to the player.
The International Tennis Integrity Agency accepted Sinner’s explanation of how the drug, detected in minuscule amounts, got there. They lifted the provisional ban.
WADA has appealed that decision to the Court of Arbitration for Sport, to be heard in Lausanne in April.
WADA argues that strict liability provisions mean Sinner carries some responsibility for the drug being in his system, especially given the physio was part of Sinner’s medical and support team.
They will argue before CAS that Sinner, therefore, cannot be said to have no fault, but instead that he had no significant fault.
This is not just semantics. According to a lawyer with extensive experience of doping cases around the world, who asked not to be named to speak freely about the Sinner case, it is the difference between no ban and a likely suspension of six to 12 months.
“It’s not enough to establish no fault by blaming the physio. And this was a person in Sinner’s own medical team, so the culpability is there,” the lawyer said.
“If he went down to the shop and bought a protein bar with a banned substance in it, it would be no different. It is no defence to blame it on someone else, let alone someone you employ for physical treatment.
“I would think it’s going to be a hard job for [Sinner] to avoid overturning the [ITIA] decision because the established CAS authority is that it’s just not a defence to say it’s not my fault.
Nick Kyrgios has been one of Sinner’s most vocal critics.Credit: AP
“It does not matter what the levels are – it potentially gives you an advantage to have had this in your system. It may be an insignificant advantage, but it potentially still is an advantage.
“If you want to enforce a rule, you enforce it for all athletes. This would be a six to 12-month ban for another athlete, given the level of subjective fault is at the lower end.
“That would be the experience, based on CAS history. That is why WADA has appealed.”
Kyrgios has been the loudest critic of the Sinner case, saying he felt he had received preferential treatment as world No.1. The CAS hearing in April will be behind closed doors, reflecting what Kyrgios called a “shady” process.
“Why is it behind closed doors? If you did nothing wrong, then let us have the transparency,” he said in a social media post.
Djokovic said he believed Sinner’s explanation of events but didn’t like the process.
“I’ve been really frustrated, as have most of the other players, that we’ve been kept in the dark for five months,” Djokovic said.
Sinner won his first-round match in straight sets.Credit: Eddie Jim
“He [Sinner] received the news [of the positive tests] in April and the announcement was not until August, just before the US Open.”
The former boss of the Australian Sports Anti-Doping Authority (now Sport Integrity Australia), Richard Ings, thinks it highly unlikely that CAS will ban Sinner.
Ings was also head of the ATP tennis anti-doping program, and said the Sinner case was unique.
“I think WADA has a big job ahead of them,” Ings said.
“Similar cases normally involve the athlete taking a product they didn’t know contained a substance. This is topical contamination by a support team member using a product they are perfectly entitled to buy and to use, and it was on their hands and transferred topically to the player.
“Imagine he just shook hands with him and it got in his system.”
Sinner will be hopeful that CAS considers his case in the same light as the case of French player Richard Gasquet in 2009. Gasquet had a two-year ban for a positive drug test overturned after successfully arguing the cocaine in his system came from kissing a woman in a nightclub soon after she had taken the drug.
Iga Swiatek has also been through her own doping saga.Credit: Eddie Jim
Tennis, like golf, does not have the long history of doping abuse by athletes compared with athletics, swimming and cycling.
Maybe that explains the muted response from tennis fans when Sinner and women’s world No.2 Iga Swiatek’s positive tests were revealed last year.
Those other sports with the dirtier drug histories were the reason strict liability was introduced.
Athletes became responsible for how any drug was in their system, except in the rare circumstances they could prove absolute ignorance. The only occasions this happened was were when athletes were administered drugs in hospital while they were unconscious.
Even an athlete given asthma medication in hospital, for example, could not successfully claim no fault because it was ruled they had the opportunity to inform the doctor they were a professional sportsperson and could not take certain drugs.
Ings said WADA’s appeal to CAS was not seeking to have Sinner’s punishment backdated nor strip him of points, prize money or titles.
So, were he to win again here at this year’s Australian Open he would not be stripped of the title even if CAS upheld WADA’s appeal and imposed a suspension. Any potential ban would be from the date the CAS decision was handed down.
Ings says that while authorities did not treat Sinner differently, he had been able to achieve a different outcome to lesser players because of the superior resources at his disposal.
“Sinner was lucky his team was able to quickly identify the source of the drug, and he had a good legal team to represent him and deal with it quickly,” Ings said.
“This is an example of the system working, whereas most players don’t have the financial means or expertise around them.”
Sinner’s first round opponent, Chilean Nicolas Jarry, could relate to this. Jarry was banned for 11 months for testing positive to small amounts of a banned substance he argued were in contaminated vitamins.
“It’s a very, very difficult, delicate topic. What I can say is that I would have liked the same treatment in the things that I went through. I don’t think it was … the same,” Jarry said after losing to Sinner.
Meanwhile, the fans applauded, happy to be courtside for the start of Sinner’s title defence, but not so concerned with the case before the court in Lausanne in April. New balls, please.
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