In April, the world’s best male player, the Italian Jannik Sinner, will swap the blue hues of Rod Laver Arena for a more confronting court; his doping appeal case against the International Tennis Integrity Agency, the World Anti-Doping Agency and the International Tennis Federation, is listed for two days in the Court of Arbitration for Sport.
That hearing will be conducted before three arbitrators, behind closed doors, at the CAS’s headquarters in Lausanne, Switzerland.
Illustration: Simon Letch Credit:
That the appeal hearing will proceed away from the collective gaze of the public eye is, apparently, a cause of significant consternation for Nick Kyrgios, the most strident and loudest critic of Sinner and the ITIA and ITA processes leading to this fork in the road. Days ago, Kyrgios opined on X (formerly Twitter) that the concept of a confidential CAS hearing “is all so shady”.
Is it? Absolutely not. Rule 57 of the CAS’s Code of Sports-related Arbitration expressly says that an appeal hearing shall be conducted “in camera” unless the parties to the proceedings agree otherwise.
At least one of Sinner, WADA, the ITA and the ITIA have withheld consent to a public hearing.
It’s likely that all of the parties agree there’s no utility in turning a legal and technical hearing into a social media free-for-all.
Contrastingly, rule 59 of the CAS Code mandates the CAS arbitral award, or a summary, shall be made public unless all parties agree that confidentiality shall be preserved.
To disabuse Kyrgios of what troubles him, it’s inconceivable in the circumstances that anything less than the entire CAS appeal decision will be published. Rightly or otherwise, Sinner’s doping saga constitutes the most notorious doping case since that of Chinese swimmer Sun Yang.
Put another way, the CAS will produce a final and (hopefully) conclusive, reasoned decision following the conclusion of a two-day appeal hearing. That award should be expected by mid-2025, but the CAS is notoriously slow. That award will become public.
If the parties do all claim confidentiality, Kyrgios would be well within his rights to go apoplectic on social media, as is his wont. The award must be released publicly, to allay concerns that the ITIA’s 2024 decision to exonerate Sinner is contrived because he’s too big a name to fail.
But is Sinner factually villainous in the doping context? Is Kyrgios correct in that it’s beyond “ridiculous” that the Italian escaped any ban of years or even just months or weeks after testing positive (twice) earlier in 2024 for the presence of a metabolite of an anabolic agent, Clostebol?
We’ll find out, but Sinner doesn’t deserve continued hectoring in the meantime.
Australia’s Mack Horton refused to share the podium with Sun Yang at the 2019 world championships.Credit: AP
The criticisms are misguided and somewhat facile. The omnipresent spectre of being exorcised from professional tennis for two years, from the time of the CAS’s eventual judgment, in the prime of your career and with ascending dominance, must be a dreadful burden. That’s not lost on me, nor should it be lost on anyone.
The ITIA’s ruling, the subject of WADA’s appeal, is that Sinner committed two anti-doping rule violations relating to Clostebol but that regardless he bears no fault or negligence in relation to the rules breaches. The automatic consequence in that circumstance is that any period of ineligibility is eliminated. Prizemoney and ranking points are treated differently.
Any such determination of an absence of fault or negligence in a straightforward case of an athlete testing positive for a prohibited substance warrants close examination. The importance of that statement is magnified when the athlete is the world’s highest-ranked athlete in their chosen sport.
The opprobrium regarding the ITIA’s first-instance decision is anchored in the idea that if an athlete tests positive (twice) for the presence of an anabolic agent, they must be automatically banned for a very long time. Even if there’s no intention to obtain a pharmacological performance advantage.
A critical reanalysis is important where we have a player free and presently untroubled by any sanction whatsoever, where other players testing positive for the same substance might not be playing again until 2028.
Sinner’s CAS visit turns on whether he bears any fault or negligence. Sinner again must confront the question of whether he discharged his duty, to exercise utmost caution where his case concerns a factual narrative of his exclusively employed fitness coach purchasing an over-the-counter medical spray, Trofodermin, which contains the prohibited substance.
According to the evidence accepted at the first instance, the fitness coach gave the medical spray to Sinner’s exclusively employed physiotherapist to treat a cut on the physiotherapist’s hand accidentally inflicted by a scalpel the physiotherapist retains to cut calluses off Sinner’s feet.
The fitness coach “recommended” the use of Trofodermin, such is its “healing and antiseptic qualities”.
The physiotherapist used the spray but didn’t bother to check its ingredients. Which is fine and would have been immaterial, except that he also gave Sinner a series of “full-body massages” in the nine-day period he used the spray on his mending digit.
Nick Kyrgios has been publicly critical of Jannik Sinner. Credit: AP
Legally, to prove the defence of no-fault or negligence, Sinner must prove not only the origin of the prohibited substance and not just a hypothesis of the potential source but also that he exercised utmost caution but nonetheless was administered or did use the prohibited substance.
Whether sufficiently exacting standards of due diligence were applied by Sinner in making employment choices and imposing strict workplace standards is central to answering the question of whether utmost caution was applied.
At first instance, there wasn’t any serious contest as to the origin of the prohibited substance being through the massages by the physiotherapist. Evidence from three expert witnesses was that the “massage hypothesis” – as being the route of administration – was highly plausible.
The more vexed question is one of the extent to which Sinner discharged his own, non-delegable burden of exercising utmost caution, bearing in mind first that the defence should only be available in exceptional cases. The threshold of “utmost” connotes extreme caution and the idea that the athlete could do no more; hypervigilance bordering on fanaticism.
Successful no-fault or negligence defences used to be tremendously rare, and they must remain so given that the automatic consequence of the finding is exoneration. The defence is available only in unique factual situations, where the athlete has no involvement – whether by act, negligence or omission – in committing the offence.
In a situation like Sinner’s, with his concentric circles of employed specialist staff, he’s relevantly vicariously responsible for their actions, omissions and mistakes. It’s no straightforward excuse for an elite athlete to assert that they placed faith in a doctor or physiotherapist, and thus it’s all their fault and not the athlete’s.
The ITIA tribunal determined that based on all the evidence Sinner is a person who ordinarily exercises considerable caution in relation to doping matters and corresponding precautions, where he also couldn’t have known, even with the utmost of caution, that the fitness coach and physiotherapist (each of whom were living in the same villa as Sinner) were using Trofodermin.
There isn’t any question that Sinner isn’t culpable. There’s no evidence of intent or that he chose to have Trofodermin sprayed or rubbed on him. There’s no evidence he intended to cheat, and the quantity of the substance in his system was so tiny it would’ve been pharmacologically irrelevant anyway.
Jannik Sinner of Italy plays a backhand return to Tristan Schoolkate of Australia.Credit: AP
But that’s not the relevant test anyway. The relevant threshold is whether Sinner did all that was humanly possible to take every available precaution and impose all available systems and protections to avoid the very outcome that’s befallen him.
The ITIA’s decision in Jannik Sinner’s case sets too low a bar for what’s expected of an athlete in terms of them exercising utmost caution. Did Jannik Sinner do all that’s humanly possible to protect himself from inadvertent doping, and nonetheless fall foul? Nope.
He took significant precautions. But that isn’t sufficient. He didn’t do absolutely everything which he could’ve done, but nonetheless tested positive for the metabolite of the prohibited substance.
Sinner could’ve taken proactive steps to audit the supplements, medications and other products brought into their shared home by members of his entourage. He could’ve run his household in a properly regimented manner.
The player could’ve asked for written declarations from the members of his entourage, detailing all medications which each member was using; he could’ve explicitly reiterated to his staff the importance of vigilance regarding the use of over-the-counter medications, and particularly those exchanged between staff members.
He could’ve asked the physiotherapist to sanitise his hands.
And as soon as you can conclude that Sinner could’ve taken further steps to protect his own position, he hasn’t exercised utmost caution.
