In Kutrovsky v. International Tennis Federation, the Court of Arbitration for Sport was reviewing a decision by the ITF in relation to a 25 year old tennis player who had ingested methylhexaneamine (MHA) in an over the counter supplement called “Jack3d”. The ITF had decided that the player was to be suspended for 2 years.
The panel first dismissed an argument by the ITF that the Decision being appealed, was entitled to a fair measure of respect since, inter alia, it is cogent and well-reasoned, so that the Panel should not depart from it unless it identifies a compelling reason to do so. The panel confirmed that under Article R57 of the e Code of Sports-related Arbitration, the panel has “full power to review the facts and the
law on this appeal”, quoting Kendrick v ITF:
10.2 Rule 57 of the Code […] is phrased in the widest terms. The power is
firstly a “full one” and, secondly “to review the facts and the law”; i.e. both.
It has been described in awards too numerous to name as a de novo power.
10.6 Where, as is the case with Article R57 of the Code, rules or legislation
confer on an appellate body full power to review the facts and the law, no
deference to the tribunal below is required beyond the customary caution
appropriate where the tribunal had a particular advantage, such as technical
expertise or the opportunity to assess the credibility of witnesses.” (emphasis
The panel then, in a detailed, reasoned, decision, reviewed decisions from earlier (and inconsistent) CAS panels had differed in the interpretation of WADA Article 10.4 (Elimination or Reduction of the Period of Ineligibility for Specified Substances under Specific Circumstances):
10.4 Elimination or Reduction of the Period of Ineligibility for Specified
Substances under Specific Circumstances
Where an Athlete or other Person can establish how a Specified Substance
entered his or her body or came into his or her Possession and that such
Specified Substance was not intended to enhance the Athlete’s sport
performance or mask the Use of a performance-enhancing substance, the
period of Ineligibility found in Article 10.2 shall be replaced with the
First violation: At a minimum, a reprimand and no period of Ineligibility
from future Events, and at a maximum, two (2) years of Ineligibility. To
justify any elimination or reduction, the Athlete or other Person must produce
corroborating evidence in addition to his or her word which establishes to the
comfortable satisfaction of the hearing panel the absence of an intent to
enhance sport performance or mask the Use of a performance-enhancing
substance. The Athlete’s or other Person’s degree of fault shall be the
criterion considered in assessing any reduction of the period of Ineligibility.
Article 10.4 imposes 2 conditions on any reduction in penalty:
- the athlete must establish how the specified substance entered his/her body;
- the athlete must establish that such specified substance was not intended to enhance his/her sport performance.
In this case, the athlete argued that he did not know that he did not know that Jack3d contained MHA, did not know what MHA was, so he could not have taken MHA with intent to enhance his sporting performance. (Jack3d was labelled as containing “1,3-Dimethylamylamine HCI”, he did not know that “1,3-Dimethylamylamine HCI” was a synonym of MHA).
The panel reviewed a number of (arguably inconsistent Tribunal/CAS decisions) re supplements:
Foggo v National Rugby League
(Professional rugby league player, purchased/used Jack3d, adverse analytical finding for MHA. Club encouraged preworkout supplements. Very limited formal anti-doping education. Athlete assured by store that product was clean, consulted conditioning coach, research on ASADA website. CASA sanction 6 months.
Duckworth v. U.K. Anti-Doping
Young rugby player ingested Jack3d. Checked every ingredient on label against Global Drug Reference website. Used product openly, confirmed with supplement salesman that the product was legal. Tested positive for MHA. Tribunal sanction 6 months.
Jasdeep Toor v. Canadian Anti-Doping Program
27-year old soccer player, no team doctor or trainer, no formal doping education, purchased Jack3d on recommendation of store (GNC) salesman. Did not check labelled ingredients or speak with trainer or coach about product. Canadian tribunal noted: “the protein shake powder was sold by a reputable national vitamin supplement store over the counter. The fact the product was marketed and sold over the counter while containing a banned substance cannot be ignored when the athlete’s degree of fault is assessed in this case”. Tribunal sanction 2 months.
International Basket Federation v. Weeden,
Veteran basketball player purchased Jack3d at a supplement store while visiting the U.S.A. Used periodically during sport season. No antidoping education, no club specialist advice re supplement use. Little/no research about supplement. Tribunal sanction 6 months.
RFU v. Steencamp
Young athlete purchased “USN Anabolic Nitro” to assist with fatigue. Trainer pitched product as “like a Red Bull but stronger”. Athlete not in “anti-doping regime” before, limited education. Informed salesman that he was professional athlete subject to drug testing, and was aware that he needed to check out the ingredients. Tribunal sanction 3 months.
U.K. Anti-Doping v Dooler
Semi-professional rugby league player tested positive for MHA. Product called “Xtreme Nox Pump” taken to assist with aching muscles, fatigue and recovery. Athlete made internet searches against WADA List of Prohibited Substances, which did not readily identify that the product might contain MHA. Tribunal sanction 4 months.
Kendrick v. ITF
Veteran tennis player ingested unlabeled energy supplement to assist with jetlag. Had participated in various anti-doping education programs. Because of his experience on tour, his anti-doping education, his “serious lack of due diligence” when taking an unlabeled drug, CAS panel sanctioned athlete for 8 months.
As to what an athlete must show to prove that he/she did not intend to enhance sport performance, the panel noted 3 possibilities as to an athlete’s state of knowledge:
- no knowledge that the product contained a specified substance (contamination cases);
- no knowledge that a substance contained in the product was a specified substance (as in this instance);
- knew that the product contained a substance and that it was a specified substance.
The majority ultimately concluded that the correct approach (this may be the final position following the revision of the WADA Code in January 2015) was the approach adopted in Foggo v National Rugby League. In a reasoned discussion as to the interpretation of Article 10.4, the majority of the panel concluded that the mere fact that the athlete did not know the product contained a specified substance did not itself establish the relevant absence of intent. The panel quoted Foggo:
WADC 10.4 would not be satisfied if an athlete believes that the ingestion of the substance will enhance his or her performance although the athlete does not know that the substance contains a banned ingredient. The athlete must demonstrate that the substance “was not intended to enhance” the athlete’s performance. The mere fact that the athlete did not know that the substance contained a prohibited ingredient does not establish absence of intent.
Ultimately, the panel concluded, in this instance that Article 10.4 was not applicable.
The panel then considered Article 10.5.2 (No Significant Fault or Negligence ). Article 10.5.2 provides:
10.5.2 No Significant Fault or Negligence
If an Athlete or other Person establishes in an individual case that he or she bears No Significant Fault or Negligence, then the otherwise applicable period of Ineligibility may be reduced, but the reduced period of Ineligibility may not be less than one-half of the period of Ineligibility otherwise applicable …
The panel noted that, under this provision, an athlete was required to establish that his/her fault or negligence, viewed in the totality of the circumstances and having regard to the criterion for “No Fault or Negligence”, is not significant having regard to the doping offence. The panel reviewed the circumstances in this case: “….. against the fundamental duty that he or she owes under the Programme and the WADC to do everything in his or her power to avoid ingesting any Prohibited Substance”.
The factors taken into account by the panel:
- actually did some research, Jack3d, WADA Prohibited List, “the most rational first step”;
- he would have never found the Specified Substance on the WADA Prohibited List, unfortunately not on the list as labelled;
- no anti-doping education provided to him by his federation, …;
- limited experience with anti-doping literature and processes;
- naïve to believe store salesman;
- did not seek guidance from the ITF or WADA;
- his enquiries with respect to the contents of Jack3d were inadequate, internet, did not contact any of the relevant sport or anti-doping organisations, Google search on “Jack3d” would have alerted to drug-testing issues.
Based on these factors, the CAS panel decided that the appropriate sanction was 15 months.