I just wanted to add a little more background to what I stated earlier about the "compelling justification" clause in the Anti-Doping 2.3 rule. This clause has been pointed to in other incidences in sport, and as cases have been argued over and decided, the effect of it's meaning has become more clear. I'll give some case examples that show this, if you don't mind the length of this...
In
B v FEI, CAS 2007/A/1415 a CAS arbitration panel gave the example of an athlete discovering just prior to his test that their children have been very seriously injured in in accident as an example of compelling justification for refusing to submit to a sample collection.
But,
In
CCES v Boyle SDRCC DT 07-0058 (31 May 2007), it was stated that even if an athlete was taken “suddenly, violently and horribly ill while training†there would
not be compelling justification for not providing a sample collection. To be compelling, it was said, the refusal would have to be
“unavoidableâ€. The arbitrator’s suggestion that not submitting to a sample collection has to be “unavoidable†suggests that only something close to death would do.
In
Welsh Rugby Union Ltd v Nathan Jones, 9th June 2006 (NADP), Jones refused to submit to a sample collection following a match. The reason was that Jones, who was not a full time athlete, had to join his father to complete a building project and there was evidence of very severe financial consequences for the family business had he not left urgently to do so.
In these circumstances, but only by a majority, the Panel held that there was
no compelling justification for the refusal to provide a sample. It also held that the Player could not establish a mitigation defense of no substantial fault and negligence and the 2 year ban applied. Following Boyle, the majority held that compelling justification required something “exceptional†and “unavoidableâ€.
In
UK Anti-Doping v Marcel Six, 25th October 2012, an amateur cyclist was asked at a very late stage to participate in a race and he agreed to do so in order not to let down his team. Before the race began he began to receive “panicky†calls from his wife telling him that the children were not well. There was also evidence as to the wife’s fragile mental state and difficulty that she experienced coping with the children. However, he went on to race anyway. During the race, his wife left more messages on his phone. After the race, he was approached by the doping officer to provide a sample. As he checked his phone, he stated to the control officer that he felt he had to leave urgently and left, stating that he had to return to his wife and ill children.
Despite the fact that the National Anti-Doping Panel stated that it accepted that the athlete truly believed his family “to be in significant distress with the potential for harm to his the health of his wife and possibly also his children†it found that there was
no compelling justification. Referring to the Jones case, it said that the test required something “truly exceptional or unavoidableâ€. It reached this conclusion notwithstanding that it accepted that the athlete’s motivations were “humane†and “commendableâ€. The tribunal did go on to find that there was no significant fault but reduced the two year sanction by only six months.
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For the moment, the message to athletes at all levels of sport must be the precautionary one:
unless you are absolutely prevented from submitting to a sample collection you should expect a ban if you refuse to do so.
All this said, I also believe it is up to the testing authorities to perform due diligence and reinforce this stand and make sure athletes are informed clearly that they will be banned for refusing a test. There should be witnesses, and there should be no room for dispute.
I think the statement that Novak Djokovic made following the CAS decision has some valid points, but they are unfortunately lost in the rest of his tirade, and it makes it appear like he is trying to cloud the issue and damage or discredit the Anti-Doping Program (as limited as it has been) by saying things like he won't be able to trust the ITF with his samples because they have people working there who are lying or misleading players. I don't think it was a constructive statement on the whole and came off as an impassioned defense of his friend, which it probably was.
Look, these players aren't juniors, or neophytes in the pro world. They are experience players who signed a document saying they will participate in the Anti-Doping program, and that means you have to submit a sample when instructed. They should well know the ramifications for refusing to submit a sample. It's far easier for an independent person to believe that they are refusing the test to avoid being detected, and to offer every excuse in the book to do so. If the sanction for refusal is very severe (like a lifetime ban), I don't think it will be entertained.
This business of Troicki trying to call Dr. Stuart Miller (Head of ITF Anti-Doping) several times to try and avoid taking the blood test doesn't sit well with me either. It gives an appearance that there is an expectation that Dr. Miller can make exceptions to the rules when called upon. One wonders how many times it has been done before.
As I've said in other articles, a sports federation like ITF in Tennis, or UCI in Cycling, should not be in charge of it's own Anti-Doping testing program. It represents a clear conflict of interest as they are in charge of marketing the sport and seeing it flourishes. There should be an independent agency that is charged with testing the players, sending samples to labs, and reporting results to WADA, ITF, ATP, and the player.
Now that Brian Cookson has thankfully replaced Pat McQuaid as the president of UCI (or IUC, International Cycling Union), one of his first steps was to announce the establishment of a
fully independent anti-doping unit and an independent commission to look into allegations of UCI wrong-doing. In my opinion, this is the way to go forward.
Tennis has typically been behind Cycling in matters of Anti-Doping by a few years, but I hope it doesn't take so long to get things right. But there is a lot more money involved in Tennis than Cycling, so I don't know.
Respectfully,
masterclass
nono:nono
