21/11/09 22:53 GMT
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Picture Gasquet - does verdict 'open the floodgates'?

IS THE DOPING STANCE SOFTENING?

By Andy Schooler

Send your feedback to: tennisfeedback@sportinglife.com
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Last week's decision to allow Richard Gasquet to resume his career has, predictably, proved controversial.

Despite testing positive for coacine back in March, the Frenchman is free to play again after just two and a half months on the sidelines.

According to the World Anti-Doping Agency code, to which tennis is signed up, the penalty for such a first-time doping offence is a two-year ban.

Yet Gasquet and his legal team successfully argued to reduce the suspension - and immediately sparked an argument about the principle of 'strict liability' at the centre of the WADA code.

Essentially strict liability is a hardline rule which says if you are found with substance X in your body, you alone are responsible - and you'll be banned for two years if it's your first offence. A second offence and it's life.

But the Gasquet verdict is just the latest in a line of decisions which suggest the hardline stance in the doping fight is gradually being softened - and one which will rile those who back what others would describe as harsh penalties.

In the Gasquet case, it appears a more liberal view was taken, as opposed to a harsher, right-wing one.

In it, Gasquet said he had been contaminated by kissing a woman at a nightclub. Despite there being no direct evidence, the independent anti-doping panel which ruled on his case accepted that explanation. The quantity of the drug involved was found to be as small as a grain of salt.

Personally it seems harsh in the extreme to even suggest a player should be banned for two years as a result of this, yet I also see the argument for strict liability.

However, the panel did rule that Gasquet "was at fault in exposing himself to the risk of such contamination". Crucially, though, this fault was "not significant", it said.

This allowed the panel to reduce the ban from two years to one. However, it went further by saying the case had "exceptional" circumstances.

Quoting a decision from the Court of Arbitration for Sport - sport's highest court - regarding another tennis player, Mariano Puerta, which said "any sanction must be just and proportionate", the panel cut the ban again.

Puerta, it should be remembered, was initially banned for eight years (it was his second drug offence) after accidentally drinking what turned out to be his wife's medication. CAS later reduced the ban to two years.

The Gasquet panel said: "We accept the player's submission that if we were to impose a one-year period of ineligibility, applying the rules rigidly, we would be penalising a person whom the rule was not intended to catch.

"Standing back and looking at the totality of the evidence, we have reached the conclusion that a very serious injustice and infringement of the player's right to practise his profession would be done if we were to impose a one-year period of ineligibilty."

Instead, the panel immediately ended Gasquet's provisional suspension, meaning he had served a ban of two months and 15 days. He can now play again.

The game's governing body, the International Tennis Federation, was not happy.

It had wanted a harsher penalty imposed, saying the panel risked "opening the floodgates" in the doping battle and could destroy the 'strict liability' principle.

However, the panel, made up of a leading lawyer and two medical experts, did not agree.

Quoting the CAS ruling on Puerta which rejected the notion that "it is necessary for there to be undeserving victims in the war against doping", the Gasquet panel added: "We do not accept the ITF's contention that by declining to ban the player for one year in this case, we would be undermining the integrity of the (ITF's anti-doping) Programme, 'opening the floodgates' for others or destroying the principle of strict liabilty which underpins the (WADA) Code.

"We are not exercising a discretion to disapply the provisions of the Programme. We are fulfillng our obligation to apply 'the overarching principle of justice and proportionality on which all systems of law, and the WADC itself, is based' (another example of case law which came from the Puerta ruling)."

The athlete Justin Gatlin is another to have used the "exceptional circumstances" argument to reduce a doping ban and you can bet Gasquet will not be the last sporting figure to do so.

Just as sentences in a criminal court split people down the middle, so it is in sport's fight against drugs.

Which view is correct will, as always, remain subjective.

  • The Gasquet ruling, and indeed other doping panel decisions in tennis, are published in full on the ITF's website and make for an interesting read.

    We'd like your views on the Gasquet verdict. Has justice been served, as the player himself says? Or should the strict liability rule be enforced more rigorously? Email your feedback to: tennisfeedback@sportinglife.com.

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