The Cilic Decision, Trust, and Evidence

(Update, October 25: The Court of Arbitration for Sport has reduced Cilic’s suspension to four months, on appeal. See here for my summary and reaction.)

Yesterday the International Tennis Federation released its tribunal’s full decision in Marin Cilic’s doping case, in which it suspended him for nine months for taking the banned stimulant nikethamide. It reveals that some of the details in earlier press reports were inaccurate, and provides an interesting chronology of the supplement use that led to his doping violation. I summarize the most significant points, and then comment on the bizarre early reaction among writers and fans.

The Facts and the Decision

Since 2010, Cilic has worked with a personal trainer named Slaven Hrvoj, who the tribunal found has no “scientific qualifications in nutrition or pharmacology”. Hrvoj felt Cilic wasn’t eating enough, and told him to take supplements containing glucose, electrolytes, and proteins. Glucose is a simple sugar, naturally produced by the human body as it breaks down other sugars and starches, and is an ingredient found in food products in most countries. At a Croatian grocery store, Cilic bought a glucose powder called Traubenzucker, which also contained a form of vitamin B3, also known in English as niacinamide or nicotinamide, and in Croatian as nikotinamid.

In 2012 Cilic became dissatisfied with his form and results and began taking creatine supplements. Hrvoj recommended the creatine, and told him that taking it with glucose would help his body absorb it. Creatine is produced naturally by the human body, is naturally present in meat, and plays a key role in transferring chemical energy inside muscle cells. There is evidence that taking creatine supplements increases the power an athlete’s muscles can generate over short periods of time (seconds). Since the 1990s, many athletes have taken creatine in doses considerably higher than those found in food, in the belief that it boosts muscle mass, strength, and athletic performance in a more general sense. While creatine is not a banned substance, its use as a supplement is discouraged by some sports and health authorities. For example, the National Collegiate Athletic Association in the United States prohibits its member schools from providing it to their student athletes. In high doses, it can damage the kidneys and disrupt liver function.

In mid-April, 2013, Cilic was at his apartment in Monte Carlo when he found that he was running low on the Traubenzucker glucose powder. He sent his mother to a nearby pharmacy (not in Germany, as implied by previous reports) to buy more. Although she didn’t speak French, she showed the pharmacist a piece of paper with the word “glucose” written on it, and tried to convey (with a stranger’s help in translating) that it was for her son who plays tennis professionally. The pharmacist suggested a product labeled “Coramine Glucose”, which listed its ingredients in French on the front of the package as nicéthamide and glucose monohydrate. Cilic’s mother bought it and left it in Cilic’s kitchen.

A few days later, on April 22, Cilic found the Coramine Glucose lozenges. He noticed that the front of the package listed nicéthamide as an ingredient, but wrongly assumed this was the same as nikotinamid, the vitamin present in his Traubenzucker powder. He didn’t realize the significance of other text on the front of the package, which advertised it as an “antiasthénique” (stimulant) to treat “sensation de fatigue notamment en altitude” (the sensation of fatigue especially at high altitude). He failed to read the side of the package, which described it as a “médicament” (medication), or the leaflet inside, which under the header “Sportifs: Attention…” warned that an ingredient in the product could result in a positive doping test for athletes (boldface in original).

Apparently more concerned that the lozenges didn’t contain enough glucose than he was that they might contain a banned substance, Cilic took a picture of the front of the package and sent it electronically to Hrvoj, asking if they would be an adequate substitute for his usual glucose product. Like Cilic, Hrvoj made no effort beyond looking at the front of the package to find out whether the product contained a banned substance, and failed to discover that “Coramine” is in fact simply a brand name for the banned stimulant nikethamide. Hrvoj told Cilic that the lozenges contained little glucose, but told him to take two per day anyway until Hrvoj met him at the Munich tournament on April 27 with more Traubenzucker powder.

After his opening-round loss to Ivan Dodig in Munich on May 1, Cilic was selected for a doping test and gave a urine sample, which later tested positive for a trace of nikethamide, even though Cilic apparently hadn’t taken any of the Coramine lozenges since April 26.

On June 11, before his first match at Queen’s Club, Cilic received an email from the ITF notifying him of the positive test and charging him with a doping offense. On June 26th, two days after Cilic beat Marcos Baghdatis in the first round at Wimbledon, his lawyers replied to the charges, saying he would accept a voluntary provisional suspension pending the tribunal’s decision. As the tribunal puts it, Cilic then “withdrew from Wimbledon, citing a knee injury to avoid adverse publicity.” Cilic continues to assert that he did in fact have a knee injury at Wimbledon, and that tournament doctors treated him for it.

The tribunal recognized that nikethamide is “by nature performance enhancing” and that the Coramine lozenges were “intended to help the player’s body absorb creatine”. But, because creatine is not a prohibited substance, because nikethamide is “only performance enhancing for a short time”, because Cilic last took the Coramine lozenges “when he knew he would not be competing until five days later”, and because he switched back to the Traubenzucker powder upon arriving in Munich, the tribunal concluded that he took the Coramine without an “intent to enhance sport performance” under the meaning of section 10.4 of the ITF Anti-Doping rules. This means Cilic is entitled to have his sentence reduced from the default two-year suspension, to a degree determined by his “degree of fault”. Despite accepting the truth of his story and finding that his mistakes were “understandable”, the tribunal found that Cilic’s “degree of fault” was “quite high”. It pointed out the many easy ways Cilic could have discovered that the Coramine lozenges contained a banned substance—by reading the side of the package, by reading the leaflet inside, by searching the internet for the brand name, or by consulting the wallet card the ITF had provided him listing banned substances. It decided that a nine-month suspension was appropriate to the combination of circumstances in Cilic’s case.

The suspension is backdated to begin on May 1, the date Cilic submitted the positive sample, and lasts through January 31, 2014. Cilic forfeits his results, ranking points and prize money from Munich and his subsequent tournaments: Madrid, Rome, Roland Garros, Queen’s Club, and Wimbledon.

The Scandal Is About… Who Said What When?

Like last week when the ITF first announced Cilic’s suspension in a brief press release, many commentators continue to focus on criticizing the ITF’s silence on the case from May to September. Now Cilic himself is receiving more criticism for deceptively attributing his Wimbledon withdrawal to a knee injury than he is for his negligence in violating the anti-doping rules themselves. But players withdraw from tournaments all the time without announcing the full reasons why, whether they want to rest after an unexpected success in a previous tournament, work to prepare for a more important tournament in the future, attend a family gathering, deal with legal problems, or just to avoid a long plane trip. Most often they attribute such withdrawals to injury, but this is seldom an outright lie—playing professional tennis is hard on the body, and virtually every player has some minor physical problem at any given stage of the season. It would be nice if players were more open about their reasons for withdrawing, but their physical need to manage their schedules while maintaining relationships with sponsors and tournament directors inevitably leads many to withhold part of the truth.

The ITF announced Cilic’s sentence on Monday, September 16. This turns out to be the very next business day after the tribunal held its hearing on Friday, September 13. That’s a prompt disclosure. Of course, as fans of the sport, we would like to know what’s going on with players (and with possible doping offenses) as soon as possible. The nearly two-month delay since the press began to report Cilic tested positive has been frustrating. But as I pointed out last week, the ITF has other concerns besides the hunger of fans and journalists for instant gratification. It would be irresponsible for the ITF to make accusations or release incomplete descriptions of facts before accused players have a chance to defend themselves. Furthermore, as a private organization, the ITF does not have governmental immunity like a police agency or prosecutor. While a government can announce that a suspect has been arrested before the case is tried, a tennis player hastily accused of a doping violation could sue the ITF for damages, especially if later absolved of the charges.

Trust, Evidence and Justice

Part of the reason people are impatient is that they don’t trust the ITF to handle cases fairly. This is partly due to cases that occurred many years ago when justice went unserved by a much more naive, weaker and less regulated anti-doping system (as when the ATP let Andre Agassi escape suspension after a positive methamphetamine test in 1997, detailed in Agassi’s autobiography, Open). It’s partly due to continuing charges that the ITF cannot prosecute major doping cases effectively because it’s too financially dependent on the popularity of a few star players—a charge I refuted in February with an analysis of the ITF’s actual budget. And it’s partly due to ongoing rumors, speculation, and conspiracy theories based on people’s failure to read the rules of the ITF and the World Anti-Doping Agency and understand how the process actually works.

Like governing bodies for other sports, for example, the ITF imposes suspensions on players who have been found guilty of doping offenses by its tribunal. The ITF’s rules also specify that it will impose mandatory provisional suspensions (Section 8.3.1) on players who test positive for certain substances, pending analysis of a second sample and a hearing before the tribunal. The WADA Code allows governing bodies to impose what it calls optional provisional suspensions (Section 7.5.2) for other types of violations pending a hearing, but the ITF’s policy allows it to impose what it calls discretionary provisional suspensions (Section 8.3.2) only when the accused player admits guilt. Finally, the ITF rules specify that a player accused of any offense can accept a voluntary provisional suspension (Section 8.3.5) as Cilic did during Wimbledon, in which case the player gets credit for the period of the provisional suspension against any suspension eventually imposed after a hearing. In optional or discretionary provisional suspensions, the option or discretion rests with the governing body—it can choose whether to impose the suspension or not. In a voluntary provisional suspension, the volition rests with the accused player, who can choose whether to accept it or not.

Many press reports on the Cilic case have completely overlooked the distinctions between these various types of suspensions. For example, Alex Duff of Bloomberg Businessweek says that Cilic “was handed a nine-month ban by the ITF” and that he began serving it on June 26 at Wimbledon, falsely implying that the ITF imposed the suspension on June 26. This oversimplification leads to the even more misleading and irresponsible implication that the following three months—in which the ITF tribunal obtained witness statements and solicited multiple rounds of briefs from attorneys on both sides, conducted a day-long hearing, deliberated and considered relevant legal precedents, and produced an exhaustive legal document explaining and justifying its decision and sentence—were all part of a cynical cover-up. The only facts Duff cites to support his insinuation that the ITF is corrupt are irrelevant, because they refer to cases handled in the 1990s by the ATP, before the ITF had jurisdiction over doping in ATP tournaments and before WADA even existed. The rest is all speculation, and quoting the speculation of others.

While much remains to be done to strengthen its budget and testing regime, the anti-doping system in tennis is improving. The ITF has initiated a biological passport program (a testing method I explained here). Because this involves building up extensive records of blood test data for each player taken over time, it’s too soon for its impact to be felt, but it has the potential to catch sophisticated forms of doping that would have gone undetected in the past. Though critics will inevitably disagree with certain details, recent decisions by the ITF tribunal show thoroughness and a dedication to justice and clean sport. The ITF has committed itself to follow the WADA Code and use WADA-accredited testing laboratories, and has accepted the oversight of WADA itself, an organization funded by national governments and the Olympic Movement and independent from any single sport. These improvements, checks, and balances should earn a measure of trust from fans.

Of course, the potential for corruption, apathy, or incompetence on the part of anti-doping authorities remains, and a certain degree of skepticism is healthy. But if we wish to reduce the prevalence of doping, we must also place faith in some institution with the authority to enforce the rules. Due to its arms-length relationship with even the slam tournaments and its lack of any direct financial relationship with WTA and ATP tournaments and their sponsors, the ITF is the most promising such institution we have in tennis. While they have a contribution to make, national police agencies are subject to their own restraints and potential conflicts of interest. As fans we must accept that we will never have all the facts the moment a doping case breaks, as frustrating as that might be, and we should refrain from accusing the ITF of corruption unless we have a sufficient understanding of the process and a complete enough set of facts to justify such accusations—just as it refrains from publicly accusing a player until it has more evidence than a single positive test result.

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12 Responses to The Cilic Decision, Trust, and Evidence

  1. Pingback: ITF Announces Cilic Doping Suspension | Fog Mountain Tennis

  2. jelena says:

    Very informative – and informed. Thanks.

  3. Peter Hermann says:

    Very good and insightful article. Could you please send this to that hysterical blog ‘tennishasasteriodproblem’ because while they do provide some useful information at times, they clearly lack any understanding of how these procedures really work.

    • fogmount says:

      Thanks, that made me laugh. I suspect he has read this post by now… I also suspect it hasn’t entirely changed his mind.

      • Paul says:

        In my opinion, it is you who really needs to change his mind. The explanation offered by Cilic regarding his confusion of Coramine tablets, an obvious medicine, with Traubenzucker, glucose powder which is effectively a food supplement, evidently used by him for creatine spiking (on the gym rat-style instructions issued by a totally unqualified trainer – do you actually understand what is going on here?) is risible, as is the ITF’s supine acceptance of that as a credible explanation for the presence of a substance banned in competition. Where is the evidence or finding that Cilic’s purchase of Coramine was limited to a single packet? As for his excuse in not understanding a doping warning written in French, his country of residence of some years, that is even less credible. I would go as far as saying that it defies belief. Cilic’s case rests on a number of highly unlikely factors coming together to conveniently mask any sinister intention on his part, and as with any opinion on the condition of humanity where there is equivocation, you look at the way to bet. That an ITF tribunal accepted that Cilic established to its “comfortable satisfaction” (a significantly higher level of proof than simple balance of probability) that his Coramine use was not intended to enhance performance, demonstrates a deep failure of judgement on the tribunal’s part to examine these cases more critically plus a failure on the ITF’s part to properly understand and prosecute these cases. In my opinion, it is far more likely that Cilic knew perfectly well what he was doing, habitually using Coramine as a stimulant out of competition and making a very poor error of judgement in failing to ensure it had not left his system at the point he returned to competition. That is ten times a more likely explanation than the one he gives. With Coramine, you either use it for the very narrow indication it is intended for or you are using it as dope. Bets anyone?

      • fogmount says:

        In summarizing the tribunal’s decision, my goal was to present and explain the key facts without going out of my way to express my personal opinion of Cilic’s credibility or culpability. I think readers can make up their own minds about that.

        I agree that Hrvoj’s lack of qualifications is significant, which is why I mentioned it right at the beginning. I agree that it’s possible Cilic’s story is an elaborate excuse for deliberate doping, but if so it’s remarkably detailed and well-supported with corroborating evidence. After hearing testimony by Cilic and numerous other witnesses, the tribunal believed his story, and I don’t feel I’m in a position to conclude with any confidence that that was the wrong decision.

        In any case, it’s inappropriate for an anti-doping tribunal, like any other judicial body, to place “bets” about the secret intentions and yet-unknown conduct of the accused. It has to make rulings based on the evidence before it. In this case, Cilic received a significant punishment.

  4. Paul says:

    The intention of your article was to deride critics of the ITF anti-doping programme and its doping tribunals, faulting one journalist in particular and “conspiracy theorists” generally. Your rather churlish remark above about the steroids in tennis website underlines that. They have done a thousand times more to highlight a serious problem in tennis than either you or the ITF. It is largely due to their efforts that journalists like the one you disparagingly refer to are nowadays more willing to bring the issues to a wider public. You lambast this journalist for his errors but you acknowledge making factual mistakes in your own articles. And give him his dues, because it certainly looks as though he has corrected any error you may have brought to his attention.

    There is an arguable case, prima facie, that the ATP acted corruptly in covering up cases and to the extent that the ITF acted as partners in crime (being a constituent part of the then anti-doping programme and how many doping cases, exactly, did the ITF prosecute historically?) one needs to look critically as their past behaviour too. “Hear no evil, see no evil, speak no evil” seems to have been the guiding principle in the past and there seems to be an easy acceptance by these parties that the public are there to be conned. We see vestiges of this in the Cilic case today where the ITF actively endorsed a player’s lie by sticking to its untenable policy on announcements. The fact that the same personnel are still around running the ITF programme today speaks volumes.

    I said in life, one looks to see which way the bets would go when making judgements. The jurisprudential parameters of sporting tribunals extend beyond a simple role to apply the rules based on evidence submitted. They have to make judgements in the round and do what is right for the sport, perhaps their most important function of all. You appear neither to understand this and hence, nor the remark I made.

    • fogmount says:

      Yes, I intended to criticize those who accuse the ITF of misbehavior on the basis of misunderstandings, speculation, and innuendo, rather than on the basis of verifiable facts.

      Duff’s article still contains all the misleading elements I criticized it for.

      I apologize for my offhand remark about your blog. (It is you, isn’t it?) You and I will never have the same approach to this issue, but all of us who care about fighting doping in tennis should work together when possible.

  5. Paul says:

    No, no! Not my blog at all. I’m just a fan with a typewriter, one of the little guys; a tad more sceptical than you, perhaps. I did not agree with your proposition that we are seeing an international federation and its sporting tribunal operate to the benefit of the sport. In fact, I believe the Cilic case is a poor example given the tribunal’s readiness to swallow an athlete’s fanciful claims. Cilic knew perfectly well that he was taking a medicine. He should have got two years. That would have sent a message to athletes to brush up on their french, as well as give CAS something more substantial to deliberate upon. As it stands, Cilic is left to dig himself deeper into his hole. Predictable, unsatisfactory.

    And, no, I do not see pro-tennis as a largely clean sport either.

  6. Paul says:

    Nice try, but short on facts. Devoid of logic too, rather like that apologist polemic of yours.

    I would imagine anyone educated in the British or any Commonwealth education system would spell the same as me but, hey, let’s not allow such a trifle to spoil a good conspiracy theory.

  7. Pingback: CAS Reduces Cilic Suspension | Fog Mountain Tennis

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