CAS Shortens Troicki’s Suspension

The Court of Arbitration for Sport has reduced Viktor Troicki’s suspension for failing to submit a required blood sample from 18 months to 12, meaning he will be eligible to play again on July 15, 2014. Hearing Troicki’s appeal of the ITF tribunal’s original decision, the CAS was less willing than the ITF tribunal to discount Troicki’s description of his conversation with Dr. Elena Gorodilova, the ITF’s doping control officer at the Monte Carlo tournament on the day of Troicki’s test.

Background

Troicki was selected to give both blood and urine samples after his 63-minute straight-sets first-round loss to Jarkko Nieminen on April 15. Troicki provided the urine sample but said he couldn’t provide the blood sample because he didn’t feel well. Dr. Gorodilova confirmed that he looked tired and weak. Troicki also established to the satisfaction of the ITF tribunal that he has had a lifelong phobia of needles, but the CAS placed much less emphasis on this factor.

Having initially refused to sign a required “blood doping control form” because he didn’t want to give a sample, Troicki signed the form’s notification section after Dr. Gorodilova pointed out that he could be punished if he didn’t sign it. The last of three sentences in the box above his signature reads, “I understand that any refusal or failure to submit to doping control and/or any attempt to interfere with the doping control process may be treated as an anti-doping rule violation.”

After he asked whether it would be a violation if he was unable to submit a blood sample, Troicki claims Dr. Gorodilova told him that if he didn’t feel well, he should write a letter explaining this to the ITF, and that once he did so, “it should be all right”. He says she then helped him write the letter, largely telling him what to write. In his testimony before the CAS, he does not seem to have repeated the assertion he made to the ITF tribunal that Dr. Gorodilova assured him she was “100%” confident the letter would allow him to avoid sanctions, an assertion the ITF tribunal found was completely uncorroborated by other witnesses.

Dr. Gorodilova has consistently disputed Troicki’s account, in an email written to her supervisor the same day of the test, in a report she submitted the following day, in her testimony before the ITF tribunal and again to the CAS panel. She says that she told him she “could not advise him on whether or not [his feeling unwell] would be considered a valid excuse,” and that her “own understanding was that if you are selected and notified that you are required to provide a sample, you must provide the sample in all cases.” She also denies dictating his letter.

I discussed more details of the dispute and surrounding circumstances in my analysis of the ITF tribunal’s original decision.

CAS Decision

In its explanation of its ruling, the CAS reached a similar conclusion to the ITF tribunal on the nature of Troicki’s anti-doping violation and the applicable rules, but took a different approach to resolving the factual disputes in the case and determining the appropriate sentence.

Under the rules of the ITF Anti-Doping Program, the standard two-year suspension for a failure to submit a required sample can be “eliminated” if a player “establishes… that he/she bears No Fault or Negligence” (Article 10.5.1), and can be reduced to a minimum of one year if the player “establishes… that he/she bears No Significant Fault or Negligence” (Article 10.5.2, emphasis added). The CAS found that Troicki “does bear a degree of fault”, flatly agreeing on that point with the ITF tribunal, which concluded that “he is unable sufficiently to justify his actions to escape liability under the Charge.”

In assessing Troicki’s “degree of fault” for the purposes of setting the length of his suspension under Article 10.5.2, the CAS took a different approach than the ITF tribunal. Rather than concluding that Troicki’s decisionmaking was hindered by the stress he was under on the day of the test due to his physical condition and needle phobia, the CAS focused instead on the misunderstanding and conflicting perceptions between Troicki and Dr. Gorodilova. Rather than analyzing the testimony of multiple witnesses and assessing their individual credibility to decide whether Troicki’s or Dr. Gorodilova’s story was more accurate, the CAS took their conflicting testimony as strong evidence that there was a misunderstanding between them, for which it found Dr. Gorodilova partly responsible. Due to that misunderstanding, the panel found that Troicki “does not bear significant fault” under the meaning of that phrase in Article 10.5.2.

The CAS concluded that both Troicki and Dr. Gorodilova:

…[W]ere credible witnesses and gave their testimony before the Panel in good faith and to the best of their recollection, though the recollection of the Athlete in particular was coloured by his subsequent reconstruction of events.

It also found that:

Dr Gorodilova, with her extensive experience as a DCO, did indeed inform the Athlete that, once selected, he had to undergo the test and that if he failed to do so, he could face sanctions. The Panel is also of the view that she did inform the Athlete, when she suggested that he write a letter to the ITF, that she was not the person who could take the decision and that it would be up to the ITF to decide whether the reasons he invoked in his letter would excuse his failure to provide a blood sample.

On the other hand, the CAS also concluded that:

…[M]ainly because of his physical and mental conditions on that day but also because of what Dr Gorodilova did and did not do in the [doping control station], the Athlete sincerely believed that he had received the DCO’s assurance that, even if he did not submit a blood sample on that day, he would not commit an offence.

The CAS also pointed out that Dr. Gorodilova missed potential opportunities to persuade Troicki to submit the blood sample or convey to him the seriousness of the situation, for example by failing to explain the possible penalties, to enlist the help of Troicki’s coach, or to call an ATP Tour representative to give Troicki additional advice.

For these reasons, the CAS seems to have located Troicki’s “degree of fault” on the low end of the scale, and therefore assigned him the minimum penalty allowed under the ITF’s rules—a 12-month suspension.

For her part, Dr. Gorodilova insisted to the the ITF tribunal that she didn’t make more effort to persuade Troicki because, in the tribunal’s words, he “had made it clear that his mind was made up—he was not prepared to give blood despite her efforts to encourage him to do so.”

Troicki and his attorneys attempted to argue that a 12-month suspension is disproportionate because it is longer than some suspensions given to players who test positive for banned substances—Marin Cilic, to take the most recent example. However, the CAS rightly points out that the rules give greater discretion in sentencing only in cases where an athlete tests positive for certain “specified substances” (which are banned only when the athlete tests positive during competition) and “where the athlete can demonstrate he did not intend to enhance his sport performance”. In contrast, in a case like Troicki’s, the CAS observes that “there is no way of knowing what would have been found in the sample if it had been given”, and therefore no way to assess whether grounds exist for further reduction of the sentence.

Reactions

It’s clear from the testimony in hearings before both the ITF tribunal and the CAS panel that Troicki and his coach went into the doping control station in Monte Carlo with an irresponsibly poor understanding of their obligations under anti-doping rules, and it seems Troicki, his team, and his defenders on tour come out of the adjudication and arbitration process with expectations and attitudes that remain unreasonable and irrational. Troicki issued a statement to the press after the CAS decision, overdramatically asserting that:

…[T]his decision puts an end to my dreams of being a top player, of reaching the ATP finals and fighting against the best in the world. I worked my entire life for it, and it has been taken away from me in one afternoon by a doctor I didn’t know.

Asked for comment after his World Tour Finals match yesterday, Troicki’s countryman Novak Djokovic said:

It’s very bad news that we got for him, and for me, for all of us who are close to him. But I think it’s just not bad news for him, it proves again that this system of WADA and anti-doping agency does not work.

Without mentioning her name, Djokovic went on to criticize Dr. Gorodilova for failing to explain the rules and potential penalties, accused her of “negligence… and unprofessionalism”, and said “it makes [him] nervous as a player, to do any kind of test.”

Perhaps Djokovic can’t be blamed for accepting his friend Troicki’s version of events at face value, but as an elite professional he should understand that ultimately the responsibility to know and follow the rules lies with the player. He has no rational basis for questioning the integrity of WADA, the testing laboratories, or the anti-doping system as a whole simply because of the mistakes made by one doping control officer employed by an independent contractor. For his part, Troicki would look better if he showed some contrition or acknowledged that he’d learned something from the experience, rather than exaggerating the impact of the suspension on his career. It’s not unusual for tennis players to effectively lose whole seasons, whether due to injuries, illnesses, or other circumstances. At 27, Troicki can expect to play ATP-level tennis for at least a few more years, and to return close to his former level, if he dedicates himself to it with the necessary attitude.

Those who feel Troicki’s punishment was too harsh need to stop and think about what would happen if players could expect to avoid doping tests at will, without significant penalty, simply by looking physically distressed, saying they don’t feel well, and saying they lack a minimal understanding of the rules and the doping control officer didn’t explain the rules forcefully enough. Part of the art of modern doping is to calibrate and time one’s doses to minimize the chance of testing positive. Whether a player gives a sample now or in a few hours from now can easily make the difference between testing positive and testing clean. Some doping agents can only be detected by blood tests, and some can only be detected by a properly orchestrated series of blood tests, taken at intervals over time. Any loophole that allows players to skip or delay tests here or there is likely to be exploited, sooner or later, by someone who really intends to cheat.

Indeed, it could be argued that in its recent decisions in the cases of Troicki and Cilic, the CAS has been too willing to accept at face value both players’ assertions of ignorance—of their most basic obligations under the rules, of the potential penalties, and in Cilic’s case, of the substances he was ingesting. Given the hazards of doping in modern professional sports, efforts by the ITF, ATP, and WTA to educate them, and their frequent encounters with anti-doping representatives themselves, it’s difficult to understand how tour-level players today could sustain such a lack of awareness.

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2 Responses to CAS Shortens Troicki’s Suspension

  1. Pingback: Troicki Suspended for Failing to Provide Blood Sample | Fog Mountain Tennis

  2. Paul says:

    Why is CAS effectively overturning a finding at first instance regarding the relative credibility of the two principal witnesses? I thought the role of CAS was to look at procedural error or basic error in law, neither of which is evidently the case here.

    The trouble as always with these hearings is that if you’re not there and the matter is not reported, one can never really get at the nuances which can affect or decide a case.

    I consider the decision all wrong anyway. Troicki refused a test and did so point blank. It could be presumed, both at first instance and appeal, that he knew full well what the consequences of that were. He ought properly to have received two years and had that sentence confirmed by CAS.
    This is a case where yet again, an athlete escapes heavier though standard, sanction through the tactical use of obfuscation.

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