by: Mickey Ingles (Photo: Yann Caradec/Flickr)

We’re starting a new series here at Batas Sportiva, just to give an international flavor to our blog. It’s called Casong CAS (yes, I know “kaso” is spelled with a ‘k’, but for alliteration’s sake, I’m using a ‘c’), or CAS Cases in English. The series focuses on interesting cases decided and awards rendered  by the Court of Arbitration of Sport (CAS) or the Tribunal Arbitral du Sport. (To know more about the CAS, I wrote about it here.) I’ll be writing about a CAS case a month, to shed more light on the CAS and to show that arbitration is an ideal alternative to settle sports disputes.

And what better way to hook people in than a story of sex, drugs, and tennis. Okay, fine, not really sex, but it does involve some kissing. It’s a relatively old case (decided in 2009), but it’s pretty interesting and makes a good story.

So, let’s dive right in and learn how French tennis player Richard Gasquet got off doping charges by saying he kissed a girl in a Miami club.[1]

Gasquet was ranked 25^th in the ATP world rankings in 2009, and until then, had never tested positive for doping. He was in Miami to play in an ATP tournament, but decided to withdraw before the tournament even started because of a shoulder injury. With no matches to think of, Gasquet decided to go out and watch French DJ Bob Sinclar perform in Miami night club Set, part of music conference happening in the city.

Before heading to the club, he had dinner with his coach, some friends, and Sinclar in a restaurant called “Vita.” That’s where he met Pamela—who he ended up talking and hanging out with for most of the night.

At Set, they started kissing. In a room in the club. On the stairs. Seven times all in all. Mouth to mouth. Each kiss lasting about five to ten seconds. (I’m not making this up, it’s in the original decision!)

They left the club and then headed to a strip club. Before leaving the strip club, Pamela excused herself and went to the bathroom to tidy up a bit. Soon after, they bid their farewells, and Gasquet and Pamela kissed again. On the mouth again. But just two to three seconds this time.

The next day, the Frenchman provided the urine sample, the A Sample[2] of which was found to contain benzoylecgonine, a cocaine metabolite. He was then charged with a doping offense under the Tennis Anti-Doping Programme of 2009 (the Programme). When authorities tested the B Sample, it also contained benzoylecgonine.

Interestingly, when Gasquet underwent a hair sample test to determine if he had ingested cocaine of more than 10 mg, the test came back negative.

The Independent Anti-Doping Tribunal convened for the case ruled Gasquet ineligible to play for a period of two months and 15 days. Both the International Tennis Federation (ITF, the governing international sports body for tennis) and the World Anti-Doping Agency (WADA) brought the case to the CAS, appealing for a stiffer penalty.

The CAS Panel sought to resolve five main issues, but let’s focus on two.

First, can Gasquet prove, considering the balance of probability, how cocaine entered his body?

Second, was he acting with no fault or negligence, or with no significant fault or negligence?

If Gasquet could answer “yes” to both questions, then his sanction of ineligibility would be removed altogether.  (Spoiler alert, Gasquet was able to serve aces on both.)

How’d the cocaine get there?

Both the Programme and the WADA Code set the standard of evidence or proof as the balance of probability. This seems like complicated legal jargon, but it’s really not. The Panel explained that as long as Gasquet was able to show that one specific way of ingestion is “marginally more likely than not to have occurred,” then he’d satisfy the balance of probability.

Gasquet’s explanation for the cocaine in his system was straightforward. It was accidental. He got contaminated after he kissed Pamela who, in turn, had ingested cocaine.

The Panel believed him.

It noted other possible means of cocaine ingestion—Gasquet took it deliberately, someone spiked his drink in the club, someone breathed cocaine dust on him—as all less likely to have occurred than kissing Pamela.

The Panel took note that if Gasquet did deliberately take cocaine, his hair test would’ve revealed a larger amount of cocaine in his body—which it didn’t. Spiking his drink was less likely to have happened too for the same reason and because Gasquet didn’t really have any enemies who would’ve resorted to such devious means.

In simpler terms, the Panel said that if it wasn’t deliberate on Gasquet’s part or no one spiked his drink, then it would likely be the kiss which was to blame! And that’s enough to satisfy the balance of probability.

Was there Fault or Negligence on Gasquet’s part?

The Programme states that an athlete, in order to establish no fault or negligence, must show that “he/she did not know or suspect, and could not have reasonably have known or suspected even with the exercise of utmost caution” that he/she had used prohibited substances (like cocaine).  When it comes to no significant fault or negligence, the athlete must show that taking into consideration all the facts, the athlete’s fault or negligence was “not significant to the Doping Offense in issue.”

On this point, the Panel ruled that Gasquet acted with no fault or negligence at all.

WADA and the ITF argued that Gasquet should’ve known that illegal drugs are rampant in music conferences, therefore imputing a semblance of negligence on the tennis player. But the Panel focused on Gasquet’s act of kissing Pamela, not the other circumstances surrounding it.

How could he have known that Pamela took cocaine? How could he have known that you ingest cocaine by kissing? Even if Gasquet exercised utmost caution, it would’ve been impossible to know that kissing Pamela would contaminate him with cocaine.

Also, was it ever the intention of the Programme or WADA Code to punish players for kissing attractive strangers?

 Of course not!

“No Anti-Doping Programme,” said the Panel, “can impose an obligation on an athlete not to go out to a restaurant where he might meet an attractive stranger whom he might be tempted to kiss.”

I love that line just because of its hugot (how do I translate this? “Emotional tug?”) factor. Yes, the law can tell athletes not to dope, but it can’t tell us whom not to kiss.

Who said love in tennis is a bad thing?

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Epilogue: The “kissing” defense has been used twice thereafter in non-CAS venues. First, by Canadian athlete Shawn Barber (who met the girl through Craigs List!) and second, by American gold medalist Gil Roberts. Both athletes won.

Mickey Ingles is the editor-in-chief of Batas Sportiva. He’s better at love than at tennis.

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[1] Arbitration CAS 2009/A/1926, International Tennis Federation v. Richard Gasquet and Arbitration CAS 2009/A/1930, World Anti-Doping Agency v. ITF and Richard Gasquet.

[2] Athletes are required to provide two urine samples, the “A” sample and the “B” sample.