The Committee for Arbitration of
Sport will hear an appeal on August 30 in the case of Dimitar Kutrovsky against
the International Tennis Federation. Mr. Kutrovsky, who is 24 years old and
originally from Bulgaria, was banned from competing in ITF events for two years
because he tested positive for a banned substance, methylhexaneamine, at a
tournament in February 2012. The ITF’s Independent Doping Tribunal published
its decision on May 15, 2012.
Here’s a
quick summary: Kutrovsky started taking a supplement called “JACK3D” because he
was told that it would increase his energy, and speed up his recovery time
between matches. After Kutrosvsky bought the supplement from GNC, he did not
check with the manufacturers, either on their website or otherwise, to see if
any of the ingredients were banned substances. He did try and check the
ingredients in Jack3d against a published list of banned substances, but
because methylhexaneamine is listed by a different name on the Jack3d
ingredient list, he was unable to find it. The ITF decision noted that the
banned substance list does contain a warning that other substances that were
chemically similar to those on the list would also be considered banned, but
either Kutrovsky didn’t read this or didn’t think it was a problem. Kutrovsky
stated that he never used the substance before matches to enhance his
performance, because he considered it an energy supplement like Red Bull or
Gatorade.
Kutrovsky’s
defense centers on his testimony that he did not intend to enhance his sport
performance through the ingestion of Jack3d, because he did not know that
Jack3d contained a prohibited substance. He claims that an athlete has to be
aware that he is ingesting a prohibited substance in order to be found in
violation of the ITF rules on the subject. The head of the ITF tribunal
disagreed, and after a review of some CAS decisions on the subject, found that
even without specific intent, the player’s lack of knowledge and research
regarding the banned substance in Jack3d was not acceptable and therefore,
found that the mandated penalty of two years suspension was appropriate.
The CAS
appeal will therefore probably center on the same issues: intent and fault.
Kutrovsky believes that his lack of knowledge on the presence of a banned
substance in Jack3d is sufficient to establish that he took the supplement
through no fault or negligence of his own, and therefore that he did not intend
to ingest it or enhance his sport performance.
Here’s a link to the ITF Tribunal’s decision:
I think the arbitration committee is right to focus on the different levels of culpability. This case will help decide the standard for liability regarding doping, and hopefully athletes will take more care in the future when offered these kinds of performance enhancers. A low standard for liability (negligence) would obviously be the best deterrent. It doesn't matter if you didn't know, you still have to take responsibility for your actions.
ReplyDeleteI agree that a low standard, like negligence, is probably appropriate. It is not unreasonable to believe that high-end, top-performing athletes have nutritionists that routinely give them supplements, shots, etc. An athlete may hope--and think--that these supplements are completely within the rules of the competition, but unless they knowingly or negligently use illegal performance-enhancing drugs, they may not have the requisiste level of culpability.
ReplyDeleteOne downside of arbitration is that a decision in this case won't do much of anything to inform other athletes about the standard they will be held to in future disputes. Regardless of whether the arbitrator in this case decides that Kutrovsky should be held to a negligence standard or a strict liability standard, the decision won't carry any precedential weight because it is an arbitration. In that sense, arbitration--a device intended to reduce litigation costs--counterintuitively may create extra litigation because the outcome of future disputes is not be discernible from prior decisions.
ReplyDeleteThe strict liability argument is definitely intriguing though. Does "I didn't mean to enhance myself" really cut it? How about for the guy who got second to the one who accidentally enhanced himself? I'm not sure it is the best stance to take, but at least with more popular sports these guys can pay nutritionists, etc., who should know what is in each and every item they ingest.
ReplyDeleteI think the negligence standard is probably best as well. Although there is no precedential value to an arbitration, I wonder if there is some kind of "guideline" that arbitrators use when evaluating situations with similar facts. I agree that players at Kutrovosky's level have the resources necessary to evaluate products and claims even if they don't outwardly know something is illegal.
ReplyDeleteWell, that's certainly an interesting argument he has - he took the substance without intending to enhance his athletic performance... so why'd he take it, again? That seems to me to be a pretty obviously terrible argument, and I'm glad that in this case an arbitrator is going to be able to pretty summarily dismiss that.
ReplyDeleteIt seems that the ITF needs to have a simple and effective way of checking if a substance is banned or not before an athlete takes it. If athletes are subject to random testing 24/7, then there should at least be doping specialists that the athlete could call at any time in order to determine if the substance he is about to ingest is banned or not. Then as long as it is okayed by the specialist the athlete should not have to worry about repercussions.
ReplyDeleteArbitration cases in the Committee of Arbitration for Sport seem to be much more like trials with an investigation process than those I have uncovered in the business arena. I am looking forward to learning more about the rules for such investigations and arbitration proceedings. Do the arbitration rules for these investigations directly mirror the rules in trial courts for the discovery process? Is there a presumption of innocence for Kutrovsky? These answers are probably straightforward but I am interested to learn more about the details of these proceedings and how they actually play out in real cases.
ReplyDelete