International Tennis Federation v Richard Gasquet

Adam Lewis QC and Kate Gallafent acted for the player, who had tested positive for cocaine, a substance banned in competition only, on his withdrawal from an event without playing in it. Testing on withdrawal was deemed under the rules to be testing in competition. Expert evidence obtained for the player demonstrated that only a tiny amount of the drug must have been inadvertently ingested in the 12 or so hours before testing.  It was established that it was more likely than not ingested through kissing a girl contaminated with cocaine, during the night before the sample was collected.  The player argued that he had acted with no fault or negligence, which would mean that no ban should be imposed.  That standard is however very rarely met, and he succeeded only in establishing that he had acted with no significant fault or negligence, reducing his ban from two years to one year.  But then in addition, he was able to persuade  the panel that a year’s ban was disproportionate and unlawful in the circumstances of the case, because the player had not in any normal sense been in competition  when the substance was inadvertently ingested, since he had already decided to withdraw from the event through injury without playing any part in it.   The panel substituted a sanction of 2½ months.  This was on the basis of the principle that WADA automatic sanctions must be dis-applied if disproportionate, which principle Adam Lewis had successfully advanced before CAS in Puerta v ITF, in which case an eight year ban had been reduced to two years.  Both the ITF and WADA appealed to the Court of Arbitration for Sport in Lausanne.  In particular they were concerned as to the dis-application of the mandatory sanctions.  The case was heard on 10 November 2009.   On the appeal, CAS was persuaded that far from increasing the sanction imposed, it should reduce it, on the basis that the Player was in fact correct that he had acted with no fault or negligence.   This represents one of the very few occasions on which CAS has ruled that a player satisfied this standard.