Prior to joining Jannik Sinner's team, the physio Giacomo Naldi worked in Italian basketball. At least one player on his team was already aware of a rival's case, involving clostebol contamination.
Hi Edmund, thanks for this article. I have always thought both Sinner staff were truly negligent so this story is all the more galling.
In relation to the comparisons between the Sinner case and the basketballer (Moraschini) the comparisons quoted by others in the article that it’s a similar case needs some care (this is seperate from you’re own valid point about Naldi’s expected knowledge of closterbol risks from antiseptic sprays based on the basketballer case years before).
Although there does not appear to be any reported decision in the Moraschini case - it appears to have been decided by NADO and by reference to the WADA code as well — it was found by the Tribunal in that case (accordingly to other reporting of its findings) that the tribunal found that he should have been aware of the risk, leading to the 1 yr suspension. This would imply, unlike in the Sinner case, that the first instance tribunal found him to 1) have know that his fiancée was using the spray hence why he should have been aware of the risk and thus 2) found to have no significant fault/negligence (hence the 1 yr). This is different to the Sinner case where the independent tribunal found he did not know Naldi used the spray or that Ferraro gave Naldi the spray and thus he bore no F/N. I appreciate that WADA’s agreement with Sinner subsequently for 3m to reflect player responsibility for his staffs’ negligence cuts against that but I think that needs to be understood in the context of the use of the settlement clause (A 10.8.2) of the WADA code. There is debate on the interpretation of that clause and whether it allows flexibility to depart from the mandatory 1 yr suspension and its not settled. So whilst Lara Mortseifer says a reduction of less than one year suspension is “generally” not permissible, that does not account for the debatable construction of A 10.8.2 (which will become moot with the proposed changes to the new WADA code that will allow suspensions of less than 1 year for contamination by a third party).
Sadly as you say, there is no decision in the Moraschini case so it is difficult to analyse his level of fault.
I note that on the surface the broad events of the Moraschini and Sinner contaminations are pretty similar.
With regards to Sinner's length of suspension, I think you have to rely on the WADA (albeit limited) press release, rather than the ITIA decision which found Sinner to not be at fault (which is now obsolete).
In the WADA settlement agreement Sinner's entourage, who Sinner is responsible for, were negligent and they were therefore at fault.
The ITIA have released a Q&A explaining the agreement reached between WADA and Sinner, in which the ITIA states that, at tribunal, if an athlete, or his entourage, is at fault (after testing positive for an anabolic steroid) then the suspension must not be less than one year. These comments match Mortseifer's comment.
I quote the ITIA herein:
"The Sports Resolution tribunal reached a decision of No Fault or Negligence based
on the facts presented to them and their application of the Rules. Their full reasoned
decision can be found here.
It is worth noting that the rules did not / do not allow for the first instance tribunal to
come to this outcome so there was no ability for the panel to do so.
Their only options were “No Fault or Negligence” (and therefore no suspension), or
“No Significant Fault or Negligence” which would mean a sanction between 12
months or 24 months. "
In principle, this would have also been the case for the CAS tribunal panel"
Thanks. I totally agree that the rules didn’t allow the first instance panel or the CAS to come to a different sanction if they believed there was no significant F/N so yes Mortseifer’s comment is correct in that regard.
I just think the case settlement used by WADA complicates that because of how you might construe the relevant provision giving WADA power to settle and there remains an unsettled debate (ie by way of CAS case law) as the scope of flexibility under that provision. WADA clearly interpret the provision as giving them more flexibility than the rules ordinarily given re length of suspension. Which makes sense because a settlement by its very nature allows for flexibility and that is reflected in civil and criminal settlements in law.
As to the first instance decision, I do not regard it as obsolete. It is the only decision making actual findings of fact. In any legal system there is a principle that the first decision remains on foot unless and until overturned on review or appeal. That principle applies in the present case. What WADA and Sinner did was settle WADA’s attempt to appeal the first instance decision. WADA accepted all the findings of fact by the first instance decision and then fashioned an outcome to achieve a broader policy objective re player liability for staff. If a player with the identical facts as Sinner now comes along, the first instance decision is still relevant case law and persuasive precedent as a matter of law. The settlement would not factor. Though it would be a handy precedent in resolving a dispute should it go on appeal.
Hi Edmund, thanks for this article. I have always thought both Sinner staff were truly negligent so this story is all the more galling.
In relation to the comparisons between the Sinner case and the basketballer (Moraschini) the comparisons quoted by others in the article that it’s a similar case needs some care (this is seperate from you’re own valid point about Naldi’s expected knowledge of closterbol risks from antiseptic sprays based on the basketballer case years before).
Although there does not appear to be any reported decision in the Moraschini case - it appears to have been decided by NADO and by reference to the WADA code as well — it was found by the Tribunal in that case (accordingly to other reporting of its findings) that the tribunal found that he should have been aware of the risk, leading to the 1 yr suspension. This would imply, unlike in the Sinner case, that the first instance tribunal found him to 1) have know that his fiancée was using the spray hence why he should have been aware of the risk and thus 2) found to have no significant fault/negligence (hence the 1 yr). This is different to the Sinner case where the independent tribunal found he did not know Naldi used the spray or that Ferraro gave Naldi the spray and thus he bore no F/N. I appreciate that WADA’s agreement with Sinner subsequently for 3m to reflect player responsibility for his staffs’ negligence cuts against that but I think that needs to be understood in the context of the use of the settlement clause (A 10.8.2) of the WADA code. There is debate on the interpretation of that clause and whether it allows flexibility to depart from the mandatory 1 yr suspension and its not settled. So whilst Lara Mortseifer says a reduction of less than one year suspension is “generally” not permissible, that does not account for the debatable construction of A 10.8.2 (which will become moot with the proposed changes to the new WADA code that will allow suspensions of less than 1 year for contamination by a third party).
Hi Radhika, thanks for your comment as always.
Sadly as you say, there is no decision in the Moraschini case so it is difficult to analyse his level of fault.
I note that on the surface the broad events of the Moraschini and Sinner contaminations are pretty similar.
With regards to Sinner's length of suspension, I think you have to rely on the WADA (albeit limited) press release, rather than the ITIA decision which found Sinner to not be at fault (which is now obsolete).
In the WADA settlement agreement Sinner's entourage, who Sinner is responsible for, were negligent and they were therefore at fault.
The ITIA have released a Q&A explaining the agreement reached between WADA and Sinner, in which the ITIA states that, at tribunal, if an athlete, or his entourage, is at fault (after testing positive for an anabolic steroid) then the suspension must not be less than one year. These comments match Mortseifer's comment.
I quote the ITIA herein:
"The Sports Resolution tribunal reached a decision of No Fault or Negligence based
on the facts presented to them and their application of the Rules. Their full reasoned
decision can be found here.
It is worth noting that the rules did not / do not allow for the first instance tribunal to
come to this outcome so there was no ability for the panel to do so.
Their only options were “No Fault or Negligence” (and therefore no suspension), or
“No Significant Fault or Negligence” which would mean a sanction between 12
months or 24 months. "
In principle, this would have also been the case for the CAS tribunal panel"
Thanks Radhika, Edmund
Thanks. I totally agree that the rules didn’t allow the first instance panel or the CAS to come to a different sanction if they believed there was no significant F/N so yes Mortseifer’s comment is correct in that regard.
I just think the case settlement used by WADA complicates that because of how you might construe the relevant provision giving WADA power to settle and there remains an unsettled debate (ie by way of CAS case law) as the scope of flexibility under that provision. WADA clearly interpret the provision as giving them more flexibility than the rules ordinarily given re length of suspension. Which makes sense because a settlement by its very nature allows for flexibility and that is reflected in civil and criminal settlements in law.
As to the first instance decision, I do not regard it as obsolete. It is the only decision making actual findings of fact. In any legal system there is a principle that the first decision remains on foot unless and until overturned on review or appeal. That principle applies in the present case. What WADA and Sinner did was settle WADA’s attempt to appeal the first instance decision. WADA accepted all the findings of fact by the first instance decision and then fashioned an outcome to achieve a broader policy objective re player liability for staff. If a player with the identical facts as Sinner now comes along, the first instance decision is still relevant case law and persuasive precedent as a matter of law. The settlement would not factor. Though it would be a handy precedent in resolving a dispute should it go on appeal.