The ITF released the full 31-page decision from the independent anti-doping tribunal, which handed Marin Cilic a nine-month ban for testing positive for a banned substance at a tournament in Munich in May.
In its decision, the panel is sympathetic to Cilic’s mistaken ingestion of a banned substance called nikethamide, which seemed to have been the result of linguistic confusion when his mother, who speaks no French, went to buy him some glucose powder at a local pharmacy in Monte Carlo. Despite Cilic’s seemingly innocent mistake and his cooperation in accepting a voluntary suspension before the hearing, the panel could not excuse his lack of diligence in taking the necessary steps to ensure he was complying with the ITF’s anti-doping code.
Here are the five things you need to know from the panel’s decision:
The details of Cilic’s story: Since 2010, Cilic had been taking a glucose powder which can be bought at any ordinary store in Croatia, which has a substance called “nikotinamid” listed as one of its ingredients. He googled the substance and learned that it was harmless. In April of this year, Cilic was competing at the Monte Carlo Rolex Masters when he realized his glucose supply was low. He asked his mother, who was with him, to go a local pharmacy to buy some more. His mother, who speaks no French, purchased some glucose from the pharmacy.
“The pharmacist took a packet from the shelf and placed it on the counter,” the decision reads. “Mrs. Čilić said twice that it was for her son who plays ’tennis professionally,’ getting no reaction due to the language barrier. A French-speaking man helped with translation. She heard him use the words ’tennis professionel.’ The pharmacist moved the packet towards Mrs. Čilić, which she took as an indication that the product was safe and contained no banned substance.”
What Cilic’s mother purchased was a product called “Coramine”, which contained a substance listed as “Nicéthamide”, which is the French spelling of nikethamide, a banned stimulant in competition. The leaflet inside the packet was written in French and warned athletes that the tablets contained an ingredient that can cause a positive doping test.
But Cilic thought “nicéthamide” was the same as nikotinamid, which was the substance in his glucose powder that he understood was harmless. He sent a picture of the packet to his trainer to ask if it was okay to take and his trainer said it was fine. He did no further research and assumed the tablets were fine. He took 11 tablets over the course of five days of training the week before he was set to compete and he left the remaining tablets in Monte Carlo because he expected his trainer to bring him his normal glucose powder when he met him in Munich.
Cilic was requested to provide a urine sample after losing his opening match in Munich to Ivan Dodig on May 1. Both his A and B samples came back positive for nikethamide.
Cilic’s lie regarding his Wimbledon withdrawal went unpunished: Cilic was alerted of the failed test by the ITF on June 11th when he was competing at the AEGON Championships in London, England, where despite being “shocked and horrified” as the tribunal’s decision says, he went on to make the final. He won his first-round match at Wimbledon on June 24, and on June 26, he accepted a provisional suspension and withdrew from Wimbledon, “citing a knee injury to avoid adverse publicity.” Needless to say, that dishonesty, which was glossed over by the panel’s decision, sets some bad precedent going forward.
The case law is a mess: If outsiders are looking for any clarity in how these doping cases are decided, don’t look at the case law for any help. The panel practically throws its hands up in the air as it attempts to deal with the cases cited by both parties for precedential effect, all of which seem to conflict. ”The jurisprudential chasm is now so deep that it is unlikely to be resolved except by amendments to the WADA code,” the panel writes.
Did Cilic “intend” to enhance his sport performance when he took the banned tablets during the training week before he was set to compete? That was the big question before the panel, and the decision highlights two different schools of thought on how to analyze an athlete’s intent, known as the Oliveira/Kutrovsky debate. Under the Oliviera approach, an athlete cannot intend to enhance his performance through the ingestion of a banned substance unless he’s aware he’s actually ingested that substance. Kutrovsky, on the other hand, is more strict, finding that an athlete who ingests a product intends to ingest whatever it contains, even if he doesn’t know what it contains or that the product contains a banned substance.
The panel applied the stricter Kutrovsky test and found there was no way Cilic could argue that he didn’t intend to ingest the tablets, and as such, it doesn’t matter whether he knew they contained a banned substance or not. But when it came to the next question, whether Cilic took those tablets to enhance his sport performance, the panel said no. Cilic took the tablets a week before competition and ceased taking them the minute he left for Munich.
“[W]here a player takes the product to get a ‘boost’ just before a match, it is extremely unlikely that he could satisfy the tribunal that he lacked the requisite intent. Conversely, if he only takes the product between competitions with a long gap between the competition and taking the product, he could (with corroborating evidence) comfortably satisfy the tribunal that he lacked the requisite intent.”
As to the ITF’s argument that Cilic could have taken the banned substance in order to enhance his training, the panel looked at the proximity in time between when the substance was taken in training and when the player began competition. “The degree of proximity between the training and the competition is important: The closer the competition, the more likely the player will fail to show the requisite lack of intent,” the panel reasoned. Again, since Cilic stopped taking the tablets five days before competition, the panel sided with him.
Players need to stop ignoring their anti-doping education: Perhaps most importantly for players going forward, the panel had little sympathy for Cilic when he completely ignored his anti-doping education and failed to make use of the anti-doping hotline to clear the substance before ingesting it. “He had the means of discovering the truth with the simplest of enquiries: By reading the side of the package, opening it and reading the leaflet inside, or searching online. He did none of these things,” the panel wrote. Indeed, if you google “Coramine,” the first hit is to a Wikipedia page that says it’s a banned substance.
It’s still better to take a test and fail than avoid a test completely: If there’s one consistency underlined by Cilic’s ban of nine months, it’s that avoiding a drug test is still more problematic than failing one. Viktor Troicki was handed an 18-month ban for refusing to provide a requested blood sample earlier this year, but three other players who tested positive for banned substances were given far shorter bans. Barbora Zahlavova Strycova tested positive for a banned stimulant and was given a six-month ban earlier this year, and Fernando Romboli, who also tested positive for a banned stimulant, was given an eight-and-a-half month ban. A full decision was not issued for either case, making it difficult to know what the reasoning and mitigating circumstances were in their cases.