Published on Ubitennis.com on 29/11/2024. Translated by Giorgia Michela Pizzo
Just when we were hoping for a break from tennis and Jannik Sinner’s doping-related affair that the tennis world is once again in turmoil with a case of a failed doping control by a top athlete, in this case former world No. 1 Iga Swiatek.
On Nov. 27, the International Tennis Integrity Agency (ITIA) issued a decision (made public the next day) on a test performed out of competition by Iga Swiatek on Aug. 12, while the Polish player was in Cincinnati for the Cincinnati Open.
The sample detected traces (in unknown amounts) of trimetazidine (TMZ), a substance that is infamously known in the sporting world for being used as a doping drug by several swimmers (including the 23 Chinese swimmers “pardoned” by WADA in 2021 after a positive test later attributed to contamination) and ice skater Kamila Valieva, who was later disqualified from the Beijing Olympics in 2022. Trimetazidine is mainly used to treat heart disease, primarily angina pectoris, a syndrome that causes chest pain caused by reduced blood flow to the heart muscle. The substance promotes glucose oxidation and optimizes energy production in oxygen-limited situations, thereby improving athletes’ performance under stress.
The timeline
On August 12, 2024, Iga Swiatek is in Cincinnati for the Cincinnati Open. Coming from the Paris Olympics and unable to sleep, she takes 2-3 melatonin tablets in the early morning hours, a few hours before being awakened by the anti-doping officer for an out-of-competition test.
On Sept. 12, Swiatek was notified of the test results, indicating that the athlete would have to answer for violating Articles 2.1 and/or 2.2 of the Tennis Anti-Doping Program (TADP), i.e., presence of prohibited substances (in this case TMZ) in the samples and/or use or attempted use of prohibited substances or methods without the presence of a valid Therapeutic Use Exemption (TUI).
Two days later, on Sept. 14, Swiatek requested that counter-analysis be performed, i.e., that the B sample taken on Aug. 12 in Cincinnati also be analysed, in order to rule out that there might have been contamination of the sample tested. On September 19, the lab confirmed the presence of TMZ in Swiatek’s sample.
On Sept. 22, Swiatek made a request to stop the provisional suspension to which she was subjected from the date of the notification (Sept. 12) within the allowed 10 days. Swiatek denied that she had voluntarily taken TMZ, attributing the positive finding to contamination of the product or its surroundings, but did not provide the probable source of the banned substance.
On Sept. 25, ITIA notified Swiatek that there was insufficient evidence to lift her provisional suspension, but the following evening (Sept. 26) the Polish team provided additional information regarding her claim. In fact, as a result of tests carried out on the medicines and supplements used by Swiatek during the period of the incriminated test, a melatonin product (LEK-AM Melatonin 1 mg) had been found to be contaminated with TMZ. The drug is manufactured in Poland and had been purchased by Swiatek’s team in Poland, where melatonin is considered a non-prescription medication.
At that point, ITIA performed emergency tests on the melatonin samples supplied by Swiatek, deciding to postpone the decision on the provisional suspension until obtaining test results that on October 4 confirmed the presence of traces of TMZ in the melatonin tablets supplied by Swiatek. The substance was present both on the surface and inside the tablet in a manner believed to be consistent with contamination during production, and traces were detected both in tablets from the bottle from which Swiatek had taken melatonin the night before the August 12 test and in tablets from a sealed bottle of the same product belonging to the same product batch. ITIA attempted to independently source packages of the same product belonging to the same batch but received no response from the pharmaceutical company in question.
On Oct. 4, the provisional suspension was lifted, but the notification of the violation to the player still remained, which was notified again on Oct. 11. On October 23, the player sent her response accepting the contested violation and thus passing the matter to the Independent Tribunal.
The decision
During the Independent Tribunal proceedings, they considered the results of other doping tests Iga Swiatek underwent in the periods immediately before and after the failed test. No traces of TMZ had been detected in the samples taken at the Paris Olympics on August 1 and 2, as well as one from the U.S. Open on August 27: this confirms Swiatek’s claimed occasional use of melatonin tablets, which she uses only when she cannot sleep.
The ITIA agreed that TMZ’s “more likely than not” source was the contaminated product, and that it was that accidental intake that caused the August 12 test positive. As a result, it was determined that TMZ’s intake was not “intentional,” bringing the incident within the purview of TADP Rule 10.2.2, with a maximum ineligibility period of two years.
However, TADP Rules 10.5 and 10.6 determine that in the case where “there is no fault or negligence” by the athlete the period of ineligibility is eliminated, while in the case where “there was no significant fault or negligence” the ineligibility period may be reduced by up to 100 percent based on the significance of the negligence found.”
The application of Rule 10.5, which removes disqualification in the absence of intent or negligence, requires that the athlete use “the utmost caution” to ensure that he or she does not ingest prohibited substances, and is an extremely onerous standard to prove, as the athlete must prove that he or she “produced every conceivable effort to avoid taking the substance.”
Swiatek asked to be evaluated under Rule 10.5, and secondarily under Rule 10.6, because:
- Before taking melatonin, she consulted with a sports doctor and took only the product indicated to her by the doctor;
- The doctor knew that she was a professional tennis player and as such subject to TADP rules;
- At her request, her athletic trainer researched the composition of the melatonin tablets indicated by the doctor and confirmed that they contained no prohibited substances;
- The melatonin was purchased from a reputable pharmacy;
- The product is manufactured by a reputable pharmaceutical company regulated by the European Union, and there have never been any cases of contamination related to this medicine; and
- She used the product only in prescribed cases, namely to address jet lag;
- Melatonin is considered a medication in Poland (while this is not the case in other countries) and was treated as such;
- The product is the same one used by Swiatek for several years and had never caused any problems;
- There was not much Swiatek could have done to prevent ingesting the banned substance given the contamination of the pharmaceutical product.
The ITIA accepted the explanations provided by Swiatek, however, did not completely rule out fault and negligence because:
- Article 4.2.1.5(a) of the TADP reminds us that “many prohibited substances may appear (either as listed ingredients or as unlisted contaminants) within supplements and/or medicines available with or without a physician’s prescription. Since players, are strictly liable for any prohibited substance present in samples collected from them, are responsible for ensuring that prohibited substances do not enter their bodies”
- It is common knowledge that products may contain substances that are not listed in the ingredient list;
- Although there were not many steps Swiatek could have taken to prevent the violation, she could still have selected melatonin from a batch tested for anti-doping purposes, or she could have had it tested herself.
- Moreover, melatonin is not universally considered a medicine but is regulated differently in different jurisdictions. Reason being, melatonin therefore has a higher level of risk for contamination than medicines that are considered as such throughout the world, precisely because there are jurisdictions (including the U.S.) in which the production of this substance is less regulated and consequently more prone to potential contamination. It would not be fair to consider a substance (in this case, melatonin) a medicine instead of a supplement or something else based on what happens in the jurisdiction of reference of the athlete in question, as this would discriminate against athletes in other countries. In any case, the definition of a substance as a medicine does not exempt the athlete from his or her duty of “utmost caution,” consequently the absence of intent or negligence cannot be argued.
However, ITIA agreed that the athlete’s fault in this case was not significant, thus justifying the reduction from the 24-month starting point. Therefore, a one-month ineligibility period was proposed, and accepted by the athlete.
The practical effects
Since the positivity was found in an out-of-competition control, no Iga Swiatek result will be eliminated as a result of the positivity itself.
However, the TADP prescribes that “any result obtained by the athlete during the period beginning with the date of the collection of the sample in question [August 12] and ending with the beginning of a provisional suspension [September 12] shall be disqualified.”
Therefore, points and prize money for the Cincinnati tournament (390 points and $158,944) will be taken away, but since Swiatek was tested at the US Open and tested negative, her results at Flushing Meadows and in all subsequent competitions remain valid.
The one-month disqualification, beginning on the date of the decision (Nov. 27) will be deducted from the suspension periods already observed, namely that from Sept. 12 to Oct. 4 (as described in the timeline) and then ending on Dec. 4, in the middle of the off-season. The decision is appealable by WADA or POLADA (Poland’s anti-doping agency). Within 15 days of the date of the decision (Nov. 27), the two agencies can request the full copy of the case file from ITIA. From the time of receipt of the file they then have another 21 days to file a request for appeal to the CAS in Lausanne.
Swiatek vs. Sinner
Naturally, it comes as spontaneous to draw parallels (though perhaps not entirely accurate) between this case involving Polish champion Iga Swiatek and the one in which men’s tennis No. 1 Jannik Sinner is still engaged in a legal contention. For the purpose of this comparison, we will consider as true the reconstructions of facts provided by the players and their teams, which have already been determined as credible by ITIA and/or the Independent Tribunals.
Let us start with the similarities, which are not many.
They are both cases involving a failed doping control, although in Sinner’s case it is specifically two doping controls that tested positive.
In both situations, the athletes claimed that they did not voluntarily take the substance in question, providing alternative explanations (backed up by evidence) as how the banned substance could have entered their bodies. As a result, they invoked TADP Rules 10.5 and 10.6 to obtain a reduction in the standard penalty for their first violation, namely a four-year disqualification.
The cases have reached been finalised by the respective Independent Tribunals: neither athlete was found guilty of intentionally taking banned substances to improve their performance, so there can be no question of doping in the strict sense.
Swiatek was given a one-month disqualification, reduced by the periods of provisional suspension already served, under TADP Rule 10.6; Sinner, on the other hand, was found to be without fault or negligence under Rule 10.5, eliminating the disqualification altogether.
And here the differences start: Sinner was found in compliance with the most restrictive burden of proof, namely that of “utmost caution.” According to the Independent Tribunal, there was really nothing Sinner could do to prevent the contamination that occurred through the injured hands of physical therapist Giacomo Naldi treated (without his knowledge) with Trofodermin (containing the banned substance Clostebol).
As for Swiatek, however, the Independent Tribunal found it (moderately) reasonable to expect the Polish company to either select melatonin tablets from a pre-tested batch, or to independently test a sample from the bottles in its possession.
What makes the two cases different, then, is that Swiatek voluntarily opened a bottle, took a pill and swallowed it. In Sinner’s case this action never occurred: the Italian tennis player never applied the spray himself, nor did one of his employees, with or without his consent. Under the rules, in fact, the action of a team member would immediately be equated with Sinner’s, even if the player had not been aware of it. In Sinner’s case, it was the team member who applied a spray containing the banned substance to his own finger, and then through subsequent contact the banned substance entered the tennis player’s body.
As we know, in Sinner’s case WADA has appealed to the Court of Arbitration for Sport (CAS) in Lausanne because it does not find correct the decision to acquit Sinner’s team of any fault or negligence. In Swiatek’s case, an appeal is still possible; we will see if any of the parties involved will avail themselves of this possibility.
As noted in previous articles, WADA is likely to disagree that Sinner and his team took the “utmost caution” to avoid inadvertent contamination, a necessary condition for applying TADP Rule 10.5. As a result, whatever the outcome of the appeal, it is likely that additional information will emerge about what athletes must do to be found without fault or negligence in the case of “accidental doping,” as WADA itself called it in presenting its most recent initiative.
