THE SPORTS LAWYER is actually a posse of Britain’s brightest lawyers, from the Sport & Media team at the UK law firm, Thomas Eggar, who will be contributing features, analysis and insight on a regular basis on the key sports law issues of the day. In TSL’s latest column, Andrew Nixon discusses the Tevez case, and the Court of Arbitration’s decision to reduce Robert Kendricks ban to eight months.
3 October 2011
Manchester City have suspended Carlos Tevez for allegedly refusing to come on a substitute during the club’s match with Bayern Munich last week. The player has denied the allegations and it is widely reported that Tevez will be interview today (Monday) as part of the club’s internal investigation.
The club will investigate the allegations and decide whether or not to impose a sanction. The investigation process must be procedurally sound and fair, and due process must be followed, a standard clubs have in the past fallen short of.
An allegation of gross misconduct places a heavy evidential burden on the club and the player will be able to appeal any sanction imposed.
Should the club decide to leave the player in the reserves, the player may (eventually, and for clarity this means many months) be able to terminate the contract under the doctrine of sporting just cause.
Article 15 of the Fifa Regulations for the Status and Transfer of Players provides that ‘an established professional who has, in the course of a season, appeared in less than 10 per cent of the Official Matches in which the club has been involved may terminate early on the grounds of sporting just cause. In such cases, sporting sanctions shall not be imposed’.
The club will therefore need to take considerable care if it is to take this action.
The Court of Arbitration for Sport (CAS) last month reduced the ban imposed on American tennis player Robert Kendrick from one year to eight months following an appeal by the player.
Kendrick tested positive for the banned stimulant methylhexaneamine following the French Open in May. His case on appeal was that the substance was contained within medication he consumed to combat jetlag. CAS accepted that Kendrick did not intend to enhance his performance levels; however, even taking this into account, it ruled that the ban should be reduced to 8 months, as opposed to the three months the player was seeking.
Kendrick cited the recent case of Cesar Cielo, the Brazilian swimmer, to support his case for a reduction to three months. Cielo received a warning, rather than a ban from his national governing body, after he tested positive for furosemide at a meet in Rio in May 2011. FINA, Swimming’s international governing body, appealed against the ruling but the appeal was dismissed by CAS, with CAS accepting the player’s submission that he consumed the substance via a contaminated batch of a food supplement he regularly used.
CAS’ reasoning for endorsing the national governing body’s decision to warn Cielo was that he took ‘sufficient precautions’ over the use of the food supplements which resulted in failed doping test. In the Kendrick case, CAS stated that the player did not show a comparable degree of caution when he consumed the jetlag medication as he relied not on pharmaceutical advice but on information provided via an internet blog. Kendrick will therefore not be able to return to competition until January 2012.
The Kendrick case highlights the risks athletes take when consuming medication. Indeed, although Cielo escaped with a warning, CAS made clear in its ruling that the use of food supplements by athletes was ‘generally risky’.
Cielo was able to demonstrate that he had taken precautions; however, there are many examples of athletes, apparently innocently, consuming contaminated food or food supplements and not being in a position to produce evidence that they had taken proper precautions. As doping is a strict liability offence, the athlete can face an immediate two year ban.
Even with the reduction, the doping ban imposed on Kendrick will have a catastrophic impact on his career in terms of his ability to recapture the ranking points necessary to gain automatic entry to grand slams and Masters Series events as well as his ability to generate commercial revenue and sponsorship.
Thomas Eggar’s Sports Group advises athletes on doping matters. For further information please contact Andrew Nixon.
BHA alters whip regulations
The British Horseracing Authority (BHA) has amended the whip regulations, breaches of which could see jockeys forgo riding fees and prize money. From 10 October 2011, jockeys will only be permitted to use the whip seven times during flat races and eight times during jump races. A maximum of five strokes can be used in the final furlong. In terms of sanctions, if a jockey is suspended for three days (or more) for a breach of the whip regulations a fine will be automatically triggered. The BHA stopped short of extending sanctions to owners or trainers as it was deemed unfair to punish non riders.
Andrew Nixon is an Associate in the Sport and Media Group at Thomas Eggar.
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