The ITF thought better of that terse non comment issued earlier in the day and has released the full transcript of its hearing.
The PDF includes the timeline of what happened leading up to Troicki not giving the sample when asked.
Among the highlights are the following:
Troicki was told that refusal to give the sample after being chosen would be construed as a violation of the doping protocol
At no time did Troicki seek medical attention for the symptoms he reported (dizzyness, etc.)
The report then goes into what is in dispute(quoting):
(C) Matters in dispute
25. While there are a number of points of detail upon which the witnesses who
gave evidence before the Tribunal were not in agreement, it appears to us that
there is only one matter in dispute between the parties that it is necessary for
us to resolve in order to be able to reach our decision in these proceedings.
That matter is what the answer was that was given by Dr Gorodilova to the
question posed by Mr Troicki when he asked her whether there was any
possibility that he might not have to give blood despite having been notified
of an obligation to do so on 15 April 2013 (see paragraph 15(b) above).
26. Dr Gorodilova was clear in her evidence to us: her response was that this was
not a matter upon which she could advise the player. Whether or not Mr
Troicki’s reason for not giving a sample would be regarded as valid by the
ITF was not her decision; the ITF would decide this. It was in this context, she
told us, that she suggested that Mr Troicki write to the ITF explaining his
reasons for not giving blood. He had made a decision that he would not
provide a sample; he needed to explain to the ITF why that was so.
27. Mr Troicki denies that this was Dr Gorodilova’s response to his question. On
the contrary, he was adamant in his evidence to us that Dr Gorodilova had
assured him “100%” on four or even five occasions that if he set out his
reasons in a letter to the ITF, all would be well. This was in the context of his
having stated to the DCO that he did not want to suffer any sanctions as a
result of not giving blood. Dr Gorodilova denies that she gave Mr Troicki any
such assurance.
28. Before turning to our conclusions on this issue, we should say something
about the witnesses who appeared to give evidence before us. Both parties
called evidence from witnesses who were said to be able to corroborate the
accounts on this key issue of Dr Gorodilova and Mr Troicki, respectively:
a. The ITF called Mr Gan, who was present in the room in the DCS when
the relevant exchanges took place between Dr Gorodilova and Mr
Troicki. While we are sure that Mr Gan was doing his best to assist the
Tribunal, we do not consider that his evidence should be given any
weight on this key point, for two principal reasons. First, although he
signed a witness statement in English, he was joined at the hearing by
an interpreter whose role was to translate questions put to him in
English into his native language, French, and it became increasingly
clear as he was giving his evidence that his command of spoken
English was not that great. Since the exchanges in the DCS on 15 April
2013 between Dr Gorodilova and Mr Troicki took place in English, we
are not satisfied that he would sufficiently have understood what was
being said in his presence to be able to assist us as to any points of
disagreement. Secondly, on several occasions during the course of his
oral evidence of what occurred, he gave answers which differed
materially from his evidence as contained within his written witness
statement (the contents of which he had confirmed to us as being
correct).
b. Mr Troicki called Mr Reader to give evidence. Mr Reader was present
during the latter part of the period during which Mr Troicki was in the
DCS on 15 April 2013 (see paragraph 15(f) above). In his written
evidence, Mr Reader recounted how Mr Troicki asked Dr Gorodilova
twice in his presence whether “there would be any problem in proceeding
as they were doing” to which Dr Gorodilova is said to have replied that
“there should not be”. He repeated that evidence when he appeared
before us. In his oral evidence, Mr Reader also stated that he thought at
the time that Mr Troicki’s request to speak to Dr Miller was because
“something was not quite sitting with [Mr Troicki]…he was not quite sure,
not convinced that everything was going to be ok”. He also made clear that
he had not been present when Mr Troicki had asked Dr Gorodilova whether he could avoid giving blood on that occasion, or when she
had given her response. We make the following observations about Mr
Reader and his evidence:
i. The passages in his evidence set out above do not support the
position adopted by Mr Troicki before us, namely that he had
received 100% assurances from Dr Gorodilova that there would
be no problem so long as he explained himself in writing to the
ITF.
ii. We were in any event not persuaded by Mr Reader that we
should confidently accept his evidence on this central issue. We
were unimpressed by him as a witness. Despite having been a
professional tennis coach since at least 1985, he affected not to
know the detail of the ITF’s anti-doping rules. Further, he did
not at any time while in the DCS question the DCO about
whether it was satisfactory for his player not to give blood,
despite apparently perceiving that Mr Troicki himself was not
sure that all would be well unless he did so; nor did he have any
conversation with Mr Troicki after leaving the DCS about how
he was feeling or what advice (if any) the DCO had given him
about his condition or what he ought to do in order to treat it.
Finally, and tellingly, he gave evidence that he spoke with Mr
Bratoev shortly after leaving the DCS and confirmed to Mr
Bratoev that Dr Gorodilova had told Mr Troicki that it was ok
not to do the blood test. Not only was this not Mr Bratoev’s
evidence (see paragraph 17 above), but it is not what Mr Reader
stated in evidence had in fact been said by her. Accordingly, on
matters of important detail, we feel unable to place any reliance
upon Mr Reader’s evidence in the absence of third party
corroboration. We consider that Mr Reader without having given any proper
thought to the matter, was prepared to say
whatever he felt would be likely to assist his player in avoiding
a sanction for an Anti-Doping Rule Violation.
c. Mr Troicki also called Mr Bratoev to give evidence. In contrast to Mr
Reader, Mr Bratoev came across as an assured witness, who had a
good recollection of the relevant events on 15 and 16 April 2013.
Moreover, as a tour manager of the ATP, he was independent of the
parties to these proceedings. We are able to accept the thrust of his
evidence, including his important evidence (heavily relied upon by Mr
Troicki) which is summarised in paragraph 16 above. Indeed, the ITF
was not disposed to challenge that evidence (thus its inclusion within
Section (B) of this Decision).
The ITF then considered Dr Gorodilova's testimony citing her fifteen year experience as a DCO.
As such she is well aware of
her responsibilities and the limits of her powers. In particular, she was
well aware on 15 April 2013 that it was indeed not her decision (but
rather that of the ITF) whether it was open to Mr Troicki to avoid
giving blood on that day or whether that avoidance would result in
sanctions for an Anti-Doping Rule Violation.
They then discuss Troicki's testimony.
Mr Troicki is a confident and determined man, who was very keen to
impress upon the Tribunal his conviction that he had not done
anything wrong. We are content to accept that by and large he had
genuine belief in the accuracy of his account to us of the relevant
events. However, that does not mean that this account was in fact
accurate. It is very frequently the case that witnesses have persuaded
themselves of the truth of what they purport to recall, despite the fact
that the truth in reality lies elsewhere.
The report them lays out the situation from the view of the ITF.
Therefore where, as here, there are conflicting accounts it is necessary to test
each account against all other available material and against any inherent
probabilities and inherent improbabilities in order to be able to reach a
confident conclusion as to what in fact occurred. Having done this, and as
explained below, we have concluded that we should accept Dr Gorodilova’s
account of what occurred in preference to that of Mr Troicki. In particular, it is
our conclusion that:
30a. She informed Mr Troicki that she could not advise him as to whether
his reason for not giving blood was a valid reason, as it was not her
decision, but would be a matter for the ITF to decide.
b. She did not assure Mr Troicki that, if he wrote his reasons in a letter to
the ITF, all would be well.
31. Our principal reasons for these conclusions are as follows:
a. They accord both with what the IDTM training materials would
require a DCO to say and not to say in these circumstances and with
what we would expect an experienced DCO such as Dr Gorodilova to
say and not to say in such circumstances, given the scope of her
responsibilities and the limits of her authority. b. They accord with Dr Gorodilova’s email and report to Mr Soderstrom shortly after the events in question had occurred (see paragraphs 18 and 20 above). Had Dr Gorodilova given any assurance to Mr Troicki
as suggested, that is something that she would have included in those
documents, in which she described all the material events that had
occurred (as required on her in the IDTM training materials).
c. They are consistent with Dr Gorodilova’s behaviour on 16 April 2013
(her negative reaction to the absence of a medical certificate and
enthusiasm at the offer by Mr Troicki to give blood voluntarily: see
paragraphs 20 and 22 above) – if she had given an unequivocal evidence before us (see also paragraph 15(d) above), he had
appreciated at the time that Dr Miller was the one who had to make the
decision – i.e. to decide whether Mr Troicki’s conduct and his
explanation for that conduct would or would not be regarded as
acceptable.
d. They accord with our perception of Dr Gorodilova as a conscientious
and cautious individual. There is no evidence which compels us to the
conclusion that, despite this, she failed to follow the relevant guidance
given to her by IDTM as to how to proceed in the circumstances she
faced with Mr Troicki.
e. Mr Troicki’s own recollection, as recorded in his written statement
given four days after the event, was not consistent with an unequivocal
assurance having been given to him on 15 April 2013 by Dr
Gorodilova. According to that statement, she had merely stated that “it
should be all right” if he wrote as suggested to the ITF. That statement
also included the words “I wanted to be 100% sure” (see the last sentence
of paragraph 15(d) above). Moreover, as Mr Troicki accepted in evidence before us (see also paragraph 15(d) above), he had
appreciated at the time that Dr Miller was the one who had to make the
decision – i.e. to decide whether Mr Troicki’s conduct and his
explanation for that conduct would or would not be regarded as
acceptable.
f. For what it is worth, Mr Troicki’s own stated lack of certainty on 15
April 2013 that all would be well is reflected in the evidence of Mr
Reader referred to in paragraph 28(b) above.
There is more detail about who said what when including the statements of the Tournament Director before the conclusions of the ITF are presented.
(E) Our Overall Conclusions
(1) Failure or Refusal
43. We find that Mr Troicki both failed and refused to submit to giving blood on
15 April 2013, having been duly notified of his obligation to do so. His failure
to give blood is obvious, given that it did not occur. However, we consider
that Mr Troicki also by his conduct and his actions evidenced a refusal to give
blood as well. Dr Gorodilova was adamant in her evidence that she took the
steps that she did (starting with the request for a letter of explanation)
because Mr Troicki had made it clear that his mind was made up - he was not
prepared to give blood despite her efforts to encourage him to do so.
(2) Compelling Justification
44. We have concluded that Mr Troicki’s attempt to defend the Charge on the
basis that he had compelling justification for not giving blood must fail. We
refer to paragraphs 38 and 39 above. The only circumstances in which we
would have been prepared to accept such a defence would have been if we
had accepted that Dr Gorodilova’s statements and conduct would have led a
reasonable person in the position of Mr Troicki on 15 April 2013 to conclude
that he definitely would not be sanctioned if he did not give blood on that
occasion. It is a question that we do not have to address whether that
reasonable person was one having the characteristics and condition of Mr
Troicki at the time. We do not need to address this because, as set out in
paragraph 33 above, we do not accept that Mr Troicki in fact understood at
the time that Dr Gorodilova was giving him any unqualified or categorical
assurance. Short of such an understanding, there can have been no
compelling justification for Mr Troicki’s actions.
(3) Mitigation under Article 10.5.1
45. We do not see how it is open to Mr Troicki to argue that he was guilty of No
Fault or Negligence, given our findings set out above and our conclusion that
he is unable sufficiently to justify his actions to escape liability under the
Charge.
(4) Mitigation under Article 10.5.2
46. On the other hand, we are prepared to treat Article 10.5.2 as engaged on the
facts of this case. Like the footballers in the CONI case and the tennis player
in the case of Kendrick, Mr Troicki acted in the way that he did in
consequence of the stress that he was under - in this case, as a result of a
combination of his physical condition and his panic at the prospect of giving
blood. On all other occasions when he was in good health (including on 16
April 2013 – see paragraph 23 above), he gave blood, despite his phobia. On
the other hand, we agree with the ITF that his circumstances only warrant
affording Mr Troicki limited mitigation, given our finding that he was
nonetheless aware at the time that there was a risk (however small) that his
actions might result in a sanction. We have concluded in all the circumstances
that the right course for us is to accept that Mr Troicki has established that he
was not guilty of Significant Fault or Negligence and reduce the otherwise
applicable period of Ineligibility by six months.
(...)
49. Article 10.8 of the Programme provides that “all other competitive results
obtained from the date the Sample in question was collected…or other Anti-Doping
Rule Violation occurred through to the start of the Ineligibility period shall be
Disqualified (with all of the resulting consequences, including forfeiture of any
medals, titles, ranking points and Prize Money), unless the Independent tribunal
determines that fairness requires otherwise”. The ITF submits that the burden is
on Mr Troicki to establish why fairness requires otherwise in the
circumstances of his case. Accepting that burden, Mr Troicki argues that it
would be unfair to Disqualify him in respect of subsequent events because he
was truly convinced that he had not broken the Rules.
50. While we have not accepted that as a fair summary of the player’s state of
mind at the time, we are nonetheless of the view that fairness dictates that Mr
Troicki should not suffer any Disqualification beyond the event in question.
In reaching that conclusion, we have borne in mind the helpful analysis of the
relevant authorities on this point in the case of Bogomolov (an ITF Anti-
Doping Tribunal Decision of 18 January 2005). It seems to us that, in
circumstances where the Anti-Doping Rule Violation is constituted by a
failure or refusal to submit to giving a sample, where there is no suggestion
that this failure or refusal was in fact prompted by the player’s desire to evade
the detection of a banned substance in his system, where there have been
subsequent negative tests (including on the following day) and where the
facts of the case warrant some mitigation of sanction under Article 10.5.2 of
the Programme, it would be disproportionate to penalise Mr Troicki in
respect of his subsequent playing activities. We accept that there is something
to be said for the view (advanced by the ITF in argument in Bogomolov) that
the Programme is designed to encourage players voluntarily to abstain from
competing pending the decision on their case and that Article 10.8 should be
read against that background. However, we do not consider that, on the facts
of this case, Mr Troicki should be penalised in effect because he chose not to
take that voluntary course.
(6) The Tribunal’s Ruling
51. Accordingly,for the reasons given above, the Tribunal:
a. Confirms the commission of the Anti-Doping Rule Violation under
Article 2.3 of the Programme specified in the Charge;
b. Orders that Mr Troicki’s individual result must be disqualified in
respect of the Monte Carlo Masters 2013, and in consequence rules that
the 45 ATP ranking points and €9,305 in prize money obtained by him
from his participation in that event must be forfeited;
c. Orders further that Mr Troicki be permitted to retain the prize money
and ranking points obtained by him from his participation in all
subsequent competitions in which he has participated;
d. Finds that Mr Troicki has established that the circumstances of his
Anti-Doping Rule Violation bring him within the provisions of Article
10.5.2 of the Programme;
e. Declares Mr Troicki ineligible for a period of 18 months, commencing
on 15 July 2013, from participating in any capacity in (i) any Covered
Event; (ii) any other Event or Competition or activity (other than
authorised anti-doping education or rehabilitation programmes)
authorised, organised or sanctioned by the ITF, the ATP, any National
Association or member of a National Association, or any Signatory,
Signatory’s member organisation, or club or member organisation of
that Signatory’s member organisation; or (iii) any Event or
Competition authorised or organised by any professional league or any
international or national-level Event or Competition organisation.
Ian Mill QC, Chairman Dr Jose A Pascual Dr Barry O’Driscoll
25 July 2013.
The entire report is here: http://www.itftennis.com/media/152389/152389.pdf
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