SLT - Let’s talk a little tennis doping - Richard Gasquet comes to mind.

DG - I wrote an article about Gasquet that I presented at a conference last fall and Gasquet changes the balance of the rules of doping in favor of the player. The way it was in the past, in many instances, WADA’s policies were almost too strict on the athletes.  There would be areas where athletes would be punished for inadvertent doping or doping that the athlete didn't know about, such as taking a cough medicine or a contaminated nutritional supplement. There was zero tolerance for a doping offense.

One case that precedes Gasquet, changed much of this. The case is called Puerta. The ATP player Mariano Puerta (by the way he was a French Open finalist in 2005) drank from his wife's water cup accidentally and tested positive for the banned substance etilefrine. Because this was Puerta's second offense, he was given an eight year ban. However, the Court of Arbitration for Sport determined that the principles of proportionality and justice are higher than any code.  They ended up reducing his ban because of this, which set precedent for future athletes. This is based on Swiss Law, which states everything needs to be proportional.  Gasquet and his attorneys tried to cite Puerta as a precedent to get him off. Gasquet had tested positive for cocaine and he argued that he had kissed a girl who had used cocaine. The normal penalty for a first offense is a two year suspension. Gasquet was able to convince the panel hearing his case that the kissing was the most likely cause of the positive test, because other causes didn't make sense. One can get one’s doping sentence reduced by showing that the athlete acted with no significant fault or negligence, so Gasquet’s suspension was reduced to one year. In a year-round sport like tennis, a one year ban can have a major impact, so his suspension was further reduced to the length of time between Gasquet’s incident and the hearing addressing the incident. WADA and the ITF appealed this ruling to the Court of Arbitration for Sport. The court left the lower court ruling undisturbed and they found no fault or negligence at all on the part of Gasquet.

There was one other important precedent used in Gasquet, which came from a FIFA (the soccer governing body) and WADA dispute. FIFA did not want to follow WADA's code to the letter of the law and believed that areas of the World Anti-Doping Code were too strict as applied to players. The Court of Arbitration for Sport issued an advisory opinion and said that athletes are bound by WADA code, yet athletes can't be expected to exercise unreasonable measures. The panel hearing Gasquet’s case determined that it would be an unreasonable measure for an athlete to not to be able to kiss - this got Gasquet off and set a precedent for future anti-doping cases.

SLT - There is one other tennis matter from last year with Xavier Malisse and Yannina Wickmayer?

DG - That would be WADA's whereabouts rule, and this is probably FIFA’s biggest concern. An athlete needs to let WADA know where he or she is going to be every day. WADA can come in and give athletes a surprise doping test at almost any time. A lot of people have concerns with the privacy implications that arise from this. My view is that I can see why it is considered extreme, but it is easy for athletes to evade testing otherwise  and ending this rule could bring about a cat and mouse game.

SLT - Your love of sports law and the Olympic movement is evident in talking with you. What advice would you have for a law student or college student that is hoping to enter the field?

DG- One recommendation that I have is that the student should study what he or she is interested in. If you are interested in a certain area, you can write a paper on that area of sports law that you have the most interest in. What is sometimes difficult for people to understand is that the field of sports law is not a separate area of the law, but it is instead the law as it relates to IP Law, antitrust or labor negotiations or many other areas. Sports Law is a very tough area. There are different routes to go; one should do networking and try to meet people, as well as find a way to add value to the people you meet. More than in any other area of the law, it really matters who one knows in the sports law field.

SLT - You teach a course at Northwestern Law School on Negotiations and Meditation, can you give us some insight on the NFL and NFLPA talks?

DG - It was a very interesting process to follow, but I am sure that most fans are happy that these issues have been resolved.  Unfortunately, the NBA’s labor negotiations seem to be at a turbulent stage right now and it may be a while before we see any serious resolution for this dispute. Generally, for a negotiation like this, a party’s leverage and power comes from its BATNA(Best Alternative to a Negotiated Agreement). Your BATNA is basically your Plan B, which is what will happen if you don't reach an agreement, so basically who has a better Plan B will be in a better position. During the NFL negotiation, the leverage of the parties shifted back and forth several times prior to an agreement being reached.

SLT would like to thank Mr. Gandert for taking the time to share some of his insights with us.