Sinner Drug Test Controversy Serves Up HR Lessons

World No. 1 Jannik Sinner won the 2024 U.S. Open amid controversy stemming from two failed drug tests earlier this year. Despite testing positive for banned substance, Sinner was ruled eligible to compete without serving a suspension pending investigation. Questions about whether Sinner received favorable treatment has sparked mixed reactions from fans and players.

Most importantly, the World Anti-Doping Agency (WADA) has appealed the ruling and seeks a ban of up to two years.[i]

The integrity of tennis, like any professional sport, can be tarnished if its rules are not enforced equally. This controversy transcends the world of sports. It highlights broader issues of fairness, integrity, and discrimination across all industries.

The genesis of the Sinner controversy

According to the International Tennis Integrity Agency (ITIA), Sinner tested positive for the prohibited substance clostebol twice in March 2024.[ii] Specifically, Sinner provided an in-competition sample at the ATP Masters 1000 event in Indian Wells, California, USA, on March 10, 2024, which had the presence of low levels of clostebol. A second sample provided eight days later, also tested positive for closterbol at low levels.  

Clostebol is an anabolic agent prohibited under the World Anti-Doping Agency (WADA) Prohibited List.  When a player returns an Adverse Analytical Finding for a non-specified substance, like clostebol, a provisional suspension is automatically applied. The player has the right to apply to an independent tribunal chair appointed by Sport Resolutions to have that provisional suspension lifted.   

Sinner filed an appeal, explaining that the substance entered his system as a result of contamination from a team member. The team member allegedly applied an over-the-counter spray containing closterbul to his own skin to treat a small wound. That support team member applied the spray during the time he provided massage therapy to Sinner. Sinner claimed this contact resulted in an unintentional contamination.

Following an investigation by the ITIA, the case was referred to an independent tribunal to consider the facts, comparable decisions, to decide to what extent, if any, Sinner was at fault, and the proper outcome. In the end, the tribunal issued a ruling of No Fault or Negligence. As a result, Sinner was ruled eligible to compete. Sinner then parted ways with his physio and trainer.

This was not the end of the matter. On September 26, 2024, WADFA confirmed that it lodged an appeal to the Court of Arbitration for Sport (CAS). WADA contends that the finding of No Fault or Negligence was incorrect under the applicable rules. WADA is seeking a period of ineligibility of between one and two years.

Controversy concerning inconsistency

WADA’s appeal reflects the concern of many fans and players that Sinner received favorable treatment due to his No. 1 ranking. Some notable players, such as Novak Djokovic, have openly questioned the fairness of the ruling and perceived inconsistency with the process followed by the ITIA in Sinner’s case. Tennis legend Roger Federer expressed a similar concern stating: “I understand the frustration of: Has he been treated the same as others? And I think this is where it comes down to. We all trust pretty much at the end, he didn't do anything. . . But the inconsistency, potentially, that he didn't have to sit out while they were not 100 percent sure what was going on -- I think that's the question here that needs to be answered."[iii]

Sinner’s case brings into question the fairness of the sport’s drug testing policy and how it is enforced. Interestingly, this was not the first time allegations of discrimination have created controversy at the U.S. Open.

In recent years, Serena Williams called chair umpire Carlos Ramos a thief after she received two code of conduct penalties earlier in the match for improper coaching and smashing a tennis racket.[iv] Williams maintained that she was the victim of sex discrimination when she plead her case to the tournament’s referees asserting: “There are a lot of men out here that have said a lot of things and because they are a man it doesn’t matter. This is unbelievable.” 

In 2018 Frech tennis player Aliza Cornet claimed she was treated differently than men when she was given a warning for a dress code violation[v]. Cornet accidentally put her shirt on backwards during a heat-mandated break prior to the start of the third set. She returned to the court, realized her blunder, and took her shirt off to correct her mistake. In doing so, she briefly exposed a sports bra. Cornet was then given a warning from the chair umpire for unsportsmanlike conduct. The umpire was following the Grand Slam rule book which provides that women should only change their attire in a break between sets in the nearest available bathroom. The dress code rule was changed after the U.S. Open received sharp criticism over the double standard.

The importance of fairness and consistency transcends sports

Fairness in sport requires that everyone be able to compete on an even playing field. This can only happen if rules are enforced equally and consistently. The same principle holds true in the workplace. Employees should be bound by rules that make sense and are applied equally and consistently. Employees pay careful attention to how rules are enforced, especially if they are the one being disciplined. When employees see others being treated differently, it can lead to resentment and conflict. Perceived favoritism and unequal treatment are at the core of discrimination claims.

Employers who do not enforce rules consistently, therefore, will likely be on the receiving end of a discrimination complaint. On the other hand, employers who enforce their rules consistently will go a long way to mitigate against the risk of litigation.

Enforcement and HR tips

Consistent enforcement is an essential practice. Too often, however, organizations fail to follow their policies and supervisors discipline employees without considering how they handled similar situations.  Here are a few practical tips for employers to take to foster a sense of fairness and prevent discrimination claims: 

1. Implement sound rules/policies that make sense for your organization.

2. Educate your employees about your rules/policies. Make sure they receive the rules (such as an employee handbook) and are told the consequences of violating them. Substance abuse and drug testing policies should be clear and follow applicable laws.  

3. Train supervisors about your rules and policies and the importance of equal treatment.  

4. Enforce the rules consistently. Disciplinary actions should be applied uniformly across all employees to avoid feelings of favoritism or bias.

5. When a manager recommends a termination, question the manager about how other employers were treated in the past. Explore whether employees have been treated similarly under the same or similar circumstances.

6. Because not all situations are exactly alike, determine whether mitigating or exacerbating circumstances, or other job- or business-related factors justify deviating from past practices.

7. Clearly outline the procedures for reporting discrimination and ensure that all complaints are investigated thoroughly and impartially and free from retaliation. 

Conclusion 

The Jannick Sinner controversy has relevance beyond the tennis courts. Creating and maintaining a workplace that is free from discrimination and is also perceived by employees as inclusive and fair can be challenging. Implementing sound rules, educating supervisors and employees about the rules, and enforcing them consistently enhances employee morale and productivity and protects an organization from legal risks.

Ken Winkler is a shareholder at Berman Fink Van Horn in Atlanta, where he counsels employers and business owners on employment law and compliance, including workplace issues such as harassment (#MeToo) and discrimination; ADA, FMLA, and other employment laws governing the workplace; employment restrictions (non-competes); and employment and business litigation. Ken obtained his law degree (1993) and B.S.B.A (1990) from The Ohio State University. You can read his blog, SportsFansGuide2HR, and connect with him via LinkedIn and Twitter @kwinklerbfvlaw.

Emma Sammons is an associate at Berman Fink Van Horn, pending her admittance to the Georgia Bar. Emma obtained her B.A.s in International Studies and Spanish Language and Literature at Fordham University in 2021. She obtained her J.D. with honors in 2024 from Emory University.

[i] Press Release, WADA, WADA appeals case of tennis player Jannik Sinner (Sept. 28, 2024) https://www.wada-ama.org/en/news/wada-appeals-case-tennis-player-jannik-sinner.

[ii] Independent Tribunal Rules 'No Fault or Negligence' in Case of Jannik Sinner, Int’l Tennis Integrity Agency (Aug. 20, 2024, 3:00 PM),https://www.itia.tennis/news/sanctions/independent-tribunal-rules-no-fault-or-negligence-in-case-of-italian-player-jannik-sinner/.

[iii] Roger Federer Understands Frustration Over Janik Sinner Doping Case, ESPN (Sept. 3, 2024, 2:53 PM), https://www.espn.com/tennis/story/_/id/41110211/roger-federer-backs-jannik-sinner-questions-potential-inconsistency-handling-doping-case.

[iv] Kenneth N Winkler, Double Fault: U.S. Open Serves up Second Sexual Bias Controversy, Berman Fink Van Horn P.C. (Sept. 27, 2018), https://www.bfvlaw.com/double-fault-u-s-open-serves-up-second-sexual-bias-controversy/.

[v] Kenneth N Winkler, U.S. Open Serves up Neutral Gender Rule Amid Shirtless “Changeover”, Berman Fink Van Horn P.C. (Sept. 7, 2018), https://www.bfvlaw.com/u-s-open-serves-up-neutral-gender-rule-amid-shirtless-changeover/.