The ITF Independent Tribunal

The Independent Tribunal is an independent arbitration tribunal that was established by the International Tennis Federation (ITF) in order to resolve disciplinary and other disputes arising from the ITF’s rules and regulations in accordance with its Procedural Rules.¹

Prior to 2017, doping cases arising under the Tennis Anti-Doping Programme (TADP) were determined by an Independent Tribunal drawn from a panel composed of independent lawyers and other arbitrators with scientific and medical expertise.

In early 2017, the ITF restructured its internal dispute resolution framework so that TADP-related and some other matters, including some appeals, would be determined by the Independent Tribunal. The ITF also appointed Sport Resolutions to organise an Independent Panel of individuals with necessary skills and experience from which Independent Tribunals would be constituted to determine particular matters, act as secretariat to Independent Tribunals, and work alongside the Independent Panel Chairman.²

From 1 January 2022, the TADP is issued and administered by the International Tennis Integrity Agency (ITIA)³ and a separate set of procedural rules now apply for TADP-related matters to be heard and determined by the Independent Tribunal.⁴

The Independent Tribunal forms part of the ITF’s wider dispute resolution framework. The ITF’s rules empower various persons and entities to hear and determine certain matters or disputes, and/or to hear appeals from the decisions of other persons/entities in that framework.

Accordingly, the ITF Internal Adjudication Panel (IAP) (a standing committee of the ITF Board of Directors) will hear and determine (among other things) eligibility issues referred to it under the ITF’s rules, breaches of the ITF’s rules that are expressly referred to the IAP for determination, appeals against decisions made by other persons under the ITF rules that are expressly referred to the IAP for determination, and any other dispute or matter referred to it by the ITF Board of Directors.⁵

The Independent Tribunal has jurisdiction to hear disputes in three ways under the ITF rules.

First, the Independent Tribunal will hear certain disciplinary cases or determine other matters as a first instance decision-maker, in accordance with Articles 3 to 7 of the Procedural Rules.⁶ For example, first instance disciplinary proceedings brought against a player for breach of the TADP.

Second, the Independent Tribunal will – when a party has a right in the ITF rules to appeal to the Independent Tribunal against a first instance decision – hear and determine that appeal in accordance with Article 8 of the Procedural Rules.⁷

Third, the Independent Tribunal will – when there is no right in the ITF rules to appeal to the Independent Tribunal against a decision being referred to the Independent Tribunal – exercise a supervisory jurisdiction (limited scope of review) to hear and determine that challenge in accordance with Articles 3 to 7 of the Procedural Rules.⁸

Whereas the Independent Tribunal has jurisdiction to hear and determine any matter referred to it by the ITF’s rules,⁹ any other dispute (that is not referred to another ITF organ under the ITF’s rules) will be subject to the exclusive jurisdiction of the Court of Arbitration for Sport (CAS).¹⁰

The Chairman of the Independent Panel is responsible for appointing one or three members of the Independent Panel to sit as an Independent Tribunal, designating one of those members to chair that Independent Tribunal, hearing any objection to the appointment of an Independent Tribunal member (and if necessary appointing another member), and exercising the powers of an Independent Tribunal in relation to urgent matters where an Independent Tribunal has not yet been appointed.¹¹ The Chairman of the Independent Panel may also appoint himself to chair or sit as a member of an Independent Tribunal.¹²

The current Chairman of the Independent Panel is Charles Flint QC, an English barrister.

Sport Resolutions acts as secretariat to the Independent Tribunal, administering the conduct of the proceedings at the request of the Chairman of the Independent Panel (or, if appointed, the Chairman of the Independent Tribunal), and facilitating communication between the Chairman (as applicable) and the parties.¹³

Sport Resolutions maintains a closed list of Independent Panel arbitrators allocated to its ‘International Federation Tribunal’, from which Independent Tribunals are formed.¹⁴ Arbitrators are diverse by nationality, gender, race/ethnicity, and professional background. The majority of arbitrators are legally qualified and experienced in sports arbitration, and may be appointed to chair Independent Tribunals (or sit as a member).¹⁵ Other arbitrators are medically qualified (experience that can be well-suited to anti-doping matters) and/or are experienced sports administrators, and may be appointed to sit as a member of Independent Tribunals.

Sport Resolutions and the members of the Independent Panel are independent of the ITF and the ITIA and are required to have had no prior involvement with the matter in question, and to act independently and impartially at all times.¹⁶ Appointed Independent Tribunal members must provide a declaration to the parties disclosing any facts or circumstances that might call into question their impartiality or independence in the eyes of a well-informed and fair-minded observer (and are under a continuing obligation to disclose such facts or circumstances that might later arise).¹⁷

The Independent Tribunal is intended to operate as an arbitral tribunal within the meaning of the Arbitration Act 1996 and the seat of proceedings is London, England.¹⁸ Unless stated otherwise in the ITF rules or the Procedural Rules, the English courts have exclusive jurisdiction over disputes arising out of proceedings before the Independent Tribunal.¹⁹

As a general rule, arbitrations are administered from and oral hearings are held in London, England (which is where the ITF, the ITIA, and Sport Resolutions are based) but hearings may be held elsewhere if good cause is shown, or by video conference call.²⁰

Proceedings will be conducted in accordance with the Procedural Rules, which set out the Independent Tribunal’s powers,²¹ the process for written submissions²² and a hearing,²³ the applicable burden and standard of proof,²⁴ rules of evidence,²⁵ and the relief that may be granted.²⁶

The ITF/ITIA (as applicable) is entitled to publish decisions of the Independent Tribunal²⁷ and awards issued by CAS on appeal.²⁸ Previous TADP-related decisions and awards are available online.²⁹

Decisions of the Independent Tribunal sitting as an appeal body are final and binding and may not be appealed.³⁰ Decisions of the Independent Tribunal sitting as a first instance body may be appealed to CAS.³¹

The majority of cases heard by the Independent Tribunal are first instance disciplinary proceedings brought under the TADP. The TADP is the World Anti-Doping Code-compliant anti-doping programme managed and enforced by the ITF on behalf of the Association of Tennis Professionals (ATP), Women’s Tennis Association (WTA) and the Grand Slams. It applies to (among others) tennis players competing at Grand Slams and other events sanctioned by the ITF, ATP and WTA.³²

From 1 January 2022, the ITF has delegated all aspects of education, doping control, and results management under the TADP (including the issuing of the TADP itself) to the ITIA, save for certain matters arising before 1 January 2022.³³ Accordingly matters arising under the TADP before 1 January 2022 are administered and prosecuted by the ITF, and matters arising under the TADP on or after 1 January 2022 are administered and prosecuted by the ITIA.

Recent cases have involved issues such as:

• the applicable test and period of ineligibility where a player asserts lack of intent without proof of source;³⁴
• whether recklessness is sufficient for a violation to be considered intentional (and therefore attract a four-year period of ineligibility);³⁵
• the circumstances in which a provisional suspension will be lifted pending determination of the merits;³⁶
• the applicable period of ineligibility for In-Competition use of cannabis in light of the broad TADP definition of In-Competition;³⁷
• the consequences of failure to comply with proceedings or apply for a retroactive TUE for use of a prohibited substance for legitimate therapeutic purposes;³⁸ and
• whether the otherwise applicable period of ineligibility will be eliminated in circumstances where the prohibited substance was ingested through inadvertent contamination.³⁹

In 2017, the Independent Tribunal heard and determined an appeal by Ilie Năstase against a decision of the IAP that sanctioned Mr Năstase for multiple breaches of the ITF’s Welfare Policy in relation to (among other things) comments he made about Serena Williams, comments made to Anne Keothavong, and his on-court conduct during a Fed Cup (now Billie Jean King Cup) tie. The appeal was heard de novo, and each of the four charges was upheld. The Independent Tribunal imposed a three-year suspension from ITF competitions and circuits, a one-year denial of accreditation for ITF competitions and circuits, and a fine of US$20,000.⁴⁰

In 2018, the Independent Tribunal upheld on appeal the charge against Marcelo Rios (a Chilean Davis Cup team member) and the sanction (a US$2,500 fine) imposed on the Chilean tennis federation after Mr Rios had made offensive comments to journalists at a Davis Cup match.⁴¹ The matter was heard and determined by a sole arbitrator without an oral hearing.