The latest disclosures of Agassi calls for a serious shake up of the legal framework governing sport.

In his autobiography, Agassi asserts that he used the two drugs in the year 1997, at which point in time the World Anti-Doping Agency Code (“WADA Anti-Doping Code”) was not even in existence. Even assuming for a moment that the WADA Anti-Doping Code did actually exist at that point in time, there is a clear provision in the WADA Anti-Doping Code i.e. Article 17, which stipulates that no action may be commenced against an athlete or any other person for an anti-doping rule violation contained in the Code unless such action is commenced within eight years from the date the violation is asserted to have occurred. In this case, any such action against Agassi, or his father Mike Agassi, should therefore have commenced in the year 2005. Considering the fact that these disclosures have been made by Agassi himself, should the governing bodies be taking such disclosures at face value? If Agassi could lie to the ATP by stating that the drug was taken “unwittingly”, is there a possibility that he may not have revealed the full extent and time-frame of his drug use? Surely, the limitation period in Article 17 cannot be used to defeat the underlying purpose of the WADA Anti-Doping Code i.e. a dope-free sport. There does not appear to be any guidance on the scope and intent of Article 17, but the WADA would do well to carve out certain exceptions, which would grant it the authority to initiate action against an athlete even if drug-use has been detected (either by a disclosure by the player or by any other credible source) after the expiry of the limitation period.

Even granting that the WADA may not be in a position to exercise its jurisdiction in the present case, what of the ATP? The ATP has to act, and act fast against Agassi, in the interests of salvaging the credibility of tennis as a dope-free sport. The WADA has indicated that it will be asking the ATP and the International Tennis Federation (ITF) to investigate whether Agassi “lied on oath” after he tested positive for crystal meth. In this context, it is pertinent to note that the ATP requires every professional tennis player who is registered with it to sign a document entitled Player’s Consent and Agreement to ATP Official Rules Book, according to which such player consents and agrees to be bound and to comply with the rules formulated by ATP from time to time. This document contains a specific provision which refers to the Anti-Doping Programme administered by ITF at ATP-sanctioned events. By signing this document, the player submits himself to the jurisdiction and authority of ITF to manage, administer and enforce the Anti-Doping Programme and to the jurisdiction and authority of the Anti-Doping Tribunal and the Court of Arbitration for Sport (“CAS”) to determine any charges brought under the Anti-Doping Programme.

If the ATP and ITF are serious about projecting tennis as a dope-free sport, they can exercise their jurisdiction over Agassi and his entourage at that point in time, make a reference to the CAS, and ask that the CAS penalise Agassi and his entourage appropriately for breaching the terms of the ATP Official Rules Book, particularly those in relation to anti-doping. As Harsha Bhogle pointed out in his column in this paper recently, pardoning Agassi for his offences will allow other players to cross the line as well, which can only be detrimental to sport at large.

The writer heads the sports practice at the law firm MMB Legal, Bangalore