Primum Non Nocere is a phrase familiar to medical providers around the world and is a foundational principal of medical ethics. First, as a medical services provider, do no harm. Evidently, doing harm is a violation of this fundamental principal. As a Federation, Tennis Association, or Anti-Doping entity, the health and safety of the athletes should be paramount.
In this case Ms. Madison Brengle (See https://en.wikipedia.org/wiki/Madison_Brengle) is suing to recover for her injuries which were caused by a needle used to draw blood from her for a mandatory doping test. As an attorney, I am interested more in the issue of the responsibility of the WTA, ITF, ATP, and other governing bodies to athletes than I am interested in whether the individual that drew blood did so using the appropriate techniques and complied with the “standard of care.” There are other issues such as whether the athlete has been informed that having a drug test and allowing ones blood to be drawn could result in permanent nerve damage, whether the phlebotomist properly conducted the procedure, and whether the prior knowledge of Ms. Brengle’s medical condition related to drawing blood should give rise to gross-negligence or even an intentional tort. I will let those issue be combed through in litigation, litigation which should understandably cast a large net. Afterall, as when seeking recovery for an injured party we want to fish for the responsible party using a net, not a cane pole.
As a professional tennis player, Ms. Brengle is subject to mandatory blood tests under the terms of the WTA and the ITF rules and regulations. Following her first blood test, administered by the ITF in 2009, Ms. Brengle said the following: “I hit the floor, I passed out from the pain.” See https://www.nytimes.com/2018/04/10/sports/tennis/madison-brengle-lawsuit-blood-testing.html
The governing bodies were aware, beginning in 2009, that the blood tests were dangerous to Ms. Brengle’s health and well-being.
As a result of continued testing, Madison Brengle suffered from injuries caused by the administration of blood tests mandated by Tennis’ regulatory bodies. These allegations are outlined in a civil Complaint filed this year in Manatee County, Florida. See Brengle vs WTA Complaint
If it is shown that she was injured as a result of coerced participation in the mandated blood testing program, the standard of care should be strict liability. See https://www.law.cornell.edu/wex/strict_liability For professional athletes, including female tennis players, there is no option but to “agree” to the terms imposed by governing bodies if one desires to play the sport professionally. This is simply because there is no competing league to provide an opportunity for athletes to compete at the highest level. For the WTA and the ITF, it really is their way or the highway. Because of this, these bodies should be held to heightened scrutiny when an athlete is injured as a result of complying with their rules.
“This is the test my body never recovered from,” Brengle said. “This is the one that changed my career, changed my life, more than you can know.” https://www.nytimes.com/2018/04/10/sports/tennis/madison-brengle-lawsuit-blood-testing.html
Regardless of your intent, if you injure someone, you are liable. This is the idea of strict liability.
If the facts of this case are as described in the Complaint, this type of behavior should not be tolerated and should be deterred. Tennis players are vulnerable as demonstrated by this lawsuit. Regardless of one’s position on the efficacy of the anti-doping efforts of the various sport regulatory bodies, if these governing bodies cause injury while hunting for their banned substances they should be 100% liable for the damages they cause. Additionally, if it is shown that they acted with gross negligence or with a careless disregard for Ms. Brengle’s well being, or intentionally caused harm, they should be liable for a minimum of three times the amount of her actual damages, plus attorney’s fees and costs, and exemplary damages to serve as a deterrent to help protect others from being injured in the future.
In the Complaint, filed in 2018, Madison’s attorney outlined in his case how Ms. Brengle was injured, including that his client was injured by those charged “…to protect the health and rights of tennis players participating in Covered Events” (Complaint at paragraph 39). The Complaint, a copy of which you may read at your leisure (see link), outlines the injuries that Brengle sustained at the hands of those responsible for the anti-doping program. Brengle vs WTA Complaint
The case against the WTA is proceeding through Arbitration as required by the WTA’s contract.
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