Establishing the Kissing Defence: Evidential Requirements and Future Developments

This is Part 2 of a two-part series examining the 'Kissing Defence' in anti-doping cases. Part 1 analysed the legal framework governing anti-doping rule violations and compared two recent contrasting decisions: WADA v Thibus (CAS 2024/A/10748) (Thibus), where French fencer Ysaora Thibus successfully avoided any sanction, and ITIA v Oliveira (SR/140/2025) (Oliveira), where tennis player Gonçalo Oliveira received a four-year ban.

This Part 2 examines the broader jurisprudence on the Kissing Defence. It identifies the evidential, scientific, and practical requirements for success and it considers how recently approved amendments to the 2027 WADA Code may make such defences more common.

Article Outline:

• Previous Cases Where The Kissing Defence Has Succeeded
  • ITF v Gasquet (2009)
  • Canadian Centre for Ethics in Sport v Barber (2016)
  • WADA v Roberts (2018)
  • ITF v Yastremska (2020)
• Analysis & Commentary
  • Threshold for No Fault or Negligence
  • Role of Scientific Evidence
    • Treatment of Conflicting Scientific Evidence
    • Limitation of Lack of Data
    • Issues with Direct Evidence
    • Substance-Specific Considerations
  • Key Takeaways from all Cases
    • Evidence of Partner's Consumption
    • Scientific Plausibility
    • Witness Credibility
    • Fault Assessment
    • Supporting Factors
    • Voluntary Testing
    • Corroborative Evidence
    • Effect of Planned Changes under WADA Code 2027
  • Conclusion