On 4 October 2016, the Court of Arbitration for Sport (CAS), issued a decision reducing the suspension given by an Independent Tribunal of the International Tennis Federation (ITF), to Russian tennis player Maria Sharapova for committing an anti-doping violation. The CAS reduced Sharapova’s suspension from two years down to fifteen months, after finding that she was at “No Significant Fault” (NSF) due to the fact that she had been prescribed a prohibited substance prior to WADA declaring it a prohibited substance, and the fact that she had relied on her agency for her anti-doping obligations and thus did not know it was a prohibited substance.
But how does this compare to the 34 Essendon AFL footballers who, weeks before Sharapova tested positive, were banned for 12 months after placing faith in their Club’s doctors who administered them with the banned peptide TB-4? When the reasoning of the CAS is analysed and compared to the Essendon decision, it appears that the legitimacy and the consistency of the CAS’s decisions are questionable.
THE SHARAPOVA CASE
On 26 January 2016, Sharapova tested positive at the Australian Open to a drug known as Meldonium (a drug used to treat coronary artery disease by expanding the arteries and increasing blood flow). WADA added Meldonium to its list of banned substances on 1 January 2016, only a few weeks before Sharapova returned the positive test. Sharapova admitted to taking the substance for some 10 years, although claimed that she took the drug to treat illness.
Sharapova appealed her suspension, arguing that she did not take Meldonium to enhance her performance, and that her period of ineligibility should be reduced on the basis of NSF.
Under the WADA Code, where an athlete can establish that an anti-doping violation involves no significant fault or negligence, then the athlete’s period of ineligibility may be reduced based on the athlete’s degree of fault. Sharapova based her claim of NSF on the following grounds:
- that she used Meldonium for an entirely legitimate purpose and not for any performance enhancing reason;
- that before using Mildronate (the brand name of the Meldonium product Sharapova took), Sharapova received written confirmations by the WADA-accredited laboratory in Moscow that the substance was allowed under the anti-doping regulations;
- that she was entitled to delegate the responsibility of checking her prescriptions against the prohibited substance list to her agency; and
- that both Sharapova and her agent mistakenly believed that Mildronate was the name of the substance, and not a brand name.
The CAS followed the precedent set in the earlier case of Al Nahyan, which stated that athletes are permitted to delegate elements of their anti-doping obligations, but if a violation is committed, the fault to be assessed is not that which is made by the delegate, but the fault made by the athlete in his/her choice to delegate. In other words, gross negligence by a delegate does not necessarily equal gross negligence by the athlete.
Sharapova told her agent – whom she delegated the responsibility for the performance of all anti-doping regulation matters to – that she was taking Mildronate. Despite the fact that the agency she used had a ‘long history of satisfactory compliance with anti-doping rules’, and the fact that the agency worked with a WADA-accredited laboratory, the CAS accepted Sharapova’s submission that all parties involved believed that Mildronate was the name of the substance, and not a brand name. This, in the view of the CAS, was sufficient to show that Sharapova’s fault was not significant. In other words, the CAS accepted that in 10 years, Sharapova never learnt the name of the drug she was taking, was not at fault for failing to adequately disclose to her agent the details of the drugs she was taking, and that her doctor, who was taking care of her at the same time she used the agency, never corrected this mistaken belief. A hard pill to swallow one would think.
The CAS also accepted that Sharapova had a reduced perception of the risk of using Mildronate, due to the fact that she had taken the drug for 10 years with no issues, and the fact that she had received no specific warning as to the change in the status of Meldonium. However, WADA added Meldonium to its Monitoring Program in 2015, meaning that Sharapova and her agency had notice that there at least were concerns with the drug for a significant period prior to her positive test. WADA also sent emails, and provided players with a USB and a wallet card, all which informed players of the updated list of prohibited substances for 2016.
Further questions can be raised over Sharapova’s medical records, which state that she was told to use Meldonium to boost her energy levels during matches and to speed recovery after matches; a fact entirely inconsistent with the submission that she did not use the substance for performance enhancing reasons.
COMPARISON WITH THE ESSENDON CASE
The facts of the Essendon WADA doping scandal have been well publicised, and will not be repeated at length here.
While there is no doubt that the Essendon players who were banned for the 2016 season for using prohibited substances did so for the purpose of enhancing performance, there is considerable inconsistency in the treatment of the required standard of knowledge and care applied to the Essendon players, when compared to Sharapova.
In the Essendon case, when determining whether the players were at no significant fault, the CAS stated that the players could always:
- read the label of the product used (or otherwise ascertain the ingredients);
- cross-check all the ingredients on the label with the list of prohibited substances;
- make an internet search of the product;
- ensure that the product was reliably sourced; and
- consult appropriate experts.
The CAS further relied on previous cases which stated that ‘it is not open to an athlete to say “I took what I was given by my doctor who I trusted”’. The decision not to allow the Essendon players to rely on the actions of their doctor should have been applied in the same manner in Sharapova’s appeal.
The CAS has clearly failed to treat like cases in a like manner. The acceptance of the fact that Sharapova did not take Meldonium in order to enhance her performance (as unconvincing as that argument is) and the fact that Sharapova had taken the substance prior to it being banned are the only material differences between the Sharapova and Essendon cases. Neither of these factors mitigate the duty on Sharapova. In both cases the athletes relied on their doctors, and both failed to make enquiries into the substance they were taking. In both cases, the athletes failed to take the utmost caution required by athletes under the WADA code.