Maria Sharapova has been found guilty of committing a doping violation and has been sentenced to a two-year ban period backdated to January 26, 2016—the day she failed her drug test in Melbourne at the Australian Open.
Is the ban justified? Should Sharapova have been dealt with more leniently?
Let’s try and seek some answers, shall we?
The Independent Tribunal appointed by the International Tennis Federation (ITF) consisted of Charles Flint QC, Dr. Barry O’Driscoll and Dr. José A. Pascual.
John J. Haggerty of Fox Rothschild LLP and Howard L Jacobs represented Maria Sharapova and Johnathan Taylor and Lauren Pagé of Bird & Bird LLP presented the case for the International Tennis Federation.
Sharapova was subjected to an additional out-of-competition test on the 2nd of February, 2016 in which meldonium was discovered as well. For the purposes of the tribunal, the results were treated as a single anti-doping violation.
The judgment rested on four legs of a just table:
“(1) Whether the player can establish that the violation of article 2.1 was not intentional within the meaning of article 10.2.3. If so, then the period of ineligibility to be imposed is 2 years; if not, the period of ineligibility to be imposed is 4 years.
(2) Whether under article 10.5.2 the player can establish that she had no significant fault or negligence, in which case the period of ineligibility may be reduced to a minimum of 1 year.
(3) Whether the ITF is estopped from asserting any fault on the part of the player.
(4) Whether the player can invoke the principle of proportionality so as to avoid or mitigate the sanctions that follow from the rules.”
The ITF’s case rested on whether they could prove that Maria Sharapova knowingly disregarded the risk of contravening the anti-doping rules and thus committed an intentional violation.
Sharapova’s lawyers sought to prove that the ITF were well aware that she had failed a Mildronate test in 2015 and thus she ought to have been warned by the ITF explicitly that she would come under the scanner given that Mildronate had been added to the banned substances list.
The ITF were , however, provided the list of last year’s offenders only in March this year; privacy and security concerns are the reasons offered for the list not being provided to the ITF earlier. This effectively negated any assertion from the defendant that the ITF couldn’t assert any fault on Sharapova’s part.
Sharapova submitted that she was first prescribed the said drug in 2005 by Dr. Anatoly Skalny of the Centre for Biotic Medicine in Moscow. She was prescribed a list of 18 medications in total for a “mineral metabolism disorder, insufficient supply of nutrients from food intake and other abnormalities which made it necessary to boost the immune system.”
The prescription for Mildronate was as follows:
“Mildronate 1-2 X 10, repeat in 2 wks (before training or competition)
1 hr before competition, 2 pills of Mildronate
During games of special importance, you can increase your Mildronate dose to 3-4 pills (1 hr before the match). However, it is necessary to consult me on all these matters (please call)
30 minutes prior to a training session: Mildronat – 1 Capsule. 30-45 minutes prior to a tournament Mildronat 2 capsules”.
The drug was also further recommended whenever:
“complaints arose regarding fatigue related to overexertion,[or] lowering of the immune functions, appearance of inflammatory processes, lab results abnormalities in the fat and carbohydrate metabolism (glucose, cholesterol, insulin), affecting the myocardial functions (magnesium, phosphorus deficiency, elevated AST etc.) 8.”
Dr. Ford Vox expressed the opinion that “Dr. Skalny was, in the light of Ms Sharapova’s family history, justified in prescribing Mildronate both as a cardioprotective agent and as a preventative agent for diabetes.” and that the Russian scientific literature supporting Mildronate’s clinical use to compensate for an immune deficiency was strong.
The medications were verified against the WADA Prohibited List and were found in compliance.
Maria Sharapova at the 2007 Australian Open. (Photo credit: Wikipedia)
In 2012, Sharapova discontinued her association with Dr. Skalny and retained a nutritionist Nick Harris instead.
She continued to self-medicate though with three substances: Magnerot, Riboxin and Mildronate.
Her nutritionist was not informed that she continued the above drugs.
Sharapova’s use of Mildronate was never disclosed either to WTA or WADA and the only documentation of her use was the correspondence between her and Dr. Skalny.
In 2015, WADA announced that usage of Meldonium would be monitored both in and outside competition.
Six percent of athletes tested positive for Meldonium in 2015 under the monitoring program.
Meldonium was added to the Prohibited Substances List for 2016 on 29 September 2015 by WADA and published on its website.
The ITF published the same on 7 December 2015 on its website.
Plastic wallet cards listing the prohibited drugs were handed over to Sven Groeneveld, Ms Sharapova’s coach by Neil Robinson of the WTA sometime in January 2016.
Two emails were mailed out by the WTA and the ITF respectively to players with references to the 2016 Tennis Anti-Doping Programme but there was no intimation of changes to the Prohibited List or specifically addition of Meldonium to the list.
24 samples taken from tennis players tested positive for Meldonium in 2015 (just over 1% of tennis players)—five of which were Ms. Sharapova’s.
However, results from WADA are reported to sports bodies only on an aggregate basis.This ensures confidentiality of the players’ results.
The ITF had no way of knowing that Meldonium was being used by Sharapova in 2015.
The tribunal found that the decision by Sharapova not to disclose her use of Meldonium on her doping control form was deliberate.
Max Eisenbud, Sharapova’s manager, claims to have no training as to how to distinguish a prohibited substance from a legally allowed drug and that he was encountering personal problems i.e. separation from his wife because of which he did not take his annual vacation which he usually utilized to check his wards’ adherence to the prohibited list and hence failed to review the 2016 list.
The tribunal found Eisenbud’s testimony ‘incredible’.
The triune also found that Sharapova’s continued use of Meldonium was “consistent with an intention to boost her energy levels”.
Did Sharapova intentionally break the rules?
Article 10.2.3 states:
“The term, therefore, requires that the Player or other Person engaged in conduct that he/she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an Anti-Doping Rule Violation and manifestly disregarded that risk.”
The tribunal found her use of Mildronate unintentional as per the above Article.
Hence she was not handed a full ban of four years
Was she negligent?
Conscientiousness is the personal responsibility of a player and thus Sharapova’s professed indifference to checking the Prohibited List landed her squarely in the cross-hairs of the tribunal who found her guilty and handed her a ban of two years.
Sharapova sought to invoke estoppel on the basis that “the ITF (a) failed to notify her of the test results obtained in 2015 (b) failed to distribute the Prohibited List to her and (c) failed to publicise the amendments to the Prohibited List.”
The Tribunal found no basis for this claim.
The Tribunal also found no extreme or unique circumstances under which principles of proportionality could be invoked to reduce the sanction.
The only concession granted to Sharapova is the back-dating of her punishment to the date of her Australian Open failed drug test.
The tribunal concluded:
“The contravention of the anti-doping rules was not intentional as Ms Sharapova did not appreciate that Mildronate contained a substance prohibited from 1 January 2016. However she does bear sole responsibility for the contravention, and very significant fault, in failing to take any steps to check whether the continued use of this medicine was permissible. If she had not concealed her use of Mildronate from the anti-doping authorities, members of her own support team and the doctors whom she consulted, but had sought advice, then the contravention would have been avoided. She is the sole author of her own misfortune.”
The decision of the tribunal can and will be appealed by the Russian in the Court of Arbitration for Sport (CAS).
Source: Text of tribunal verdict on ITF website.
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Rafael Nadal requests his drug-testing results be made public(upi.com)
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