Sharapova’s doping scandal - are athletes now more concerned about legality than ethics?
Published 17 March 2016 By: Jack Anderson
One week since Maria Sharapova’s admission1 that she had tested positive for a prohibited substance (meldonium), it is time to take stock on what was revealed and what might happen to next.
To recap, the immediate reaction to Sharpova’s admission varied hugely.
It included the coolly scientific,2 explaining that, although the drug is designed for short-term use relating to the effects of diabetes, it has long-term athletic benefits in enhancing a player’s endurance and recovery.
The reaction was also coolly commercial3 in the guise of the various sponsors, notably Nike, who with a swoosh suspended endorsement contracts with Sharapova.
Outside of tennis, some of the commentary has cast more heat than light. For instance, former WADA chief Dick Pound was quoted as stating that the use of meldonium is “widespread” in tennis – a claim that was particularly unhelpful and unsubstantiated.4
Within tennis, the reaction was generally muted though tending towards the sympathetic and even empathic. Serena Williams, for instance, remarking:
“I think most people were happy she was upfront and very honest and showed a lot of courage to admit to what she had done and what she had neglected to look at in terms of the [prohibited] list.”5
Williams’ use of the word “neglect” is interesting. In her press conference announcing the positive test, Sharapova described her actions as “careless”. The implication appears to be that, although Sharpaova ought to have known that meldonium was on the prohibited list from 2016, her continuing use of the substance was not a deliberate act of doping or cheat.
In this regard, the press conference,6 which most thought would concern the Russian’s retirement, was characterised by a very controlled and self-serving performance by Sharapova.
To be fair to her, there were no crocodile tears such as those shed by previous drug cheats such as Marion Jones. The aggressive dismissiveness of Lance Armstrong’s defence – everyone else was doping, I was just better at it – was also absent.
And yet in many ways the Sharapova press conference must be understood as one long, legal plea in mitigation.
In the law of doping, the principle of strict liability applies or to paraphrase Article 2.1.1 of the World Anti-Doping Code 2015 (WADC) anti-doping rule violations can be committed without regard to an athlete’s fault. This means that the athlete is responsible for what they ingest. If that substance is prohibited, that athlete is guilty irrespective of whether they intended to take the substance or did so carelessly or accidently. Moreover, pursuant to Article 10.2 WADC, an athlete can be banned (that is, deemed ineligible to compete) to a maximum of four years for a first offence.
The strict liability principle applies to the offence but an athlete’s fault is can be taken into consideration in determining the consequences (i.e., the length of sanction) of an anti-doping rule violation under Article 10. For example, under Article 10.5 of the WADC a reduction of the period of ineligibility – from a reprimand as a minimum; to a 2 year ban as a maximum – based on no significant fault or negligence on the athlete’s behalf can be considered by an anti-doping tribunal.
Accordingly, as a four year ban would effectively end Sharapova’s (29 in April) career, she is likely to plead in mitigation: first to an International Tennis Federation (ITF) Tribunal; and then, if she has to, on appeal to the Court of Arbitration for Sport (CAS).
Sharapova’s plea in mitigation is likely to be fourfold in nature.
First, that there was no intent on her part to evade the terms of the WADC and that at worst her doping infraction should be classified as negligent and a deduction of the sanction should follow. Article 10 of the WADC allows for such a plea and in the recent past tennis players such as Richard Gasquet,7 Viktor Troicki8 and Marin Cilic9 have all convinced CAS to reduce their sanctions on grounds of lack of significant fault.
The second argument that she is likely to forward is that, although she used meldonium, her use was of such a low level that the performance-enhancing factor would have been negligible. The analogy here will be with the approach taken by the Court of Arbitration for Sport to a series of cases around 2012 taken by athletes who had tested positive for methylhexaneamine.10 Given that precedent, it appears that in order to benefit from the reduction of the sanction, Sharapova will have to provide corroborating evidence, in addition to her word, in order establishes the absence of intent to enhance sport performance to the comfortable satisfaction of any anti-doping tribunal.
In this, Sharapova will no doubt highlight to any anti-doping panel that her decade long use of meldonium was strictly for personal, medical or therapeutic purposes – a so-called “retrospective therapeutic use” plea. Such a plea was used recently in Stewart v. FIM (CAS 2014/A/3876, 27 April 2015) where the athlete’s principal argument was that his violation was “paperwork”11 in nature in the sense that, although clearly entitled to a therapeutic use exemption (TUE) for the substance as based on his medical history, due to confusion surrounding his lack of anti-doping education and different rules applying to different competitions in which he participated, he failed formally to apply for a TUE.
Finally, Sharapova may point out in a broader sense that in the first 10 weeks of 2016,12 99 individuals have tested adversely for using meldonium across a range of sports and that this points to a “systems failure” of notification to and education of athletes on WADA’s part.
The above pleas illustrate that for many elite athletes the “spirit” of sport – the core philosophical underpinning of the WADC – is in practical reality little more than a narrow legalistic construct. In short, in certain circumstances participants’ views on what substance might or might not be ethically, morally or medically permissible to take in the “spirit” of their sport seems in the author’s opinion to have been replaced by a narrow view of what is or is not on WADA’s prohibited lists13 of performance enhancing drugs or methods.
Andy Murray (a notable exception) put it best when responding to the Sharapova news:
“I think taking a prescription drug that you don’t necessarily need, but just because it’s legal, that’s wrong, clearly…If you’re taking a prescription drug and you’re not using it for what that drug was meant for, then you don’t need it, so you’re using it for performance enhancing benefits that drug is giving you. And I don’t think that is right.”14
The extent to which Sharapova’s use of meldonium was (ethically, morally or legally) “right” or not remains to be seen. For now the revelations have had the unintended consequence of giving us an insight into her remarkable commercial success off court. The most recent estimate by Forbes put Sharpaova’s annual income at £20.7 million.15
In the immediate, it might be thought that an individual who earns so much might have in her support team a person dedicated to ensuring compliance with doping law. Of longer term interest is the fact that Sharapova’s annual income is more or less equivalent to WADA’s yearly budget for policing doping globally.
Maybe therein lies the real problem.
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- Tags: Anti-Doping | Athlete Welfare | Court of Arbitration for Sport (CAS) | Governance | International Tennis Federation (ITF) | Regulation | Tennis | World Anti-Doping Agency (WADA) | World Anti-Doping Code (WADC)
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Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne. The sports law program at Melbourne was one of the first to be established globally in the mid-1980 and continues to expand at the Melbourne Law School, which itself is ranked in the top 10 law schools globally.
Jack has published widely in the area including monographs such as The Legality of Boxing (Routledge 2007) and Modern Sports Law (Hart 2010) and edited collections such as Landmark Cases in Sports Law (Asser 2013) and EU Sports Law (Edward Elgar 2018 with R Parrish and B Garcia). He was Editor-in-Chief of the International Sports Law Journal based at the International Sports Law Centre at the Asser Institute from 2013 to 2016.
Appointed as an arbitrator to the Court of Arbitration for Sport in 2016, he became a member of the inaugural International Amateur Athletics Federation’s Disciplinary Tribunal and the International Hockey Federation’s Integrity Unit in 2017. In 2018, he was the sole CAS arbitrator at the Commonwealth Games on the Gold Coast, Australia. In 2019, he was appointed to the International Tennis Federation’s Ethics Commission. He is currently chair of the Advisory Group establishing a National Sports Tribunal for Australia