Maria Sharapova: Key facts of the ITF doping decision and her chances on appeal

Published 07 July 2016 By: Tom Rudkin

Maria_Sharapova_2012

Just two days after Garbine Muguruza stunned Serena Williams in the final at Roland Garros, leading many to herald a new era in women's tennis,1 further shockwaves were felt throughout the sport with the two-year sanction imposed upon Maria Sharapova by an independent tribunal appointed by the International Tennis Federation ("ITF", full decision available here2). The sanction resulted from the presence of Meldonium, a “Prohibited Substance” under the WADA Code's Prohibited List,3 in two urine samples provided by Sharapova on 26 January 2016 (at the Australian Open) and 2 February 2016 (in an out of competition test in Moscow).

Sharapova has lodged an appeal at the Court of Arbitration for Sport (CAS),4 seeking an annulment of the ITF tribunal's decision to impose the two-year sanction or, in the alternative, a reduction in that sanction. CAS is due to render a decision by 18 July 2016. Importantly, CAS has "full power to review the facts and the law" under its Procedural Rules,5 meaning that its Appeal Panel has the jurisdiction to assess the findings of fact made by the ITF tribunal and review the evidence de novo (i.e. anew). In his excellent reaction post,6 James Segan has already identified the arguable problems associated with this jurisdiction, including specifically with regard to the “improvement” of witness evidence. This might be highly relevant in a case such as Sharapova's where (as discussed below) the evidence of the athlete and her manager was heavily criticised by the tribunal. This article examines the tribunal's criticisms of Sharapova's case and how the rationale underlying the decision provides an illustrative example of an athlete being given the maximum possible period of ineligibility (once concessions made by the ITF had been taken into account, as discussed below). It also looks at what chances she may have on appeal to CAS.

 

Sharapova's case

Sharapova's two positive tests came shortly after the addition of Meldonium to the Prohibited List on 1 January 2016. Importantly, she acknowledged that she had continued to use Mildronate (the medication in which Meldonium was found) at the Australian Open in January, after the commencement of the ban. She therefore fell outside the terms of the WADA's Notice7 of 11 April 2016 concerning the excretion times for Meldonium, and in particular the statement that:

"a hearing panel might justifiably find… that an athlete who has established on the balance of probabilities that he or she ingested meldonium before 1 January 2016 could not reasonably have known or suspected that the meldonium would still be present in his or her body on or after 1 January 2016. In these circumstances, WADA considers that there may be grounds for no fault or negligence on the part of the athlete".

Sharapova's case was based on the premise that she did not know that Meldonium had been added to the Prohibited List and therefore did not intentionally contravene the relevant anti-doping rule. In her press statement8 shortly after she had been notified of the positive test, Sharapova accepted that she bore "full responsibility" but explained that she did not know that Meldonium's status had changed or indeed that the drug in which it was contained, Mildronate, "also has another name of meldonium".

While she acknowledged that she was at fault to some extent, she contended that her fault was not significant. Moreover, she argued that the ITF was "estopped" from asserting that she was at fault because it failed to warn her of the inclusion of Meldonium on the Prohibited List. This was notwithstanding that, on Sharapova's case, the ITF knew or ought to have known that she repeatedly tested positive for Meldonium during 2015, when the substance was being monitored. Sharapova also argued that the tribunal should, in any event, utilise the principle of proportionality to impose no further sanctions beyond the provisional suspension that had applied since 2 March 2016.9

 

Factual context

Sharapova began using Mildronate in 2005 on the advice of a Moscow doctor, in the wake of "frequent cold-related illnesses, tonsil issues and upper abdomen pain".10 Dr Skalny's diagnosis was that Sharapova suffered from various abnormalities that made it necessary to boost her immune system and he therefore prescribed her around 18 medications and supplements, including Mildronate. The tribunal clearly experienced some scepticism as to the merits of the prescription.11 Nonetheless, they were at pains to point out that the player herself should not be criticised for following the advice of Dr Skalny, especially given that she and her father made clear that any substances recommended must comply with the WADA Code.

However, the position changed in 2012 when Sharapova elected to stop following the regime recommended by Dr Skalny. At this point, she decided to continue using three of the substances he had recommended, which included Mildronate.12 This decision was made without the benefit of medical advice. Furthermore, she ceased to follow the precise details of Dr Skalny's advice, including (on her own evidence) stopping taking Mildronate in the course of long matches because "she did not feel comfortable with putting pills in her mouth during a match".

Extraordinarily, the only people generally aware of Sharapova's continued use of Mildronate were her manager (Mr Eisenbud), and her father.13 The one exception to this is that, in 2015, Sharapova did consult Dr Sergei Yasnitsky, the Russian Olympic team doctor. She disclosed her use of Mildronate to him when he asked what medication she was taking and his response was that this "was OK".14 Notwithstanding this conversation, one cannot fail to be surprised that Sharapova's medical advisers were not consulted on a regular basis about her continued use of the drug.

In addition, the player did not disclose her use of the substance on any of the doping control forms she completed between 2014 and 2016.15 The tribunal was particularly critical of this failing, and specifically Sharapova's explanation that this was due to her understanding that the form only required her to disclose a medication or supplement if she had taken it every day for the previous seven days. The relevant requirement on the form refers to substances "taken over the past 7 days" and states that the athlete must include details of when it was last taken. Unsurprisingly the tribunal found Sharapova's explanation untenable, especially when in respect of at least two of the forms she had used Mildronate five or six times over the previous seven days.16

Mr Eisenbud's factual evidence regarding the supposed system he had for making checks on the substances inherited from Dr Skalny's regime was also rejected. This evidence included the suggestion that he had adopted an approach of checking the Prohibited List for the following year during his annual vacation to the Caribbean in November. However, he claimed that because he separated from his wife in 2015, the November 2015 holiday did not take place and he therefore failed to review the 2016 Prohibited List. This was all set against Mr Eisenbud's status as a Vice President at IMG, his admission that he had no training to understand the composition of the Prohibited List and the fact that both he and Sharapova were aware of the facility to ask the Women's Tennis Association (WTA) about whether a substance was prohibited.17 Indeed, Sharapova accepted that she had not carried out any checks on Mildronate, whether through the ITF website (which published the changes to the Prohibited List for 2016 in December 2015) or through enquiries with the WTA. It was considered implausible that such a lackadaisical approach would have been taken to checking the presence of substances on the Prohibited List, particularly on behalf of one of the leading global sports stars.18

In this overall context, the ITF tribunal concluded that in 2016, Sharapova was using Mildronate for the purposes of performance enhancement and had intentionally concealed the use from anti-doping authorities.19

 

Key findings

Intention

Importantly, although Sharapova was found to have used Mildronate for performance enhancement, her case (which was accepted by the ITF) was that she did not know that her use of the medication amounted to an anti-doping rule violation. This was important for the purposes of sanction. Since Meldonium is a non-specified substance,20 Article 10.2.1 of the Tennis Anti-Doping Programme ("TADP", which mirrors the WADA Code) provides for four year periods of ineligibility "unless the Player…establishes that the Anti-Doping Rule Violation was not intentional". Where the requisite intent is not present, the starting point is a two-year period of ineligibility.

The focus of the 2015 WADA Code is on punishing those who actively cheat, and the guidance at Article 10.2.3 of the TADP on the meaning of intention refers to players engaging in conduct that they know constitutes an anti-doping rule violation or players who know that there is a significant risk that what they are doing might constitute an anti-doping rule violation and manifestly disregard that risk. The ITF's acceptance of Sharapova's case that she did not believe mildronate was a prohibited substance was fatal to its contention that the player had the requisite intention. In particular, whilst Sharapova's conduct was open to criticism, there could be no intent in circumstances where she was held not to know (subjectively) that there was a risk associated with her taking the substance. Even if she did "manifestly disregard" the risks associated with ingesting Meldonium, on the ITF's own concession Sharapova did not know that those risks existed. The risks have to be known by the player in order for intent to be present. It is therefore not sufficient for the purposes of establishing intent if an athlete ought to have known that there was a significant risk and he or she manifestly disregarded that risk.

An interesting point might have arisen if the ITF had not conceded Sharapova's claim that she believed Mildronate was not a prohibited substance. Taken in isolation, the player's failure to disclose her use of Mildronate after parting company with Dr Skalny could easily have been portrayed as strong circumstantial evidence of someone who considered there were risks attached. However, the realities of the case (and the timing of the positive tests) seem to detract from any argument along these lines, given that Sharapova would have known that testing was inevitable at the Australian Open; one can understand why the ITF accepted her explanation that she had no idea of the risks of a positive test.

Extent of fault or negligence

Unsurprisingly given the above, the player's attempt to argue that she was not significantly at fault or negligent fell on deaf ears. Had she succeeded to establish Article 10.5 of the TADP applied to her case then the sanction could have been reduced by up to one half of the applicable period of ineligibility (which in Sharapova's case was two years, as explained above). In its assessment of this point, the tribunal carefully considered the meaning of "fault" (which comprises "…any breach of duty or any lack of care appropriate to a particular situation") in the context of the TADP and the additional duties imposed on players by Article 1.12. These duties comprise the obligations for players to acquaint themselves (and ensure their advisers are acquainted) with the requirements of the TADP, to know what substances are prohibited and to ensure that substances ingested and medical treatments do not give rise to anti-doping rule violations. Importantly, as the tribunal highlighted, those duties are in addition to the principle of strict liability set out at Article 2.1 and which of course permeates the WADA Code.21

Although Sharapova accepted some level of fault on her part, she stated that it was not significant when "viewed against the failure of the ITF properly to warn Ms Sharapova that Meldonium was to be added to the Prohibited List" and where the ITF knew or ought to have known that the player was using Meldonium.22 However, the tribunal found that the modifications to the Prohibited List had been published on the ITF website on 7 December 2015, a link to the ITF's anti-doping website had been provided in emails sent on 22 December 2015 and the Prohibited List itself was published on the ITF's website. As a result the ITF had discharged its responsibility under Article 3.1.3 of the TADP to take reasonable steps to publicise amendments to the Prohibited List and under Article 4.1 of the WADA Code to take appropriate steps to publicise the 2016 Prohibited List. It was not the ITF's responsibility to warn specific players of the risks.

The tribunal also dismissed Sharapova's argument that the ITF ought to have known that she was using Meldonium. First, the results which showed that 24 samples taken from tennis players in 2015 had contained Meldonium were only passed to the ITF in March 2016 (i.e. after the positive tests). Second, Sharapova's argument that the ITF ought to have obtained the identities of players that had tested positive for Meldonium was also rejected. Any such disclosure by WADA accredited laboratories of this information would have been an infringement of the players' rights without their consent. First, the anonymity provisions in Article 4.5 of the WADA Code, which apply to how laboratories deal with substances being monitored (as Meldonium was throughout 2015), entitle them only to provide aggregate reports and require "strict anonymity" of athletes to be maintained. Secondly, any procedure whereby the ITF obtained specific results would also have been in breach of the athletes' rights to "confidentiality in their sensitive personal data".23 Finally, WTA anti-doping consent forms only contained agreement for the ITF to obtain disclosure from laboratories of individual data for the purposes of the results management.24 This consent could not have applied prior to Sharapova's positive tests so there could be no criticism of the ITF's conduct.

In any event, even if the ITF had failed to publicise the changes to the Prohibited List adequately, this could not have mitigated Sharapova's fault. Instead, it was held that "the player cannot prove that she exercised any degree of diligence, let alone utmost caution" and that "her concealment from the anti-doping authorities and her team of the fact that she was regularly using Mildronate in competition for performance enhancement was a very serious breach of her duty to comply with the rules".25 There was therefore no basis for reducing the sanction under Article 10.5.

Estoppel and proportionality

Sharapova's arguments that no further suspension should be imposed on either of these two grounds were also rejected.

With regard to estoppel, the tribunal held that the ITF did not bring about the situation in which the player decided to take Meldonium at the Australian Open. There was no representation from the ITF that it was safe for her to use the substance and, to the contrary, it had fulfilled its requirements on the publication of the new Prohibited List.

Sharapova's argument on proportionality was that the tribunal had an inherent authority to reduce the applicable sanction "in the context of extreme and unique circumstances"26 and that "any period of ineligibility would disproportionately affect [her] in causing her a very substantial loss of earnings and sponsorships, exclusion from the 2016 Olympics, and irreparable damage to her reputation".27 Unsurprisingly, the tribunal rejected the suggestion that there was a general discretion to vary the sanction on the basis of proportionality where the application of the rules to the facts of the case did not raise any problems of principle. This lack of a general discretion was asserted in the case of Puerta v ITF28 and also the more recent FA Regulatory Commission decision in the case of Jake Livermore.29 In those two cases, the principle of proportionality did lead to reductions in the sanction that would otherwise have applied under the relevant anti-doping rules. However, as both Panels highlighted, the cases were exceptional and the proportionality principle would be unlikely to be relied upon where there was "any suggestion of a performance enhancing effect".30

 

Comment and chances on appeal

The 33 page decision of the ITF tribunal demonstrates a detailed review of the evidence and in particular Sharapova's arguments for a reduced or indeed no sanction in the context of the new rules under the 2015 WADA Code. It is difficult to dispute the conclusions that they reached in light of the findings they made. Sharapova's representatives have described the suspension as "unfairly harsh"31 and suggested that she is being made a scapegoat due to her fame. However, the tribunal's view was that, after ceasing the regime with Dr Skanly, she had purposely kept her use of Mildronate very quiet and had not availed herself of the avenues available to check its continued status as a permitted substance. Sharapova's conduct (at least as summarised in the judgment) shows significant neglect for the overriding principle of strict liability and the additional responsibilities on players in Article 1.12.

This of course does not equate to intentional cheating, since it was generally accepted that she did not know or believe that Meldonium was prohibited. However, once the starting point had been reduced to two years, the scope for further reduction was virtually non-existent. Notwithstanding CAS's far-reaching powers of review, it is therefore hard to see how Sharapova's fault could be seen as anything but significant given the lack of disclosure once she changed her regime (even to her medical advisers) and the failure to review the updated Prohibited List. One suspects that CAS's findings on the facts will need to be very different if Sharapova is to obtain any reduction in her sanction.

As noted above, the minimum sanction that Sharapova could hope to obtain would be 12 months, given that she accepted she bore some fault (and assuming, as seems likely, that she does not succeed on the estoppel or proportionality arguments). While there will undoubtedly be some argument around the conversation she had with Dr Yasnitsky in 2015 who apparently described her use of Mildronate as "OK", along with the dispute as to how adequately the change in Meldonium's status was publicised, it is difficult to see, even on a best case scenario, how Sharapova's ban will be given the full reduction. Whilst these things are never easy to predict with certainty, it would be surprising if even a sympathetic CAS panel brought the sanction down to anything below 18 months.

Finally, James Segan's article has already alluded to the implications the case may have for potential four-year sanctions. In a legal context where it is the athlete's subjective knowledge that determines whether they knew there was a risk of an anti-doping rule violation, it would appear that intention will on occasion be very difficult to prove. That being said, cases where there is no concession that the athlete believed that the substance was not prohibited and where the facts do not support that contention (as was the case here) will be more complex. This does give rise to an interesting debate regarding future incarnations of the WADA Code and whether a more general intention to enhance performance might ever be discussed when assessing the level of sanction that should be imposed. What seems certain for now is that Sharapova faces an uphill battle to play tennis again before January 2018. After her commendable attempts to take control of the reputational damage through her swift and public admission of the rule violation, it appears that the underlying facts may now have taken control.

 

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Author

Tom Rudkin

Tom Rudkin

Associate - Farrer & Co

Tom provides reputation management and contentious media advice to the full range of Farrer & Co's clients. He is a member of the firm's Sports Group and, as well as assisting sports clients on reputational, media and other sensitive issues, he advises on sports-based disputes, rules and regulations and commercial contracts. Tom's work spans from advising National Governing Bodies to high profile sportsmen and women. He has also spent time in-house on secondment at the Lawn Tennis Association.

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