By Paul J. Greene[1]
Maria Sharapova[2] is hoping to reduce the two-year (2) ban handed down by the International Tennis Federation’s (ITF) Tribunal in her appeal to the Court of Arbitration for Sport (CAS), the “Supreme Court” for sports law based in Lausanne, Switzerland. Sharapova and the ITF have agreed to an expedited procedure whereby CAS will issue its decision by July 18th. Her “degree of fault” will be the primary issue on appeal. The ITF suspended Sharapova for two (2) years, which is the highest sanction she could have received after the ITF Tribunal found she did not intentionally taken the prohibited substance Meldonium.
CAS has de novo power or the “full power to review the facts and the law”, so the CAS Panel does not have to give deference to the ITF Tribunal “beyond the customary caution appropriate where the tribunal had a particular advantage, such as technical expertise or the opportunity to assess the credibility of witnesses.”[3] CAS jurisprudence suggests Sharapova could get her sanction reduced, however, the greatest reduction she could attain under the World Anti-Doping Code (Code) is a halving of her sanction from two (2) years down to one (1) year. However, since Sharapova admitted some fault in taking a banned substance she will almost certainly not get a full reduction down to one (1) year. In her press conference in March, she took “full responsibility” for her “huge mistake” of taking Mildronate, a medication containing Meldonium.
With past CAS jurisprudence involving ITF appeals in similar circumstance as a guide, Sharapova is likely to have her suspension reduced to a sanction in the fifteen (15) to twenty (20) month range. In Kutrovsky v. ITF,[4] a case similar to Sharapova’s—the athlete did not know the product he was taking had a prohibited substance in it[5]—the CAS Panel assessed whether the athlete Kutrovsky bore no significant fault or negligence and was entitled to a reduction of the two (2) year sanction handed down by the ITF.
The Kutrovsky CAS Panel examined the reasons why the athlete did not know that the product he ingested contained a banned substance[6] and determined that a reduction from two (2) years to 15 months was appropriate. In so doing, the Panel found the athlete did a fair amount of due diligence prior to taking the banned substance and had a relatively low degree of fault.[7] A reduction down to 12-months was deemed to be inappropriate since the athlete bore some fault for what happened.
Applying the Kutrovsky CAS Panel’s analysis to Sharapova’s case, Sharapova’s circumstance could warrant a similar reduction. Factors that are beneficial to Sharapova include (1) her doctor prescribed Mildronate to her and it has helped her from getting sick, which was the purpose of the prescription; (2) she sought the doctor’s guidance for over 7 years and only used pills the doctor prescribed after she decided to stop working with him; (3) she regularly took Mildronate legally for over 10 years before it was added to the World Anti-Doping Agency’s (WADA) list of prohibited substances in 2016; (4) she promptly admitted the anti-doping rule violation after being confronted; (5) she did not get Mildronate from an online retailer, but rather a reputable source, which she has used in the past while the substance was not prohibited; (6) she told several people in her inner-circle that she was taking Mildronate, namely the Russian Olympic team doctor, her father, and her manager, Max Eisenbud; and (7) the ITF could have provided better notice to its athletes regarding the addition of Meldonium to WADA’s list of prohibited substances in 2016.
The ITF will argue the following factors should lead to a finding that a two (2) year ban is proper: (1) She continued using Mildronate without the benefit of any medical advice for the last 3 years; (2) She did not know the ingredients of Mildronate and did not read the manufacturer’s instructions for its use;[8] (3) She only disclosed her use of Mildronate with a tight-knit group of people—not even her coach, trainer, or physio knew she was taking Mildronate; (4) WADA used both the name of the prohibited substance and the “brand name of the medication under which it was marketed” in its September 2015 publication of the 2016 list of prohibited substances;[9] (5) Sharapova never once disclosed her use of Mildronate on the doping control forms throughout her 10 years of taking it; and (6) she overly relied on others, namely her agent, to determine whether she was in compliance with her duties under the Code.
Another CAS case involving a high-profile tennis player, Cilic v. ITF,[10] could also be used as a guidepost in the Sharapova appeal. The Cilic CAS Panel’s analysis of what standard of care is expected from an athlete and its ensuing analysis of the appropriate sanction for an athlete based on their degree of fault could help the CAS Panel presiding over Sharapova’s case to pinpoint the number of months she should be sanctioned.
The Cilic Panel identified four steps athletes could follow in order to prevent any anti-doping violation: (1) read the label of the product, (2) cross-check the label with the prohibited list, (3) do an internet search of the product, and (4) consult the appropriate experts. The Panel explained a reasonable athlete might follow all or only a few of these. For substances that are prohibited at all times (such as Meldonium), the Panel found that a reasonable athlete must be more diligent in ensuring that the substance the athlete was taking was permitted. If the athlete does not show all the above steps were followed, then the Panel should find the athlete has a “significant degree of or considerable fault” and thus be given a sanction at the high end of the range. Thus the Sharapova CAS Panel would almost certainly find that Sharapova bore some fault for her positive test under the Cilic analysis.
The Cilic analysis does provide for a reduction if an athlete has taken a certain product for a long period of time without incident and the athlete was suffering from a high degree of stress, or had a reduced level of awareness because of careless but understandable mistakes.[11] Here, Sharapova should benefit from the fact she took Mildronate for over 10 years and that her mistake of not checking the product’s ingredients herself and her delegation to her support group was an understandable mistake considering her past health concerns and how chaotic and stress-filled her daily schedule is.
Given the amount of resources at her disposal, her lack of disclosure, and her decision never to research whether Meldonium was being added as a banned substance by WADA for 2016, the CAS Panel will almost certainly find that Sharapova has some degree of fault. Her appeal will determine whether a reduction to somewhere in the 12-24 month range is proper based on that degree of fault. If Sharapova gets a reduction in her sanction to somewhere less than two (2) years it would allow her to claim victory at CAS and return to major competition at the 2018 Australian Open.
[1] Special thanks to Global Sports Advocates legal intern Matthew Kaiser who was instrumental in the writing and researching of this article.
[2] On June 25, 2016, Maria Sharapova announced via a tweet and a picture that she would be enrolling in Harvard Business School, presumably for the duration of her impending finalized period of ineligibility.
[3] CAS 2012/A/2804 Dimitar Kutrovsky v. ITF, para. 9.3, citing CAS 2011/A/2518 Kendrick v. ITF
[4] CAS 2012/A/2804
[5] The CAS Panel also agreed with the ITF Tribunal that the athlete had taken the substance to enhance his sporting performance and that the athlete could not prove no fault or negligence.
[6] Kutrovsky, para 9.48.
[7] Kutrovsky, para. 9.52.1-9.52.4.
[8] ITF v. Sharapova, para. 27.
[9] ITF v. Sharapova, para. 35.
[10] CAS 2013/A/3327
[11] Cilic para. 76.
