Maria Sharapova – What’s it all about?
9 March 2016 by Jason Torrance
When Maria Sharapova called a press conference, there was speculation that it could be to announce her retirement from a sport she has been competing at the highest level in for 12 years following a number of injuries. There was speculation that it could be to announce another lucrative sponsorship deal. There was no speculation that it was to announce that she had failed a drugs test and faced a ban from sport. It was a huge shock from a sport with a generally good name in terms of doping from one of the biggest names in the sport. So what has happened and what could happen?
On 26 January 2016, Sharapova provided a sample for doping control whilst competing at the Australian Open in Melbourne. This is classified as an “In-Competition” test even though she lost her quarter-final match and had therefore been knocked out as, similar to an Olympic Games, the entire event period is deemed to be In-Competition so it does not matter whether a player gets knocked out in the first round or wins it. The sample tested positive for meldonium, meaning that Sharapova has committed a presence violation (please see previous blog dealing with presence violations).
Meldonium is a substance which Sharapova states she has been using for 10 years for health reasons after becoming sick on a frequent basis. Following tests in which her doctor found that she had “abnormal electrocardiogram readings” and “some diabetes indicators”, she was prescribed meldonium and continuously monitored to ensure it remained appropriate for her condition. Meldonium was added to the Prohibited List (a list of substances prohibited from use by athletes) by WADA in 2016 after it was found to be capable of enhancing performance. It is a metabolic modulator and is listed under S4 of the 2016 Prohibited List under Hormone and Metabolic Modulators. This means that meldonium is classified as a non-specified substance, meaning that it is banned at all times, both In-Competition and Out-of-Competition. This is important when it comes to sanctioning.
One option Sharapova has is to apply for a retroactive Therapeutic Use Exemption (TUE). A TUE allows an athlete to use a substance that is otherwise prohibited on account of medical reasons. That athlete will need to provide medical evidence that the substance in question is required and that there are no suitable alternatives, which will be assessed by a medical expert before the use of the substance is granted or rejected. If Sharapova is granted a TUE, then she will not face any further action and will be free to return to competing. If she is not, then she is facing a ban from sport of up to 4 years.
Art 10.2.1.1 of the 2016 World Anti-Doping Code (the ‘Code’) provides that the starting sanction for an athlete who commits a violation of Code Article 2.1 (presence) is 4 years if the substance involved is a non-specified substance (which meldonium is) unless the athlete can show that the violation was not “intentional”. According to the Code:
‘the term “intentional” is meant to identify those Athletes who cheat. The term, therefore, requires that the Athlete or other Person engaged in conduct which he or 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’.
In order to prove a lack of intent, Sharapova will have to show that she did not ‘manifestly disregard the risk’ that her conduct in taking meldonium constituted. Of course, the obvious answer to this is to point out that she was diagnosed with a medical condition a decade ago, has been continually tested and has been taking it ever since for this reason and was not aware that it had recently been added to the Prohibited List. The counter-argument is that when new substances are added to the Prohibited List all athletes need to check what has been added and ensure they are not using it. The fact that Sharapova has greater resources than most could be beneficial to her case, as it is likely she has members of her entourage whose job it is to check such things on her behalf, or negative to her case, as she has no excuse for not knowing given the level of support she has. If she does prove a lack of intent, any potential ban will be reduced to 2 years.
Thereafter, she will need to argue Art 10.4 or 10.5.2 of the Code to try and reduce any potential ban further. It is very unlikely that she will be successful arguing No Fault or Negligence (Art 10.4), so her most likely defence will be arguing No Significant Fault or Negligence (Art 10.5.2). Under the old Code, this had a very high standard and few athletes were able to successfully reduce their ban using this defence. The changes to sanctioning that have been introduced by the current Code may well make defences of this nature easier for athletes to utilise. Whether Sharapova will be successful will, of course, depend on the facts of her case and we will all discover the outcome in due course.
If you are an athlete or athlete support personnel and find yourself in a similar situation, Fisher Jones Greenwood LLP can help in this very niche area of the law. We can advise athletes and athlete support personnel throughout the course of anti-doping proceedings and provide expert representation. We are also able to assist National Governing Bodies meet their regulatory duties and ensure that their anti-doping rules, practices and procedures are in line with UK Anti-Doping’s. For expert advice on anti-doping, please contact us.
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