SII Focus 8th June 2016

Analysis: Sharapova to appeal damning ITF verdict

Maria Sharapova will appeal a two-year ban issued by the International Tennis Federation (ITF), following a damning verdict (PDF below) issued by an Independent Tribunal which accused the tennis star of a number of failings regarding her use of meldonium. Interestingly, although the panel accepted that Sharapova’s anti-doping rule violation (ADRV) was not intentional, it also found that the manner in which she took meldonium suggested that she had taken it for performance-enhancing purposes.

Although these two positions appear opposed, this is not necessarily the case. What the Tribunal appears to be saying is that Sharapova is guilty of wilful ignorance. Although she was not aware that meldonium had been added to the World Anti-Doping Agency’s (WADA) Prohibited List on 1 January 2016, the Tribunal found that she made no effort to keep abreast of what substances had been added to the List, and actively concealed her use of meldonium on doping control forms, on which she listed other substances.

In the Tribunal’s words, ‘this was a deliberate decision, not a mistake’. In her statement (below), Sharapova is quick to point out that ‘the tribunal found that I did not seek treatment from my doctor for the purpose of obtaining a performance enhancing substance’. However, although she may not have initially sought a performance-enhancing effect, the Tribunal found that her manner of usage of Mildronate – the meldonium brand – suggested that she thought it had such an effect. It found that Sharapova didn’t declare Mildronate – the meldonium brand name – on seven doping control forms between 22 October 2014 and 26 January 2016.

This period included five positives reported by Sharapova as part of the 24 meldonium positives returned by tennis as part of WADA’s 2015 Monitoring Programme tests. It included tournaments such as Wimbledon, the WTA Finals in Singapore and the Fed Cup final in Prague. Sharapova did not declare meldonium despite declaring on those forms that she had used vitamin C, Omega 3, Biofenac and Voltaren (anti- inflammatories which may be taken orally or in gel form), Veramyst (a nasal spray containing a corticosteroid) and Melatonin (a hormone).

It also found that she refused to let her samples be used for anti-doping research. ‘On its own that is a small point but in context it does indicate a careful consideration of the form and an unwillingness to allow her sample to be scrutinised to any extent beyond that legally required under the programme’, reads the decision.

Sharapova also admitted taking Mildronate before each of the five Australian Open matches in January 2016, where she knew she would be tested. The ITF accepts that she didn’t know that Mildronate contained a prohibited substance, but argues that in taking the medication, Sharapova ‘knowingly and manifestly disregarded the risk of contravening the anti-doping rules’. It appears that in this case, wilful ignorance comes at a price.

Concealment

Sharapova was initially prescribed Mildronate by a Russian doctor in 2006, along with 17 other medications and supplements. Dr. Anatoly Skalny gave specific advice on Mildronate.

However, by 2010 the list of substances recommended by Skalny had grown to over 30. Sharapova retained him until 2012, when she engaged a nutritionist, but continued to take the Mangerot, Riboxin and Mildronate recommended by Skalny. The Tribunal found that this is where the alleged ‘concealment’ began. ‘To none of the medical practitioners or specialists who treated her over 3 years did she disclose the fact that she was taking Mildronate’, reads its ruling – with one exception. Russia’s team doctor told her the mildronate was OK to use.

Sharapova told the Tribunal that she only disclosed her use of meldonium to him because he asked her what medication she was taking. No other doctor asked, she claims – a fact the Independent Tribunal found ‘hard to credit’.

Although Sharapova’s use of meldonium between 2006 and 31 December 2015 was not prohibited, the Tribunal found that ‘there is no document after 2010 in the player’s records which relates to her use of Mildronate’. The Tribunal appears to suggest that although Sharapova was not aware that Mildronate contained meldonium or that both were to be banned, she was concerned about alerting anti-doping authorities to her use of it. The suggestion appears to be that she knew she was on to a good thing and did not want to draw attention to it.

Penalty

Sharapova’s statement highlights that the ITF had sought a four-year ban, and attempted to prove that she had intentionally violated the anti-doping rules. It could not, however, but Sharapova failed to persuade the panel that she bore no significant fault or negligence for the above-mentioned reasons. The Tribunal was scathing in its verdict:

‘The player cannot prove that she exercised any degree of diligence, let alone utmost caution, to ensure that her ingestion of Mildronate did not constitute a contravention’, it reads. ‘To the contrary 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. Her conduct was serious in terms of her moral fault and significant in its causative effect on the contravention. If she had been open with the anti-doping authorities, her team or the doctors she consulted, then the probability is that she would have been warned of the change to the Prohibited List and avoided a contravention.’

Possibility of two appeals

The World Anti-Doping Agency (WADA) is considering whether to use its right to appeal to the CAS. It tends to appeal in cases where it thinks that the sanction imposed by an international federation is too lenient. WADA has been forced to backtrack to some degree over its addition of meldonium to the Prohibited List, by issuing a Guidance Notice on what concentrations of meldonium within which timeframes constitute an anti-doping rule violation (ADRV).

It may be keen to pursue a case which appears to fall within those guidelines. The ITF Tribunal’s ruling was keen to stress that Sharapova’s samples showed that meldonium was present in significant quantities, however this was in 2015, before meldonium was banned.

As previously mentioned, Sharapova is appealing the case at the CAS. Such an appeal will be difficult, as she has admitted taking a prohibited substance during the period it was banned, as well as not checking information sent to her about updates to the Prohibited List. She may be able to argue for a reduction in her ban, but she would need to convince the CAS panel that she had cleared the hurdle of proving ‘no significant fault’ which would be difficult, given the Tribunal’s evidence that she did not check for updates to the Prohibited List. However, she may be able to overturn the assumption made by the Tribunal that her concealment of her use of Mildronate was because she was taking it for performance-enhancing reasons.

She may also be able to convince the CAS panel that the tennis authorities failed to effectively communicate changes in the Prohibited List to players, however whether that will help her is subject to some debate. ‘Even if it had been established that the ITF has failed properly to publicise amendments to the Prohibited List, that could not mitigate the fault of the player’, reads the Tribunal’s ruling.

She may also be able to argue that the ‘independent’ ITF tribunal was not independent. ‘The tribunal, whose members were selected by the ITF, agreed that I did not do anything intentionally wrong’, she says in her statement. However, she must convince the CAS, whose Arbitrators are also chosen by sport. Yesterday, the German federal court of justice (Bundesgerichtshof) rejected the argument that the CAS is biased as part of the Claudia Pechstein case, resulting in a bullish response from the CAS. Either way, Russia’s decision to name her in its Olympic team seems a little premature, and Wimbledon appears to be off the cards as well.

Further Facts

• As Sharapova promptly admitted the charge, suspension is backdated to 26 January 2016. Sharapova will be suspended until 27 January 2018.
• The ITF didn’t know players had tested positive for meldonium in 2015 – the Tribunal found it only had that information in March 2016.
• Sharapova failed to read or consult ITF wallet cards with information that meldonium had been added to the Prohibited List.
• ITF emails failed to warn players that meldonium had been added to the List.

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