- DRUGS – STRICT LIABILITY OR FLEXIBLE?

On the 4^th October 2016, the Court of Arbitration for Sports (CAS) reduced a ban imposed by the International Tennis Federation (ITF) from 2 years to 15 months. Was this right? Why did CAS reduce the sentence and effectively give guidance for cases of ‘doping’ where there is a strict liability test? Yasin Patel investigates.

The Background

On the 1^st January 2016, the World Anti-Doping Agency (WADA) added Meldonium (referred more widely as Mildronate) to their list of prohibited substances. Sharapova participated in the Australian Open later in the same month and in March of the same year, Sharapova was informed that a sample that she provided at the competition had tested positive for Meldronium – a substance which is legal in Russia and some Eastern European countries, but not in the USA or EU.

The Facts

In March, Sharapova admitted that she took Mildronate, but stated it was for medicinal reasons. She denied any knowledge that the drug was on the ‘prohibited’ substance list.

Sharapova had told her Manager, Max Eisenbud that she was using the substance. She had not informed the authorities nor her own team. It also emerged that she had discontinued using a range of other medication that she had been prescribed at the same time as Mildronate.

The ITF Tribunal Decision

The ITF Tribunal considered Sharapova’s case in accordance with the Tennis Anti-Doping Programme (TADP). This imposes upon every player strict rules that are to be adhered to and followed. The following Articles of the TADP are relevant to his case:

1. Article 2.1.1 imposes strict liability on each player. It is his or her “personal duty to ensure that no Prohibited Substance enters his/her body.”
2. Article 1.12.1 states that it is the “sole responsibility of each player to acquaint him/herself, and to ensure that each person from whom he/she takes advice (including medical personnel) is acquainted, with all the requirements of the Programme”.
3. Article 1.12.2 requires that “the player is also solely responsible for knowing what constitutes an anti-doping violation and what substances are prohibited” and for ensuring that anything.
4. Article 1.12.3 states that anything, ingested does not give rise to a violation
5. Article 1.15 imposes additional obligations on “Player Support Personnel” to those of the player.
6. Article 3.1.2 requires that “each player and each Player Support Personnel” is to be familiar with the Prohibited List.

Sharapova explained to the Tribunal the reasons for her usage of Mildronate. She said that she had asked her Manager to check the validity and status of Mildronate: it was for this reason that she was still using it. If she had known it had recently been added to the prohibited list, she would have stopped using it. The Tribunal rejected the explanation and a finding of ‘no significant fault’ (NSF) against Sharapova and stated as follows:

“(…) the manner in which the medication was taken, its concealment from the anti-doping authorities, failure to disclose it even to her own team, and the lack of any medical justification must inevitably lead to the conclusion that she took Mildronate for the purpose of enhancing her performance.”

In relation to Mr. Eisenbud, the Tribunal stated that Sharapova,

(…) had no reasonable basis for considering that Mr. Eisenbud had the expertise or qualifications to give advice on whether particular medicines were covered by the Prohibited List”.

The ITF stressed that Sharapova failed to disclose her use of Mildronate on 7 doping control forms that either she had completed or had completed by someone on her behalf.

It was also noted that she admitted she had made no attempt to check the list of prohibited substances herself, despite her continuing duty to do so.

The decision of the ITF Panel recognised the importance of disclosing even non-prohibited substances since these can mask banned drugs. Sharapova had not done this either.

After hearing the evidence and the mitigation on Sharapova’s behalf, the ITF suspended Sharapova for two years and had her results at the 2016 Australian Open disqualified.

CAS

Sharapova filed an appeal with CAS against the ITF’s decision arguing that she did not take the banned substance to enhance her performance and that her period of ineligibility should be reduced on the basis of NSF. ‘

The CAS found the ITF decision was unduly harsh and inaccurately failed to measure her ‘degree of fault.’ They made a finding of NSF and reduced her ban from 2 years to 15 months.

The CAS Panel went to great lengths to point out that Sharapova was not an ‘intentional cheater’ but rather an athlete who unknowingly ingested a banned substance. The Panel took the view that the ‘bar’ should not be set so high for a finding of NSF. Athletes are allowed to delegate their regulatory obligations but any mistakes are still liable to the athlete although this will not aggravate the sanction. Athletes will only be punished for their negligence or fault in,

1. To whom they have selected to delegate powers;
2. Failing to have control or oversight, and
3. Failing to check the items they take.

The CAS held that,

“checking a substance against the Prohibited List is not an action for which specific anti-doping training is required”.

With this finding, the CAS came to the conclusion that Mr. Eisenbud was suitable even though he was neither a qualified medical practitioner or one with anti-doping training.

The CAS has therefore found that while the actions of an agent are not taken into consideration for the purpose of determining the player’s sanction, they are still objectively imputed to him or her for liability. This is not the first case that CAS has tried to reconcile sole responsibility provisions with delegation powers.

Some of CAS’s findings were at direct loggerheads to those of the ITF: there were a number of contradictions:

1. the judgment from the first tier tribunal stated that Sharapova had only told her Manager about the Mildronate: before CAS it was suggested that many of her support staff knew about its use.
2. The ITF rejected the notion that Mr. Eisenbud would not have checked the status of Mildronate when asked: thus they rejected his evidence. That was not the case with CAS.
3. Whereas the ITF found that Sharapova’s reliance upon her Mr. Eisenbud could not be justified particularly as he had no qualifications in anti-doping, the CAS came to the view that Sharapova had no qualifications either and it was not really necessary when it came to the question of substantiating whether a drug was prohibited or not.

The largest difference between the two was on the question of the NSF test. ‘Truly exceptional’ is the test for when an athlete ought to be able to rely upon NSF. CAS accepted that Sharapova had not given Mr. Eisenbud specific instructions and nor had there been any form of feedback from him about the prohibited substance. However, one has to remember, this was her Manager, and not just any person who was inferior to her:

CAS also considered the other significant factors in Sharapova’s case and weighed these in her favour. Ultimately, as important matters that should have been considered by the ITF. She had been taking Meldonium for over 10 years for medical purposes and at no stage was she informed that it had become a prohibited substance.

The Sharapova decision by CAS has drawn many comments and observations. Many believed that she was dealt with leniently due to her ‘superstar’ status and image. That the ITF had acted correctly in imposing a ban of 2 years and not finding a NSF factor in her favour. However, CAS justified its reasons for reducing the ban. It considered all factors and most importantly, it reminded the governing bodies that if they change the rules, prohibited substance list etc., then there is a duty to inform and educate the athlete. Most importantly, that athletes are human beings and do make mistakes and each case and its circumstances should be looked at individually with there being flexibility in their consideration of the evidence.