CAS and Maria Sharapova: Delegating anti-doping duties

Today, the Court of Arbitration for Sport (CAS) published their judgement in the Maria Sharapova anti-doping case which saw the original two year ban, for the use of meldonium, reduced to 15 months. This means that Sharapova can get back to playing tennis, competitively, as early as April 2017.

In March 2016, the ITF informed Sharapova that she had tested positive for the drug, meldonium. A press conference was later arranged by Sharapova where she announced that she had inadvertently committed an anti-doping rule violation as a consequence of taking meldonium which had been prescribed by a doctor for several years. Both herself and her team had failed to realise that the drug had been added to the prohibited list. In June 2016, the ITF appointed an independent panel who heard Sharapova's case. They held that she had violated an anti-doping rule violation, disqualified her results at the Australian Open (2016) and banned Sharapova for two years. Sharapova lodged an appeal, against the tribunal's decision, at the CAS. 

Sharapova's case was based on the following:-

(1) The drug was not taken to enhance performance nor was there any evidence of performance 

      enhancement attached to the drug;

(2) She had relied on her agent to check the anti-doping prohibited list;

(3) Given the above, there was no intention to cheat and the infringement was inadvertent - therefore 

      there was 'no significant fault'.

Sharapova asked the CAS to reduce the period of ineligibility as a result of the above facts, whilst the International Tennis Federation (ITF) asked the CAS to reject Sharapova's arguments and uphold the original sanction. 

In coming to their decision, CAS looked at the degree of fault and whether Sharapova was reasonable in delegating her anti-doping obligations to her agent. The CAS panel held that such delegation was reasonable. However, Sharapova, could not be completely innocent as she failed to supervise the agent who was supposed to be ensuring that all banned substances were not being used. She failed to control the actions of her agent or provide adequate instructions in relation to how those anti-doping tasks should be carried out. Given that, CAS ruled that there was "some degree of fault" but that fault could not be said to be "significant." Effectively, the CAS recognised that an anti doping violation had been committed but it was unintentional and not "significant" and that thus earned Sharapova a reduction in the ban from 2 years to 15 months. Further, the CAS held that WADA and the ITF also failed to adequately communicate the withdrawal of approval for meldonium.  

In determining the degree of fault, in anti-doping cases, you must apply the facts of each case as well as subjective tests. Each case will vary and turn on their own merits but mitigating any fault by showing that the athlete had or attempted to take all reasonable steps to avoid violation, is the main route to pursue a reduction in ineligibility sanctions. 

This decision has caused quite some controversy, no more so because it is effectively allowing delegation of an athlete's anti-doping duties to a third party when strict liability and the WADA code (or at least my previous understanding of the code), disallows such delegation. My interpretation of this latest CAS judgement is that a third party can be instructed to take on such tasks but this must be monitored, at all times, so ultimately, the athlete still bears the responsibility. That responsibility will be taken into account, for any anti-doping violations, when apportioning blame and determining any sanctions.

"The panel found that Ms Sharapova committed an anti-doping rule violation and that while it was with "no significant fault", she bore some degree of fault, for which a sanction of fifteen months is appropriate. The panel wishes to point out that the case it heard, and the award it has rendered, was only about the degree of fault that can be imputed to the player for her failure to make sure that the substance contained in a product that she had been taking over a long period remained in compliance with the anti-doping rules"

IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.