Five-time Grand Slam tennis champion Maria Sharapova will return to the tennis court in 2017.

Sharapova, one of ten women to complete the Grand Slam, had her two-year suspension by the International Tennis Federation reduced to fifteen months by the Court of Arbitration for Sport (CAS) on Tuesday. The starting date of ineligibility remains January 26, which allows her to return in late April 2017.

Sharapova’s ban resulted from a drug test after the Australian Open that detected Meldonium in her “A” sample. The World Anti-Doping Agency (WADA) only added Meldonium to its list of prohibited substance as of January 1, 2016. After the adverse analytical finding (AAF), Sharapova waived her right to have her “B” sample tested and admitted the presence of the drug.

Sharapova claimed at the time she received the drug Mildronate, which contains Meldonium, from a trusted doctor to treat several medical conditions. Sharapova added that she never intended to cheat and was unaware of its ban by WADA.the-court-of-arbitration-for-sport-statement

Sharapova accepted she had some degree of fault and did not present the defense of No Fault. Rather, the CAS panel undertook a de novo review and looked at two questions in the Sharapova appeal:

  • What is the Player’s level of fault and more specifically, did the Player commit the (Anti-Doping Rule Violation) ADRV with (No Significant Fault) NSF?
  • If so, what is the proper sanction?

In addressing the two issues, the court turned to Article 10.5.2 of the Tennis Anti-Doping Programme (TADP), which provides for a reduction of the suspension period for an athlete when:

  • The athlete must establish how the prohibited substance entered his or her system; and
  • The athlete must establish that he or she bears “No Significant Fault or
    Negligence”

The parties agreed that Sharapova satisfied the first condition through her use of Mildronate.

As for the second condition, the Court found a period of ineligibility may be reduced through No Significant Fault only when there are circumstances justifying a deviation of exercising “utmost caution.” Yet, this does not automatically rise to a level of no stone unturned. The court notes that while care should be taken by athletes in what they ingest, an athlete cannot reasonably be expected to follow the steps under every circumstance. Not recognizing that would render the No Significant Fault provision under the World Anti-Doping Code meaningless.

The Court noted that if a player chooses an unqualified person and then fails to properly instruct them on the procedures required for a drug test, the fault lies in athlete for making that decision and not taking the affirmative duty to ensure they stay clean.

In this context, the Court found Sharapova’s fault as not significant. Sharapova assigned Max Eisenbud the responsibility for handling anti-doping matters. She failed to tell Eisenbud to check whether Mildronate was a name brand or an ingredient in the product. Additionally, she failed to instruct him on how to check for ingredients on the prohibited list nor established any procedures to supervise and control Eisenbud or verification of his duty. The Court said the circumstances showed Sharapova had some fault but did not exclude the possibility of No Significant Fault.

On the other hand, the Court also noted that Sharpova had a “reduced perception of the risk she was incurring while using Mildronate,” and the risk was justified because there was no specific warning issued by either WADA, the ITF or the Women’s Tennis Association (WTA) as to the status change of Meldonium. It should have taken reasonable steps to provide advanced notice to athletes of significant changes to the prohibited list.

This case noted several previous CAS decisions, including WADA v. USADA, USBAF & Lund as well as ITF v. Cilic, in ultimately coming to its decision.


WADA v. USADA, USBAF & Lund

In Lund, a member of the U.S. skeleton team tested positive for an inhibitor that was added to the WADA Prohibited List earlier that year. The athlete disclosed his use of the inhibitor on the Doping Control Form but it was not picked up by any anti-doping agency until after his failed test later in the year.

The panel sympathized with Lund’s situation and noted that some agency should have noted the discrepancy and alerted Lund. However, the panel found that Lund could not escape liability and handed down a twelve-month sentence.

The Court distinguished Lund from Sharapova case as she did not disclose her use of Mildronate on any anti-doping forms.

ITF v. Cilic

In Cilic, Croatian tennis player Marin Cilic competed in an event and noticed he was low on glucose powder, which he used for recovery. His mother picked out a package that contained “nicethamide”, but he failed to check the package’s ingredients for “Nicotinamide.” Instead, he relied on his mother’s words from the pharmacist, who said it was safe for tennis players to use.

The Court noted the steps an athlete may take in preventing an inadvertent failed drug test:

  • read the label of the product used (or otherwise ascertain the ingredients);
  • Cross-check all the ingredients on the label with the list of prohibited substances;
  • Make an internet search of the product;
  • Ensure the product is reliably sourced; and
  • Consult appropriate experts in these matters and instruct them diligently before consuming the product.

However, the Court stated an athlete cannot reasonably be expected to follow all such steps in each and every circumstance. Any other finding renders the No Significant Fault provision meaningless. In light of that test, Cilic had his eight-month ban reduced by half to four months.

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Sources

  1. ITF v. Sharapova, No. 2016/A/4643 (CAS Arb. 2016), http://www.tas-cas.org/fileadmin/user_upload/Award_4643__FINAL__internet.pdf.
  2. See Tennis Anti-Doping Programme, Int’l Tennis Fed art. 10.5.2 (2016) http://www.itftennis.com/media/224382/224382.pdf.
  3. See WADA v. USADA, USBSF and Lund, award of 10 February 2006, CAS OG 06/001, http://jurisprudence.tas-cas.org/Shared%20Documents/3327,%203335.pdf.
  4. See ITF v. Cilic, award of 11 April 2014, CAS 2013/A/3327, http://jurisprudence.tas-cas.org/Shared%20Documents/OG%2006-001.pdf.
  5. See FINA v. Kreuzmann, award of 18 January 2006, CAS 2005/A/921.
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