CAS Award: CAS 2016/A/4643, Maria Sharapova v. ITF, 30 September 2016.

This Court of Arbitration for Sport (“CAS”) award puts (at least for the moment)[1] an end to Maria Sharapova (or the “Player”)’s doping ordeal stemming from her admitted Use of Meldonium, a substance added to WADA’s Prohibited List less than a month before she tested positive at the 2016 edition of the Australian Open (the “Sharapova CAS Award”). In essence, the CAS partially upheld the appeal brought by the Player against decision of the ITF Tribunal (the “Sharapova ITF Decision”)[2] and reduced the original two-year ban to 15 months. This award raises more questions than it answers, in particular with respect to (i) the evaluation of an Athlete’s fault in cases in which an Athlete’s anti-doping obligations were delegated to a third party who did not prove up to the task; and (ii) the scope of Anti-Doping Organization’s responsibility in notifying Athletes of changes made to the Prohibited List in circumstances where there were reasons to suspect widespread Use of the substance.

These issues are far from being straightforward. In the following Comment, we will discuss the way in which the CAS panel addressed them. We will show that the CAS panel’s approach is not entirely convincing and will compare this approach to that adopted by the ITF Tribunal in the initial decision, in particular from a Swiss law perspective. Our goal is to bring light to the reasons that led the ITF and CAS panels to reach such different conclusions, and assess what lessons future hearing panels and the anti-doping community should take from these diverging decisions.

I.         CAS Award[3]

A.         Facts

1.          The anti-doping rule violation

On 26 January 2016, a urine Sample taken from the Player during the Australian Open revealed the presence of Meldonium at a concentration of 120 µg/L.[4] This positive Sample was taken less than a month after the substance had been added to the Prohibited List on 1 January 2016.[5] A matter of days after she was notified of her Adverse Analytical Finding, the Athlete admitted at a press conference that she had inadvertently committed an anti-doping rule violation by ingesting Mildronate, a medication she had been taking for over 10 years.[6]

Meldonium – or Mildronate – was one component of a “nutritional regime” consisting of around 18 medications and supplements prescribed to the Player in 2005.[7] The Player left her doctor’s care in early 2013, but continued to take three components of the prescribed regime, including Mildronate.[8] According to a statement made by the Player, after she left, she entrusted her manager with all of her anti-doping issues, an action she viewed as natural in light of all of the other activities he was performing in her favour.[9] In particular, her manager’s agency managed both her whereabouts information and applications for Therapeutic Use Exemptions (“TUEs”).[10] Both the Player and the manager acknowledged in their statements that the manager did not have any anti-doping training,[11] and the manager acknowledged that he had no particular medical or scientific expertise.[12] Neither the Player nor her manager was aware that “Mildronate” was only a brand name, and not a substance.[13]

The Player also conceded that she did not disclose her use of Mildronate on any doping control forms, but emphasized this was not in an attempt to hide her use of Meldonium, rather a misunderstanding of the scope of declaration she was expected to make.[14]

2.          Addition of Meldonium to the Prohibited List

In a statement filed before the ITF Tribunal, a senior executive director at the ITF described the steps that the ITF took to inform players of the modifications made to the Prohibited List. These steps included informing players through the ITF website, wallet cards, emails, and a hotline.[15] He described the steps taken by the ITF to notify players as reasonable, acknowledging at the same time that the concept of “reasonable” depends on the level of information about a particular substance’s usage. He cited the substance “DMBA” as an example, contrasting this with Meldonium, about which the ITF had no specific information on its usage among athletes.[16] With respect to the distribution of the wallet cards, the senior executive director confirmed that the ITF did not have a particular procedure in place to follow up to see whether the wallet cards were properly distributed. He also confirmed that the email sent to players did not directly highlight changes to the Prohibited List with respect to Meldonium.[17]

WADA’s science director explained the procedure that WADA followed to add Meldonium to the Prohibited List. In particular, he confirmed that substances are typically included on the list by their “International Nonproprietary Names (INN)” or “generic names” as opposed to their “brand names.” In the case of Meldonium, the brand name “Mildronate” was also included in WADA’s Summary of Major Modifications published with the 2016 Prohibited List, since WADA viewed it as useful in light of the prevalence of Meldonium Use among Athletes.[18]

3.          The proceeding

The ITF Tribunal held that the violation at hand was committed with “very significant fault” on the part of the Player.[19] While it held that the violation was not intentional, the ITF Tribunal did not see any basis on which it could reach a finding of No Significant Fault or Negligence that would allow for a reduction of a period of Ineligibility to below two years.[20]

Maria Sharapova filed her statement of appeal with the CAS against the decision issued by the ITF Tribunal on 9 June 2016.[21] A hearing was held on 7-8 September 2016.[22]

B.         The merits of the dispute

The CAS panel’s analysis is divided in two parts: Whether the Player committed an anti-doping rule violation with No Significant Fault or Negligence (1.), and if so, the proper length of her sanction within the available 12 to 24 month range (2.).[23] The CAS panel also considered and rejected the Player’s plea that the principle of proportionality called for a shorter period of Ineligibility (3.).

The CAS panel, unlike the ITF Tribunal, did not consider the Player’s fault to be significant. Before reaching this conclusion, the CAS panel made three key preliminary remarks about the nature of the analysis. First, it distanced itself from the reasoning undertaken in past CAS award by noting that no doctrine of binding precedence applies to CAS jurisprudence. Second, it emphasized that the answer to the question of whether an Athlete’s fault is significant is very fact-specific, and must be viewed in the totality of the circumstance.[24] Third, it commented that while a finding of No Significant Fault or Negligence can be reached only in truly exceptional circumstances, the bar must not be set too high, a remark it made out of concern that an overly restrictive approach “would render the NSF provision in the WADC meaningless”.[25]

The CAS panel analysed the significance of the Player’s fault in three steps: First, the Player’s choice to delegate elements of her anti-doping obligations; second, the factors relevant to the Player’s perception of the risk she was incurring by using Mildronate; and third, other factors relevant to the significance of her fault.

As a preliminary matter, the CAS panel accepted that nothing prevented the Player from delegating activities to third parties with the aim to ensure that she did not commit an anti-doping rule violation.[26] In the event of a “misdeed” on the part of the third party, the CAS panel considered that the Player’s own fault should be tied to the reasonableness of her choice in delegate rather than the fault of the delegate.[27] More specifically, it applied the following three-prong test, agreed upon by the parties and inspired by the Al Nahyan CAS award.[28]

“a player who delegates his/her anti-doping responsibilities to another is at fault if he/she chooses an unqualified person as her delegate, if he/she fails to instruct him properly or set out clear procedures he/she must follow in carrying out his task, and/or if he/she fails to exercise supervision and control over him/her in the carrying out of the task.”[29]

In applying the test, the CAS panel considered made the following remarks about each of the three prongs:

• Choice of delegate: The CAS panel found the Player’s choice in delegate to be reasonable, based on three main considerations. First, in spite of the TADP’s reference to the “personal duty” of the Player with respect to fulfilling her anti-doping obligations, nothing prevented her from delegating activities aimed at ensuring regulatory compliance and more specifically at ensuring that no anti-doping rule violation is committed” to a third party.[30] Second, her Manager and his company were already charged with fulfilling other anti-doping obligations on behalf of the Player.[31] Third, her manager was sufficiently qualified, since no particular medical or scientific expertise is required to check a substance against the Prohibited List, which is evident since Athletes themselves are expected to be able to personally fulfil this obligation.[32]
• Instructions given to the delegate: In essence, the CAS panel held that the Player gave her manager no instructions as to how to carry out the delegated duties, instead, “[s]he simply passed the matter over to Mr Eisenbud, completely relying on him”.[33]
• Extent of her supervision: Likewise, the Player completely failed to “establish any procedure to supervise and control” her manager in the exercise of the delegated duties.[34]

The CAS panel then presented the factors that in its view led it to conclude that the Player justifiably held a “reduced perception of the risk she was incurring while using Mildronate”,[35] which included the following:

• Length of unproblematic Use of Mildronate: The Player had used Mildronate for 10 years without any anti-doping issues, “as confirmed by the certificates of anti-doping compliance obtained” and “the lack of any positive result returned by the numerous anti-doping tests” that the Player submitted to after leaving Dr. Skalny’s care.[36]
• Lack of performance enhancing intent: The Player was prescribed Mildronate not “for the purposes of obtaining any performance enhancing product, but for medical reasons”.[37] Unlike the ITF Tribunal, the CAS panel was not of the view that leaving the care of Dr. Skalny had any impact on the Player’s perception of Mildronate.[38]
• Anti-Doping Organizations’ failure to warn: The CAS panel found that none of the “relevant” organizations (i.e. WADA, ITF, or WTA) specifically notified players that Meldonium was added to the Prohibited List,[39] and noted that “anti-doping organizations should have to take reasonable steps to provide notice to athletes of significant changes to the Prohibited List, such as the addition of a substance, including its brand names” and expressed concern that the ITF’s notification focused on procedural changes to the TADP, leaving out the addition of new substances to the Prohibited List.

Finally, the CAS panel highlighted the following other factors it considered in its analysis:

• Lack of publicized cases about Meldonium. At the point when the Player returned her positive test, no other cases based on Meldonium were “significantly publicized.”[40]
• Openness and honesty of the Player. The CAS panel noted the very public manner in which the Player – on her own volition – admitted her Use of Mildronate, which led to worldwide attention on her case and the use of Meldonium.[41]
• No weight to a rejected TUE. The CAS panel rejected the ITF’s argument that a longer sanction was justified based on the fact that her request for a TUE for the Use of Meldonium was refused.[42]

According to the CAS panel, in light of the totality of the circumstances, the Player’s violation was committed with No Significant Fault or Negligence.

1.          Length of the sanction

The CAS panel declared it had considered both the “precedents,” and the “framework review of these cases provided by the Cilic case (incorporated under the 2015 WADC in [CAS] 2016/A/4371 Lea v. USADA),” before considering that the Player’s degree of Fault corresponded to a period of Ineligibility of fifteen months, referencing specifically only two factors.

First, the CAS panel set forth that the “relevant measure of fault” was the Player’s reasonableness in selecting her management agency to assist her in discharging her anti-doping obligations, on which it observed that it had already considered the decision reasonable. It was in her failure to monitor and supervise the ‘delegee’ that she fell short. In this respect the CAS panel observed that it “cannot be consistent with the relevant precedents and the WADC” to accept that an Athlete can simply delegate his or her duties to a third party without providing instructions, monitoring or supervising that third party, indeed, such a stance “would render meaningless the obligation of an athlete to avoid doping.”[43] Second, it noted that the Player had failed to disclose her use of Mildronate on her Doping Control Forms, which it observed was a factor that “weighed heavily in the mind of the CAS panel in Lund for the Panel to reach its conclusion of one year.”[44] In light of these two factors, and under the totality of the circumstances, the CAS panel considered that the degree of the Player’s fault was commensurate with a 15-month period of Ineligibility.[45]

2.          Proportionality

The CAS panel found no basis on which to apply the principle of proportionality in this case, for three reasons.[46] First, the method of sanctioning set forth in the WADC (as incorporated in the TADP) has been repeatedly confirmed to be proportional. Second, the “question of fault is built into its analysis of length of sanctions.”[47] Third, the Player cited no case to justify a further reduction of the Player’s sanction.[48]

In closing, the CAS panel emphasized two points. First, that it did not agree with many of the conclusions reached by the ITF Tribunal. In particular, the CAS panel, unlike the ITF Tribunal, did not find that the Player tried to “mask or hide” her use of Mildronate, that her (long-term) Use of Mildronate was undertaken in good faith, and she was not “clearly informed” of the change in the rules.[49] Second, according to the panel, this was not a case of a “cheating” athlete, rather under the circumstances of the case, in no way could the Player be considered an “intentional doper.”[50]

II.         Comment

The CAS award in the Sharapova matter was rendered in a turbulent context. The inclusion of Meldonium onto the Prohibited List 2016 by WADA, and its management of the unusually high number of positive cases in early 2016, especially from Eastern European countries, had been widely criticized in the media. During the period in which the Player’s case was being heard, anti-doping authorities were facing dilemmas over the ban of Russian athletes from the Rio Olympic and Paralympic Games after reports of endemic, state-supported doping practices.

When Maria Sharapova brought her case before the CAS, she was to serve a two-year Ineligibility imposed by the ITF Tribunal in a ruling accepting that there had been no intentional doping on her part, but refusing to grant her the benefit of No Significant Fault or Negligence, based on clearly expressed and openly moralistic reproaches.[51] Despite the fact that the way in which the ITF Tribunal depicted the Player’s conduct might well have justified a ruling of intentional doping, neither the ITF nor WADA chose to appeal the ITF Tribunal’s decision. It was thus clear from the outset that the entire case would revolve around the degree of Maria Sharapova’s Fault, or, more precisely, her negligence in dealing with her anti-doping duties. It was also clear that part of her defence would be to denounce the shortcomings on part of the anti-doping authorities in handling the prohibition of Meldonium.

Our comment focuses on those two central aspects of the Sharapova CAS award: The evaluation of an Athlete’s Fault when entrusting their anti-doping duties to third parties (A.); and the duty on Anti-Doping Organizations to inform Athletes of changes to the Prohibited List (B.). We close by reflecting on whether the context in which the Sharapova CAS award was issued might have influenced the results of this case (C.).

A.         Fault in case of delegation of anti-doping obligations to a third party

There are two elements to consider when an Athlete or other Person engages a third party to assist in discharging his or her anti-doping duties: whether the party is authorized to entrust that third party with performing its duties in the first place (1.), and, second, how to assess the situation in which the third party improperly performs the delegated duties (2.).

1.          Delegation of anti-doping duties

The Sharapova CAS panel started its analysis by noting that “nothing prevented the Player, a high-level athlete focused on demanding sporting activities all over the world, from delegating activities aimed at ensuring regulatory compliance and more specifically that no anti-doping violation is committed”.[52]

How to evaluate fault in cases involving the failures of third parties has always been a challenge in anti-doping. On one hand, the WADC places the ultimate personal responsibility on Athletes for complying with their anti-doping duties. On the other hand, the reality of elite sports dictates that Athletes will often be dependent on their support staff to meet these duties. The staff may include doctors, coaches, or – as in the Player’s case – managers. Even more to the point, one could certainly see how an Athlete faced with the task of determining whether a medication contains any of the numerous substances identified on the Prohibited List by their chemical name, or otherwise qualifies as a ‘similar’ substance, would perceive seeking the assistance of a third party – in particular to a more knowledgeable person – as a more reliable way to discharge his or her obligation to avoid consuming a Prohibited Substance.

The statement whereby “nothing prevented” an Athlete from delegating certain aspects of his or her anti-doping duties must therefore be read in its proper context. Under the WADC regime, Athletes execute a contract (or quasi-contract) with an Anti-Doping Organization (the ITF in Maria Sharapova’s case) – to act in accordance with applicable anti-doping regulations (for tennis the TADP). Among the obligations undertaken is a “personal duty to ensure that no Prohibited Substance enters his or her body,” (Article 2.1.1) as well as a more general responsibility under the TADP “to be familiar with the most current version of the Prohibited List” (Article 3.1.2 in fine). This does not mean that an Athlete breaches his or her obligations towards the Anti-Doping Organization if they entrust their support staff with certain tasks to fulfil this personal duty. However, even if admissible, this delegation of a task does not amount to a discharge of responsibility for the Athlete.

A parallel can be drawn here with the whereabouts requirements that rest on the Athletes included in a Registered Testing Pool. The International Standard for Testing and Investigations (“ISTI”) explicitly states that Athletes are authorized to entrust third parties with their whereabouts filings.[53] However, the ISTI also makes it clear that whatever organization Athletes choose does not relieve them from their responsibility in case these duties are not correctly performed.[54]

The finding in the Sharapova award must thus be read specifically within the context of an Athlete’s pursuit of regulatory compliance,[55] in particular to ensure that no substance or method used is on the Prohibited List. Such finding cannot be generalized to all anti-doping duties of an Athlete. As an obvious example, the duty to be available for Testing at any time and the duty to submit to Sample collection if requested to do so by nature can only be performed by the Athlete personally.[56] As far as regulatory compliance monitoring is concerned, by contrast, there is no interest of the Anti-Doping Organizations that an Athlete performs these personally. Quite to the contrary, given the technical nature of some of these regulatory activities, Athletes can be encouraged to seek assistance to avoid inadvertent doping, for example by using the advice of qualified health professionals.

2.          The Sharapova solution to evaluating the fault in cases of third party failures

Once it is accepted that an Athlete may engage a third party to assist in discharging his or her anti-doping duties, the next question is how to evaluate the Athlete’s Fault to determine the appropriate sanction when the third party failed to perform correctly, thereby causing – or contributing to causing – an anti-doping rule violation.

There are two possible approaches to this question: either the Athlete is held responsible for shortcomings in the manner in which the delegation was made, or the Athlete is held responsible for the manner in which the third party (mis-)performed. In the first approach, the scrutiny is on the Athlete’s conduct to assess whether the Athlete can be blamed for being careless in the delegation, whereas in the second approach one considers the acts of the third party and evaluates whether the Athlete would have been at fault if he or she had acted like the third party did. This second approach is often characterized as ‘imputing’ the conduct (or fault) of the delegee to the delegator.

In the Sharapova matter, the CAS panel opted for the first approach, explicitly insisting that only the “objective fact of the third party’s misdeed is imputed to the Athlete”, in other words: the Athlete cannot escape the finding of an anti-doping rule violation and any automatic Disqualification. By contrast, when setting the sanction the Panel held that “the fault to be assessed is not that which is made by the delegate, but the fault made by the [delegating] athlete in his/her choice”. The CAS panel concretizes this approach by reference to a three-pronged test according to which of the Player’s fault must be evaluated with respect to the reasonableness of (i) the choice, (ii) the oversight, and (iii) the instructions (also known as cura in eligendo, in custodiendo, and in instruendo).

The way in which the Sharapova CAS panel applied the proposed test to the matter in dispute is unconvincing. Indeed, with respect to two of these limbs: oversight and instruction, the CAS panel could not help but note that the Player failed to make any effort whatsoever, let alone a reasonable effort. With respect to the third, the CAS panel held that the Player made a reasonable choice, since her choice of a delegate was “sufficiently qualified” to check the contents of the Prohibited List.[57] In sum, the Player wholly failed to meet two limbs of the test. For the third, while the choice was deemed “reasonable” there is no indication that it reflected the high standards of diligence Athletes are expected to meet in fulfilling their anti-doping obligations. Thus, the CAS panel’s conclusion that the Player’s fault was not significant, and more so that it fell on the rather ‘light’ side of the spectrum,[58] can hardly be based on a (proper) application of the ‘delegation test’ alone and needs to be put in perspective with other ‘additional’ factors evoked by the panel, i.e. the management of the Meldonium inclusion by the anti-doping authorities (see below).

Beyond the arguably generous application of the test in the matter in dispute and the fact that delegating a task that can be technically challenging (as the facts of the matter show) to a person who does not have any particular skill is fundamentally inconsistent with the idea that delegation should be aimed at ensuring that no substance or method used is on the Prohibited List, it is submitted that the ‘delegation test’ identified by the panel is itself problematic.

First, the legal support for the test is far from being straightforward, both as a matter of state law and under the WADC. In Swiss law, for example, the cura in eligendo cura in instruendo and cura in custodiendo test only applies in tort law to define to the employer’s liability for damage unlawfully caused by his or her employees to third parties.[59] It is difficult to justify an analogy with the situation of an Athlete who breaches his or her duty to an Anti-Doping Organization by acts of a third party entrusted to carry out activities in support of this duty. A better fitting parallel could be found in the context of Swiss contract law, designed for cases in which a party chooses to perform his or her contractual obligations by using an ‘agent’ (“auxiliaire”). In this case, the conduct of the agent is imputed to the party as if the party had acted in that manner himself.[60]

There is equally no parallel for the test in the cases where the delegation is explicitly regulated in the WADC regime, e.g. the delegation in connection with whereabouts requirements. In this case the International Standard for Testing and Investigations make it clear that an Athlete remains responsible for any third party’s failure, by stating that it is not a defence against a Failing Failure or Missed Test that the Athlete entrusted another party with his or her whereabouts duties. Within the system of the Whereabouts Failures, this means that, in the same way as Swiss law recognises contractual liability for an auxiliaire, the Athlete is deemed negligent as if he or she had filed the information him- or herself.

In substance, both Swiss law and the rules of the WADC on comparable issues thus plead for using the ‘imputation’-test, as opposed to the ‘three curae’-test applied by the CAS panel in Sharapova. The CAS panel gave no justification for choosing the ‘three curae-test’ over the ‘imputation-test’, apart from relying on the parties’ agreement at the hearing.

The award referenced by the CAS panel as having inaugurated the ‘three curae-test’ within the context of anti-doping does not in our view offer a suitable analogy either.[61] The test was applied in a case of equine doping, to assess the fault of the so-called “Person Responsible” for the horse, i.e. the rider. The equine anti-doping rules adopted by the Fédération équestre internationale (“FEI”) are inspired from and generally consistent with the WADC, but they do not necessarily exactly mirror the WADC rules.[62] Thus, the concept of the ‘Person Responsible’ had to be created to account for the fact that the creature upon which the Strict Liability principle would normally apply when Presence of a Prohibited Substance is reported in a Sample – i.e. the horse – can obviously not be held responsible for what enters its body. It is understood in the context of equine anti-doping that the ‘Person Responsible’ is at times a rider who has no actual control over the horse’s care – e.g. because the rider is not the horse owner and only uses the horse for a competition.[63] This type of situation may justify considering that the measure of the Person Responsible’s fault be assessed based on his or her diligence in delegating the care for the horse, rather than to simply impute the fault of those who had genuine control of the horse. The same considerations are clearly inapplicable to human Athletes, but the CAS panel did not seem to have appreciated the difference.

It is also questionable whether the panel fully considered the potential implications of declaring the ‘three curae-test’ applicable in anti-doping for human Athletes. Taken at its word, the practical effects of the CAS panel approach in Sharapova would provide a pathway for Athletes to circumvent the basic tenet personal responsibility for an anti-doping rule violation by finding a willing, and ostensibly reasonable, delegee. Moreover, one can see the potential for abuse going beyond the circumstances in the Sharapova case, to aspects such as TUEs and supplements. If Athletes are not held responsible for the actions of their support staff, it is difficult to see what would stop unscrupulous Athletes from hiding behind a doctor or coach that agreed to “cover” for them.[64]

In our view, the standard of care ought to be exactly the same whether the Athlete decides to be in charge of his or her own verifications, or entrusts a third party with such verifications. When Athletes take care personally of their medication scheme compliance, CAS panels in the past have refused to grant a finding of No Significant Fault or Negligence finding if the Athlete was a professional and was not proactive in ensuring that the medication contained no Prohibited Substance, and this even if the medication was prescribed by his or her doctor.[65] By contrast, under the ‘three curae-test’ chosen in Sharapova, if Athletes simply appoint a member of their support staff to do the job, properly instruct them and supervise them, and the support staff fails to do as instructed or lies to the Athlete about having done as instructed, one could even contemplate a finding of No Fault or Negligence. If one applies the test as the Sharapova panel did, No Significant Fault or Negligence could be found each time it is established (or the parties accept) that the delegee was carefully chosen irrespective of the way in which he or she is instructed or supervised. To avoid these undesirable consequences of the test, CAS panels would need to construct each failure of the third party as a fault of the Athlete either in instructing or in supervising, which would rapidly appear utterly artificial and undermine the very idea behind the test.

Tellingly, in the case of Maria Sharapova, the list of instructions that the CAS panel found she failed to give to her agent[66] corresponds broadly to the steps she ought to have taken under the well-known guidance set by the CAS panel in Cilic[67] to qualify for No Significant Fault or Negligence herself.[68] In other words, had the Player merely failed to take these steps herself, she might well not have qualified for a reduction of her sanction. However, because she had delegated her duties instead and failed to tell her agent to take these very same steps, she was found to qualify for No Significant Fault or Negligence.[69]

Moreover, the solution adopted by the CAS panel in Sharapova is difficult to square with the reality of anti-doping regulation, in particular when only the delegating party (i.e. the Athlete) falls under the jurisdiction of an Anti-Doping Organization. And, even if the party to whom the duty is delegated does fall under the jurisdiction of an Anti-Doping Organization, the highest stakes on the side of the Athlete usually lie in a potential Ineligibility sanction on the Athlete, rather than a sanction pronounced against his or her entourage. For this reason alone, it is difficult to see any reason to support a test that would create a facilitated pathway towards a finding of No Significant Fault or Negligence for an Athlete who chose (and/or can afford) to delegate activities in support of fulfilling their anti-doping duties to a third party[70].

The risk of the CAS ruling in Sharapova being abused in the future is heightened by the way in which the CAS downplayed the role of the qualifications of the third party entrusted with carrying out an Athlete’s anti-doping obligations. Though Athletes are allowed to seek assistance in fulfilling their anti-doping duties, it cannot follow that the qualifications of the third-party delegee are irrelevant to the evaluation of fault. Athletes seeking this type of assistance ought to be encouraged to carefully select a knowledgeable delegee, and this can be accomplished by factoring in the qualifications of this delegee.[71] After all, as already mentioned, the delegation should be meant to decrease the risk that an anti-doping rule violation is committed. As a concrete example, even accepting that it was reasonable for Maria Sharapova to entrust her manager with this task, she clearly had better, more reliable options. One fails to see any legitimate reason to support a rule that treats equally the choice of a manager with no particular anti-doping training, and her previous choice, i.e. a medical doctor, who regularly sought advice directly from an anti-doping laboratory.

That said, it would appear that the ‘three curae-test’ was only one consideration in the CAS panel’s overall assessment of the Player’s fault. Indeed, the CAS panel devoted roughly the same amount of attention in its reasoning to discussing the Player’s “justifiably” reduced risk perception and outlining other “relevant” factors. The CAS panel ultimately rested its conclusion that the Player’s fault was not significant on the totality of the circumstances, and not just those falling within the narrow confines of its legal test. In our view, two of these very case-specific circumstances must have weighed heavily in the Player’s favour. First, she reacted with a forthcoming and honest response to the anti-doping rule violation. It is indeed to be noted that she admitted use of Meldonium in 2016 at a time WADA had not yet conducted excretion studies, and when it would thus have been conceivable to claim that she used Meldonium only before the 2016 List came into effect.[72] Second, the perceived shortcomings with the way the Meldonium issue was treated by Anti-Doping Organizations, in particular the manner in which the inclusion of the new substance was communicated.

B.         Correlate duties on Anti-Doping Organization to communicate the Prohibited List

Athletes are expected to display a significant degree of diligence in verifying the substances they ingest against the Prohibited List. Whether the Athlete could reasonably be aware of the prohibited character of the substance is typically taken into account by CAS panels only at the level of the assessment of Fault, but does not impact the finding of an anti-doping rule violation. Predictability of the prohibition is only considered to set the applicable sanction and never lead to an ‘acquittal’ of the Athlete.[73] Some CAS awards thus seem to recognize that the Athlete and the Anti-Doping Organization have mutual duties to make compliance with anti-doping rules a realistic expectation of Athletes, and that carelessness on part of an Anti-Doping Organization – specifically in its ‘information’ duties – can be a factor in reducing the Athlete’s Fault.[74]

The importance of this factor is clearly reflected in the Sharapova CAS award, in which the CAS panel expressed its view that: “anti-doping organizations should have to take reasonable steps to provide notice to athletes of significant changes to the Prohibited List, such as the addition of a substance, including its brand names”. While this statement is easily understandable in the wake of the ‘epidemic’ of Meldonium cases in Spring 2016, it remains vague both as to its binding nature and the scope of the ‘reasonable steps’ required.

First, the use of the term ‘should’ raises some doubts as to whether the statement was meant to point at an existing duty of Anti-Doping Organizations, or ought to be understood as an invitation to increase them (de lege ferenda). The current regulatory framework of the WADC is ambiguous in that respect: Both the WADC and the TADP provide that Anti-Doping Organizations are to apply reasonable efforts to inform Athletes, but simultaneously are adamant to state that any failure to do so does not relieve individual Athletes from their responsibility to be aware of the contents of the Prohibited List at all times.[75] In fact, the duty to proactively monitor the status of substances on an ongoing basis, based on the well-publicized fact that the Prohibited List is updated at least annually for the first of January each year, has been described by CAS as one of the Athlete’s basic anti-doping duties.[76]

Second, on the extent of the communication expected from Anti-Doping Organizations, the CAS panel’s call to the ITF “to provide notice to athletes” of addition of a substance of the Prohibited List might create the impression that Anti-Doping Organizations have a duty towards each Athlete to warn them individually of changes in the Prohibited List. In our view, there is no basis in the WADC to support such a far-reaching duty, and it is only in extraordinary situations that such a duty might be construed based on a general principle to act in good faith. Thus, in the WADA v. USADA & Lund matter referred to as guidance by the Sharapova CAS panel and relied upon by the Player in her appeal, the Athlete Zachery Lund had failed to monitor the Prohibited List but had consistently carried on mentioning the medication taken on Doping Control Form. Nevertheless, no Anti-Doping Organization had ever reacted to that mention until he finally tested positive. In these circumstances, the CAS panel confessed being left “with an uneasy feeling that Mr Lund was badly served by the anti-doping organisations”.[77] Even if a reinforced duty of care may be conceivable in situations in which the inaction of Anti-Doping Organizations could be interpreted by the Athlete as an approval of his or her conduct, there cannot be any generalized duty on Anti-Doping Organizations to systematically notify individual Athletes in the absence of concrete indications that a particular Athlete may be taking a Prohibited Substance, or a substance that is about to be prohibited. In fact, this aspect was discussed before the ITF Tribunal, which ruled out such possibility as it accepted that the ITF did not have access to the identity of Athletes using Monitored Substances,[78] and thus could not know that Maria Sharapova in particular was using Meldonium.

Individual notification aside, the CAS panel specifically reproached the ITF for its failure to highlight the change in the status of Meldonium as a ‘significant change’, even though it did publish an announcement with important modifications to its TADP. The CAS panel further mentioned a prior occurrence in which the ITF had issued specific warnings regarding “DMBA” (1,3-Dimethylbutylamine), another Prohibited Substance.

In our view, both reproaches are unwarranted:

Regarding the first reproach, changes to the TADP cannot be compared to changes in the Prohibited List as far as the communication requirements are concerned. Changes to the ITF anti-doping rules are the sole responsibility of the ITF, since the WADC has no direct effect on Athletes. By contrast, the Prohibited List is revised annually by WADA, without any specific action or input from the International Federations being required: the Prohibited List is incorporated through global reference, so there is no “ITF Prohibited List” separately adopted. The ITF website includes a link to the 2016 Prohibited List Summary of Modifications and Explanatory Notice published by WADA. This document contains a clear warning that: “Meldonium (Mildronate) was added because of evidence of its use by athletes with the intention of enhancing performance”. Thus, Athletes looking to keep up-to-date with the latest amendments of the List could easily retrieve both the name of the substance and its brand name.

With respect to the second reproach and the reference to the precedent of DMBA, the warnings issued by the ITF in April 2015 regarding the risk involved with the substance occurred in a context that differs significantly from the addition of Meldonium to the Prohibited List. The goal of the warning was not to announce a change in the Prohibited List, but to warn Athletes about the risk of DMBA being present in supplements. The warning included the recommendation that “Players are advised to exercise extreme caution when using any food supplement product, as these are often not subject to strict manufacturing controls, and may contain prohibited substances that are not declared on the label, or in different concentrations than stated on the label”.[79] Sports or other supplements that are either mislabelled or contaminated have plagued anti-doping efforts for a long time.[80] Since Athletes are obviously not in a position to verify whether they are putting themselves at risk by using a supplement – unless they have each batch of supplement tested – it is appropriate and necessary for Anti-Doping Organizations to issue warnings when a new trend in dubious supplements become noticeable on the market.

The situation of a medication (like Meldonium) is very different in this respect: medications are subject to strict regulation, with ingredients that need to be totally under control to gain market approval, and are systematically listed on the patient information notice. The doping related risks and challenges that supplements and medications create are thus very different. In the case of the supplement, the primary concern is that the Athlete will not realize that they are ingesting a Prohibited Substance when they consume the product. In the case of the medication, by contrast, the only concern is that the Athlete would not realize that the substance contained in the medication is on the Prohibited List.

Finally, Meldonium was included as a substance named explicitly on the Prohibited List. There was thus no issue as to whether the substance could reasonably be predicted to be a ‘similar’ or ‘related’ substance – a situation that could arguably imply an additional effort in terms of information. While communication is always important, inclusion onto the Prohibited List, as an explicitly named substance, of a new active ingredient contained in a medication should not, as a rule, trigger a particular duty of warning on the part of Anti-Doping Organizations. Indeed, compliance to the rules does not require more from the Athletes in this case than just their basic duty to annually verify whether the medications they are taking a still in line with the new Prohibited List. In the particular instance, a simple computer search for ‘Meldonium’ or one look at the WADA Summary of Modifications would have been sufficient to avoid the Player’s anti-doping rule violation.

In fact, there was never any defence made in the Sharapova matter that the Player could not reasonably be expected to know that Meldonium was the active ingredient in the medication she was taking. On this point again, one fails to see how the admonishment by the CAS panel that Anti-Doping Organizations ought to provide notice to Athletes that would ‘include brand names” might be possibly relevant for the assessment of the Fault in the particular matter. Indeed, the Player’s agent conceded that he had not checked the updates to the 2016 Prohibited List, due to particular circumstances he was going through at that time.[81] Hence, the lack of warning should have had no impact on the Player degree of Fault, since the only person she instructed to do the verification simply failed to do so. As there is no indication that the agent checked Mildronate any more than he checked Meldonium, the lack of mention of a brand name had thus absolutely no causal contribution to the Player’s Fault in the particular matter.

C.        A misplaced criticism of real challenges?

The factors listed by the CAS panel as elements reducing the Player’s Fault in the case of Maria Sharapova placed considerable emphasis on perceived general shortcomings on the part of the Anti-Doping Organizations, rather than on the diligence applied in the matter at stake and the ’three curae-test’ the CAS panel found to be relevant to assessing the Player’s Fault.

The impression is that the CAS panel seemed to be influenced by its desire to reach a fair outcome that would not give the appearance of a CAS panel endorsing the way in which the anti-doping authorities created and managed the Meldonium crisis, nor state that Athletes cannot avoid committing an anti-doping rule violation without the assistance of a health professional. One can legitimately wonder if a more straightforward approach under the unusual circumstances of this case would have been to acknowledge that the Player’s Fault was significant according to a more traditional analysis of Fault under the WADC, but to nevertheless allow for a reduction based on proportionality to take into account the genuine exceptional nature of her (Meldonium-related) situation. While CAS panels – and the Sharapova CAS panel is no exception – generally take pains to avoid relying on the principle of proportionality to reduce a sanction, it would have at least had the benefit of avoiding the risk of introducing a misconceived ‘delegation test’ that may eventually benefit Athletes seeking to break the rules.

More generally, one may also wonder whether Meldonium – and specifically Maria Sharapova’s case – was the most appropriate occasion to give a lesson to the anti-doping movement about how to communicate on the contents of the Prohibited List. Meldonium became the focus of media attention as a result of the number of cases and because it became apparent that there had been little studies about the excretion patterns of the substance. In short, no one had anticipated that Athletes who had taken the substance only before it became prohibited could still test positive in the weeks or months following the effective date of the prohibition. This unexpected situation resulted in WADA having to issue two Notices on Meldonium to clarify how Anti-Doping Organizations should administer results management for cases during the transitory period.[82]

As an aside, it is worth pointing at an aspect of the management of Meldonium cases that does not seem to have attracted the attention it deserved. In its second Notice on Meldonium, the preliminary results of the excretion studies led WADA to recommend that no Anti-Doping Organizations may wish to refrain from imposing Disqualification under Article 9 if it were considered established, on a balance of probability, that the last intake of the substance occurred before 29 September 2015 (the data on which the 2016 Prohibited List and its modifications were published by WADA).[83] Though this was not made explicit in the Notice on Meldonium, this means that an unofficial limit on the predictability of the prohibition was introduced into the system. Indeed, the Disqualification under Article 9 is automatic and mandatory as soon as an anti-doping rule violation occurs in connection with an In-Competition Testing. Renouncing the automatic Disqualification thus either means that WADA was advocating a departure from the WADC regime, or that it was WADA’s implicit opinion that in this case, no anti-doping rule violation occurred in the first place.

The Meldonium cases thus put the spotlight on some less-ideal aspects of the prohibition under the current WADC, in particular the fact that substances may have to be added while there is still little information about their metabolism in Athletes and related detection windows. The whole discussion surrounding the predictability of the consequences of an Athlete’s acts prior to a new prohibition being introduced, however, is an issue that is distinct from the concerns – however legitimate – that may exist with respect to the predictability of the Prohibited List or the transparency on its updates. In any event, the matter that was at issue in Sharapova was entirely detached from issues of predictability or lack of information on excretion times, since Maria Sharapova openly acknowledged having continued use of Meldonium after 1 January 2016.

[1] There have been reports that Maria Sharapova’s legal team is discussing the possibility of suing the International Tennis Federation, see e.g. “Maria Sharapova may sue International Tennis Federation after drug ban is reduced to 15 months,” 4 October 2016, http://www.telegraph.co.uk/tennis/2016/10/04/maria-sharapova-appeal-verdict-will-the-court-of-arbitration-for1/.

[2] Decision of the Independent Tribunal Appointed by the International Tennis Federation, ITF v. Sharapova, Decision of 6 June 2016. See 2016 I.S.L.R. 4, pp. 101–110, for our Comment on Maria Sharapova’s first instance case in front of the ITF Tribunal.

[3] The fact section of this comment is adapted from our comment on the Sharapova ITF Tribunal decision, Anti-Doping Reports, 2016 I.S.L.R 4, pp. 101–110.

[4] Sharapova CAS award at [6].

[5] Sharapova CAS award at [8]. A second Sample taken on 2 February 2016 also returned an Adverse Analytical Finding for Meldonium; both of these positive tests are treated as one violation under the ITF’s anti-doping rules, Sharapova decision at [4].

[6] Sharapova CAS award at [7]–[8].

[7] Sharapova ITF Tribunal decision at [17].

[8] Sharapova ITF Tribunal decision at [27].

[9] Sharapova CAS award at [28(v.)]

[10] Sharapova CAS award at [28(ii.)].

[11] Sharapova CAS award at [28(ii.)] & [28(v.)].

[12] Sharapova CAS award at [28(ii.)].

[13] Sharapova CAS award at [28(ii.)] & [28(v.)].

[14] Sharapova CAS award at [28(v.)].

[15] Sharapova CAS award at [28(ii.)].

[16] Sharapova CAS award at [28(iii.)]-

[17] Sharapova CAS award at [28(iii.)]-

[18] Sharapova CAS award at [28(iv.)]-

[19] Sharapova CAS award at [11].

[20] See the Sharapova ITF Tribunal decision.

[21] Sharapova CAS award at [12].

[22] Sharapova CAS award at [26].

[23] Sharapova CAS award at [76].

[24] Sharapova CAS award at [82].

[25] Sharapova CAS award at [84].

[26] Sharapova CAS award at [88(i.)]

[27] Sharapova CAS award at [85].

[28] The Al Nahyan CAS award, CAS 2014/A/3591, Sheik Al Nayan v. FEI, Award of 8 June 2015, considered the significance of a rider’s fault for a Prohibited Substance found in his horse’s Sample that was administered by a veterinarian.

[29] Sharapova CAS award at [85].

[30] Sharapova CAS award at [88(i.)].

[31] Sharapova CAS award at [88(ii.)].

[32] Sharapova CAS award at [88(iii.)].

[33] Sharapova CAS award at [89].

[34] Sharapova CAS award at [90].

[35] Sharapova CAS award at [92]

[36] Sharapova CAS award at [92(i.)]

[37] Sharapova CAS award at [92(ii.)]

[38] Sharapova CAS award at [92(ii.)]

[39] Sharapova CAS award at [92(iii.)].

[40] Sharapova CAS award at [93(a)].

[41] Sharapova CAS award at [93(b)].

[42] Sharapova CAS award at [93(c)].

[43] Sharapova CAS award at [97(a)].

[44] Sharapova CAS award at [97(b)].

[45] Sharapova CAS award at [98]. The available range was 12 months to 24 months.

[46] Sharapova CAS award at [99].

[47] Sharapova CAS award at [99].

[48] Sharapova CAS award at [99].

[49] Sharapova CAS award at [100].

[50] Sharapova CAS award at [101].

[51] See our previous comment on the Sharapova ITF Tribunal Decision, 2016 I.S.L:R 4, pp. 101–110.

[52] Sharapova CAS award at [93(i.)].

[53] ISTI Annex I.6.4: “An Athlete may choose to delegate the task of making his/her Whereabouts Filings (and/or any updates thereto) to a third party, such as a coach, a manager or a National Federation, provided that the third party agrees to such delegation. The Anti-Doping Organization collecting the Athlete’s Whereabouts Filings may require written notice of any agreed delegation to be filed with it, signed by both the Athlete in question and the third party delegate”.

[54] ISTI Annex I.6.3: “each Athlete in a Registered Testing Pool remains ultimately responsible at all times for making accurate and complete Whereabouts Filings, whether he/she makes each filing personally or delegates the task to a third party. It shall not be a defence to an allegation of a Filing Failure that the Athlete delegated such responsibility to a third party and that third party failed to comply with the applicable requirements”.

[55] And this irrespective of whether one is prepared to agree that delegating to a person with no specific knowledge is indeed consistent with the pursuit of regulatory compliance.

[56] Under Swiss contract law, Article 68 of Swiss Code of Obligations, a debtor is only bound to perform personally if the creditor has an interest in the debtor performing him- or herself.

[57] This aspect is analysed in more details, in Viret M, Taking the Blue Pill or the Red Pill: Should Athletes Really Check their Medications against the Prohibited List Personally?, ASSER International Sports Law Blog, http://www.asser.nl/SportsLaw/Blog/post/taking-the-blue-pill-or-the-red-pill-should-athletes-really-check-their-medications-against-the-prohibited-list-personally-a-comment-on-the-sharapova-award-by-marjolaine-viret-university-of-neuchatel (accessed 10 November 2016).

[58] Indeed, from the available sanctioning range of twelve months to twenty-four months, the CAS panel selected only fifteen months. Applying the Cilic logic (which the panel declared that it considered), this would put the Player’s fault in the “light” range.

[59] Article 55 of the Swiss Code of Obligations. See Werro Franz, in (2e ed.), Commentaire Romand, ad Article 55 CO, n° 18.

[60] Article 101 of the Swiss Code of Obligations. See Thévenoz Luc, in (2e ed.), Commentaire Romand, ad Art. 101 CO, n° 1 et seq.

[61] CAS 2014/A/3591, Sheik Al Nayan v. FEI.

[62] See Article 16 of the WADC on doping control for animals, whereby the anti-doping rules “shall establish and implement rules that are generally consistent with”, in particular Article 2 of the WADC.

[63] CAS 2014/A/3591, Sheik Al Nayan v. FEI at [152]-[153].

[64] This risk was highlighted in CAS 2006/A/1133, WADA v. Stauber & WADA, Award of 18 December 2006 para. 35.

[65] CAS 2008/A/1565, WADA v. CISM & Turrini, Award of 4 November 2008 at [66]; CAS 2008/A/1488, P. v. ITF, Award of 22 August 2008 at [17].

[66] Sharapova CAS award at [89]. These instructions included determining whether Mildronate was a brand name, getting in touch with her previous doctor when she left his care, which websites to consult, to call the ITF hotline, to look at the contents of the flash drive received with the wallet card, or read the emails that contained links on the status of the Prohibited List.

[67] CAS 2013/A/3327, Cilic v. ITF, Award of 11 April 2014 at [74]. “The athlete could always (i) read the label of the product used (or otherwise ascertain the ingredients), (ii) cross-check all the ingredients on the label with the list of prohibited substances, (iii) make an internet search of the product, (iv) ensure the product is reliably sourced and (v) consult appropriate experts in these matters and instruct them diligently before consuming the product.”

[68] In fact, in the way the test was applied in the Sharapova award, if you only choose a sufficiently unqualified person, the instructions you have to give to that person very much amount to explaining to that person to take the steps you should be taking yourself.

[69] As was brought up in the Hazza matter, this also creates an unfair difference in treatment between Athletes who have the resources to entrust other parties with their duties, versus those who have no choice but to do the verifications themselves.

[70] This risk was pointed out by the FEI in CAS 2014/A/3591, Sheik Al Nayan v. FEI at [106].

[71] On the necessity for Athletes to seek advice from a qualified health professional, see Viret M, Viret M, Taking the Blue Pill or the Red Pill: Should Athletes Really Check their Medications against the Prohibited List Personally?, ASSER International Sports Law Blog, http://www.asser.nl/SportsLaw/Blog/post/taking-the-blue-pill-or-the-red-pill-should-athletes-really-check-their-medications-against-the-prohibited-list-personally-a-comment-on-the-sharapova-award-by-marjolaine-viret-university-of-neuchatel (accessed 10 November 2016)..

[72] It is only on 13 April that WADA published preliminary results of excretion studies on the basis of which it issued a notice dealing with results management options and consequences on the sanction depending on the concentration present in the Sample. A second notice was subsequently issued on 30 June 2016. Of note, based, on the concentration recovered in her Sample, Maria Sharapova would in any event not have benefited from the special regime introduced by the notices.

[73] See, Viret M, Taking the Blue Pill or the Red Pill: Should Athletes Really Check their Medications against the Prohibited List Personally?, ASSER International Sports Law Blog, http://www.asser.nl/SportsLaw/Blog/post/taking-the-blue-pill-or-the-red-pill-should-athletes-really-check-their-medications-against-the-prohibited-list-personally-a-comment-on-the-sharapova-award-by-marjolaine-viret-university-of-neuchatel (accessed 10 November 2016)..

[74] See, for another recent case, CAS 2016/A/4371, Lea v. USADA, Award of 4 April 2016 at [93]; CAS 2012/A/3029, WADA v. Anthony West and FIM, Award of 22 November 2013 at [64].

[75] See Article 3.1.3 TADP: “Without prejudice to the last sentence of Article 3.1.2, the ITF shall take reasonable steps to publicise any amendments made by WADA to the Prohibited List”.

[76] See as early as CAS OG 06/001, WADA v. USADA & Lund, Award of 10 February 2006 at [4.11].

[77] CAS OG 06/001, WADA v. USADA & Lund at [4.16].

[78] See our previous comment on the Sharapova ITF Tribunal Decision, 2016 I.S.L:R 4, pp. 101–110.

[79] http://www.itftennis.com/news/203469.aspx (accessed 30 Oct. 2016).

[80] In recognition of the risks going ahead with contamination, the 2015 WADC has introduced a specific ground for reduction of the sanction for « Contaminated Products ».

[81] Sharapova CAS award, at [92 (iii.)].

[82] 1^st Notice of 13 April 2016 https://wada-main-prod.s3.amazonaws.com/resources/files/wada-2016-04-12-meldonium-notice-en.pdf ; 2^nd Notice of 30 June 2016 https://wada-main-prod.s3.amazonaws.com/resources/files/2016-06-30-meldonium_notice.pdf

[83] In these unique circumstances, WADA would consider it acceptable that the athlete’s results not be disqualified or be reinstated in the absence of any evidence that Meldonium was used after 29 September 2015.