Sports law analysis :: Consequences felt after Maria Sharapova reveals positive meldonium drug test at 2016 Australian Open
(Image: Copyright 2016 Getty Images)
- On 26 January 2016, Ms Sharapova provided an anti-doping sample to the Tennis Anti-Doping Programme (TADP) in association with her participation in the 2016 Australian Open.
- That sample was analysed by a World Anti-Doping Agency (WADA) accredited laboratory, which returned a positive test for meldonium, which is a prohibited substance under the WADA Code and, therefore also the TADP.
- In accordance with Article 8.1.1 of the TADP, Sharapova was charged on 2 March by the International Tennis Federation (ITF) with an Anti-Doping Rule Violation (ADRV).
- Sharapova has accepted the finding of meldonium in her sample collected on 26 January.
- As meldonium is a non-specified substance under the WADA (and, therefore, TADP) list of Prohibited Substances and Prohibited Methods, Sharapova will be provisionally suspended with effect from 12 March (being 10 days after issue of the Notice of Charge), pending determination of the case.
Under the TAPD, having seemingly chosen to admit to the ADRV, Sharapova may:
- accede to the Consequences specified in the Notice of Charge; or
- dispute and/or seek to mitigate the consequences specified in the Notice of Charge, and to have the Independent Tribunal determine the Consequences at a hearing.
It is likely, from statements made by the player and the ITF, that Sharapova will seek the later and perhaps attempt to mitigate the consequences. The player has 10 days from her receipt of the Notice of Charge, or until at least 12 March 2016, to make a written request for a hearing before the Independent Tribunal to the ITF’s Anti-Doping Manager.
If the player exercises her right to a hearing, the Chairman of the Independent Tribunal shall then convene a preliminary meeting with the ITF and its lawyers and Sharapova and her lawyers. This meeting must take place by 23 March 2016 (within 21 days from the Notice of Charge). This meeting is largely procedural, concerning how the matter will be heard, with significant discretion held by the Chairman.
The hearing before the Independent Tribunal must take place at least 21 days after the preliminary meeting, or sooner if the parties consent to a shorter period. The TADP also allows that hearings be commenced as soon as practicable after the Notice of Charge is sent, ordinarily with 60 days after the player requests a hearing, or in this case, by 10 May 2016. Hearings are held in London, (usually) in English, and are confidential.
Under the TADP, results obtained by a player in the competition is question (the Australian Open) are automatically disqualified. Hence, Sharapova’s 4th round singles win would be rubbed out, along with her prize money. Lead up tournament results and prize money may also be under threat. Other sanctions are available to the ITF under the TADP, including a period of ineligibility of 2 years for a non-specific substance, which Sharapova would obviously prefer to mitigate.
In any hearing, the ITF will have the burden of proof to establish the player committed an ADRV. The standard of proof is to the comfortable satisfaction of the Independent Tribunal, relative to the seriousness of the allegation made. Comfortable satisfaction is greater than a mere balance of probability, but less than proof beyond a reasonable doubt. The player, when rebutting a presumption or to establish a set of facts, shall do so upon a lower standard of proof that is based upon the balance of probability.
Any appeal rights would be to the Court of Arbitration for Sport (CAS). Appeal rights would be exercisable by the player, WADA, and the ITF itself. Of course, the parties may, by consent, choose to have the ADRV heard directly by CAS with no requirement for prior hearing before the ITF’s Independent Tribunal.
It looks like a lengthy time away from tennis for Sharapova, with a significant dent to her image and a further issue for the image of Russian sports in general.
At the age of 28, Sharapova is one of tennis biggest stars and has been the highest-paid female athlete for 11 straight years.
Yesterday she revealed that at the 2016 Australian Open she failed a drug test. Sharapova claimed “for the past 10 years I have been given a medicine called Mildronate by my doctor, my family doctor and a few days ago after I received the letter I found out that it also has another name of Meldonium which I did not know.” Sharapova is taking full responsibility for what has happened and now awaits what the full penalty will be.
WADA considers the drug to be a “metabolic modulator”, similar to insulin and so placed it on the list of banned substances effective 1 January 2016, after being on the 2015 WADA list of drugs to be monitored.
A December 2015 study in the journal ‘Drug Testing and Analysis’ argued that meldonium “demonstrates an increase in endurance performance of athletes, improved rehabilitation after exercise, protection against stress, and enhanced activations of central nervous system (CNS) functions“. Since yesterday’s announcement, doctors have been quoted in the media as saying there’s no way a healthy athlete would ever need to take such a drug.
Not only are there penalties and consequences to Sharapova’s sports career but there will also be a serious impact on her image, which has brought her incredible fame and wealth.
Just how detrimental her failed test will ultimately prove to be remains to be seen – but she clearly has a small empire at stake. Sharapova counts among her huge endorsement portfolio Nike, Porsche, Tag Heuer, Avon, Evian, Supergoop and tennis equipment giant, Head. Porsche, Tag Heuer, and Nike have already terminated lucrative endorsement contracts with the tennis star. (She is also the face of her own Candy business, Sugarpova.)
In the court of public/media opinion, some have already applauded Sharapova for holding a press conference and taking responsibility, however most arm-chair commentators do seem to agree that she should have been more aware about the medication she was taking and what substances were banned. Sharapova stated that she failed to read an email pointing out that the drug had been added to the banned list.
Commentary has also focused on the role of her support team and its lapse in this regard, especially as the team’s focus on a very meticulous and detailed approach to the preparation of the athlete is so well known. Surely the impending addition of the drug to the banned list must have been picked up? Ultimately though, athletes are responsible for what they ingest or put into they bodies.
Interestingly, the creator of the drug, Professor Ivar Kalvins, has come out today in support of Sharapova and stated that the drug’s inclusion on WADA’s banned list is a “violation of human rights“. The Prof argues that “To ban this medicine means to ban athletes from taking care of their health.”
But, surely, that is what Therapeutic Use Exemptions (TUEs) are for?
Jessep Entertainment & Sports Lawyers
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This post was produced with content sourced from the player’s media statement of 07/08 March 2016, Fox Sports, The Independent, & The ITF.