Outsourcing anti-doping obligations: a return to tall tales in the CAS’s Sharapova decision

The reasons for the CAS decision make for an interesting read.

In early 2016, after a drugs test during the Australian Open, Sharapova tested positive for Meldronium – a substance which is legal in Russia and some Eastern European countries, but not in the USA or EU. More commonly referred to by its brand name, Mildronate, it was added to the WADA list of prohibited substances on 1 January 2016.

Quick off the mark as always, Sharapova called a press conference in March 2016 at which she admitted taking Mildronate but denied any knowledge of the fact that it was banned. She also cited poor health as the reason for her consumption.

Emerging circumstances, however, cast this into doubt. The player not only failed to disclose her use of the prohibited substance to the anti-doping authorities, but also opted not to tell the vast majority of her own team (telling only her manager, Mr Max Eisenbud). Sharapova was originally prescribed the substance, alongside a range of other pills, by a doctor. However, despite discontinuing her use of the vast majority of the other drugs prescribed, she continued to take Mildronate without seeking medical advice.

The ITF Tribunal Decision

At first instance, the ITF Tribunal held that “the manner in which the medication was taken, its concealment from the anti-doping authorities, [the player’s] 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.” (emphasis added).

The Tribunal also refused to make a finding of ‘no significant fault’. Sharapova had relied on the fact that she had tasked her manager with checking the status of the drug. However, the Tribunal did not find Mr Eisenbud’s testimony on this credible. It also noted that, even on his evidence, “the player 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.” It therefore imposed a two-year ban on Ms Sharapova. The ITF Tribunal decision is available here.

The CAS Appeal

However, that decision was overturned on appeal. The CAS made a finding of ‘no significant fault’ (“NSF”) and reduced the player’s ban from 2 years to 15 months.

As a preliminary observation, the CAS stated that ‘the “bar” should not be set too high for a finding of NSF’. Essentially, therefore, an athlete should not be precluded from the NSF reduction because he or she ‘left some “stones unturned”’.

According to the CAS, athletes are allowed to delegate their regulatory obligations. While the mistakes of any third party remain attributable to the athletes, they will not be reflected in their sanction. Athletes will only be punished for their negligence or fault in: (a) selecting the person to whom they delegate; (b) failing to exercise control or oversight; and (c) failing themselves to check or control the substances they ingest.

Somewhat surprisingly, the CAS found that Sharapova’s choice of advisor was reasonable. On his own evidence, Mr Eisenbud had no anti-doping training or qualifications. However, the CAS held that ‘checking a substance against the Prohibited List is not an action for which specific anti-doping training is required’.

Finally, the CAS held that the athlete’s ‘reduced perception of risk was justified’. She had lawfully taken the drug for 10 years, had initially sought the substance for medical reasons, and had not been issued with a warning about its status change.  

Problems with the CAS decision: outsourced obligations and a return to naivety

A balanced approach, which does not require an athlete to exercise impossible standards of caution and which recognises the reality of delegation amongst a team, is to be welcomed. An athlete’s fault in the eyes of the law should bear some resemblance to common sense and public opinion.  

Nonetheless, the judgment is arguably flawed in a number of ways.  

First, delegation of anti-doping obligations is hard to square with the wording and spirit of the rules. Article 2.1.1 of the Tennis Anti-Doping Programme (“TADP”) imposes strict liability on each player. It is his or her “personal duty to ensure that no Prohibited Substance enters his/her body.” The additional provisions in Article 1.12.1 of the TADP also state 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”. The player is also solely responsible for knowing what constitutes an anti-doping violation and what substances are prohibited (TADP, Article 1.12.2) and for ensuring that anything ingested does not give rise to a violation (TADP, Article 1.12.3). The obligations on ‘Player Support Personnel’ (TADP, Article 1.15) appear to be additional to those of the player. Article 3.1.2 of the TADP, for example, requires “each player and each Player Support Personnel” (emphasis added) to be familiar with the Prohibited List.

In both Al Nayhan and Sharapova, the CAS has tried to reconcile the sole responsibility provisions with the sporting reality of delegation. 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 accords with the traditional rules on sentencing.

However, athletes are an agent’s most valuable asset. There therefore remains a real risk that players’ regulatory obligations will in essence be contracted out to allow doping, with agents accepting the lion’s share of the blame, to ensure the athletes faces minimal consequences. Faced with a light sanction, the imputation of fault for liability is unlikely to act as a sufficiently strong disincentive for many athletes.

Second, at very least, athletes should have to ensure the person to whom they delegate is suitably qualified. The CAS found that Ms Sharapova’s reliance on Mr Eisenbud was reasonable, despite agreement between the parties that he had no anti-doping training, because the player herself would not have had any such training. This argument is only superficially appealing. If delegation is to be justified under rules which otherwise impose sole responsibility on the athlete there must be some objective justification for it. That justification arises where delegation ensures better compliance with anti-doping rules as would be the case (in theory) where an athlete delegates a medical decision to a doctor. This makes particular sense in a case such as this, where the star was spoilt for choice for medical advisors.

Third, the CAS’s application of the ‘no significant fault’ (“NSF”) test in this case cannot be correct.  As the CAS noted, it is recognised that a player should only be able to rely on NSF if the circumstances are ‘truly exceptional’. However:

·         This was not a case of inadvertent non-disclosure or a one off mistake. Sharapova failed to disclose her use of Mildronate on no less than 7 doping control forms. The decision of the ITF Panel recognised the importance of disclosing even non-prohibited substances since these can mask banned drugs.

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

·         Even if players are allowed to delegate, Sharapova failed to take the most basic steps to oversee Mr Eisenbud. The CAS itself recognised that she had failed to give him clear instructions and had made no attempts to supervise him.

Finally, the tribunal was surprisingly willing to accept Ms Sharapova’s tenuous version of events. The CAS offered no evidence for its conclusion that the athlete was “in fact open about [her use of Mildronate] to many in her entourage”, despite findings to the contrary in the court below. It also failed to question the credibility of Mr Eisenbud’s testimony. The ITF Tribunal rejected as ‘wholly incredible’ the suggestion that an established sports manager who was specifically tasked with ensuring the anti-doping compliance of one of its ‘leading global sporting stars’ would have failed to check the status of the drug. The automatic de novo basis of CAS appeals has previously been criticised in the course of this litigation (see this blog post on the ITF Tribunal decision by James Segan).

The CAS may not be bound by the findings of the lower tribunal. However, in circumstances where the appellate body departs so radically from them, it is difficult to see why it should not answer questions legitimately raised by the first instance decision maker. It appears that (at least for our most famous athletes) we are once again accepting tall tales. 

Charles Flint QC was Chairman of the ITF Tribunal.