ITF v. Maria Sharapova

By now all of tennis is aware of the ITF decision regarding Maria Sharapova.  The ITF in a 33 page ruling (which should be required reading by all tennis fans) makes for interesting reading.  No matter on which side of the coin you belong in terms of anti doping, Sharapova or indeed the use of performance enhancing drugs in sport, the ITF ruling has shown, at least to me, the façade that is Maria Sharapova and has shown that despite the media consistently telling us that she runs one of the most efficient teams in tennis, the evidence, as submitted to the ITF by Sharapova’s team shows a team that is way less than efficient and a player who comes across as looking as if she has absolutely no control over what happens to her career.

Doping Evidence

In the first part of the Ruling, evidence is provided of the dosage amounts and directions that Sharapova’s doctor, a Dr. Skalny provided to her.  The evidence regarding dosage amounts reads somewhat like an instruction manual on how to dope.  While the drug in question was not banned at the time this dosage information was provided, it does make one think long and hard about the use of this product by this particular athlete.

“Mildronate 1-2 X 10, repeat in 2 wks (before training or competition)” “1 hr before competition, 2 pills of Mildronate” “During games of special importance, you can increase your Mildronate dose to 3-4 pills (1 hr before the match). However, it is necessary to consult me on all these matters (please call)” “30 minutes prior to a training session: Mildronat – 1 Capsule. 30-45 minutes prior to a tournament Mildronat 2 capsules”

This prescribed dosage was being used by Sharapova up until 2013 when she was no longer being seen by Dr. Skalny.  At no point during the next 3 years did Sharapova disclose on any of her doping control forms, or indeed to any member of her team, including her nutritionist, or WTA doctors that she was taking this drug.  The only person who knew that she was taking this drug was her agent, Max Eisenbud (more on him later).   After 2013 there was no evidence provided by Sharapova or any member of her team, including her current doctor as to the continued use of this drug.

Again, this drug (Meldonium [Mildronate]) was not banned in 2013 and was not banned until 2016, although it was put on WADA’s list of prohibited substances in 2015, which leads to the next issue that was raised in the ITF Ruling, that of, whether Sharapova or any member of her team was aware that the drug had been placed on WADA’s prohibited list.

“On the evidence of her manager this use of Mildronate by Ms Sharapova was not known to any of Ms Sharapova’s team, except for her father and, from 2013, Mr. Eisenbud himself. It was not known to her coach, her trainer, her physio who was responsible for recommending recovery drinks during and post match, her nutritionist who was responsible for her food and supplement intake, nor any of the doctors she consulted through the WTA. It is remarkable that in the documents disclosed by the player the only documents which refer to Mildronate are documents from Dr. Skalny between 2006 and 2010. There is no document after 2010 in the player’s records which relates to her use of Mildronate. Nor was the use of Mildronate disclosed to the anti-doping authorities on any of the doping control forms which Ms Sharapova signed in 2014 and 2015”

From reading the Ruling it is not quite clear whether anyone on that team actually did anything as it relates to informing Sharapova of the list of prohibited substances.  Frankly, speaking, even if someone on the team was checking the list of prohibited substances, the fact remains that no member of Sharapova’s team knew that she was taking the drug, except of course Mr. Eisenbud.  Mr. Eisenbud’s explanation as to why he did not inform Sharapova that the drug that she had been taking for upwards of 9 years, and which he knew about, and seeing as he was the person who checked the prohibited list, bears examination in its entirety

“My system … in November of every year I would go on vacation in the Caribbean, after the championships. I would have my assistant print out the most updated doping prohibited list, along with the new proposed WTA and ATP rules, the calendar for next year. I would make a file. I would go on vacation and sit at the pool, with all the substances that my players were taking, and then sit there and just cross-check, to make sure that everybody, what they were doing, was not prohibited. In 2015 I didn’t go on vacation for obvious reasons”

The obvious reasons to which Mr. Eisenbud makes reference is to the fact that his wife left him (which probably explains all the time he had tweeting about Serena Williams’ matches … but I digress).

As the ITF pointed out (and again I am setting this out in its entirety)

“The ITF has not directly challenged the veracity of Mr. Eisenbud’s evidence that he was asked by Ms Sharapova to be responsible for checking whether Mildronate was prohibited, but the evident implausibility of his account of how it was done was clear from the cross examination. On the main issues which the tribunal has to decide the burden of proof lies on the player, not the ITF. The tribunal is not required to accept evidence which it finds to be wholly incredible. The idea that a professional manager, entrusted by IMG with the management of one of its leading global sporting stars, would so casually and ineptly have checked whether his player was complying with the anti-doping programme, a matter critical to the player’s professional career and her commercial success, is unbelievable. The tribunal rejects Mr. Eisenbud’s evidence.”[emphasis mine]

Ms. Sharapova, since the Ruling has posted via Facebook that she intends to appeal the decision of the ITF to the Court of Arbitration for Sport (“CAS”) and she has informed us that the ITF found no intent by her to dope.  However, in its Ruling, the ITF said this

That leaves the issue as to why Ms Sharapova was systematically using Mildronate before matches, and in particular at the Australian Open in 2016. In the tribunal’s view the answer is clear. Whatever the position may have been in 2006, there was in 2016 no diagnosis and no therapeutic advice supporting the continuing use of Mildronate. If she had believed that there was a continuing medical need to use Mildronate then she would have consulted a medical practitioner. The manner of its use, on match days and when undertaking intensive training, is only consistent with an intention to boost her energy levels. It may be that she genuinely believed that Mildronate had some general beneficial effect on her health but the manner in which the medication was taken, its concealment from the anti-doping authorities, her 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 mine]

Negligence of the Highest Order

The ITF Ruling goes to great lengths to speak to the issue of negligence and the responsibility of an athlete relating to what goes into their bodies.  In the case of Sharapova, this issue was pronounced.

“It follows that on the tribunal’s assessment of the evidence Ms Sharapova had no system in place to make any checks on Mildronate or the other substances inherited from Dr. Skalny’s regime. As she accepted in cross-examination she carried out no checks of her own on Mildronate or its ingredients. She never looked at a wallet card,  never checked any substances through the ITF website and never asked the WTA for advice on Mildronate. When asked about her assertion that her general procedure was to confirm with the WTA whether a product was permissible to use she said: “The WTA did not have the list of medication that I was taking with Dr. Skalny. But the WTA was not in charge of my medical conditions.” But from 2013 onwards Dr. Skalny was no longer her doctor. She has no excuse for failing to disclose her use of Mildronate or to seek advice from a specialist doctor as to whether its continued use in competition was permissible. The tribunal finds it hard to credit that no medical practitioner whom she consulted over a period of 3 years, with the exception of Dr. Yasnitsky, would, in accordance with standard medical practice, have asked her what medications she was taking. In any event Ms Sharapova should have disclosed that she was regularly using Mildronate in case there was a possibility of adversely affecting another treatment prescribed”.

There have been quite a few articles which have been written by journalists which have tried, and in my opinion, failed to adequately realize the seriousness of this particular Ruling.  They have said that in today’s world, a 2 year ban is not that bad and that she can return seeing as players are playing in their 30s.  However, in one of the more significant missteps from Sharapova’s team at the hearing was this gem:

“It is argued that any period of ineligibility would disproportionately affect Ms Sharapova in causing her a very substantial loss of earnings and sponsorships, exclusion from the 2016 Olympics, and irreparable damage to her reputation. There is nothing unfair in the rules being fairly and equitably applied to this player as to any other athlete subject to the WADA Code, whether professional or amateur. The rules are clear in stating:  “ … the fact that a Player would lose the opportunity to earn large sums of money during a period of Ineligibility, or the fact that the Player only has a short time left in his or her career, or the timing of the sporting calendar, would not be relevant factors to be considered in reducing the period of Ineligibility under Article 10.5.1 or 10.5.2.” The rules cannot be circumvented by invoking the principle of proportionality. It would be contrary to the principles underlying the code, in particular respect for the rules which must apply equally to all, to allow an unprincipled exception to or waiver from the rules on the grounds of proportionality of sanction as it affects the particular circumstances of this player.”

For all of Sharapova’s years as a tennis player, her marketability has always been the driving force behind her image.  The fact that she knows how to win matches has always seemed to me to be secondary.  The fact that her legal team used the loss of sponsorship opportunities as an argument against a long ban speaks volumes.

What This Means for the WTA

Many will wonder whether the WTA can survive this.  Frankly, it will be tough for the WTA to come out of this smelling like roses.

“There is a dispute on the evidence as to when and where Neil Robinson of the WTA handed to Sven Groeneveld, Ms Sharapova’s coach, two of the plastic wallets at some time in January 2016. It is unlikely that either could, in the circumstances of an international event, reliably recollect whether or not one or two wallet cards had been handed over and when, still less what use had been made of them. In any event the coach says he did not hand either of the wallet cards to Ms Sharapova. His evidence is that he keeps a wallet card in case any of his players wishes to check with him whether a substance is on the Prohibited List, but none ever has 24. Ms Sharapova’s evidence is that she never read or consulted the information on the wallet card in 2016, or in prior years. On 18 December 2015 the WTA sent an email headed Player News. There was a reference to the 2016 Tennis Anti-Doping Programme but no notice that there had been any change to the Prohibited List. The email included a link to the WTA Playerzone on Anti-Doping. In December 2015 that link did not include the summary of modifications published by WADA, so it did not give any player notice that Meldonium had been added to the Prohibited List.”

In addition to the above damning piece of evidence, there is also the argument being made that since the ITF knew that players were testing positive for Meldonium, then the ITF should have singled out these players and informed them personally that this drug was now going to be on the prohibited list.  Of course, the ITF also quashed this argument as nonsensical.  It would seem that while the argument is being made that Ms. Sharapova had accepted responsibility for this particular doping offence, she continues to not take steps to actually admit responsibility.

Conclusion

All in all this is a sad day for tennis and in particular the women’s game.  Sharapova is one of tennis’ biggest stars, a superstar even.  The evidence as presented at the ITF is damning.  While the drug she was taking was not prohibited until 1 January 2016, the evidence makes it seem as if for the past 10 years Sharapova was engaged in systemic doping.  It is an affront to those of us who value clean athletes.  Sharapova not only owes her many fans who she keeps thanking for their support an apology, she also owes the sport of tennis an apology as well.

Finally, as a result of the ITF Ruling, Sharapova will give up her 430 ranking points that she earned earlier in the year as well as return the prize money of AUS$281,633 earned during the Australian Open.

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