Editor's Note: Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code. Her latest book Evidence in Anti-Doping at
the Intersection of Science & Law was published in 2016 in the International Sports Law Book Series of T.M.C. ASSER Press.
INTRODUCTION
On 30 September 2016, a panel of the Court
of Arbitration for Sport (“CAS”) rendered its award
in the matter opposing high-profile tennis player Maria Sharapova to the
International Tennis Federation (“ITF”). Maria Sharapova was appealing the
two-year ban imposed on
her by the ITF Tribunal in June 2016 for her use of Meldonium, a substance
newly added to the WADA Prohibited List 2016[1].
Since neither the ITF nor WADA had chosen to challenge the Tribunal’s decision,
the stakes of the case were rather simple: would the player convince the CAS
panel that she should benefit from a finding of “No Significant Fault or
Negligence”[2],
thereby allowing for a reduction of the sanction down to a minimum of one year,
or should the decision of the Tribunal be upheld? In its award, the CAS panel
decided to grant such finding and reduced the sanction to 15 months.
This blog does not purport to be a ‘comment’
on the CAS award. Rather, it seeks to place the Sharapova matter into a broader
context with respect to a specific issue: the expectations on Athletes when it
comes to their awareness of the prohibited character of a substance,
specifically when taking a medication[3].
In July 2016, I presented at the T.M.C Asser Institute in The Hague various current
challenges of anti-doping that the Meldonium cases exposed (see the video here). One of these
challenges concerned the modalities for including new substances onto the
Prohibited List. This blog represents a follow-up on my presentation, in the
light of the findings contained in the CAS award.
More concretely, the blog takes as a
starting point one finding in the award, made by the CAS panel when evaluating
whether the player acted reasonably in entrusting her sport agent – who lacked
any medical or other scientific qualification – with ensuring that her
medication scheme stayed compliant with the World Anti-Doping Program[4]:
“checking
a substance against the Prohibited List is not an action for which specific
anti-doping training is required. It is expected to be made, as a rule and
under Article 3.1.2 of the TADP, by the player personally, and a player does
not need to have scientific or medical expertise for such purpose. No standard
in the WADC or otherwise raises such a high bar”[5].
This statement may have raised some
eyebrows among readers familiar with anti-doping, after years of repeated
warnings that Athletes should not only consult a doctor before taking a
medication, but preferably a doctor versed in sports medicine, and that they
have to take responsibility for failing to do so if the medication turns out to
be prohibited.
CAS
JURISPRUDENCE: BETTER SEE TWO DOCTORS THAN ONE
Since many – if not most – substances on
the Prohibited List are originally therapeutic products, there is a rich body
of CAS case law revolving around the Athlete’s duty to seek specialized advice
before taking a medication. As the panel in the Cilic v. ITF matter noted, Athletes have a reinforced duty of care,
in particular: “[w]here the product is a medicine designed for a therapeutic
purpose. Again, in this scenario, a particular danger arises, that calls for a
higher duty of care. This is because medicines are known to have prohibited
substances in them”[6].
Though the basic position taken in the Cilic v. ITF appears uncontradicted or
even supported in other CAS decisions[7],
CAS case law is fluctuating on the level of diligence that can be expected from
Athletes when taking a medication. It seems common ground that failure to
consult a health professional is a factor pleading against the Athlete when
assessing his or her degree of Fault, and, conversely, that seeking
professional advice tends to make the Fault lighter[8].
The exact contours of the diligence expected, and the consequences of a failure
to exercise such diligence, however, are less uniformly defined. Circumstances
taken into account may include: whether the Athlete acted in an emergency or
had ample time to do verifications[9];
whether the Athlete did seek some professional advice (although not necessarily
fully qualified one) or proactively enquired about risks related to doping[10];
whether the Athlete initially received clearing through a doctor and was simply
careless in continuing use of the medication[11],
or used the medication without any attempt to seek a prescription altogether[12];
and whether the Athlete subsequently obtained a Therapeutic
Use Exemption (“TUE”)[13].
Nevertheless, there seems to be consensus
among CAS panels on at least one point: failure to recognize the prohibited
character of the active substance in a medication never justifies a finding of
No Fault or Negligence, even upon (erroneous) advice from a qualified health
professional[14]. This
jurisprudence finds explicit support in the Comment to Article 10.4 of the
WADC: “Athletes are responsible for their choice of medical personnel and for
advising medical personnel that they cannot be given any Prohibited Substance”[15].
The idea behind the jurisprudence is clear: it avoids that Athletes could
‘hide’ behind the advice of a doctor, who would then simply admit to having made
an egregious error[16].
The CAS panel’s statement in the Sharapova matter seems to put in question this
apparently well-established point of jurisprudence: if, as the panel assumed,
the WADC only expects the Athlete to personally check a substance against the
Prohibited List, no Fault can be held against the Athlete if it can be shown
that the prohibited character of the substance was not recognizable to the Athlete,
irrespective of whether such prohibition would have been obvious to a qualified
health professional.
HOW CAN AN ATHLETE VERIFY WHETHER A
MEDICATION IS PROHIBITED?
Putting aside for a moment the consistency
of the Sharapova award with past CAS jurisprudence and its impact on the WADC
system as a whole, the finding of the CAS panel raises a more practical
question: is it realistic to consider that there is no duty on the Athlete to
call on scientific or medical expertise to determine whether a substance is
prohibited?
In order to assess this question, let us
imagine the situation of an Athlete who plans to take – or is already taking – a
medication, and wants to make sure that the substance does not raise any doping
issues:
- The Athlete would need to know
that the substance will (as a rule) not be listed by its brand or trade name,
but by the name of the active substance. More precisely, WADA announced
in 2014 that it seeks to enhance the clarity of the Prohibited List by using the
nomenclature of the WHO International Non-Proprietary Name (“INN”). The rationale
for always listing active substances rather than trade names is rooted in a
reality of international sports that one and the same active substance may be
marketed under different names in different countries. For example, ‘Meldonium’
is a WHO recommended INN, which is marketed, among others, under the name ‘Mildronate’.
While the distinction should be obvious to a health professional, it is much
less certain that determining the active substance will always lie within the
abilities of an Athlete. In the Sharapova matter, the player did in fact argue that
both her manager and she “mistakenly, but honestly, believed Mildronate to be
the name of the substance and did not realize that it was a brand name”[17].
- The Athlete would need to know
that the exact chemical name and spelling of a substance may vary depending on
usage, language and country[18].
Thus, an automatic search through the Prohibited List is not sufficient. The Athlete
would either need to do a search for all potential spellings and/or read
through a few hundred substances on the List, since it is hardly imaginable
that the Athlete would be able to determine on his or her own within which
class of substances the medication falls. In addition, some substances may have
synonyms that do not appear on the Prohibited List, but only in accompanying
documents such as a WADA Explanatory Note[19]. Searching a drug database
established by the Athlete’s National Anti-Doping Organization (“NADO”) is not
necessarily a fool proof method either, since NADOs typically only include in
their database therapeutic products that are registered or otherwise approved
for sale in the relevant country[20].
Thus, a negative search result may simply mean that the medication has not
(yet) obtained approval in the country.
- An additional factor to take
into account is the ‘open’ nature of the Prohibited List. The List is
non-exhaustive, in the sense that it does not list each Prohibited Substance by
its name. Instead, most classes include a list of examples followed by a
catch-all clause. For these non-named, ‘similar’ or ‘related’, substances, the
Athlete would thus need to assess whether the medication has a chemical
structure and/or effect similar to other substances named on the Prohibited
List[21].
- Finally, it would be difficult
to advise the Athlete as to what entity – prior to the CAS panel in a doping
dispute – would have the authority to preventively ‘clear’ a substance upon enquiry.
A negative search result on the WADA Prohibited
List search engine appears with the following response: “No results: If a
Substance or a Method you have searched for is not found, please verify with
your Anti-Doping Organization to ensure that this Substance or Method is not
prohibited as a related Substance or Method that falls under an existing
category”.
However, it is not clear at
all under the current system that an International Federation or NADO have the
authority to issue a binding clarification in this respect, and WADA does not
appear prepared to take on this ‘clearing’ function. In fact, the WADA
Q&A on the Prohibited List openly acknowledges that the status of some
substances may not be clear-cut and that “it is in the best interest of the
athlete to refrain from taking any substance or use any method if its status is
unknown or unclear”[22].
Considering the elements above, one may
legitimately question the idea expressed in the CAS award that checking a
substance against the Prohibited List is an act that is to be performed by the
Athlete personally and that there is no expectation in the WADC that the
assessment should be done by a qualified professional.
AN ISSUE OF FAULT OR AN ISSUE OF
PREDICTABILITY?
There is some truth to the statement in the
Sharapova award in the context of the WADC, but not in the sense one would
expect: when it comes to finding that a violation has been committed, the WADC does
not care whether one could reasonably expect the Athlete to be aware of the
prohibited character of the substance. Article 3.2.1 of the ITF Tennis
Anti-Doping Programme (“TADP”) referenced in the award addresses the dynamic
character of the prohibition under the WADA Prohibited List and reads, in fine[23]:
“It is the responsibility of each Player and each Player Support Personnel to
be familiar with the most current version of the Prohibited List”. The
expression “responsibility of each Player” – which reflects the duty expressed
in Article 2.1 of the WADC – has never been understood as meaning that Athletes
are only expected to check the Prohibited List personally. It means that
Athletes will need to carry the consequences if they are not aware of its
current content.
This regulatory situation is implicit in
all awards in which CAS panels are asked to deal with an argument that the
Athlete was not aware of the prohibited character of the substance: as soon as
a substance is determined to be prohibited and was present in the Sample, there
is no question that an anti-doping rule violation was committed under Article
2.1 of the WADC[24].
Rather, the predictability is examined, if at all, under the angle of the
degree of Fault, to determine the severity of the applicable sanction under
Article 10[25].
By contrast, if the statement by the CAS
panel in the Sharapova matter were to be taken literally, the debate would no
longer be limited to the degree of Fault, but would directly affect the
predictability of the prohibition for the Athlete. If the WADC truly only expected
Athletes to personally check a substance against the Prohibited List, the
predictability of the prohibited character would have to be defined according
to an Athlete’s capabilities. There are arguments to support such a position:
anti-doping rules of an International Federation – including the Prohibited
List incorporated therein – are made binding on Athletes through contractual
(or otherwise consensual) means. As early as 1994, the panel in Quigley v. UIT noted that: “any legal
regime should seek to enable its subjects to assess the consequences of their
actions”[26]. An
analogy with the fiction nemo censeture
ignorare legem, developed with respect to state law, is difficult to
sustain. In a contractual context, the contents of the parties’ agreement needs
to be interpreted based on what the other party could reasonably understand[27].
Even if elite Athletes undertake to keep themselves informed about the
evolution of the rules, this implies that there may be certain limits on this
undertaking.
Thus, if one were to follow the CAS panel’s
findings in Sharapova that Athletes are expected to check the Prohibited List
personally, one would need to deny the predictability of the prohibition in
each case in which the prohibited character of the substance could not
reasonably be recognized by the Athlete him- or herself, and thus find that an
element of the anti-doping rule violation is missing. While a literal reading
of the statement may evoke such an extreme outcome, it is unlikely that the CAS
panel had in mind such implication for its statement. There is no other
indication in the award that the CAS panel meant to question the ‘fiction’ of
awareness of the prohibition that has been generally accepted in CAS jurisprudence,
or its corollary of strict liability. In fact, the arbitrators were not asked
to do so, since Maria Sharapova did not challenge the anti-doping rule
violation itself.
MORE COMMUNICATION IS NOT ALWAYS BETTER
COMMUNICATION
The reason why CAS panels refrain from
analyzing the issue under the angle of legal predictability – apart from the
fact that the parties generally do not raise this defence – is probably
because, unlike the degree of Fault, predictability of the scope of the
prohibition allows for no graduation: either the finding of an anti-doping rule
violation can be supported, or it cannot.
Accordingly, CAS panels prefer to attenuate
the harshness of the regime by evoking a framework of ‘reciprocal’ duties
between Anti-Doping Organizations and Athletes. This is also perceivable in the
Sharapova 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”.
The extent of the “reasonable steps”
expected from the Anti-Doping Organizations, and the repercussions in case of a
failure to take appropriate steps in a particular matter, however, is not clear[28].
In particular, the Sharapova award does not clarify whether the communication has
to be such that the Athlete can genuinely be expected to verify the prohibited
character of a substance personally, without specialized assistance. Though the
sections in the Sharapova award addressing this issue could convey such an
impression, it is unlikely that this was the CAS panel’s intent. Other
paragraphs regarding the ‘delegation test’, on the contrary, clearly point at
an inevitable need for medical support. As part of their assessment of the
player’s Fault, the panel noted a default to instruct and supervise her agent,
in particular: “to put him in contact with Dr Skalny [the physician who had
prescribed the medication to Maria Sharapova] to understand the nature of the
Skalny products”. According to the panel, if an Athlete could simply delegate their
obligations to a non-trained third party without properly instructing them,
“such a finding would render meaningless the obligation of an athlete to avoid
doping”. Between the lines, the CAS panel thus acknowledges that it is part of
an Athlete’s duty of diligence to involve a physician when circumstances so
warrant.
In our view, the level of communication
expected from Anti-Doping Organization must take into account the nature of the
substance, as well as the channels through which an Athlete is supposed to come
into contact with this substance. As far as medications are concerned, communication
that makes the prohibited character of a substance easily identifiable for a
health professional (e.g. a doctor or a pharmacist), would appear an adequate
and sufficient level of communication. There is no doubt that the Prohibited
List has evolved to a degree of complexity that imposes heightened duties on
Anti-Doping Organizations to do their share to prevent inadvertent violations. However,
while appropriate communication is essential, caution must be applied with
respect to communication of information of a very technical nature. The
information related to the Prohibited List is at the intersection of two
technical domains: it is both a legal and a scientific-medical document. In
this constellation, one should also factor in the risk that more communication
would merely increase the potential for misunderstanding. It might be
preferable for Anti-Doping Organizations to refer to one unique document with
accurate and precise language that can be interpreted reliably by the relevant
professional, than to draft multiple ‘information notices’, ‘warnings’ etc.
attempting to adapt the information to lay-persons also, but in which each
minor change of wording may create new ambiguities. Of note, this also supposes
an appropriate training and awareness on part of the health professions, in
particular those practitioners who know they are regularly dealing with
sportspeople.
THE NEXT MISSION OF ANTI-DOPING: SAFER
ELITE SPORT?
The finding in the Sharapova v. ITF award that no anti-doping training is needed to
ascertain the status of a substance, and that the check is to be conducted, as
a rule, by the Athlete personally, without scientific or medical qualifications
being required, should not be taken in isolation from its context. It would be
dangerous to assign too strong a precedential value to this element in the CAS
panel’s analysis. In other sections of the award, the CAS panel acknowledged -
at least between the lines - that checking a medication against the Prohibited
List without appropriate specialized advice is not commendable and would hardly
be sufficient to consider that the Athlete discharged his or her duties of
diligence under the WADC.
More generally, CAS panels have so far
refrained from assessing the predictability of the prohibited character of a medication
as a requirement for establishing an anti-doping rule violation. However, they
do seem to recognize that there are certain duties on Anti-Doping Organizations
to assist Athletes in properly performing their own duties under the WADC. Communication
deemed insufficient will not invalidate an anti-doping rule violation, but may
be taken into account in reducing the Athlete’s degree of Fault. This can be
viewed as an incentive towards intensified communication efforts on part of the
anti-doping movement, but without jeopardizing the prohibition itself in
individual cases.
Ultimately, the lesson to retain from the
Sharapova award – and the Meldonium cases in general – goes beyond the duty for
Athletes to be aware of the prohibited character of a substance. The underlying
question that these cases raise is the health risk involved in elite sport, and
the Athlete’s willingness to go to great lengths to practise at the highest
level. There is widespread abuse of medications – sold over-the-counter or
reused after an initial prescription – in the population in general[29].
Athletes are not an exception, but the problem seems to be exacerbated by competitive
sport, where Athlete often feel they depend on a ‘quick fix’ to a health
condition to meet their goals[30].
As pointed out in a previous comment to the ITF
Tribunal Decision in Sharapova, it is not for adjudicatory bodies to deliver a
‘moral’ judgement on the manner in which elite sport should be practised. The
CAS panel was asked to consider whether Maria Sharapova was at Fault with
respect to her anti-doping duties, not whether she was conveying a
‘respectable’ or ‘responsible’ image of elite sport, or whether she was acting
reasonably in terms of healthcare.
Nevertheless, given the WADC’s stated goal
of protecting the Athlete’s health, the anti-doping movement cannot entirely
disregard the messages that are sent out to Athletes when it comes to the use
of medication. CAS awards indirectly reflect the panels’ perceptions on the
subject, and the diverging attitudes that also coexist in health systems in
general. In the eyes of some CAS panels, including in the matter of Maria
Sharapova, taking a medication without medical supervision or outside the
purposes for which the medication was prescribed does not seem to constitute Significant
Fault[31].
When Athletes are at times held to extremely high standards of care for taking
nutritional supplements[32],
or even for being sabotaged at a social drink[33],
CAS panels should be mindful not to encourage Athletes to view self-medication
as part of their training routine.
