Ignorance of the law is no excuse.
Since the evolution of justice, this principle has endured; a person may not escape liability for the violation of a law simply for not knowing it existed.
This long-held value is enshrined in the International Tennis Federation’s (ITF) Anti-Doping Programme (Article 2.2.1), to which Maria Sharapova, as a Women’s Tennis Association (WTA) ranked-player, is bound, and which in turn is a signatory to the World Anti-Doping Code (the Code). Anti-doping policies the world over have slightly different variations of this edict; indeed Australia’s anti-doping policy is perhaps the most clear cut – “an athlete must accept that ignorance of this Policy, the Code or the Prohibited List is not an excuse for an anti-doping rule violation, and shall not mitigate culpability in sanction” (Article 4.1.11). Some are less candid, but they all repeat the same mantra: lack of knowledge is no defence.
This also underpins the most straight-forward argument in favour of the ITF, tennis’ world governing body, issuing Sharapova with a maximum four-year ban. This will be the period of ineligibility imposed upon the Russian tennis player should she be found to have taken meldonium, a specified substance under the Code, intentionally (Article 10.2.1.2).
“I found out that it also has another name of meldonium which I did not know,” said Sharapova during her press conference admitting to the violation earlier this month. “On January 1st the rules had changed and meldonium became a prohibited substance which I had not known,” continued Sharapova.
By her own admission, Sharapova falls prey to this argument. It is likely, through an objective interpretation of the ITF’s and the World Anti-Doping Agency’s (WADA) regulations, that Sharapova will be handed a lengthy ban. The importance of widely applicable and indiscriminate regulations which set strong future precedents and upholds the integrity of clean sport is perceived to be of greater value than the personal cost to those individuals who violate the Code, intentionally or otherwise. It was thus with the Essendon 34, it will likely be so with Sharapova.
Despite Sharapova’s damning revelations, there are many arguments floating about in defence of her conduct, arguing for a plea in mitigation or at the very least to temper our judgement of her violation. These have ranged from taking into account that meldonium is sold commercially under a different name not found on WADA’s Prohibited List (mildronate), to an excitable remonstrance from the CEO of tennis racket manufacturer and Sharapova sponsor, Head, that meldonium should never have been on WADA’s Prohibited List from the start.
One well thought-out and articulate assertion by former Olympic sprinter Craig Pickering takes a different angle, arguing that all athletes are looking for an edge, as Sharapova no doubt was, and which was perfectly legal until only very recently.
“As an athlete, you have to do everything in your power to stack the deck in your favour, to increase your chances of winning. That’s why we train, follow a strict diet, sleep, and sometimes take supplements,” writes Pickering. “Don’t judge Sharapova for taking this substance before January 1st 2016. However, you can absolutely judge her for taking it afterwards.”
Culpability need not be singular
Regardless of Sharapova’s liability and mitigating factors however, what is less scrutinised is the accountability of the other parties in this saga. Sharapova is but one of many parties.
Some have argued that Sharapova’s ‘team’ – of doctors, coaches, managers etc. – should shoulder some of the blame. ‘In this day and age of the athlete there has to at least be someone on the team responsible for doing a double-check. This is so important,’ said Pam Shriver, the former US Open finalist.
Another party, of which little has yet been said, is WADA itself. As the self-proclaimed ‘guardian of the values and spirit inherent in the [World Anti-Doping] Code’, Sharapova’s case, or her report of it, provides a damning indictment of WADA’s enforcement protocols.
‘A report said that I had been warned five times about the upcoming ban on the medicine I was taking. That is not true and it never happened,’ wrote Sharapova on her official Facebook page last week. ‘That’s a distortion of the actual “communications” which were provided or simply posted onto a webpage,’ her statement continues, before describing in detail how warnings from WADA and the ITF were buried in newsletters, websites and hand-outs.
‘No excuses, but it’s wrong to say I was warned five times,’ finishes Sharapova. There is much for WADA, and the ITF, to answer here with regards to how effective – and realistic – their warnings about the changes to the Prohibited List were. Meldonium was added to WADA’s Prohibited List in September 2015, its ban coming into effect on 1st January 2016. The drug was added to WADA’s Monitoring Program in September 2014; meldonium has been on WADA’s radar for a long time.
WADA has also known for a long time, through part of its monitoring of meldonium to assess whether it should become prohibited, that many athletes were taking the drug during competition. In one report, whose sole aim was to estimate the ‘prevalence of meldonium use in athletes competing in the Baku 2015 European Games to contribute to the surveillance of substances on the 2015 WADA Monitoring Program’, 8.7% of athlete urine samples analysed tested positive.
Since the inception of its ban on 1st January 2016, WADA have confirmed that there have already been ‘99 adverse analytical findings’ for meldonium recorded. These numbers offer a dim view of WADA’s communication efforts.
“Everyone was told ‘here is the new list and here are the changes’,” WADA’s Director General David Howman said in a press conference earlier this week. And yet the fact that so many athletes have since tested positive, in just ten weeks – undoubtedly a huge spike relative to the normal number of positive tests in this timeframe – suggest that WADA simply has not been doing its job properly.
‘We develop innovative and practical solutions to assist with stakeholder Code implementation and compliance,’ claims WADA’s homepage triumphantly. The implementation and compliance part appears to be lacking.
A carefully directed assault?
WADA’s knowledge of the widespread use of meldonium among elite athletes poses another, more difficult and certainly more delicate, question. In the samples analysed by laboratories to detect meldonium use, the personal and demographic details of the athletes is concealed, so of the 8.7% positive tests in the aforementioned study, it is not known which specific countries these athletes came from.
What is known however, and known to WADA, is that meldonium is ‘reported to be registered for medical use in seven Eastern European countries who competed at the Baku 2015 [European] Games’. Meldonium is registered and prescribed as a drug for human therapeutic use in Latvia, Russia, Ukraine, Georgia, Kazakhstan, Azerbaijan, Belarus, Uzbekistan, Moldova, and Kyrgyzstan. It has not been approved by the Food and Drug Administration (FDA) for use in the United States.
The All-Russia Athletic Federation (ARAF) remains suspended as an International Association of Athletics Federations (IAAF) member and there remains huge scrutiny over its drug monitoring policies and programmes. WADA knew that a large proportion of Russian athletes were openly using meldonium. According to the study into meldonium use at Baku 2015, the ‘geographical commercial availability of meldonium for medical use correlates with the countries of origin of the athletes who self-declared its use, and also correlates with the NOC medical teams who carried it as team stock’. Extrapolation of these statistscs suggest that significant numbers of Russian athletes were self-reporting their use of meldonium on doping control forms.
The question, therefore, is whether WADA would have been as seemingly slack with the communication of the changes regarding meldonium’s status had they detected the same patter of use among Western, or simply non-Russian, athletes?
It is a hypothetical question and impossible to verify, but remains valid; was the addition of meldonium to WADA’s Prohibited List so quickly and apparently quietly in fact a knee-jerk reaction to the ongoing Russian doping controversy?
Even if Russian athletes had been taking meldonium as a performance-enhancing drug to gain an edge, this was a perfectly legitimate way of doing so, and very much akin to other methods of gaining an edge, as Pickering emphasises, like training at altitude, following a strict diet, sleeping well, taking other supplements. It is unlikely that the ARAF or any other Eastern European sporting body whose athletes have fallen foul of the new regulations, would have welcomed the renewed scrutiny and critique of their athletes.
“NADOs [National Anti-Doping Organisations] need to do more,” said WADA’s Howman. This is a sentiment shared by Howman’s incoming successor and incumbent Chief Operating Officer, Olivier Niggli, who will take over as Director General on 1 July 2016. In an exclusive interview with The Sports Integrity Initiative, we asked Nigglie whether WADA could have done more to communicate the change in meldonium’s status effectively.
“That’s an interesting question,” responded Niggli. “Because we have done what we have always done, and when you look at the documents that were published at the end of September, it’s on the first page that meldonium was added to the list. It can’t hardly be clearer.”
“We are not responsible to reach out to every individual athlete,” continued Niggli. “Really the international federations and through their national federation and the NADO needs to do their work within their sport and in their country.”
“It looks as if this may not have happened the way it should but I have a hard time accepting that WADA should have done differently.”
And here lies the crux of the issue. Undoubtedly RUSADA, the Russian Anti-Doping Agency, is also at fault here, but RUSADA is a unique case, and one who’s operation has been put into disarray, albeit for good reason, by WADA.
RUSADA remains suspended from WADA following an investigation by an Independent Commission into widespread doping in Russian athletics. In its latest update on RUSADA’s non-compliance, WADA gave no indication as to when it would be readmitted. The likelihood that RUSADA had the resources, funding and relevant know-how in a period of dissaray to have flagged the changes to meldonium’s status effectively among its sporting populous was very low. The ensuing positive tests confirm it was woefully underprepared. This is not news to WADA.
“In light of what we see, the communication might not have been optimal at that level,” concedes Niggli to the question of whether more resources should have been dedicated from NADOs and international federations to communicate the change in meldonium’s status.
If WADA’s role is to communicate changes in the Prohibited List to NADOs, then perhaps WADA needs to be doing more to ensure that NADOs relay that information to athletes. One suggestion is that WADA request evidence from NADOs that they have effectively communicated the change.
“I think maybe WADA will look at that when they look at compliance and see how organisations are communicating changes,” says Niggli. “Clearly there is a responsibility on anti-doping organisations to make sure that they pass on the information.”
“Again this particular process has been going on for 15 years, it’s always the same, at the same date. Everybody knows what to expect – like Santa, you expect him on the 24th in the evening,” explains Niggli.
It appears that a substantive part of WADA’s argument is that they are simply doing what they have always done. From recent events, not least the allegations of state-sponsored doping in Russia, there appears a flaw in the status quo.
The caffeine test
Compare and contrast as well meldonium’s new status to that of caffeine, which since 2004 (prior to which it featured on WADA’s Prohibited List), has featured on WADA’s Monitoring Program. A lot of athletes use it for its performance-enhancing features (it enhances speed and stamina). Those athletes that use it come from various countries and it is available the world over; geography is not a factor.
There are of course a number of reasons why caffeine has not been added to the Prohibited List but meldonium has (including that performance-enhancing doses of caffeine were virtually indistinguishable from everyday use). However should caffeine ever be readmitted to the Prohibited List, the likelihood is that the ‘communication’ of its new status will be far more vocal and widespread than what has occurred for meldonium. The epidemic of positive tests would otherwise likely cripple competitive sport. Those in authority may rebut this theory, but the question remains.
Nurturing a dangerous environment
Aside from WADA’s failure or not to appropriately communicate meldonium’s change in status, there is a strong argument that WADA’s culpability, and that of the NADOs, dates back far longer.
In the study into athlete meldonium usage at Baku 2015, it found that only 23 (3%) of the 662 athletes tested self-reported taking the drug, and yet 66 (8.7%) of athlete samples subsequently analysed tested positive. Such a significant under-declaration of its use not only ‘raises suspicion that many athletes did not want to let the anti-doping authorities to know about their use of meldonium’ but is redolent of an environment enshrouded in secrecy and dishonesty.
On WADA’s Doping Control Forms, which were used in the Baku 2015 monitoring, athletes were requested to declare ‘any prescription / non-prescription medication or supplement use’ within the last 7 days before testing. Athletes needed to then sign the form declaring that the information given on the document was correct. Withdrawal of consent to the processing of the doping control data was to ‘be construed as a refusal to participate in the anti-doping procedures mandated by the Code and the Anti-Doping Rules’ the signatory was warned.
Despite the warnings, there are no repercussions to non-compliance. There are no penalties under the existing World Anti-Doping Code for failing to self-declare the use of medication and / or supplements. If athletes can be confident that they will suffer no repercussions in failing to declare the use of a supplement then they are not being held to account. While this may not be an issue for a legal supplement, it fosters an environment in which athletes know that ‘they can get away with it’. It doesn’t take much for this to translate to an illegal supplement.
By failing to enforce consequences for duplicitous behaviour – for that’s what failing to declare supplement intake is, banned or otherwise – WADA is creating an environment in which athletes believe it is perfectly acceptable to act in this way. It is not.
‘I think you don’t have to blame WADA for anything,’ said Novak Djokovic, the current world number one, of Sharapova’s case. Less than three years ago the tennis professional wasn’t so complimentary.
‘This system of WADA and anti‑doping agency does not work,’ lambasted Djokovic in a post-match press conference on the same day that Serbian professional Viktor Troicki was served an 18-month suspension at the back end of 2013 for having failed to provide an in-competition blood sample.
‘[The Doping Control Officer (DCO)] did not clearly present him all the severe consequences that he will have if he avoids [the test],’ railed Djokovic. ‘Because of her negligence and because of her unprofessionalism, he is now off the tour for one year.’
Djokovic may have changed his tune, but the complaint isn’t new; education and awareness among athletes remains hazy at best, and they know it. The athlete, after all, not the doping organisations, nor the governing bodies (unless the doping is systemic, as in Russia), nor that often even the ‘team’ surrounding the athlete, is the one that faces the ban, the threat to their livelihood and the stigma that goes with it.
A nod to the future
Ignorance is no excuse for Sharapova or any other athlete that falls foul of the World Anti-Doping Code. However the welfare of athletes should be close to the forefront of WADA’s duties.
‘We respect the rights and integrity of clean athletes,’ they state under their core values. WADA is working towards the greater goal of clean sport, however just as with any large institution, the mantra that if the staff are treated well, the customers will be too, applies. Only in this case, if the athletes are treated well, the likelihood is that the sport and its followers will be too.
Has WADA done enough to respect the rights and integrity of clean athletes? Probably not. Should Sharapova be absolved of fault? Probably not. But just as one commentator notes, only one of these stakeholders is facing a four-year ban.