Unintentional Doping: Legal Lessons from Maria Sharapova's Court

On Wednesday, June 8th, an independent three-member tribunal appointed by the International Tennis Federation (ITF) banned tennis star Maria Sharapova from professional tennis for two years - the result of failing a drug test and testing positive for the banned drug meldonium. Meldonium - which Sharapova had been taking since 2006 "for heart issues, a magnesium deficiency and because her family has a history of diabetes" - was added to the list of banned drugs beginning on January 1st, 2016. Sharapova claims that she (and her manager) inadvertently failed to read an email announcing that the drug was being added to the list of banned substances. The list is also publicly posted online.

Sharapova faced up to a four-year suspension and was given the two-year suspension by the tribunal after they concluded that she had not intended to violate the banned substance rules. In a Facebook post after the suspension was announced, Sharapova stressed that "the ITF tribunal unanimously concluded that what I did was not intentional" and that "the tribunal found that I did not seek treatment from my doctor for the purpose of obtaining a performance enhancing substance." Her post, however, went on to note that "While the tribunal concluded correctly that I did not intentionally violate the anti-doping rules, I cannot accept an unfairly harsh two-year suspension" when it was agreed that she did not intend to do anything wrong. She noted that she would "immediately appeal the suspension portion of this ruling to CAS, the Court of Arbitration for Sport."

A two-year suspension for the tennis star - a five-time Grand Slam champion who had been the highest paid female athlete in the world for 11 consecutive years - has tremendous implications not only for her and her career but will surely impact the sports world (as the highest profile tennis player to have a positive doping test) and the sports law community, as well. Some experts note that it appears as if the ITF wanted to send a message that they are tough on doping, using this high-profile athlete as an example. Sharapova's sponsors (and, undoubtedly, her fans) appear divided on the issue of the fairness of the two-year ban. Nike, which had initially suspended its relationship with her back in March, said after the decision that "Based on the decision of the ITF and their factual findings, we hope to see Maria back on court and will continue to partner with her." And Head, which has supported her throughout, issued a statement providing, in part, that "this is a flawed decision" and that "Head will continue to stand by Miss Sharapova." Bottled water company Evian also announced that they will stand by Sharapova - while other sponsors, such as Porsche, are waiting to see what happens with her appeal.

In addition to its major impact off the court in terms of potentially millions of dollars of lost earnings from sponsorships, a two-year ban from tennis can have very serious long-term negative consequences on the court, as well ... and on the future of Sharapova's career in women's tennis. According to media reports, Sharapova stands to lose approximately $8.2 million in winnings (including forfeited winnings from this year's Australian Open). In addition, and perhaps most important to Sharapova's career, if the two-year ban is upheld, it will end at midnight on January 25, 2018 - three months prior to her turning 31. With the average age of the top 200 women on the WTA Tour at 25 years old, many are questioning whether Sharapova will ever compete again if she is banned from the sport for these next two critical years in her tennis career. With her numerous past injuries, and her age, some tennis experts predict that it would be extremely difficult for Sharapova to "come back" after a two-year suspension. So while a two-year ban is certainly better than the four-year ban initially proposed, the reality is that a two-year ban for unintentional doping may just unintentionally end the career of one of the top women athletes in the world.

As this case highlights, anti-doping policies generally adopt a standard of "strict liability" - meaning fault is irrelevant to guilt. Whether or not you intended to cheat is not the point. If there's proof that the substance is in your body, you fail. That's true even if there's no reason to believe that you actually received a performance advantage. And it's true even if you didn't know that a substance was banned. The system, designed to stop those seeking to cheat, can also ensnare those who don't mean to cheat.

In Sharapova's case, the question raised is whether an athlete should get a pass if they aren't aware of the latest list of banned substances. Drug-tested athletes are held to know what's on the list, and to know it can change every year. It's their responsibility to check it. Top athletes have teams including managers, doctors, coaches, trainers and nutritionists. Apparently neither Sharapova nor her advisors checked for changes, in addition to failing to open the email containing the announcement of the change to the list.

The ruling reflects that Sharapova should have been aware of the drug's changed status - and would have been, if she had either opened the email or checked the online list. Whether it was an "administrative error" on the part of her manager (who has taken the blame for not alerting Sharapova to meldonium's changed status and, along with her father, were said to be the only ones who knew she had been taking it) or Sharapova's failure to disclose her use of meldonium to anti-doping authorities, the ITF ruling and suspension send a clear message: ignorance may be mitigating, but it is not a complete defense. The two-year suspension, rather than four, reflects a compromise. But for Sharapova, whose career hangs in the balance pending appeal, the shorter suspension may be scant solace.