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Mike Rowbottom: Whoohoo! Sharapova Moves Slightly Forward to Partial Victory!

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Maria Sharapova holding the 2008 Bausch & Lomb Championship trophy. By Craig ONeal - Maria Sharapova, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=4998539

Maria Sharapova is happy. Johan Eliasch, the chief executive of her racquet sponsors, Head, is super-happy. Whoohoo! But where is her great victory?

Russia’s five-times Grand Slam tennis champion has had a two-year ban for a doping offence reduced to 15 months by the Court of Arbitration for Sport (CAS), which means she will return to the sport – lucrative exhibition matches notwithstanding – from April 26 next year.

Certainly she was glad to hear the CAS judgement that: “Under no circumstances can the player be considered to be an intentional doper.”

But the original judgement in June by an independent tribunal appointed by the International Tennis Federation had already concluded the same thing: “The contravention of the anti-doping rules was not intentional as Ms Sharapova did not appreciate that Mildronate contained a substance prohibited from 1 January 2016.”

Nobody is saying Sharapova took what she knew to be an illegal performance-enhancing substance.

Sharapova has maintained she only took Mildronate – or meldonium, to give it its generic title – for longstanding medical reasons. But she never put this substance down on the declaration of medication/supplements list requiring a list of any prescription/non-prescription medications or supplements, including vitamins and minerals, taken in the previous week.

Sharapova claimed she didn’t think it was important to put down what was one of a number of substances legally prescribed for her Dr Anatoly Skalny of the Centre for Biotic Medicine in Moscow a year after she had won the 2004 Wimbledon singles title as a 17-year-old.

The independent tribunal disagreed, commenting: “This was a deliberate decision, not a mistake. Taken together with the evidence that over a period of three years she did not disclose her use of Mildronate to her coach, trainer, physio, nutritionist or any medical adviser she consulted through the WTA (Women’s Tennis Association), the facts are only consistent with a deliberate decision to keep secret from the anti-doping authorities the fact that she was using Mildronate in competition.”

Maria Sharapova. By Valentina Alemanno (Flickr) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons
Maria Sharapova. By Valentina Alemanno (Flickr) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons
Meldonium, the independent tribunal noted, “is manufactured by JSC Grindeks in Latvia and marketed under a number of brand names, including ‘Mildronate’. The indications stated in the instructions for use 5 issued by the distributors of Mildronate are principally ischaemic heart disease and cerebrovascular disorders, but also include ‘decreased working efficiency, intellectual and physical overstress (including in sportsmen).’

The report continues: “In the period from January to April 2006 Dr. Skalny sent very detailed messages to Ms Sharapova advising on her nutritional intake, including advice as to medications. The messages which have been disclosed include the following advice given in 2006 on taking Mildronate:

“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.”

It sounds like the substance is being regarded as performance-enhancing.  Sharapova has maintained it was to counteract hereditary medical problems including heart palpitations. But until January 1, 2016 – so what? Meldonium wasn’t on the World Anti-Doping Agency’s prohibited list, so it was, at worst, a moral rather than a legal problem.

It became clear in the original hearing that Sharapova’s usage of meldonium was known only to her manager at the IMG Agency, Max Eisenbud, whose evidence about why he had failed to monitor the addition of meldonium to the banned list was dismissed as being “wholly incredible.”

Fast forward three months, and the detail of the CAS appeal conclusion makes it clear that neither contending party came away with their case entirely intact; even though the judgement went in favor of Sharapova, there was leeway to reduce her ban still further.

The CAS hearing noted that Eisenbud had “no medical or scientific expertise” and that he had undergone “no anti-doping training – the Player was aware of this fact.”

Eisenbud had already testified that, for a mixture of reasons including the distraction of undergoing a divorce in 2015, he had failed to check the modifications in the 2016 Prohibited List.

But CAS concluded that it did not require anti-doping training to check the new Prohibited List – this was something any player should be able to do for themselves if necessary.

It noted: “Mr Eisenbud and IMG were, in 2013, when the Player left the care of Dr Skalny, already taking care of other aspects of her anti-doping compliance, which, such as TUE (therapeutic use exemptions) applications, involve some complexities;” and concluded “In other words, the Player chose a sufficiently qualified person as her delegate for the purposes of checking the Prohibited List.”

However, it also found that Sharapova “did not give Mr Eisenbud instructions as to how this task had to be performed. The Player did not tell Mr Eisenbud to check (and Mr Eisenbud therefore did not check) whether Mildronate was only a ‘brand name’ or indicated the ingredient of the product:

“She did not put him in touch with Dr Skalny at the time she left the care of Dr Skalny, but simply supplied Mr Eisenbud with the names of the Skalny Products; she did not instruct Mr Eisenbud to consult the World Anti-Doping Agency, ITF or WTA website, to call the ITF ‘hot line’, to open the flash drive supplied with the ‘wallet card’, or even to read the emails received, opening the ‘links’ therein contained. She simply passed the entire matter over to Mr Eisenbud, completely relying on him.

“In the same way, the Player did not establish any procedure to supervise and control the actions performed by Mr Eisenbud in the discharge of the tasks he was expected to perform: no procedure for reporting or follow-up verification was established to make sure that Mr Eisenbud had actually discharged the duty, for instance, of checking year after year the Skalny Products towards the Prohibited List.

“Such circumstances show some degree of fault on the part of the Player..”

But there was counterbalancing censure too for those administrating the changes to the 2016 Prohibited List, as CAS found: “no specific warning had been issued by the relevant organizations (WADA, ITF or WTA) as to the change in the status of Meldonium (the ingredient of Mildronate).

“…The Panel notes that an athlete or his/her delegate could have found reference to both Meldonium and its brand name Mildronate through a couple of links on the ITF website. However, it is concerned that the ITF’s notices to athletes that referred to ‘Significant Changes’ to the TADP referred only to procedural changes and not to the addition of new prohibited substances.”

In the meantime, of course, WADA has had to shift its ground over the decision to put meldonium on the banned list as challenges have been made over their scientific proof that the product is performance enhancing (perhaps there really has been a super-concentration of elite athletes, particularly in Eastern Europe, with potentially harmful cardiac conditions in recent years).

WADA admitted in April that more research was required to calculate how long the product remained in the human body and it has widened the time frame in which players can have taken meldonium without incurring sanction.

So what, finally do we have here? On reflection, the statement by Sharapova’s lawyer John Haggerty that the CAS ruling represents a “stunning repudiation” of the original ITF-sponsored enquiry has more spin on it than a Novak Djokovic forehand.

This looks like an almighty muddle. A no-win situation, in fact.

By Mike Rowbottom

Republished with permission from insidethegames.biz

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