Please over-share on your doping control form because if you fail to declare a substance you should have and you later test positive for it, you will be in big trouble
But if you would like a little more information, read on…
Maria Sharapova, one of the world’s most famous tennis athletes of the last decade, appeared before an independent tribunal in May 2016 to fight for her tennis career after testing positive for a newly banned prohibited substance called meldonium.
Her defence was along the lines of “It’s not me; it’s you”. It failed miserably. Ms Sharapova’s legal team had argued that the International Tennis Federation’s (ITF) notification procedures were pathetic, and that by failing to tell her properly that meldonium had been added to WADA’s prohibited list in January 2016, the ITF should essentially be told to ‘tap the mat’ and let her off. By ‘properly’, Ms Sharapova’s team suggested that a personal phone call would have been nice, rather than generic communications requiring a degree of independent effort to find out whether the substance had joined the banned list. Apparently, so the argument went, Ms Sharapova had used meldonium frequently over previous years, and the ITF should have known about this due to, among other things, her previous doping test results.
Let’s go to the last line of the Independent Tribunal decision to see what the Tribunal thought of this reasoning: “She is the sole author of her own misfortune”.
The Tribunal was not captivated by Ms Sharapova’s failure to be candid about a range of matters. At the hearing, there were a few surprises and inconsistencies in Ms Sharapova’s case, never a good look for a litigant.
For example, those who watched Ms Sharapova at her March 2016 press conference announcing her positive result will remember she offered the following explanation for her use of meldonium:
“I was getting sick very often and I had a deficiency in magnesium and a family history of diabetes, and there were signs of diabetes. That is one of the medications, along with others, that I received.”
What was revealed before the Tribunal was that this was ‘kind of true’, but not the whole story. And what was concealed was rendered far more important than what was revealed.
The story begins after Ms Sharapova won Wimbledon in 2004, aged only 17. She was frequently unwell in the following year, suffering from cold-related illnesses, tonsil issues and upper abdomen pain. Her father took her to Dr Anatoly Skalny in Moscow, who specializes in the treatment of medical imbalances. He considered her family history, which included type II diabetes and heart disorder, and he diagnosed elevated glucose and cholesterol levels and mineral imbalances.
Soon Ms Sharapova found herself taking up to 18 medical substances, including meldonium (sold as Mildronate). Meldonium was not then prohibited for use by WADA, but it was not approved for human use in many countries such as the USA.
The instructions for Mildronate supplied by Dr Skalny were sports related and not apparently related to underlying health issues:
- “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”
The medical regime worked. The Tribunal was at pains to say, “there is no basis for criticizing the decision of the player, then aged 18, and her father to accept and act upon the clinical judgment of a reputable expert in the field of mineral imbalances”.
Dr Skalny was vigilant in checking and certifying that all the substances he was recommending complied with the WADA Code.
Ms Sharapova worked with Dr Skalny for six years, but by 2012 she had had enough of the punishing pill regime which by now had increased to 30 different types of medications. Not surprisingly, “She found the taking of lots of pills overwhelming and she thought there was a better way to handle her health than by taking a large number of pills”.
Soon Dr Skalny was gone, and a new nutritionist was retained as part of her team.
However, without seeking any advice Ms Sharapova decided to continue using three of the substances of her own accord. One of them was Mildronate.
She did not recall any discussion with Dr Skalny about her decision to continue using Mildronate. She did not tell her new nutritionist about it, nor did she tell any of the medical practitioners who treated her over the ensuing years (except for one). Her use of Mildronate was also not known to her coach, her trainer or her physio.
Why did she not tell them? Her response was: “none of them had asked”. The one doctor she did tell (the team doctor for the Russian Olympic team) had apparently asked her what medication she was taking.
The only other people who apparently knew of her use after 2012 were her father and her manager (from 2013).
This remarkable tale of non-disclosure emerged for the first time at the hearing. This was contrary to the impression created by her manager’s first witness statement, which indicated the positive test was an administrative oversight by someone in her team, and in respect of which he blamed himself. However, if the team did not even know Ms Sharapova was using Mildronate, they were incapable of the kind of oversight suggested.
Further, in addition to telling almost no one she was taking it, Ms Sharapova started to self-regulate her meldonium intake without medical advice. Taking pills before a match did not give her a good feeling, so she started taking two capsules a bit earlier in the morning on match days. She also did not take Mildronate during the middle of a long match because “she did not feel comfortable with putting pills in her mouth during a match”.
Now we arrive at the most telling findings:
“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.”
Importantly, “significant numbers of athletes were declaring the use of Meldonium on their doping control forms” (but not Ms Sharapova), so much so that by September 2014 WADA published a notice stating that a number of substances, including meldonium, had been placed on the monitoring program. WADA further explained that meldonium, a drug with potential cardiac effects, had been added to the monitoring program to assess its abuse.
Ms Sharapova’s team could not keep an eye on meldonium status for her, because she had not told them she was taking it. It also did not appear she was keeping a lookout herself. The Tribunal essentially scoffed at her suggestion that it was Dr Skalny who kept an eye on the WADA status of meldonium, given she had ceased her association with him four years prior to her positive test.
As to whether the ITF should have tipped off Ms Sharapova to the change of rules, the Tribunal rejected this argument. The Tribunal found that the ITF did not know and could not have known she was taking meldonium, and could not have been informed of this via, say, positive doping test results prior to the rule change. The WADA Code requires that the strict anonymity of individual Athletes be preserved with respect to such results.
The Tribunal was plainly perplexed by the state of affairs leading to Ms Sharapova’s positive test result:
“The underlying factual puzzle in this case is how an elite player in the position of Ms Sharapova, with the assistance of a professional team including the very best sporting and medical advice obtainable, could ever have placed herself in the position of taking a Prohibited Substance, as is admitted, before each of the five matches she played at the Australian Open.”
That question remains unanswered and at large.
Ms Sharapova’s manager attempted to proffer an explanation but, if anything, made the situation worse. He said it became his responsibility to check the WADA status of substances Ms Sharapova took, even though he lacked the requisite expertise to know what to look for. He provided a tale replete with “remarkable features” such as his separation from his wife, his consequential failure to attend his annual family holiday in the Caribbean, and that his purported annual WADA form-checking by the hotel swimming pool therefore did not occur. The Tribunal regarded his story as “unbelievable” and rejected his evidence.
In the end, and from a review of the decision, Ms Sharapova can consider herself lucky only to be subject to a two year ban (unintentional violation) rather than automatic disqualification for the full four years. The Tribunal considered it “clear” she was using Mildronate to boost her energy levels and for the purpose of “enhancing her performance”. That said, the Tribunal added she did not engage in conduct that she knew constituted an anti-doping rule violation.
If Ms Sharapova had been hoping for one year automatic disqualification (no significant fault or negligence) or to be let off entirely, such an outcome was not on the cards based on the factual findings.
If Ms Sharapova pursues an appeal to the Court of Arbitration for Sport, as she apparently intends to do, the hearing will be on a ‘start again’ basis but it is hard to see how these fundamental facts will change.
THE DOPING CONTROL FORMS
Ms Sharapova’s failure to identify her use of Mildronate on doping control forms was a lynch pin to the Tribunal’s findings.
There were seven doping control forms in evidence that were completed and signed by Ms Sharapova between 22 October 2014 and 26 January 2016. They disclosed some medications and vitamins, but not her ingestion of Mildronate. From admissions made by Ms Sharapova and other evidence, the Tribunal concluded that there were at least four occasions when the forms should have included references to Mildronate.
The doping control form requires the athlete to make a declaration as to medication or supplements taken. The form is unambiguously headed “DECLARATION OF MEDICATION / SUPPLEMENTS” and requires a “List of any prescription / non-prescription medications or supplements, including vitamins and minerals, taken over the past 7 days (include substance, dosage and when last taken).” [Emphasis added]
Ms Sharapova’s cross-examination did not go well. Asked why she failed to disclose Mildronate on the list of medications she provided on doping control forms, she responded that she understood the form only to require her to disclose a medication or supplement if she had taken it every day for the last seven days, because “otherwise the list would be very long”.
However, the Tribunal found that at Wimbledon 2015 she had used Mildronate six times in the previous seven days, and at the Australian Open 2016, five times in the past seven days. In other words, even by her own (somewhat strained) interpretation of the rule, Ms Sharapova’s meldonium use was in the clear territory of disclosure.
Ms Sharapova added:
“I did not feel it was a huge responsibility to write all those medications down. As I said before, in hindsight, this is a mistake of mine… I did not feel it was a responsibility to have to write down every single match drink I was taking, gel, vitamin that I was taking, even if I took it once during the last seven days. I did not think it was of high importance”.
Ms Sharapova’s justification was regarded by the Tribunal as “untenable”. The wording of the doping form was said to be “clear” and “could not reasonably be misunderstood”. They regarded her failure to disclose as a “deliberate decision, not a mistake”. Taken with her failure to disclose her use of meldonium to (almost) everyone, the Tribunal found that “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”.
DISCLOSURE ON DOPING CONTROL FORMS IS EVERYTHING
Many of us can appreciation the exasperation athletes must feel when confronted by regular doping controls followed by unwanted form filling. However, in the face of a positive doping test, any attempt to suggest that this process is unimportant or insignificant rarely plays out well.
In a harbinger of things to come for Ms Sharapova should she appeal to the Court of Arbitration for Sport (CAS), followers of the Essendon Football Club saga will be reminded of what the CAS Panel thought of players’ failure to disclose the full (or any) extent of the supplements regime they were subjected to at the Club in doping control forms.
The vast majority of Essendon players failed to fill in a doping control form during the season. The Panel described their evidence as a “calculated (but vain) attempt to justify the non-disclosures”. One player had justified his non-disclosure on the basis that “you list the things that you feel you need to list”, a quote the Panel decided was sufficiently important to extract in its decision.
Such a casual attitude to doping control forms only makes it easier for the prosecutor to convince the Panel, as in the Essendon example, that the players’ conduct was “secretive”, that they were “economical with the truth” and did “not encourage confidence in their statements”.
In other words, in a litigious situation, a casual attitude to doping control forms corresponds to lack of candour, and aids the fact-finder’s logical leap to adverse credit findings.
ATHLETES – IT IS TIME TO OVERSHARE
People like me (disgruntled Generation X) find the willingness of millennials to overshare a bit confronting at times. Well, my young Millennial Athletic Friends, now is the time to overshare on your doping control forms. Here are a some tips to make this experience easier.
- If you regularly take up to 30 medications which will take time to list (or even much less), prepare in advance a Word document listing them, that is headed Annexure A, and carry this with you. Then, on the doping control form, write “see Annexure A” and attach this document to the form. If you need to, you can amend Annexure A by hand, and initial any changes to your intake prior to handing it over.
- Keep a record –
- At its most basic, in the notes function or app on your iPhone or other smart phone, write down the date and what you wrote on your doping control form. At the least, it shows you are diligent about record keeping, and not the kind of person to display the ‘casual’ attitude that fact-finders do not like.
- Even better, if you have attached a document such as Annexure A to the doping control form and it becomes detached from the form you handed over, doping controls will know from “see Annexure A” that there is a document missing. You, of course, have it on your computer and can print it off should the occasion arise. If there were any handwritten changes you made to Annexure A before handing it over, record this in your iPhone ‘diary’.
- Read the requirements of the doping control form closely and give the words a broad not a narrow interpretation
- If the form refers to ‘taken within 7 days’, it means you may have taken it only once
- If you are unsure whether a substance was taken in the last week or last fortnight, include it anyway but say in brackets “(not sure if in last 7 days)”
- If you are unsure about whether something you take can be called a ‘supplement’, include it anyway
- If you are a woman and on the Pill, include it (sometimes we take it for granted and forget we take it)
- If you do not know what you have been given but you are comforted it is acceptable because it has been authorized by your employer, team doctor, physio, nutritionist or friend at the gym, say it anyway – For example, “I was taken to an anti-ageing clinic with some of the boys and injected with a substance but you will have to ask [team doctor / sports scientist] what it is”
- Adopt the mantra “My body is my temple” – You are responsible for everything you put in your body and you appreciate that you owe it to yourself (let alone others) that you record what / when / how much you take of anything you ingest that looks like it has ingredients in it