""If I said tennis is totally clean, I would be kidding myself [..] I would say there are certainly some short cuts being taken. Not that many, but it would be crazy to think differently." - Nick Bollettieri1
Tennis has never been an exception to doping, especially with some of the best known players having fallen from grace such as John McEnroe, Andre Aggassi, Martina Hingis. However, in recent times there have been accusations against the International Tennis Federation (hereinafter, "ITF") for not coming down strongly on athletes in terms of anti-doping measures. This was highlighted after the case of former Men's top 10 player Marin Cilic being penalised for anti-doping violations and maintaining secrecy around it, stating that he was out of competition owing an injury.2 The latest controversy to have hit the Tennis world with regard to doping is that of Maria Sharapova that has left the world astounded. On 26th January 2016, Sharapova was tested in competition by the Tennis Anti-Doping Programme3 (hereinafter, "TADP") at the Australian Open.4and had an adverse analytical finding for Meldonium, a non-specified substance, which was added to the World Anti-Doping Agency ("WADA")List of Prohibited Substances and Prohibited Methods on 1st January, 2016.
Sharapova made a public announcement of her failing the test at a press conference in Los Angeles, accepting the use of the substance for over a decade for various health issues and stating that she was unaware of Meldoniumhaving entered the list of banned substances and also accepted her provisional suspension starting 8th March 2016, until the conclusion of her disciplinary hearing before the ITF Tribunal. In a public statement, Sharapova's lawyer stated that they were applying for a retroactive Therapeutic Use Exemption (hereinafter, "TUE") which if allowed, could aid her in escaping the potential 4 years ban that could be imposed under the revised WADA Code. This article aims to first, analyse the grounds for a possibility of Sharapova being allowed a retroactive TUE in the given fact scenario and second, if she is denied the retroactive TUE, what could be the possible sanction that she could suffer.
II. THE CASE FOR THE GRANT OF A RETROACTIVE TUE:
A TUE is granted as an exemption for medical use of prohibited substances under Article 4.1 of the World Anti-Doping Code and is applied for by an athlete in caseswhere the medication or method of treatment required to treat a condition or illness that he/she suffers from, is a part of the Prohibited Substances and Prohibited Methods list published by WADA.
Ordinarily, an athlete is required to apply for a TUE to the National Anti Doping Authority (hereinafter, "NADA") or International Federation (hereinafter, "IF") (whichever applies) through the Anti-Doping Administration & Management System at least 30 days before participating in an event. Further, TUEs are granted for specific substances and a fixed dosage with a predetermined means of administration as well as a fixed period of time. Only in exceptional circumstances, emergency situations or where it is required by fairness as agreed by both ITF and WADA, can a retroactive TUE be granted to an athlete by the Therapeutic Use Committee (hereinafter, "TUC").5 Even for a retrospective TUE, the normal procedure and requirements for a TUE must be satisfied.6
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1 Courtney Walsh, 'Tennis Forced to Face Moment of Truth' (TheAustralian, 2016) http://www.theaustralian.com.au/sport/tennis/tennis-forced-to-face-moment-of-truth/story-fnbe6xeb-1226467652833
2 Simon Briggs, 'Marin Cilic Given Nine-Month Ban For Positive Drugs Test After Taking Glucose Tablet' (Telegraph.co.uk, 2013) http://www.telegraph.co.uk/sport/tennis/10313784/Marin-Cilic-given-nine-month-ban-for-positive-drugs-test-after-taking-glucose-tablet.html accessed 29 April 2016
3 The Tennis Anti-Doping Programme is an internationally recognised drug-testing programme that applies to all tennis players that are participating at Grand Slam tournaments and events sanctioned by the ITF, ATP, and WTA. Under this, players are tested for substances prohibited by the WADA and, upon a finding that an Anti-Doping Rule Violation has been committed, sanctions are imposed in accordance with the requirements of the Tennis Anti-Doping Programme and World Anti-Doping Code. Read more at http://www.itftennis.com/news/225826.aspx#KUPqDkpmQHa9DZFv.99
5 The International Standards on Therapeutic Use Exemption (ISTUE) stipulates which situations may result in the granting of a retroactive TUE, as follows:
- Emergency treatment or treatment of an acute medical condition was necessary; or
- Due to other exceptional circumstances, there was insufficient time or opportunity for the athlete to submit, or the TUC to consider, an application for the TUE prior to Sample collection; or
- Applicable rules required the athlete or permitted the athlete to apply for a retroactive TUE. This is applicable to Persons who are not International-Level or National-Level athletes (Code Article 4.4.5) and (where the relevant NADO so chooses) to National-Level Athletes in sports specified by the relevant NADO(ISTUE Article 5.1 Comment); or
- It is agreed, by WADA and by the ADO to whom the application for a retroactive TUE is or would be made, that fairness requires the grant of a retroactive TUE.
6 See 'The Stewart CAS Award: "Paperwork" Violations And Principles Surrounding "Retrospective" Therapeutic Use Exemptions' (World Anti-Doping Code Commentary, 2015) http://wadc-commentary.com/stewart/ accessed 29 April 2016.
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