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How Strict Is Strict liability? Sharapova Drugs Test Once Again Highlights The Blurred Line Between Carelessness And Cheating

How Strict Is Strict liability? Sharapova Drugs Test Once Again Highlights The Blurred Line Between Carelessness And Cheating

The revelation last month that Maria Sharapova, arguably the world’s best known female tennis player, tested positive for the banned drug meldonium has shaken the sport to the core. Players have been lining up to have their say on the rights and wrongs of Sharapova’s actions, and rumours are rife that she will not be the last big name to be caught doping. Sharapova’s response to the positive test was to arrange a dramatic press conference, where she admitted she had been taking meldonium (which was added to the World Anti-Doping Agency (WADA)’s banned list in January) for the last 10 years. But, far from being an unconditional mea culpa, Sharapova’s admission was shrouded in caveats. She claimed that the drug was prescribed by her family doctor to deal with health issues such as an irregular heartbeat, and says that, due to the drug having two names and her own lack of attention to an email received from WADA, she did not realise it had been added to the banned list.

Even if we assume Sharapova’s version of events to be utterly true, she would still be guilty of a rule violation due to WADA’s use of the principle of strict liability. Essentially, strict liability means that, when an athlete tests positive for a prohibited substance, an anti-doping rule violation occurs regardless of the degree of intent or negligence. Whilst some may see this as leading to unfair results, supporters of the principle argue that a zero tolerance approach forces athletes to take responsibility for what they put into their bodies.

This may all seem very black and white, but in practice there are shades of grey. Whilst fault is not taken into consideration in determining whether a violation has taken place, it is considered when determining the consequences of the violation. This is where Sharapova’s version of events will come under scrutiny: intentional doping can invoke an automatic four year ban from the sport, which would likely end the career of a 28 year old who was already rumoured to be considering retirement. At the other end of the scale, an anti-doping violation where there is “no significant fault or negligence” can, in extreme cases, lead to a reprimand and no playing ban. The stakes are high.

Men’s tennis player Marin Cilic is an example of a player who has felt the sting of strict liability and bounced back. Cilic failed a drug test in May 2013, having taken an unfamiliar glucose supplement that contained a banned substance. Despite being convicted of a violation, Cilic appealed the length of his ban to the Court of Arbitration for Sport (CAS), who eventually reduced Cilic’s playing suspension to just four months. In doing so, CAS considered at length the degree of fault and/or negligence attributable to the player, and concluded that Cilic’s fault was only “light”. Here, strict liability was used in an adaptable and proportionate way. Cilic’s eventual punishment was a suspension that, far from ending his career, kept him out for roughly the same time as a serious injury. Post-suspension, Cilic was able to achieve the highlight of his career so far: victory in the 2014 US Open.

For Sharapova, then, strict liability dictates that she is guilty of a rule violation regardless of whether her crime was deliberate doping or simply carelessness. The shades of grey between the two, however, will determine the survival of arguably her greatest asset: her reputation.

Roddy Cairns
Trainee Solicitor

LChalmers