How to Avoid Going From Grand Slam to ‘Oh Man’

How to Avoid Going From Grand Slam to ‘Oh Man’

A Look at What Lessons Can be Learned from Simona Halep’s Recent Doping Issues

 

The past two (2) years or so have not been kind to the professional tennis career of former world no. 1 and two-time Grand Slam champion Simona Halep.  In September of 2022, Halep was suspended by the International Tennis Integrity Agency (the “ITIA”) after testing positive at the 2022 U.S. Open for Roxadustat, a substance banned by the International Tennis Federation and World Anti-Doping Agency because it can help boost endurance.  Halep was subsequently banned for four (4) years by the ITIA, which she is currently appealing before the Court of Arbitration for Sport.  And this past week, after previously blaming contaminated supplements for her positive test, Halep filed a lawsuit in Supreme Court, New York County against Quantum Nutrition, Inc. alleging that several of its supplements that she used in August of 2022 were contaminated with Roxadustat, despite it not appearing in the labeling, or anywhere else, in relation to the contents of the supplements.  While the various legal matters surrounding her positive Roxadustat test play out, the question is begged as to what other tennis players, or any other athletes, can take away from Halep’s ban and the circumstances surrounding it. A quick look follows. 


Be Familiar with the ITIA and Its Powers

As an initial matter, tennis players in particular have to be familiar with the ITIA and its powers. To quote its website, the stated purpose of the ITIA is to “safeguard[] the integrity of professional tennis worldwide.”  In furtherance of this purpose, the ITIA has two distinct branches, the Tennis Anti-Corruption Program (“TACP”), which primarily investigates suspected illegal betting activity, and the Tennis Anti-Doping Program (“TADP”), which monitors drug use, and per its website, tests players “for the substances prohibited by the World Anti-Doping Agency (WADA) and if a violation occurs” issues sanctions “in compliance with the World Anti-Doping Code.”  TADP’s page further advises that “[i]t is the responsibility of everyone in tennis to be aware of the rules” and that “[p]layers and their team should understand what constitutes an Anti-Doping rule violation, what substances and methods are prohibited and other potential rule violations.”  Similar investigative arms exist in other sports, including golf, which itself has the PGA Tour Anti-Doping Program and the PGA Tour Integrity Program. And virtually all competitive sports monitor for banned substances at one time or another.  It should accordingly go without saying that Halep, and virtually every other professional athlete, needs to remain diligent and vigilant in staying on top of what substances are appropriate for ingestion to help them with their fitness, and which will get them suspended or banned by their chosen sport.


Doping is a Strict Liability Offense in Tennis

TADP defines a doping violation, as applicable to Halep’s situation, as “[t]he presence of a Prohibited Substance or any of its Metabolites or Markers in a Player’s Sample, unless the Player establishes that such presence is consistent with a [Therapeutic Use Exemption.]” 
Its anti-doping rules go on to state that:


“It is each Player’s personal duty to ensure that no Prohibited Substance enters their body. Players are responsible for any Prohibited Substance or any of its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary to demonstrate intent, Fault, Negligence, or knowing Use on the Player’s part in order to establish an…Anti-Doping Rule Violation; nor is the Player’s lack of intent, Fault, Negligence or knowledge a defence to an assertion that an…Anti-Doping Rule Violation has been committed.” 


To distill the above-excerpted provisions to their basic message: doping is a strict liability offense in tennis. Accordingly, whether or not Halep, or any other tennis player, is aware of how a given banned substance enters their body makes little difference; they will likely be suspended and/or banned anyway.  And while some circumstances may provide for relief from a suspension/ban, such as former top 10 tennis player Richard Gasquet’s successful appeal at the Court of Arbitration for Sport several years back after he established that the cocaine in his system likely came from kissing someone who had a high quantity of it in her saliva, a tennis player cannot regularly rely on such a prospect to excuse their positive tests.  The takeaway is thus that Halep and others must be forever vigilant in testing and/or monitoring virtually every supplement, and perhaps even everything being consumed (remember boxer Canelo Alvarez’s issues with Clenbuterol-tainted meat), for banned substances.  It may not always be possible or practicable, given the broad spectrum of banned substances, but the stakes can be exceptionally high if an athlete is not careful, as Halep can now attest. 


Vet Your Supplement Sources 

As alluded to above, Halep is now suing the supplement company that allegedly provided the Roxadustat-laced supplements in a New York court.  Specifically, she is suing the company for negligence in its production, distribution, and sale of the supplements, strict products liability, breached of implied warranty, breach of express warranty, intentional misrepresentation, negligent misrepresentation, and false advertising. Lingering behind each of these claims, however, is the question of whether Halep and/or her team sufficiently vetted the supplement company before purchasing the allegedly contaminated supplements in August of 2022.  While whether Halep did, or did not, sufficiently vet the supplement company makes no difference as to whether it can ultimately be found liable in the New York lawsuit, such vetting can make a very big difference in helping Halep, and other athletes, from getting into such situations in the first instance.  Sometimes, simply trusting what one ingests because it comes from a company that is in the business of making legitimate supplements is not enough. This is an unfortunate, but true, fact in a world where more than a few companies, and compounding labs, have been found to have been responsible for selling and producing contaminated supplements over the years. 


Cycling is Not a Reliable Way of Utilizing Banned Substances

An interesting, and perhaps somewhat poorly understood, component of Halep’s ban was that ITIA investigators also allegedly detected irregularities in her so-called “biological passport,” which seeks to detect abnormal blood levels measured over a protracted period of time, and not just before or after a single event.  According to the World Anti-Doping Agency’s website, “[t]he fundamental principle of the Athlete Biological Passport (ABP) is to monitor selected biological variables over time that indirectly reveal the effects of doping, rather than attempting to detect the doping substance or method itself.”  The implication here may thus be that while Halep was only officially popped once, ITIA investigators had some basis to believe that there had been past doping based on her ABP.  What may have provoked this belief is not apparent from press accounts of her ban, but if it hypothetically arose, for example, by cycling off and on certain banned substances over the years, the message is clear: the state of anti-doping testing is sophisticated to the point that even seemingly smaller, or insignificant, indicators of prior doping activity, in off-seasons or otherwise, can be detected by modern testing. 



In sum, while Simona Halep may be the highest profile tennis player to be banned as a result of doping claims since Maria Sharapova in 2016, if other tennis players, or indeed other athletes, on all levels of their respective sports do not heed the lessons that can be taken from Halep’s ban, they can be the next ones to make headlines and/or find themselves banned and on the outside looking in.  And especially if they have been anywhere near as successful as someone such as Halep, they will get little sympathy from those who may believe they were only bested by such an athlete because he or she doped, and they did not. 

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Please do not hesitate to contact the Law Offices of Paul S. Haberman LLC with questions on any legal, regulatory, or contractual issues that you may encounter in the individualized sports world. 

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