The CAS found that athletes were entitled to delegate elements of their anti-doping obligations. Whilst this is not controversial, the decision that the athlete is not responsible for the failings or misdeeds (or fault) of the person to whom they’ve delegated their responsibility is very surprising. In this case, Sharapova's agent's failure to appreciate that she was taking a prohibited substance, namely meldonium (the name of the product was Mildronate) after it was added to the Prohibited List, did not mean she could avoid an anti-doping rule violation, but the length of the ban was to be determined by her level of fault (or negligence) rather than her agent's level of fault or negligence.
In reaching its decision the CAS relied heavily on the somewhat obscure decision of Al Nahyan. This case related to the level of fault of a rider in circumstances where his horse tested positive. The rider was not the owner of the horse and the horse was more often than not in the care of someone other than the rider. A vet administered a substance to the horse without properly checking it and this led to the positive test. The CAS decided that fault or negligence of the vet should not be imputed to the rider and that the rider "employed highly qualified, properly instructed staff….and implemented a significant range of procedures to avoid positive tests" and so he bore No Significant Fault or Negligence.
The eagle-eyed among you may have noticed a very clear distinction between the Al Nahyan and Sharapova decisions. The former case relates to a horse who is fed or administered substances by humans. A horse can obviously never be under the constant watch and supervision of a rider who may ride any number of other horses and may be in a different continent to the horse. There is a certain logic to assessing the rider's degree of fault as distinct from imputing the fault of others to him. We never thought we'd have to use the following words in a sentence - Maria Sharapova is not a horse. One of the fundamental principles of the World Anti-Doping Code is that athletes are personally responsible for what they ingest and have a duty to exercise the utmost caution in this regard. Not only that, the rules at issue in the Al Nahyan are not under the World Anti-Doping Code (Code), albeit the FEI's Equine Anti-Doping and Controlled Medication Regulations mirror the Code in many ways.
Returning to Sharapova, the CAS went on to say "a player who delegates his/her anti-doping responsibilities to another is at fault if he/she chooses an unqualified person as her delegate, if he/she fails to instruct him properly or set out clear procedures he/she must follow in carrying out his task, and/or if he/she fails to exercise supervision and control over him/her in the carrying out of the task."
The criteria considered by the CAS in determining an athlete's degree of fault (where he or she has delegated his or her anti-doping obligations) are:
1. Has the athlete chosen a suitably qualified person? 2. Did the athlete instruct the person properly and set out clear procedures as to how the tasks should be carried out? 3. Did the athlete exercise supervision and control over the person to whom the tasks were delegated?