Retrospective punishment is shunned in many legal systems. To make criminal what was previously not is one of the most invidious tendencies of a regime that fosters the arbitrary over the certain.
This is not something that seems to enter the minds of such indignant moralists as former Australian tennis player Pat Cash, or grand slam winner Jennifer Capriati. On hearing that Maria Sharapova had confessed to testing positive to the banned substance of meldonium, now deemed a performance enhancing drug, the anger issued forth.
Cash, a former Wimbledon champion, decided to dismiss the entire Sharapova show as an elaborately disingenuous farce. Health reasons did not wash – they were arguments that were “hard to swallow”.
This show of retrospective crucifixion continued with Capriati, who wished to see Sharapova stripped of everything in the name of some abstract greater good. “I had to lose my career and never opted to cheat no matter what.” There were no highly paid doctors for Capriati, no team of colluding cheating assistants.
Such sentiments are unsurprising, given that the Sharapova sports empire is a sizeable one. For 11 years, she has made the Forbes list as the world’s highest earning female athlete. She has always been a figure to take down.
British sprinter and 100m finalist at the 2008 Beijing Olympics, Jeanette Kwakye, was certainly in no mood to respect the quasi-aristocrat of tennis, one she scorned as a media manipulator. “What we have in Maria Sharapova is a media darling.” Sharapova was wily, cunningly using the press outlets to “spin and put things in her favour by breaking her own news.”
Other tennis figures, such as two-time Wimbledon champion Petra Kvitova, called it “a sad day for tennis.” Sharapova had been foolish in not being attentive to the list of banned substances. “It was a huge mistake and she is taking responsibility for it.”
Former World Anti-doping Agency chief Dick Pound had little sympathy, suggesting that the tennis star had been “reckless beyond description”. The point for Pound was a simple one: warning was given on September 30, and she had a few months to consider getting off the drug. Even with possessing “a medical team somewhere” she did nothing.
The sporting establishment, along with the sponsors that crowd it with their contracts and cheques, has always been in a curious relationship with the sporting star. As such a figure rises, they are meant to be clean, noble and free of temptations associated with what are termed “performance enhancing” products. The way the nature of that enhancement is determined is conceptually problematic. As fame grows, so does the desperation.
What has emerged in the rat race of competition is the false notion that athletes are not going to find every single means of beating their opponents. A contrived ethics of competition, one based on clean competition, has emerged, pitting the moral guardians against the satanic cheaters. That this neat binary should even exist in its entirely is a nonsense that has gained traction.
Malachy Cherkin righteously proclaims that Sharapova’s revelations show how the dopers are ahead of the testers. “On meldonium, we now know that the doping circle of the sports world had a ten-year jump on the authorities.”
Showing how the court of public opinion is invariably less sophisticated than the court of legal deliberation, Cherkin would have little truck with the tennis star’s explanations. “For a decade, she took a drug designed primarily to treat a medical condition she did not have, a drug unlicensed in the country where she has lived since she was seven years old, a drug whose side effects include an inability to train longer and recover quicker.”
Potentially, anything that would heal the wear and tear of an athlete would be off the cards, prohibited for the very obvious point it assists. In the true code of the Spartan warrior, one would then have to eschew anything that would improve a performance on pitch or field. Ban those energy drinks; prohibit those band aids; stay off any form of medication that aids in any remote fashion.
Sharapova has herself suggested a body and state of being that is distinctly not Spartan in nature: a family history of diabetes, an irregular EKG heart test, and a tendency to fall ill on a regular basis. Meldonium, she claimed, came to the rescue.
Sharapova’s legal options are, to that end, not as limited as initially thought. A possible claim is that of a Therapeutic Use Exemption (TUE). Having taken meldonium since 2006, only to then find it placed on the banned list by WADA in January this year, permits some legroom, though it may be a difficult argument to make.
Its necessity is also something her legal counsel John J. Haggerty, will be pressing before the International Tennis Federation. “Maria’s medical records… do make it clear that the medical treatment was necessary and recommended by her doctor.”
Such an argument may not hold much water in the strict liability world of WADA. Haggerty, to that end, is further arguing that the dosage being taken by the athlete “was substantially less than any dosage that has been linked to the performance-enhancing attributes of mildronate (another term for meldonium).”
The regime in place to detect the purported outrages in the business of doping is variable. Drugs that were legal can be subsequently deemed illegal by executive diktat, an artificial decision that immediately assumes that those taking medication are somehow doing so to purposely bypass regulations.
Sharapova was evidently negligent, and some punishment may well be in order. But a vengeful stripping of all previous titles should then lead to the obvious point about how far the system itself ought to be stripped.
Other athletes are bound to feel jitters down their respective spines on the WTA circuit – who will be next? The popularity of tennis, just as that of the Tour de France, is hardly going to diminish by this revelation. People will continue watching, deluded into thinking that such competitions are clean and fair. Sharapova could hardly have been the only one in this mess, and the hidden dopers will be watching with terrified interest.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: firstname.lastname@example.org