Meldonium: Are Sport's Doping Laws Letting Maria Sharapova And Other Athletes Down?

Maria Sharapova is serving a provisional suspension for her use of the banned substance meldonium.
Russian tennis player Maria Sharapova in Moscow, February 6-7 2016. Sharapova is serving a provisional suspension for her use of the banned substance meldonium. Andrei Golovanov/Getty Images

The tally of athletes who have tested positive for meldonium in 2016 continues to grow, now well over 100 athletes across multiple sports. None are more prominent than Maria Sharapova, whose announcement of a positive test last month sent shockwaves through the sporting world. The issues raised by the slew of positive tests offer an opportunity to improve anti-doping regulations and to further democratize sports governance.

In principle, anti-doping regulations are pretty straightforward. The World Anti-Doping Agency (WADA) creates a list of substances that are prohibited and if an athlete who falls under WADA's rules is found to be taking one of those substances, then they suffer consequences. Easy, right?

In practice, anti-doping is far more complicated. Not least among the questions being raised by the prevalence of meldonium cases is the authority of WADA and its accountability to the people it is supposed to be serving.

At the center of these issues is the role of science in anti-doping. For instance, one of Sharapova's sponsors, HEAD, raised a question about the inclusion of meldonium on WADA's list in the first place: "we question WADA's decision to add Meldonium to its banned substances list in the manner it did; we believe the correct action by WADA would have been to impose a dosage limitation only. In the circumstances we would encourage WADA to release scientific studies which validates their claim that meldonium should be a banned substance."

When asked about this call for evidence, WADA's Chief Operating Officer and General Counsel, Olivier Niggli, dismissed it as unreasonable: "The Code's wording has been put so that we would not have to justify why a substance is on the list. We have experts who look at it, they have three criteria. It has to meet two of the three and we never disclose nor discuss the specifics of a substance because otherwise, every time you have a positive case, there would be a challenge."

The three criteria for inclusion on WADA's prohibited list that Niggli refers to are performance enhancement, health risk and being perceived to be against the "spirit of sport." Although WADA does provide a small amount of research funding into anti-doping, in practice, meeting its criteria for putting a substance on the banned list, as shown by the Meldonium case, requires no actual scientific evidence. Niggli's claim that WADA does not release evidence in order to limit the ability of athletes to challenge anti-doping violations raises some deeply troubling questions regarding due process rights for athletes.

Walter Palmer-a former NBA and international basketball player and a long time advocate for athlete rights - explained to me that athletes lack voice within WADA. "Only governments and sport organizations are stakeholders of WADA, not athletes." Palmer explains that the athlete, "more than any other, has an interest in an effective anti-doping system" but that their limited role within WADA "is an enormous governance deficit. When it comes to the [WADA prohibited] list, there is no due process available to athletes. The criteria have been constructed, with intention, to deflect any and all potential challenges."

The consequences of a lack of evidence base for anti-doping can be seen in the unfolding meldonium controversy. Recently, the leading manufacturer of Mildronate (the primary commercial name under which meldonium is sold) has claimed that the drug can stay in the human system for months after someone stops taking it. Yet, there are also various claims circulating that detectable amounts of the drug leave the human body within hours or days.

If an athlete claims to have stopped taking Meldonium well in advance of the January 1, 2016 date when it was added to the prohibited list, how are anti-doping authorities to handle such a claim? What if the athlete files suit before the Court of Arbitration for Sport? Different empirical claims cannot be adjudicated without open and robust evidence.

The lack of a scientific basis for understanding how long Meldonium stays in the human system is also reflected in the lack of a clear scientific basis for the inclusion of Meldonium on the WADA list in the first place. The WADA criteria for inclusion on its prohibited list require only the "potential to enhance" and "potential health risk."

This lack of a requirement for scientific evidence in anti-doping is troubling for several reasons. First, it encourages the rapid expansion of the prohibited list. WADA faces a conflict of interest here because a bigger list implies a need for more tests and more testing, which both imply an expansion of the anti-doping industry. Scientific evidence of performance enhancement and health risk is important as an independent check on the authority of WADA and to ensure that its scope does not expand arbitrarily or unnecessarily. Because resources are tight, WADA needs to remain tightly focused.

Another troubling aspect of the lack of evidence in anti-doping is the due process rights of athletes. As WADA's Niggli explains, substances are added to the list based on the judgment of experts, with almost no input from the athletes who have to perform under the rules. In 2012 at the WADA Foundation Board Arne Ljungqvist, then Chairman of the IOC Medical Commission, explained that substances were added to the list based on a "gut feeling," and not robust evidence. Gut feelings are not the stuff of successful regulations.

Imagine a dramatically different approach to building the WADA prohibited list in which the organisation's experts, along with independent experts, each make a public case for the performance-enhancing benefits of particular substances as well as their health risks, and athletes or their representatives make the final decision about what ultimately appears on the prohibited list. Such an approach would have the benefits of requiring that evidence be presented and defended in public. Athletes would have a more direct role in creating the rules that they agree to follow, thus enhancing the legitimacy of the list.

The 130 or so athletes who have been caught taking meldonium offer both challenges to anti-doping and an opportunity. The challenges include the simultaneous levying of sanctions across multiple sports federations as well as the hearing of what is sure to be many appeals to CAS using various defenses. These issues threaten to occupy considerable time and cost of the sports world in coming years.

But there is opportunity here as well. What if the meldonium athletes come together to present a "class action" against WADA focused on making the evidentiary basis for anti-doping more scientific, more public and more accountable.

Athletes who dope should indeed be sanctioned, but at the same time anti-doping agencies should be accountable and deliver due process to all who they are in place to serve. The meldonium mess has revealed that sport can do better on both fronts.

Roger Pielke Jr. is professor and director of the Sports Governance Center at the University of Colorado-Boulder. He is the author of The Edge: The War Against Cheating and Corruption in the Cutthroat World of Elite Sports (2016) coming out this summer.