In this article, Theo Barclay reviews the International Tennis Integrity Agency’s decision to suspend former champion Simona Halep for four years. 4 New Square’s Richard Liddell KC acted for the International Tennis Integrity Agency.
On 12 September 2023, the International Tennis Integrity Agency (“ITIA”) confirmed that an independent tribunal has suspended former Wimbledon and French Open champion Simona Halep for four years, following its finding that she had committed two breaches of anti-doping rules. The ruling is the most significant disciplinary decision in tennis since the former world number one Maria Sharapova was suspended after testing positive for Meldonium.
The ITIA is the delegated third party, under the World Anti-Doping Code (“Code”) of the International Tennis Federation, the international governing body for the sport of tennis and signatory of the Code. The ITIA brought proceedings against Halep following a random urine test following her first-round exit in the US Open 2022, in which she tested positive for Roxadustat – a drug prescribed for the treatment of anaemia that can lead to increased haemoglobin and the production of red blood cells.
The first charge against Halep was that she had ingested a substance that is on the World Anti-Doping Agency’s prohibited substance list (as Roxadustat is considered a blood doping agent) and thereby committed an anti-doping rule violation under Articles 2.1 and 2.2 of the Tennis Anti-Doping Programme 2022 (“TADP”).
Under Articles 2.1 and 2.2 TADP it is not necessary to demonstrate intention or negligence to establish an anti-doping rule violation – the mere presence of a prohibited substance is proof of a violation, which is a ‘strict liability’ offence. Halep accepted that there had been Roxadustat in her system, but claimed that she had never heard of the substance before her failed test and had ingested it unintentionally after a collagen product that she was using was contaminated. She conceded that she had committed a technical violation in ingesting the substance but argued that any sanction should be substantially reduced as her conduct was unintentional.
At a two-day hearing, an independent tribunal convened by the TADP heard oral evidence from Halep and several expert witnesses (who, notably, gave oral evidence together, in a relatively rare example of ‘hot tubbing’ in anti-doping proceedings).
The tribunal held that Halep’s collagen product was contaminated with Roxadustat, but that this could not explain the estimated concentrations found in her urine samples – there had to be some additional source of Roxadustat ingestion to explain the test results. It was also noted that Halep failed to list the collagen product in question on various forms and in investigatory interviews “in which the need for complete openness would have been more apparent”.
The second charge against Halep was of blood doping in violation of Article 2.2 TADP, due to irregularities in her Athlete Biological Passport (“ABP”). The ABP Programme, developed by WADA and incorporated into the TADP under the Code, is a method by which anti-doping organisations monitor various blood parameters over time, to identify potential anti-doping rule violations.
The tribunal concluded that it was “comfortably satisfied” Halep had been blood doping, because three joint independent experts had concluded that it was “highly likely” that the irregularities in Halep’s profile were caused by blood doping and there were a number of plausible doping scenarios, including the use of Roxadustat (albeit the experts all agreed that the irregularities in Halep’s ABP could not be explained by the contaminated product).
As to sanction, the tribunal decided that it was appropriate to order the minimum sanction for intentional breaches of Article 2.1 and 2.2 – a period of ineligibility of four years. It decided not to increase that term, because (i) there were no relevant aggravating factors; (ii) the evidence had not established a level of repetitive or sophisticated doping; and (iii) Halep had not engaged in deceptive or obstructive conduct. Furthermore, the tribunal decided that all results obtained in competitions taking place in the period 29 August 2022 to 7 October 2022 be disqualified, together with forfeiture of any medals, titles, ranking points and prize money.
Having been provisionally suspended since October 2022, as matters stand Halep will be able to return to the sport in October 2026, when she will be 35 years old.
Halep has now appealed to the Court of Arbitration for Sport, requesting that the decision is set aside and her sanction reduced. The hearing is due to take place in Lausanne on 7 to 9 February 2024.
The tribunal’s decision, which runs to 126 pages, is available here.
