Earlier this month, the Court of Arbitration for Sport (“CAS”) published its decision in the case of Maria Sharapova in her appeal against a 24-month ban imposed by an Independent Tribunal following a positive test for the prohibited substance meldonium. The CAS reduced Sharapova’s ban from 24 months to 15 months (she will be free to return to competitive tennis in April 2017), on the basis that she had used the substance for around ten years (prior to it being added to WADA’s Prohibited List), she had consulted a doctor who prescribed the drug for medical (rather than performance-enhancing) reasons, and she had received no specific warning from WADA or a governing body about the change in status of the drug. The CAS considered that it was reasonable for Sharapova to entrust the checking of the WADA Prohibited List to her agent.
On the day CAS decision was released, Head loudly tweeted its support for the athlete, proclaiming #WeStoodWithMaria, alongside a short statement from CEO Johan Eliasch reiterating the sentiment of the previous tweet. Indeed, Head has publicly ‘stood with’ Sharapova from the outset, since the news of her positive test first hit the headlines. The moral and technical questions in Sharapova’s case are numerous and complex – was it reasonable for Sharapova to so fully entrust her substance intake to others and had she taken appropriate steps in doing so? Should she be subject to a significant fault finding and 4 year ban? Does meldonium actually have performance enhancing qualities and, even if it does, was that Sharapova’s motivation in taking the drug? Everyone will have their own view on the morals at play. But what is interesting is the reaction of Head, particularly when compared to certain other of Sharapova’s sponsors and in an age when the commercial assumption tends to be that swift dissociation from “damaged goods” is, commercially, the best course of action.
Sponsorship and other ‘talent’ contracts will usually contain some form of ‘morality clause’ (a practice often traced back to Hollywood and the infamous Roscoe “Fatty” Arbuckle case). Such clauses are designed to allow a sponsor to detach itself from an athlete whose behaviour has the potential to damage the sponsor’s reputation. Whilst a morality clause might be subject to negotiation depending on the particular athlete and sponsor in question (for example, whether the contractual termination right is triggered only to criminal convictions or extends to cover other, arguably more subjective, forms of immorality such as the athlete’s adultery or publicly expressed views on homosexuality) they are regarded almost as boilerplate. Indeed, termination is often seen simply as the most commercially sensible course of action for a sponsor dealing with an athlete who has strayed into indiscretion, regulatory breach or criminality (“it’s not like rats deserting a sinking ship, it’s just the sensible thing to do”). This has arguably become all the more so in an age where digital images can ‘go viral’ within minutes and social-media backlashes are common. Certainly there are numerous examples of athletes losing sponsors over various indiscretions, doping offences, and criminal activity. Indeed, Sharapova is one of them, having been dropped by various of her other sponsors.
What makes Head’s reaction interesting is not just that it strays from the default position expected of sponsors but the fact that, although Sharapova’s ban was reduced, Head’s statement of support is still ultimately founded on an athlete subject to a ban for a doping offence. The Sharapova case has rightly focused attention on the processes by which athletes are informed of changes to the Prohibited List but, for the athletes who may be substituted into the winning spot by default following a doping revelation (receiving their hard-earned prizes unceremoniously and discretely at venues like Burger King) the question of intention, motive or mistake is likely to be of little comfort. Ultimately the indiscretions of high profile athletes are always tried, to a certain extent, by the court of public opinion and Sharapova managed this aspect expertly, with heartfelt remorse. Yet, her status as one of the most commercially successful athletes of all time, the boldness of Head’s response and the commercial risk it took in adopting such a stance, raises questions in itself. It seems unlikely that an athlete with less commercial clout could have relied on achieving the same result. Is this a sign of shifting attitudes towards morality clauses? Is it a sign of a shift in the traditional bargaining position between sponsor and athlete? Or just a case of an honest mistake and a strong relationship of trust? Perhaps most importantly, does a sponsor’s or an individual athlete’s ability to influence the public dialogue around issues such as doping endanger sporting integrity?