Tennis Q&A: Anti-Doping Lawyer Howard Jacobs on the Simona Halep Case
The BNP Paribas Open in Indian Wells was barely underway last week and already there was a big winner. Facing a four-year anti-doping suspension—which, for all intents, would have ended her career—Simona Halep appealed to CAS, the Court of Arbitration for Sport. The decision came down last Tuesday, reducing Halep’s suspension to nine months. Given that she has not played since the 2022 U.S. Open, she is eligible for an immediate return and will play in Miami later this month.
There are numerous angles to this saga. Chief among them: Why does tennis’s integrity agency, the ITIA, consistently render decisions that get obliterated on appeal? Not just reduced, but in this case, reduced by nearly 90%. (The ITIA’s proposed 72-month ban, reduced to nine months?) For this and more, we had a long conversation with Halep’s attorney, Howard Jacobs, an anti-doping legal specialist whose clients have also included Marion Jones, Diana Taurasi and Maria Sharapova.
Here are outtakes, edited lightly for brevity and clarity.
JW: Not to put too fine a point on it, but what the hell happened?
HJ: I mean, it's hard to say. I thought all along the passport case was not well-founded. I never understood that case. And, with the Roxadustat, normally, you give [anti-doping authorities] evidence that it's contaminated and you either agree on the sanction, or you fight over the sanction. But you don't end up with a case like this.
JW: Say more.
HJ: I don't think I've ever had one go as strangely as this one … to have them fight that to the bitter end and then tack on this blood doping charge. The case became super, super complicated. I can't even imagine how much money they spent prosecuting it. Cannot even imagine.
JW: Can you ballpark it?
HJ: I'm going to say it's at least $2 million because they had so many experts and they had so many lawyers and everything was fought.
JW: You work across sports and represented many athletes in different contexts. Why, in tennis, do you think we see these penalties consistently knocked way down on appeal?
HJ: That’s a good question. It’s an issue I raised during the CAS appeal in the Sharapova case, and it hasn’t really changed. I don’t know if it’s the composition of the tribunals that tennis has historically had that are just overly harsh.
I mean, there is a very consistent pattern of CAS reducing sanctions in tennis cases. Not every case, but a lot of them. And I don't know why. Maybe tennis players, unlike other Olympic sports, can afford to defend themselves, so [they think] it’s a little bit more of a fair fight.
JW: Wait, you think that’s part of the harshness?
HJ: Maybe why it's getting reduced at CAS is because not everyone can afford to do one hearing, let alone two. I don't think that that explains why the first instance hearings are, in my view, excessively harsh on sanction length. But maybe the reason they're reduced is because more tennis players can go to CAS than in some other sports.
JW: Was there one procedural error or assumption that you found particularly galling?
HJ: I would say, the assertion that there was this, you know, deliberate, concerted effort to not only blood dope, but to cover it up—and then to try to create a narrative where that made sense. … They just ignore the fact that she's been a high-level tennis player for a long time and had a great reputation in the sport. And the timing. A lot of the samples that they were looking at and saying were evidence of blood doping were from right around the time she's having nasal surgery and even afterwards. In essence, you have her blood doping at the same time she's having surgery and has announced that she's not playing anymore for the rest of the year? Which is, of course, preposterous. They paint this narrative of her, they said it was a blatant and obvious case of blood doping in tennis. And it wasn't. It wasn't even close.
JW: According to the ITIA, not only did Simona not mention this supplement on her forms, but even subsequent to the positive test, she neglected to mention this supplement. What do we make of that?
HJ: Well, that's not true. Her form said Schinoussa recovery drink, and there's no product called Schinoussa recovery drink. The Schinoussa products that were mixed together in a blender.
JW: You are saying she did disclose?
HJ: It was disclosed on the doping control form as … I may not have the wording exactly right, but Schinoussa recovery drink is essentially what she wrote. And what she said is that that recovery drink was two of the Schinoussa products, one of which was this Keto MCT supplement, which were mixed together in a blender bottle.
JW: The “tainted supplement”… convenient defense? Or—less cynically—why are these supplements so often contaminated or mislabeled?
HJ: I’ve been doing this for a long time and I've been not only representing athletes for over 20 years, but suing supplement companies on behalf of athletes. I’ve probably sued 20 different supplement companies and have giant judgments and big settlements against them. So I know a lot about it and I would say usually if it's not intentional— and sometimes it is intentional—but if it's not, I think that it is the raw materials are coming from China and the quality controls [are lacking]. These supplement companies, most of them don't make the supplements. They really, honestly, don't even know what's going into them. To make a supplement is to come up with a fancy label and decide what you want to call it, and maybe you decide on the, you know, ratio of ingredients and how much of each ingredient you're going to put in it and then you go to a co-packer and you say, “Here's my label. Here's the name, here's what I want in it,” and they take it from there. They source the ingredients. They make the product. They bottle it. They label it. And then they ship it to you. You could start a supplement company tomorrow and be up and running selling supplements in no time.
Upon appeal Halep’s suspension was reduced, making her immediately eligible.
Dan Hamilton/USA TODAY Sports
JW: You mentioned her reputation and a lot of people—self included—referenced it as well. Does that matter at all in these hearings? Should that matter at all in these hearings?
HJ: That's a good question. I would like to think that it does. Under the rules, it probably should. But at the same time, if you have someone that's accused of something as serious as intentionally blood doping and they say they never did it and you have to assess which side is right, then one of the things you're going to do is look at how the person testifies and see if they are credible. I mean, I don't think it's the deciding factor, but on a close call—and I don't know that this one was—I think it can make a difference.
JW: There’s been a lot of chatter in tennis: Why does a player face sanction and the coach who encourages the supplement goes unpunished? Thoughts on that?
HJ: Yeah, the easy answer is that the rules don't provide for it, unless there was evidence that a coach knowingly gave a player a banned substance— which isn't this case by a long shot. But for just providing a supplement that turns out to be contaminated? The rules don't provide for any punishment for that. Should they? I don't know. I mean, if they did, then probably no coaches would be recommending supplements to athletes.
JW: That was my next question. Would that be such a bad thing? I mean, it seems like the risk/reward of supplements—
HJ: So it's funny because if you look at how the Court of Arbitration for Sport assesses an athlete's degree of fault in a supplement contamination case and the different factors they look at, they're basically like: “What steps did you take to make sure that the supplement was safe?” One of the things that they ask is, “Did you consult with a knowledgeable expert?” So if a coach has a team of people and they've vetted the supplement, then, generally CAS would say that's better than if an athlete just goes online and, you know, buys the first thing that they see.
And so under the sort of jurisprudence, an athlete is better off if they make those kind of checks. If you're consulting with a nutritionist, that's probably better than a coach. You can kind of go up the chain, but consulting with a coach and a team is better than not.
JW: I guess my question is: Why would any athlete take supplements given the risk? Is the incremental gain so significant that you would run a risk like this?
HJ: I mean, personally, I wouldn't take them. When I started suing supplement companies, I was still a competitive athlete. I was taking supplements. And I stopped because I was like, “I can't, I feel like a hypocrite.” And, I couldn't tell any difference. … I think that if you ask why are so many athletes using them, it's because the supplement companies spend more on marketing than the entire worldwide anti-doping budget. Look at how they've convinced athletes that they need this. And if you are at that level, where the smallest difference can be huge and everyone that you know is taking supplements, then you're going to take supplements.
JW: We’ve seen other athletes, even in tennis, basically get caught in this process. It’s expensive, and they’ve said, “To hell with it. I quit.” Assess Simona’s state of mind relative to other athletes you’ve represented, her will to fight this or whether she basically said, “I’m north of 30. It’s been a nice career and I don’t need this.”
HJ: No, she had the will to fight it from the beginning and that never wavered. There were certainly some low points after you have that shock of having tested positive for something you've never heard of, that you didn't take, and then you don't know how you're going to get around it. Then you find out that the supplement's contaminated, so that gives you a lift because you think it's going to get resolved. And then you find out that the ITIA says, “No, we don't believe it.” And then obviously the four-year ban was devastating. But she never thought about stopping.
JW: Finally, everybody wants a clean sport, right? And by nature, this is going to be messy and people are going to mount vigorous defenses. How much of this is specific to tennis, and how much of this is just the nature of this messy business— and you’re dealing with multinational products, imprecise science and labeling and multinational sports and all sorts of variables. … Long way of asking: How much of this is, you know, “Boy, tennis is really screwed up. They want a lifetime ban and the tribunal knocks it down to nine months, [17] of which have already been served.” And how much of this chaos is just inherent to this process and the sector?
HJ: It's my personal opinion that generally the anti-doping rules are not particularly fair to athletes. The test that I always use to determine if they're fair is, what if you have an athlete who did not take something on purpose and despite all their efforts, they're unable to prove what caused their positive tests?
How are they going to be treated under this system? And if you look at the evolution of the anti-doping rules, in every iteration of the World Anti Doping Code, that athlete is treated worse. So I think that the sanctions are excessive in many cases. And excessive sanctions make people fight, right?
