CAS Releases Operative Award Ruling On Michael Brinegar’s Four Year Doping Suspension

The Court of Arbitration for Sport (CAS) has released the operative award–a document that contains only the three-arbitrator panel’s ruling–officially handing down Tokyo Olympian Michael Brinegar‘s four year suspension for blood doping. The United States Anti-Doping Agency (USADA) published the award, noting that the reasoned decision is still forthcoming.

CAS chose to issue the operative award in advance of the reasoned decision to “ensure resolution in advance of team selection decisions related to the upcoming Paris Olympic Games,” per the USADA’s announcement of its release.

The court’s ruling was first announced during the 2024 U.S. Olympic Trials with less than 24 hours to go until the 1500 freestyle, Brinegar’s final event of the meet. He had already taken part in the 400 freestyle (17th, 3:51.33) and the 800 freestyle (12th, 8:00.15). The ruling meant he had to scratch his remaining event.

CAS’s verdict overturned the December 2023 ruling by an independent arbitrator that Brinegar did not violate anti-doping rules and instead finds that Brinegar violated Article 2.2 of the World Anti-Doping Code. The decision handed Brinegar a four year suspension that officially began June 21, 2024, the date CAS first released their decision.

World Anti-Doping Code, Article 2.2:

Article 2.2 Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method

2.2.1 It is the Athlete’s personal duty to ensure that no Prohibited Substance enters their bodies and that no Prohibited Method is Used. Accordingly, it is not necessary that intent, Fault, Negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation for Use of a Prohibited Substance or a Prohibited Method

2.2.2 The success or failure of the Use of Attempted Use of a Prohibited Substance or Prohibited Method is not material. It is sufficient that the Prohibited Substance or Prohibited Method was Used or Attempted to be Used for an anti-doping rule violation to be committed.

Though the official suspension began last week, USADA said in their statement that Brinegar will receive credit for the period he was provisionally suspended (August 18, 2023 to November 27, 2023). All of Brinegar’s results from July 20, 2022 through December 31, 2022 are disqualified.

This process began on June 26, 2023, the day before 2023 U.S. Nationals, which is when Brinegar said in a statement that the USADA notified him via email they were opening a case against him because there were abnormalities in his Athlete Biological Passport (ABP) that resulted in an Adverse Passport Finding. This is different than testing positive for a banned substance.

The USADA was referring to test results from July, August, and September 2022–after the 2022 World Championships. Brinegar was originally entered in Worlds that year, but withdrew after contracting COVID-19.

In their statement on June 21, 2024, the USADA said they were concerned with “three samples collected from Brinegar between July 20, 2022 and September 27, 2022 showed values consistent with blood doping, specifically the use of ESAs, as confirmed by unanimous expert evaluation of Brinegar’s blood profile in early 2023.”

Brinegar says that tests came during “a period I was not training.” He told SwimSwam that “the alleged abnormalities in my blood values can be explained by non-doping factors such as recovery from COVID-19, hydration status, training and detraining periods, and improper handling of samples.”

The effect of COVID-19 on Brinegar’s blood samples is one of the key points of contention between he and the USADA. Brinegar asserts that “USADA dismisses the possibility that I developed anemia after contracting COVID-19 simply
because they didn’t take any blood samples during the relevant time period.”

Brinegar told SwimSwam he remains “committed to proving [his] innocence.”

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taa
21 days ago

Here is my issue with this case. USADA refused to accept the independent arbitrators decision and went ahead and filed the appeal to CAS. It seems rather vindictive to keep the case alive. I wonder how many times in the past have they got an arbitrators decision that went against them and decided at that point to give up? So what I’m really saying is that this sounds political in nature. Its at the core of what is wrong with our society right now.

And what if they did decide to drop the case what would people say then? American favortism!!

Troyy
Reply to  taa
21 days ago

And yet CAS is completely independent of USADA and despite being known for being very generous with reducing suspensions handed Brinegar the maximum suspension of four years.

taa
Reply to  Troyy
21 days ago

Also the timing of the CAS decision by waiting until trials started and the length of time the whole process consumed. I’d say file a lawsuit except his lost earnings as a swimmer is probably almost nothing

Troyy
Reply to  taa
21 days ago

Did they wait until trials or was the decision expedited because of trials? Are you suggesting CAS is in cahoots with USADA in some kind of conspiracy to ban Brinegar? He’s really not that important.

Last edited 21 days ago by Troyy
Hard truths
21 days ago

He should have just donated 2 million to WADA and he would’ve been fine

I miss the ISL (go dawgs)
22 days ago

Calling something like that an “award” is crazy lmao

Noah Fence
Reply to  I miss the ISL (go dawgs)
21 days ago

His prize? Doesn’t have to swim the 1500 anymore

ADS
22 days ago

Very interested to read the full judgment here. The original arbitrator’s decision seemed to accord well with the available evidence, and seemed appropriately to discount the hypotheses presented by USADA. If the burden of proof falls on the administration, then they must surely do more to convert plausibility into likelihood especially when an athlete’s career is at stake.

Swimswammer
Reply to  ADS
22 days ago

Where do you see the original arbitrator’s decision?

spectatorn
22 days ago

slightly off topic – based on WADA code Article 2.2.1 above, it seems that no one should be able to get off the hook, if there is a positive test, or even anomaly in the athlete’s own profile.
Is that how that article should be interpreted?

AmericanDad
Reply to  spectatorn
21 days ago

Yes. Provisional suspensions are supposed to be issued immediately. According to WADA code, testing positive for a banned substance or an adverse passport finding is supposed to lead to an immediate provisional suspension. Brinegar received a provisional suspension.

Somehow WADA just ignores their own rules and processes when Chinese athletes test positive.

Admin
Reply to  AmericanDad
21 days ago

Technically the rules don’t say that they’re supposed to be issued immediately. There is supposed to be opportunity for a hearing about contamination before they’re automatically applied.

I don’t think those hearings are supposed to come months after the positive test, though. As I’m reading it (I haven’t read every word of the code), I don’t actually see an ascribed timeline, though.

https://www.wada-ama.org/sites/default/files/resources/files/2021_wada_code.pdf

Section 7.4 of the WADA code is relevant here.

AmericanDad
Reply to  Braden Keith
21 days ago

Yup not immediately…just re read. The wording is that the provisional suspension “shall be imposed promptly” which could mean any amount of time for any specific case I guess. The “provisional hearing” is supposed to happen before suspension or “on a timely basis” after.

A big problem I have with the China situation is that the 23 athletes were seemingly treated as a single case. CHINADA said “contamination” and WADA accepted that explanation. From my reading of the WADA Code, I would expect that 23 different athletes testing positive should have resulted in 23 individual cases. WADA’s statements on the matter lead me to believe that this did not happen.

Jay Ryan
22 days ago

Hey guys, the normal level of EPO in the blood is 2-26 mIU/ml. In the setting of acute COVID the mean level in non-intubated patients is >100. In severely ill, intubated patients it is still very high >60mIU/ml. This virus causes some crazy abnormalities in hematologic parameters. Maybe the CAS should do a bit more of a literature review before coming down hard on the kid, or qualify their reasoning more thoroughly in light of available data.

See PMID 33554466.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8014125/

Jay Ryan
Reply to  Jay Ryan
22 days ago

Here’s another more extensive article showing at least a doubling or EPO levels in acute COVID.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9538950/

Kristiina Allekõrs
Reply to  Jay Ryan
22 days ago

He not was intubated. Healthlty top athletes in their 20s in not intubated. In their 20s intubated is mens with serious underlyning conditions or fat syndrome.

Swimfan27
Reply to  Kristiina Allekõrs
22 days ago

Did you read either one of the articles? EPO levels in acute COVID are higher than when intubated. I am fully against doping of any kind, but for people who understand science, it is plausible that his levels were naturally elevated during and after infection.

Admin
Reply to  Swimfan27
22 days ago

This is one of my biggest issues with the doping system. Almost every positive test has a plausible explanation that isn’t intentional doping, and I don’t know if there is a fair way to determine who gets punished and for how long.

ADS
Reply to  Braden Keith
22 days ago

That’s entirely correct – so for legit athletes who get caught up (assuming such people exist, which I know some would prefer not to acknowledge), strict liability means that it almost becomes a lottery whether you can find the evidence that helps you absolve yourself

ScovaNotiaSwimmer
Reply to  Braden Keith
21 days ago

Exactly, Braden.
If people accept the premise that some (hopefully small minority) of people in swimming are doping, then Occam’s Razor would suggest that it makes the most sense that at least some (if not most) of the people testing positive are part of the group of intentional dopers, yet we are supposed to believe that every positive test is contamination or some kind of mistake? The logic isn’t logic-ing.

aquajosh
Reply to  Swimfan27
21 days ago

Michael Brinegar wasn’t the only swimmer from whom blood was collected from after a bout of COVID. It would be easy to outline patterns if this elevation were seen in more athletes.

Jay Ryan
Reply to  Kristiina Allekõrs
22 days ago

The EPO was HIGHER in non-intubated patients in these studies. The extreme inflammatory response In intubated patients, as manifest by high Interleukin-6 levels, appears to blunt the EPO response.

Kristiina Allekõrs
Reply to  Jay Ryan
22 days ago

He covid was milder. Healthly top athletes covid hospitaliation is very rare and few days. Yes young mens under 30 is in ICU but with Obesity,diabetes,organ failure and others serious underlying conditions.

Coswimmom
Reply to  Kristiina Allekõrs
22 days ago

You’re not understanding.

Brent Lorenzen
Reply to  Jay Ryan
22 days ago

EPO levels were also over 100 mIU/mL in healthy controls in this study which is more relevant than the standard reference ranges you present. See Table 2. Also, this is not indicative of the disease Brinegar had based on timing.

Anonymous
Reply to  Jay Ryan
21 days ago

You don’t have the report. Was his oxygen levels low during covid. Did he test positive for artificial EPO. Did they test him 3 months in a row to assess whether the EPO levels were normalizing after covid. And by the way viruses and bacterial infections all cause acute changes in blood and immune systems. This is not unique to covid. They have a lot more data on this from SARS and MERS infections that occurred long before covid.

Jay Ryan
Reply to  Anonymous
21 days ago

Indeed I do not have the report and I do not know the facts. As a Professor of Medicine I was part of the NIH COVID Immunology Research Consortium at our Med School as well as a member of our Hospital’s Acute COVID clinical response team during the pandemic. This is a nasty virus that wreaks chaos on the hematologic system, the most extreme of which is raging inflammation and macrophage auto-ingestion of erythrocytes as part of the syndrome Hemophagocytic Lymphohistiocytosis. It would not be surprising if acute or recent COVID had previously underappreciated effects on EPO, etc. I am just trying to raise specific points that might help the kid in his appeals.

Anonymous
Reply to  Jay Ryan
21 days ago

The case is settled.

anonymous
22 days ago

The article Brinegar wrote for Medium with details about his situation is pretty interesting, particularly how he discusses why the independent arbitrator initially cleared him and how USADA framed the case when pushing to get that overturned through CAS [link to article]. I’m interested to see the full decision when CAS releases it and will hold off my full judgement until then, but the information Brinegar offered does make me lean towards thinking he may not have actually cheated.

Last edited 22 days ago by anonymous
Genevieve Nnaji
Reply to  anonymous
22 days ago

Except he and his girlfriend at that time Kensey McMahon are both given a ban.

ADS
Reply to  Genevieve Nnaji
22 days ago

And that adds what exactly, other than a elephant-dropping dose of guilt by association (and that with a person whose guilt is itself hotly contested)?

I personally know nothing more than is publicly stated about either of these cases, and am not advocating on behalf of either swimmer, but these cases, Shayna Jack’s, that of the British cyclist Lizzy Barnes all speak to me of a totally broken system that holds up its enormously important goal of achieving fair drug-free sport as justification for all manner of ‘minor’ or at least individual injustices. And while this is happening oversight systems in other jurisdictions ostentatiously fail to even follow the proper processes.

ADS
Reply to  ADS
22 days ago

Lizzie Banks sorry (for her story, see here: https://lizzybanks.co.uk/).

And before rushing to judgment about contamination, you should note the recent acknowledgement by the German anti-doping authority in a cycling case involving Team Visma / Michel Hessman (see https://www.teamvismaleaseabike.com/news/news/statement-team-visma-lease-a-bike-after-ruling-in-michel-hessmann-case/) that all sorts of standard medicines – paracetemol, ibuprofen etc etc – are contaminated with all sorts of stuff, at which point the idea that ‘athletes can ever hope to be responsible for what they put in their bodies’ falls down like a house of cards.

DistanceFan
Reply to  Genevieve Nnaji
22 days ago

Do you really know these people? McMahon has been dating a fellow Alabama swimmer for many years.

Hoosiers
Reply to  Genevieve Nnaji
21 days ago

Must have a lot of free time on your hands to be gossiping about college kids relationship statuses

swimapologist
Reply to  Hoosiers
21 days ago

Pretty disingenuous to pretend that this is “gossiping about college kids’ relationship statuses” when it might actually be relevant.

Also, neither swimmer is a “college kid” anymore.

Weber1
Reply to  Genevieve Nnaji
21 days ago

Kensey, has never been his girlfriend.

swimapologist
Reply to  Weber1
21 days ago

I know the kids aren’t big into labels these days, but like they did post years worth of Instagram pictures together.

Whatever the exact nature of their relationship was, they clearly had a very closer relationship and I do think that is relevant given the circumstances.

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