It came a day later than expected, but today the CAS released an official statement regarding their (not FINA’s, as previously reported) decision to overturn the one-year suspension of Venezuela’s Albert Subirats.
Effectively, the CAS had no objection to FINA’s ruling that Subirats is responsible for making sure that FINA is notified of his whereabouts for the purpose of conducting random, out-of-competition drug testing, but they took objection with the fact that his Venezuelan federation did not forward FINA’s notices of failure to file until after the third violation was committed.
Though I was initially skeptical, once again, after hearing CAS’ rationale, I think they nailed it again. We will never know if Subirats and the Venezuelan federation were conspiring to conceal information, but the fact is that an athlete is allowed three warnings by the rules, and if Subirats was not receiving those warnings, then he could not be held responsible for complying with them. It’s sort of a two-way street: if FINA/WADA will not accept a third-party’s failure as an excuse for not filling his whereabouts, then they cannot simultaneously hold a guarantee of a third-party to forward on their warnings.
In the hearing, FINA did not protest the evidence that Subirats did not receive the warnings until after the third one that caused the suspension.
All of Subirats’ results from January 3rd, 2011 (when the suspension retroactively took place) were reinstated, and he was immediately eligible for competition. His big return will take place at October’s Pan Am Games in Guadalajara, Mexico.
The full CAS press-release, without editing, is posted below.
Lausanne, 25 August 2011 – The Court of Arbitration for Sport (CAS) has upheld the appeal
filed by the swimmer Albert Subirats (Venezuela) against the decision of the International
Swimming Federation (FINA) to suspend him for one year following three failures to notify
whereabouts information. The CAS has ruled that Albert Subirats was not guilty of any anti-
doping rule violation as he did not receive any failure notice before the third whereabouts filing
Since 2006 Albert Subirats has always submitted his whereabouts forms to the Venezuelan
Swimming Federation (VSF), which has always, until 2010, forwarded his forms to FINA on
time. For the first quarter of 2010, the fourth quarter of 2010 and the first quarter of 2011, the
VSF did not forward the swimmer’s forms. During that period, he committed thus 3 filing
failures. FINA notified the athlete’s filing failures to VSF in writing, requesting VSF to inform
him about the failures. However, VSF forwarded the three FINA letters to Subirats for the first
time on 2 February 2011, i.e. only after the third violation had already occurred. No failure
notification was ever sent directly by FINA to the athlete. By decision of 21 June 2011, the
FINA Doping Panel imposed a one-year period of ineligibility on Subirats for failure of having
provided his whereabouts information.
The CAS has ruled that when the anti doping organization chooses as recipient of the failure
notices a third party, even if such third party is the one chosen by the athlete to make his or her
filing, and that third party failed to comply with the applicable requirements, the athlete has a
valid objection to an allegation of non-receipt of one or more failure notices.
Since it was undisputed that Albert Subirats did not receive any failure notice before the third
whereabouts filing failure, the existence of a second and a third violation could not be
reproached to him. As a consequence, the appeal was upheld, the FINA Decision overturned, the
second and third filing failure for the fourth quarter of 2010 and the first quarter of 2011
cancelled and the swimmer’s results obtained after 3 January 2011 reinstated.
The CAS award is published in the section “jurisprudence” on www.tas-cas.org.