Earlier today, FINA announced that Albert Subirats had received a one-year suspension for three violations of the “whereabouts filing” rule where he is required to keep FINA appraised of his location at all times for random drug testing. Based on evidence provided by Subirats at his FINA hearing, this seems to be a simple administrative error where Subirats sent his locations to the Venezuelan Swimming Federation, who then failed to properly file those with FINA.
Subirats’ next stop is at the Court of Arbitration for Sport (CAS), should he choose to pursue it. While this decision appears to be both unfair and unjust, there’s little hope for a successful appeal barring a change of the World Anti-Doping Code. That’s because the code lays out, in no uncertain terms, that
[11.3.7] It shall not be a defence to an allegation of a Missed Test under Code Article 2.4 that the Athlete delegating responsibility for his/her whereabouts information for a relevant period to a third party and that third party had failed to provide correct information or failed to update previously filed information so as to ensure that the whereabous information in the Whereabouts Filing for the day in question was current and accurate.
The Court of Arbitration for Sport is likely to find that Subirats’ situation falls clearly within the bounds of this rule, and would recognize the dangerous precedent that they would be setting if they were to overturn FINA’s decision. That would open up a major loophole for athletes to send filings to a third party, which would then “forget” to submit them. I am not in any way insinuating that this is what happened in Subirats’ case, but the Court of Arbitration for Sport, being a court, has to concern itself with precedents.
“Rule 45”
If we go on the assumption that Subirats’ one-year suspension will stand, the next big question revolves around the IOC’s so-called “Rule 45”. As you might remember from the Jessica Hardy case, prior to the 2008 Olympics the IOC instituted a rule regarding doping suspensions of over 6-months. The rule, announced in a letter from IOC President Jacques Rogge.
Any person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Winter Olympic Games following the date of expiry of such suspension.
In Hardy’s case, where the rule clearly applied, FINA decided that because the notice was handed out just days before her positive test, that it was not fair to apply the ruling to her (though speculation is that this was just a way to avoid arbitrating the rule). The wording of “any violation of any anti-doping regulations” is key, as it means that the rule applies not only to those who actually have positive tests, but also to those who violate any anti-doping rule, including the filing rules.
This rule is not as clear-cut as the one under which Subirats was suspended, however. For starters, it is not a part of the World Anti-Doping Code, which the IOC is bound to abide by. If this rule is contrary to the World Anti-Doping Code that the IOC is a signatory of, the CAS might find that the IOC rule is thus invalid.
There is also some question as to whether this rule submits the offending athletes to double-jeopardy, and subjects them to double punishment for a single infraction.
The Test
An American Abritration Association (AAA) committee, in fact, found exactly that the above was true, and that by imposing the Olympic suspension in an “unpublished memo” meant that they were applying an additional punishment outside of the allowable manners stated in the World Anti-Doping Code. This finding, however, is totally non-binding, as the IOC was not a party to the arbitration (which is required for any arbitration in the CAS or the AAA, its North American counterpart, to be binding).
The eyes of Venezuelan swimming fans now turns to the case of American track superstar Lashawn Merritt: the defending World and Olympic champion in the 400m, who received a two-year suspension for three positive tests for a banned steroid.
Merritt is the highest-profile athlete to receive a doping-suspension since Rule 45 was put in place (yes, even bigger than Jessica Hardy), and he is expected to be the one who finally forces the IOC in front of the CAS to test the rule once and for all. Most concerned legal minds, along with several related decisions by the CAS, seem to indicate that Rule 45 will be blasted out of existence if it makes it’s way before the supreme court of sport.
In many doping cases, it’s hard to feel any sympathy for those who are indicted. In this instance, where Subirats (unless he’s pulling the wool over all of our eyes) clearly was following the intent of every anti-doping rule on the books, one has to hope that somehow, someway it works out that Subirats is at the very least able to participate in the 2012 Olympics, if not this summer’s World Championships.
Subirats’ Reaction
Shortly after the suspension was announced, Subirats reacted on his Twitter account (roughly translated from Spanish):
Thanks to everyone for their support at such a difficult moment, but I tell the truth and will come and come back stronger than ever. A big hug…
I want to make clear to all that are listening [that] for the penalty there was for some forms that did not come, I have never “failed” a test …
It was another administrative error. I’ve been tested for doping millions of times in my career and I have never had problems. It was an error of paperwork.
