Whereabouts – three strikes and you’re in!

The Court of Arbitration for Sport (CAS) has upheld an appeal by the swimmer Albert Subirats against the decision of the International Swimming Federation (FINA) to suspend him for one year following three failures to notify with information as to his whereabouts. The CAS ruled that he was not guilty of any anti-doping rule violation as he did not receive any failure notice before the third whereabouts filing failure.

The facts
For approximately five years he had submitted his whereabouts forms to the Venezuelan Swimming Federation (VSF) which had always, until 2010, forwarded the 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 the periods he committed three filing failures. FINA notified the athlete’s filing failures to VSF in writing and requested VSF to inform him about the failures. VSF forwarded the three FINA letters to him for the first time on 2 February 2011 – 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 him for failure of having provided his whereabouts information.

The CAS ruling
The CAS has ruled that when the anti doping organisation 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 filings, and that third party failed to comply with the applicable requirements, the athlete has a valid objection to an allegation of nonreceipt of one or more failure notices. Since it was undisputed that he had not received 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 the 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.

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