In September 2016 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the Athlete after her A and B samples tested positive for the prohibited substance modafinil.
After notification a provisional suspension was ordered. The Athlete filed a statement in her defence and she was heard before the Commercial Arbitration Tribunal of the American Arbitration Association (AAA).
USADA contended that the Athlete failed to prove that the violation was non intentional because to the Athlete used the medication Nuvigil (modafinil) without a prescription; the medication was provided by her coach; she didn’t apply for a TUE and neither did she mention it on the doping control form.
The Athlete stated that the violation was non intentional and explained that due to the long and irregular hours she worked and the heat in Arizona required her to train late at night. She struggled with sleep issues and used Nuvigil, provided by her coach, to help keep her alert for late night training sessions. Before using the medication she consulted a doctor who agreed that Nuvigil could help her and she researched the medication on the DRO website which confirmed that the medication was not prohibited out-of-competition. She used the medication between March and July 2016 and showed with evidence that she was tested out-of-competition during that time without incident.
In this case the parties' experts agree that the half-life of modafinil is 12-15 hours and that the peak plasma concentration is two to four hours after ingestion. After considering all of the submissions of the parties and evidence presented, the Panel concludes the Athelete has established by a balance of probability that she took Nuvigil 150mg tablets obtained from her coach out-of-competition knowing that Nuvigil was only prohibited in-competition.
The Panel finds that USADA has failed to carry its burden of proving that the Athlete engaged in conduct which she knew constituted an anti-doping rule violation or that she knew that there was a significant risk that her conduct might result in an anti-doping rule violation and manifestly disregarded that risk.
Considering the Athlete’s subjective element of fault and the mitigating subjective factors the Panel concludes that the Athlete’s conduct falls in the higher level of fault category.
Due to several months delay not attributed to the Athlete the Panel finds it appropriate to start the period of ineligibility on the date of the sample collection.
Therefore the AAA Commercial Arbitration Tribunal decides on 30 June 2017:
1.) Respondent has committed an anti-doping rule violation under Article 2.1 of the Code and the UCI Rules.
2.) The following sanction shall be imposed on the Respondent:
a.) A twenty one (21) month period of ineligibility commencing August I 0. 2016, including her ineligibility from participating in and having access to the training facilities of the United States Olympic Committee Training Centers or other programs and activities of the USOC including, but not limited to, grants, awards or employment pursuant to the USOC Anti-Doping Policies only during the period of ineligibility.
b.) Respondent's results from August 10, 2016 are disqualified, with all resulting consequences, including forfeiture of any medals, points and prizes pursuant to Atticle 9 of the Code.
3.) The parties shall bear their own attorneys' fees and costs associated with this arbitration.
4.) The Administrative fees and expenses of the American Arbitration Association and the compensation and expenses of the Arbitrators shall be borne entirely by USADA and the USOC.
5.) This Award is in full settlement of all of the claims and counterclaims submitted to this Arbitration. All claims not expressly granted herein are denied.
6.) (…)
