Related case:
CAS 2011/A/2499 Albert Subirats vs FINA
August 24, 2011
The Féderation Internationale de Natation (FINA) has reported an anti-doping rule violation against Albert Subirats (the Swimmer) for three whereabouts filing failures within an eighteen-month period.
After notification by FINA the Swimmer filed a statement in his defence and was heard for the FINA Doping Panel.
The Swimmer stated he always sent in time the relevant whereabouts information to his Federation. He showed copies of emails to the Venezuelan Swimming Federation (VSF) as a prove he indeed has sent information with the intention to send whereabouts information through the VSF to FINA. The Swimmer argued he has never been aware of the two filing failures in the past, due to the FINA letters were addressed to the VSF and never forwarded them to him.
Considering the Swimmer had no intention to escape from doping control the FINA Doping Panel decided to impose a 1 year period of ineligibility starting on 7 May 2011.
Hereafter the Swimmer appealed the FINA Decision to the CAS Panel (CAS 2011/A/2499 Albert Subirats vs FINA) in July 2011.
The CAS Panel concludes that FINA never notified a filing failure communication to the Swimmer. In particular, FINA did not send the letters concerning the filing failures directly to the Swimmer, but only to the VSF, and he did not receive any such communications from the VSF before his third failure. As a consequence, the Swimmer was unaware of all filing failures until the third filing failure occurred and was not in a position to repair on that.
Thus, since it is undisputed that the Swimmer did not receive any failure notice before the third whereabouts filing failure, the existence of a second and a third violation cannot be reproached to the him. For these reasons, no anti-doping rule violation (Whereabouts Filing Failures and/or Missed Tests) exists and, as a consequence, the Swimmer’s Appeal is upheld, the FINA Decision overturned, the second and third filing failure for the fourth quarter of 2010 and the first quarter of 2011 are cancelled and the Swimmer's results reinstated.
The Court of Arbitration for Sport Panel rules:
1.) The Appeal filed by Mr. Albert Subirats is upheld.
2.) The decision rendered on 21 June 2011 by the FINA Doping Panel is overturned.
3.) The second and the third filing failure for the fourth quarter of 2010 and the first quarter of 2011 are cancelled.
4.) Mr. Albert Subirats' results are fully reinstated.