CAS 2011/A/2499 Albert Subirats v. Fédération Internationale de Natation (FINA), award of 24 August 2011
FINA 2011 FINA vs Albert Subirats
May 7, 2011
Doping (Whereabouts filing failure)
Responsibility of the athlete for making accurate and complete whereabouts filings
Responsibility of the anti-doping organization in the notification of the filing failures
1. It is the responsibility of each swimmer registered in the FINA Registered Testing Pool to report the required whereabouts information to the FINA office. Even when the athlete chooses to delegate whereabouts filings to a third party such as a national federation, he or she remains ultimately responsible at all times for making accurate and complete whereabouts filings. In particular, the athlete must make sure that such third party effectively forwards the whereabouts information to the anti-doping organization on time.
2. The anti-doping organization is responsible for making an accurate notification to the athlete. If it decides to notify the filing failure communication to the athlete’s national federation instead of directly to the athlete, it has to make sure that the athlete receives such communication from the national federation. If the athlete does not receive the filing failure communication from the national federation, he or she may not be declared to have committed any filing failure.
On 21 June 2011 the International Swimming Federation (FINA) Doping Panel decided to impose a 1 year period of ineligibility on the Venezuelan swimmer Albert Subirats for 3 Whereabouts Filing Failures in 2010 and 2011.
Hereafter in July 2011 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).
Uncontested in this case is the fact that the Athlete always sent the whereabouts information on time to the Venezuelan Swimming Federation (VSF), but that VSF did not forward such information to FINA, neither for the first quarter of 2010, nor for the fourth quarter of 2010, nor for the first quarter of 2011.
In addition, uncontested and supported by the documents in the file is the fact that the FINA notified all three filing failures by letters of 25 February 2010, 11 November 2010 and 2 February 2011 to VSF, only.
No failure notices were ever sent by FINA to the Athlete directly. Also uncontested is the fact that VSF forwarded these communications to the Athlete for the first time on 2 February 2011, i.e. after the third violation had already occurred.
The Panel concludes that, since it is undisputed that the Athlete 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 Athlete.
Therefore the Court of Arbitration for Sport decides on 24 August 2011:
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.
7.) All other motions or prayers for relief are dismissed.