In December 2018 and in January 2019 the United States Anti-Doping Agency (USADA) and in March 2019 the International Swimming Federation (FINA) have reported anti-dopng rule violations against the swimmer Conor Dwyer after his samples - provided in November and in December 2018 - tested positive for the prohibitied substance Testosterone.
After notification a provisional suspension was ordered. The Athlete filed a statement with evidence in his defence and he was heard for the Tribunal of the American Arbitration Association (AAA). FINA referred the results management to USADA to consolidate with the existing proceedings.
The Athlete accepted the test results, argued that the violation was not intentional and requested for a reduced sanction. He testified that for many months, he had been suffering from health issues such as brain fog, low mental and physical energy, difficulty sleeping, depression and anxiety. As treatment for his diagnosed testosterone deficiency prescription BioTe pellets (in fact Testosterone) were surgically implanted by his physician in a short procedure in October 2018.
The Athlete asserted that he did not know that the insertion of the BioTE pellets would result in an anti-doping rule violation and that he was not concerned with his swimming performance, but rather his overall mental health and well-being.
The Athlete had assurances from his long-time trusted adviser and coach that the pellet therapy was not prohibited by the Code; the United States Olympic & Paralympic Committee was consulted about this treatment by his physician; and he had no doubt what his adviser and physician told him about the treatment.
USADA accepts that the prescribed BioTe pellets were the source of the positive test and contended that the Athlete failed to establish that he bears No Significant Fault of Negligence.
In this case, the Panel considers that the Athlete took the primary step of consulting with a doctor, who reported getting the treatment approved. In his view, the doctor had the necessary expertise, as the Athlete understood it, the doctor was reliable based on his advisor’s experience, and the doctor was not consulted for performance enhancing reasons. However the Panel holds that he also failed to conduct other steps to ensure that the treatment is not prohibited.
The Panel finds that balancing all of the objective factors, both in favor of and against Athlete’s case, the Athlete’s level of fault falls within the “normal” degree of fault. When considering the subjective elements, they are not exceptional such as to change his level of fault, so his fault remains within the “normal” range, leading to a suspension in the 16-20 months range.
Therefore the Panel decides on 11 October 2019:
A.) Respondent has committed an anti-doping rule violation under Article 2.1 of the Code, for Use of a Prohibited Substance;
B.) The default period of ineligibility for the anti-doping rule violation under Article l 0.2.3 of the Code is two years, subject to further reduction;
C.) Respondent has sustained his burden of proofunder Article 10.5.2 of the Code that he bears No Significant Fault or Negligence for the anti-doping rule violation, and the period of Ineligibility is reduced from two years to 20 months;
D.) The start date of Respondent's period of Ineligibility is the date of his provisional suspension, December 21, 2018, and the period of ineligibility expires on August 20, 2020;
E.) Respondent's competitive results from the date of his sample collection, November 15, 2018 through his acceptance of Provisional Suspension, on December 21, 2018, if any, are to be disqualified, and any medals, points and prizes earned during that period shall be forfeited;
F.) The parties shall bear their own attorneys' fees and costs associated with this Arbitration;
G.) The administrative fees and expenses of the American Arbitration Association, and the compensation and expenses of the Panel, shall be borne by USADA and the United States Olympic Committee; and
H.) This Award shall be in full and final resolution of all claims and counterclaims submitted to this Arbitration, All claims not expressly granted herein are hereby denied.
