The Respondent, Justin Gatlin, is a member of the USA Track & Field, Inc. (“USATF”).He is the 2005 World and USA Outdoor 100m and 200m champion; 2004 Olympic 100m gold, 200m bronze, 4x100m relay silver medalist.
The Panel notes at the outset that this case appears to be unique, and its circumstances are unlikely ever to be repeated. It has proved particularly nettlesome, involving as it does an earlier AAA Panel Decision, made in 2001 under a prior set of IAAF code provisions. That earlier 2001 AAA Panel rendered what appears to be an interim, non-final decision pending disposition of a petition for reinstatement by the IAAF. When the IAAF reinstated Mr. Gatlin in 2002, the 2001 AAA Panel did not resume its deliberations, nor render a final decision, nor in any way, modify its initial decision, finding a doping violation and imposing a 2 year suspension on Mr. Gatlin for what the Panel found, and evidently the IAAF found was a completely inadvertent, unintentional violation which would have been avoided through the simple step of seeking permission for the use of a therapeutic, prescription medication. Nevertheless, the 2001 AAA Panel found a doping violation, Mr. Gatlin, and all of his witnesses consistently testified that they considered and understood that finding to constitute a first doping violation. At no time did Mr. Gatlin claim it was not a violation, nor did he present any evidence that it was not a finding of a first doping violation.
Nevertheless, the Panel found itself constrained by its obligations to consider the implications on the present case, of the findings or lack of findings in that 2001 decision.
Turning to the present case, the Panel finds that the evidence presented supports a finding that Mr. Gatlin committed a doping violation in 2006, namely the use of exogenous testosterone, which was detected in his system on or about April 22, 2006. The Panel further finds that Mr. Gatlin failed to sustain his burden of proof to show how the Prohibited Substance entered his body, in order to rely upon a claim of no fault, or no significant fault in connection with the 2006 doping violation.
The doping violation which was established by the proofs herein, was Mr. Gatlin’s second doping violation, the first having occurred in 2001 while Mr. Gatlin was a student at the University of Tennessee2. Since that finding meant that the present matter constitutes a second violation and additional potential penalties be considered, the Panel considered arguments of Mr. Gatlin that the first violation should not be counted and USADA’s to the contrary.
Despite the arguments of Mr. Gatlin, detailed more fully hereinbelow, there is no evidence before the Panel which would sustain the argument that the first doping violation should not be considered and that the current doping violation was, therefore, effectively a first violation.
Mr. Gatlin’s period of ineligibility will be four (4) years from May 26, 2006 ( thirty (30) days following the date on which his urine sample was taken). He is disqualified from and forfeits any and all competitive results, if any, received on or subsequent to April 22, 2006 through the end of his period of ineligibility.
While the Panel has held that it has no basis upon which to ignore the first finding of a doping violation, for the reasons discussed below, we adjure the International Amateur Athletic Federation (“IAAF”) to determine whether, in the exercise of its discretion, if its decision reinstating Mr. Gatlin in 2002 and eliminating any further ban from competition should be held to have been based on or the equivalent of a finding that he had no contributing fault in connection with his first doping violation. Similarly, Mr. Gatlin may choose to present evidence that the anti-doping authorities in 2001 affirmatively represented to Mr. Gatlin that cessation of use three days prior to competition would be sufficient compliance with the rules, and therefore the first panel, which has never relinquished jurisdiction over that offense would have found “no fault..” If either be the case, then it ought not be counted for purposes of the present award, and the Panel will retain jurisdiction over the award set out herein below to adjust that award should a decision of the IAAF, or subsequently discovered facts or events so warrant.
As will be more fully discussed below, the Panel notes that no AAA or CAS Panel has ruled that proceedings by Anti-Doping Organizations are subject to the Americans with Disabilities Act or comparable Swiss laws that prohibit discrimination against the disabled. Given the abject failure of Mr. Gatlin to support his mere generalized statement about those laws, this Panel likewise does not have to rule on that issue as it was not properly presented to it. We do note that the task of this Panel is made more difficult by the complexity caused by those statutes, which have not been explored in detail before this Panel. The Dissent presents detailed argument and citation as to why those statutes should be considered and thereby either invalidate the 2001 AAA Panel decision, or prohibit its consideration. Had Mr. Gatlin presented such arguments, or indeed virtually any arguments, they would have been considered by the Panel but the Panel makes no conclusions as to the outcome had he done so.
On the basis of the foregoing facts and legal aspects, this Panel renders the following decision:
- Respondent has committed a doping violation under the WADA Code, Article 10.2, by reason of the use of exogenous testosterone in 2006.
- The 2006 doping violation was Respondent’s second doping offense.
- There was no finding of the nature, level or existence of “fault” as to the first doping violation, either by the 2001 AAA Panel in 2001, which referred the matter for a final determination to the IAAF, nor by IAAF in 2002 when it decided that such “exceptional circumstances” existed so as to justify the immediate reinstatement of Mr. Gatlin.
- It therefore falls to this Panel to construe the language of and the record in that prior doping offense decision, to determine if it qualifies as the equivalent of a “no fault” determination such as to justify not counting it as a first offense, solely for purposes of the award for a second offense.
- The lack of requested evidence, finding by the 2001 AAA Panel of a doping violation, the nature of the standard applied in 2001, and the actions of the IAAF clearly suggest at a minimum, a finding of “no significant fault” in 2001. However, there is no evidence from which this Panel may determine that a finding of “no fault” under the current WADA standard was made or could be inferred.
- Therefore, the totality of circumstances causes the Panel to conclude that the 2001 decision of the AAA Panel and the 2002 decision of the IAAF cannot be construed, on the record before this Panel, as constituting a “no fault” level of responsibility on the part of the Respondent under Code section 10.5.1.
- The following sanctions shall be imposed on Respondent:
A four-year period of ineligibility commencing on May 25, 2006 through May 24, 2010, including his ineligibility from participating in U.S. Olympic, Pan American or Paralympics Games, trials or qualifying events, being a member of any U.S. Olympic, Pan America or Paralympics Games team 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.
- The retroactive cancellation of all competitions results and awards occurring after April 22, 2006 through the date of this Award.
The administrative fees and expenses of the American Arbitration Association and the compensation and expenses of the arbitrators shall by borne entirely by USADA.
