Respondent. David Clinger, is a 32 year old elite cyclist who provided USADA urine specimen on July 30, 2009, after placing second in the Men's Road Race at the USA Elite Road Nationals in Bend, Oregon. Respondent's urine sample tested positive (A and B sample) for synthetic testosterone, an anabolic agent, and modafinil, a stimulant.
Respondent contends that his Positive Test is the result of his use of Modafinil and Testosterone, which he contends was prescribed by his physician prior to his Positive Test.
Respondent submitted two therapeutic use exemption (TUE) applications for the use of Testosterone to USADA after his Positive Test, the first of which he submitted on September 2. 2009, and which was returned to him by USADA as incomplete on September 9, 2009. and the second of which he submitted on September 17, 2009 and which the USADA TUE-Committee denied on September 23, 2009 because medical records provided did not meet the criteria set forth in the WADA International Standard for TUEs. Respondent was provisionally suspended effective September 3, 2009, after a telephonic hearing before a panel of arbitrators of the American Arbitration Association.
Respondent has stipulated to the essential element of an Anti-Doping Rule Violation: the Prohibited Substances were present in his bodily specimen. Respondent's arguments with respect to the
circumstances under which he took the Prohibited Substances do not meet the criteria of the applicable rules for exceptional circumstances. as required in order to reduce or eliminate the period of Ineligibility:
- Respondent did establish how the Prohibited Substances entered his system: he took them under the care of a physician.
- Based on the definitions in the applicable rules. Respondent was unable to establish that he bore no fault or negligence or no significant fault or negligence in relationship to the anti-doping rule violation: Respondent was aware of the rules against taking Prohibited Substances. he knew about the TUE process, he had previously requested thal his physician complete similar fomis to those required in the current TUE process, he did not ask his physicians to complete the TUE
process before taking the Prohibited Substances.
- Though Respondent argues this was a "first aid situation," that would not be a valid rationale for disregarding the TUE process. And even if a "first aid situation" were some kind of exception, this was not an emergency/”First aid situation." as Respondent took the
Testosterone every 2 weeks for 3 months after it was prescribed. He had plenty of time then to apply for a TUE. Respondent deliberately disregarded the rules, of which he was aware, al least with respect to the Testosterone.
- Nor did Respondent exercise any level of caution, and certainly not utmost caution, as required to establish exceptional circumstances. He knew that the Testosterone
was a Prohibited Substance in direct contradiction of the applicable rules. He nevertheless continued to take it.
- With respect to the Modafinil. Respondent exercised no caution either. He did not inquire about the ingredients in the medications he was being prescribed or consult the list of Prohibited Substances with respect to the Resperdol prescription.
USADA further argued that there are "aggravating circumstances" in this case. such that the panel should impose a period of Ineligibility of 4 years on the Respondent. Mr. Clinger admitted the anti-doping rule violation from the outset of this case. He never denied taking the Prohibited Substances, but rather claimed that he took the Prohibited Substances under adverse circumstances that he believed consisted of exceptional circumstances.
Thus, the panel does not address whether the facts of this case consist of aggravating circumstances, but rather find that the Respondent can avoid the application of this provision based on his admission of the anti-doping rule violation.
The Arbitrators therefore rule as follows:
- Mr. Clinger shall be ineligible to compete for a period of two years, under the UCI ADR, beginning on the date of his provisional suspension, September 3,2009. Mr. Clinger shall be eligible to compete again on September 2, 2011.
- Mr. Clinger's competition results between July 30, 2009 and September 3, 2009 shall be disqualified.
