In July 2021 the United States Anti-Doping Agency (USADA) reported an anti-doping rule violation against the parathlete Tricia Downing after her sample tested positive for the prohibited substance Testosterone. After notification a provisional suspension was ordered. The Athlete filed a statement in her defence and she was heard for the American Arbitration Association Commercial Arbitration Tribunal.
The Athlete (52) accepted the test result, admitted the violation, denied the intentional use of the substance and asserted that her fault was not significant. She explained that she suffered from menopausal symptoms and had used a cream, prescribed by a Nurse Practitioner, while she was unaware that it contained Testosterone.
The Athlete presumed the cream was safe and didn't mention it on the Doping Control Form. She argued that she delegated her responsibility to the Nurse Practitioner (Delegation Coctrine) to ensure that no prohibited substances entered her system. Hereafter the Athlete had applied for a retroactive TUE for her use of Testosterone which was denied by USADA in September 2021.
The Nurse Practioner testified that during the consultation and prescription of the cream was not mentioned that the she was an elite or drug tested athlete, nor was mentioned that the cream contained Testosterone. The Practioner was not specialised in treating athletes, had no anti-doping experience, nor received anti-doping education, nor was she familiar with the WADA Prohibited List.
USADA accepted that the violation was not intentional, but contended that the Athlete had acted with significant fault. Prior she had received considerable anti-doping education and she declined from her Practioner a prescription for DHEA.
USADA's medical expert deemed that Testosterone is not an approved treatment for menopause and there are safety concerns about giving Testosterone therapy to women. Test results showed that the Athlete's Testosterone concentration was normal whereas there was no basis to conclude that the Athlete's Testosterone levels were deficient.
The Arbitrator finds that the presence of a prohibited substance had been established in the Athlete's sample and accordingly that she committed an anti-doping rule violation. Undisputed between the parties is that the violation was not intentional.
The Arbitrator holds that there are no grounds to apply the Delegation Doctrine in determining the Athlete's degree of fault or the lenght of the sanction. In the matter of the prescribed cream the Arbitrator assessed the Athlete's conduct and concludes that she acted with significant fault or negligence without grounds for a further reduction of the sanction.
Therefore the AAA Tribunal decides on 2 May 2022 to impose a 2 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 26 July 2021.
