15th December 2014

CAS bans NZ triathlete for whereabouts failures

The Court of Arbitration for Sport (CAS) has approved a ban requested for New Zealand triathlete Kris Gemmell for failing to comply with regulations requiring him to report his ‘whereabouts’ for testing, after the New Zealand Sports Tribunal (NZST) earlier dismissed the case. The CAS ruled that Gemmell should serve a 15-month ban, backdated to 12 February 2014, when the NZST handed down its decision to dismiss the case.

Drug-Free Sport New Zealand (DFSNZ) argues that Gemmell committed three whereabouts failures in an 18-month period, comprising two missed tests and one filing failure. It applied for a provisional suspension on 17 December 2013, which was unsuccessful. When the NZST heard the case in full on 7 February 2014, it decided that the first missed test had not been established to its satisfaction, so dismissed DFSNZ’s application without considering the other missed test and filing failure. DFSNZ appealed to the CAS.

It argued that the NZST did not approach the question of whether Gemmell had committed a whereabouts failure on 28 August 2012 correctly; that it was incorrect in finding that the doping control officer (DCO) had failed to do what was required to locate Gemmell; and that two additional whereabouts breaches indicated in the evidence were not ruled on by the NZST.

DFSNZ’s primary position before the NZST was that Gemmell was not at the location specified in his whereabouts filings for 28 August 2012. Gemmell said that he was tired due to jet lag and had gone to bed early. The DCO tried the door every ten minutes between 10pm and 11pm. The panel was satisfied that Gemmell was at the address at the specified time and could prove so, and the DCO had not gone far enough to locate the athlete. The CAS agreed.

However, the CAS disagreed with the NZST’s finding that the DCO had acted unreasonably. It also found that Gemmell was negligent in not making himself ‘available’ for testing at his chosen time. It therefore differed with the NZST in that it did consider this a ‘missed test’.

It found that with the addition of the other two whereabouts breaches that the NZST hadn’t considered, Gemmell had committed an Anti-Doping Rule Violation (ADRV). It decided to reduce down a two-year sanction, due to his above explanation for the first missed test, and anther missed test being on the same day that his father had been admitted to hospital, resulting in a failure to update his whereabouts information. It therefore judged that these missed tests were ‘not inexcusable’.

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