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Drug Free Sport New Zealand v Dane Boswell


Anti-doping – probenecid – rower tested positive for probenecid in November 2008 – athlete subsequently requested B sample also be tested and this was was also positive – proceedings brought to Tribunal in 2009 by Drug Free Sport upon second positive test result – admitted violation but gave evidence violation was inadvertent – doctor prescribed him probenecid to treat injured hand – neither doctor nor athlete knew probenecid was prohibited substance – athlete did not take prohibited substance deliberately and was not a “drug cheat” – however athlete did not discharge his obligations as athlete subject to Sports Anti-Doping Rules – had received appropriate anti-doping education and materials as athlete in registered drug testing pool but had not followed advice been given in doping education – did not tell doctor was athlete subject to drug testing – did not ask doctor to check status of substance intended to prescribe – did not use phone text service allowing athletes to check whether substance is prohibited – therefore could not succeed on defence that had no significant fault – lex mitior principle applied – at time of violation in November 2008 the penalty for a probenecid violation was 2 years’ suspension – however, under the latest Sports Anti-Doping Rules 2009, since 1 January 2009 probenecid has been re-categorised as a “specified substance” with a range of lesser penalties that can be applied – although violation happened before 1 January 2009, the new rules allow Tribunal to impose lesser penalties available for a specified substance if Tribunal considers appropriate – relevance of provisional suspension proceedings in the particular circumstances of this case in determining appropriate sanction – Tribunal considered 2 months’ suspension appropriate in all circumstances of case – 2 months’ ineligibility imposed.

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