A three-member arbitration panel has issued a two-year suspension of David Clinger for a positive testosterone test at last year’s national elite championships in Bend, Oregon.
Clinger had finished second in the national road race, behind Michael Olheiser, but that result and any achieved since his positive test have been negated, as a result of the ruling issued by the American Arbitration Association/Court of Arbitration for Sport (AAA/CAS) panel on Thursday (read the full decision).
The 32-year-old Clinger is a former member of the U.S. Postal, Festina and Rock Racing teams. Clinger tested positive for synthetic testosterone and modafinil in a sample collected from him on July 30, 2009, following his finish in the road race.
Synthetic testosterone is prohibited as an anabolic agent and modafinil is prohibited as a stimulant on the World Anti-Doping Agency Prohibited List. Clinger accepted a provisional suspension on September 3, 2009, and his suspension will last until two years from that date.
According to the panel’s decision, Clinger admitted to taking both substances, but said he was doing so after following the recommendations of his physician. Clinger’s doctor, Sean Ponce of ATM Medical in Sandy Utah, confirmed that the rider had started testosterone therapy under a California physician’s supervision in 2008.
The U.S. Anti-Doping Agency presented testimony from endrocrinologist Richard Auchus, who questioned the basis for prescribing therapeutic testosterone.
The panel noted that Clinger was also unaware that “a drug he was taking – Resperdone (sic) – as a sleep aid, for a month and a half before the 2009 USA Elite Road Nationals also contained the Prohibited Substantce Modafinil, until he looked into it after the Positive Test.”
Clinger failed to file a the necessary paperwork to receive a Therapeutic Use Exemption (TUE) for either substance.
“Mr. Clinger testified that he has always known about the TUE process (and) that he advises a physician each time he sees one, of his status as part of a group that can not take certain substances,” the decision noted. Ponce, however, said he was not asked to file a TUE on Clinger’s behalf until after the rider learned of the positive test result.
The decision also confirmed that Clinger had reported his use of both testosterone and Resperdone on a declaration form at the time his sample was submitted at the national championship.
While acknowledging that Clinger had been following a doctor’s advice at the time, the panel pointed to Article 21.1 of the World Anti-Doping Code which notes that “medical treatment is no excuse for using Prohibited Substances … except where the rules governing Therapeutic Use Exemptions are complied with.”
After considering whether mitigating factors might reduce a potential suspension, the panel concluded that Clinger had not “exercise(d) any level of caution and certainly not utmost caution, as required to establish exceptional circumstances” in the case.
“He knew that Testosterone was a Prohibited Substance in direct contradiction of the applicable rules,” the panel noted. “He nevertheless continued to take it.”
The panel also rejected USADA arguments that there were sufficient “aggravating circumstances” to warrant an even longer suspension. The panel noted that Clinger had consistently acknowledged his use of the drugs, even going so far as to report their use on a declaration form at the time of his test.