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Drug Free Sport New Zealand v Tom (Zig Zag) Wallace


Anti-doping – probenecid – boxer tested positive for probenecid – admitted violation but gave evidence violation was inadvertent – doctor at accident and emergency clinic prescribed him probenecid to help treat cellulitis in knee – neither doctor nor athlete knew probenecid was prohibited substance – athlete informed doctor he was competitive boxer subject to drug testing and asked if suggested treatment would cause any problems if he was later drug tested – he accepted the doctor’s assurance it would not – however doctor did not check whether probenecid was prohibited in sport but wrongly assumed it was not – Tribunal had sympathy for athlete and accepted there was no significant fault on his part but could not accept his defence that he had no fault – he had received drug education and material containing instructions on steps athletes need to take when prescribed medication – while complied with step of advising the doctor that he was an athlete subject to drug testing, there were other steps set out in the material that needed to follow but did not do – did not request doctor to check medical catalogue to clarify status of probenecid (which states probenecid is prohibited) – did not ensure therapeutic use exemption requirements were met if no other treatment alternatives were available – no fault defence rejected – Tribunal not needing to consider no significant fault defence further (which if defence established would result in a minimum penalty of one year’s suspension under anti-doping rules) as probenecid recently recategorised as a specified substance under new rules and lesser penalties available under lex mitior principle (if Tribunal thought appropriate to apply lex mitior principle) – unlike athlete in recent case of DFS v Boswell (ST 01/09), the athlete here informed the doctor that he was subject to drug testing and asked whether the treatment would cause any problems for drug testing – he relied upon the doctor’s assurances and although this did not absolve him of all his obligations, it was a factor to be taken into account in determining penalty – he also had voluntarily withdrawn from competing when advised of the positive test – appropriate penalty in all circumstances was a reprimand only.

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