American rider Paige Johnson, who received a one-year ban arising from a groom buying the wrong product at a Walmart store, has had her suspension reduced to three months under a deal struck with the FEI.
Central to the agreement, signed off by the world’s highest sporting court last week, was the decision of the FEI Bureau to change the classification of the substance found in the horse’s system from a banned substance to that of a controlled medication, effective from January 1, 2018.
The original one-year suspension, imposed by the FEI Tribunal on July 14 this year, would have seen Johnson, a professional equestrian, ineligible to compete until April 4 next year, once the time already served under a provisional suspension had been taken into account.
The reduced three-month suspension means her ban expired on July 4 and she is now free to compete.
The case involved the horse Luke Skywalker 46, ridden by Johnson in a CSI2* jumping event in Wellington, Florida, from January 17 to 22 this year. Blood and urine samples were taken from the horse on January 21 for testing.
Testing revealed the presence of pramoxine, a local anaesthetic used to relieve pain and itching. It is classified as a banned substance under the FEI Equine Prohibited Substances List.
The tribunal was told that Luke, like all horses, got the occasional minor cut and a veterinarian had recommended the use of a triple antibiotic cream in such cases, which the vet had indicated was OK under the anti-doping rules provided it did not contain added corticosteroids or pain relief.
A groom, Sergio Molinero, told the FEI Tribunal of going to Walmart on January 5 this year, where he took four tubes of the antibiotic cream off the shelves for purchase.
“I was buying the same triple antibiotic we always buy which is okay under the anti-doping rules. I now realize after Paige was able to find my receipt for the purchase that I made a mistake and pulled the wrong tube off the shelf because it looked so much like the one we always use,” his written submission said.
“I now see that I mistakenly bought triple antibiotic with pain relief, and the pain relief contains pramoxine.”
The cream had been applied to small cuts on Luke twice daily for two weeks, the tribunal was told.
A veterinarian, Dr John Nolan, had also provided an account, saying that Johnson was meticulous about her procedures in the barn and continually demanded a higher level of caution than even he recommended.
He said he had worked with many professional equestrian athletes over the years, and could say without reservations that Johnson was the most careful and ethical rider with whom he had ever worked.
He confirmed that he had advised Molinero that he may use a triple antibiotic on the horse, “but he should avoid any corticosteroid or pain relief in the ointment.”
It was confirmed that Molinero had been buying supplies for her horses for 15 years without a single error. It was therefore reasonable to trust him to purchase an ointment he had been using on the horses as needed over that time. It was argued she could not have predicted or foreseen that Molinero would make this mistake.
Molinero, it was argued, had made an uncharacteristic mistake that was not foreseeable or preventable, and no amount of education or training would have changed the mistake on the day in question.
The tribunal, comprising Erik Elstad, Laurent Niddam and Henrik Arle, had ruled that while good procedures were in place, Johnson had not, in its view, met the duty of care expected from her as a rider.
In such circumstances, especially following veterinary warnings to avoid buying the wrong cream, the rider would always be expected to check the label of a product.
“In those cases where she delegates that responsibility to her support personnel, then the support personnel is expected to do so,” it ruled. “In the view of the tribunal this is the case no matter whether the person buys a product for the first time or for 15 years, as was the case in the case at hand.”
The tribunal found that both Johnson and her support personnel were well aware that two different types of triple antibiotic ointments existed, one of which contained a prohibited substance. “She could at least have reasonably suspected that the wrong product could be bought or applied to the horse at some point in time.
“While the tribunal agrees that the perceived risk … after 15 years of buying and applying the ‘right’ triple antibiotic ointment was certainly much less, the perceived risk when starting to use the product was however very high.”
Johnson appealed the decision to the Court of Arbitration for Sport in Switzerland, asking that it set aside the tribunal decision and eliminate or otherwise reduce the sanction imposed on her.
The case was held over as the FEI was at the time considering whether to reclassify pramoxine. The FEI Bureau subsequently decided that pramoxine would be downgraded to a controlled medication.
On September 19, Johnson and the FEI wrote to the court saying that they had entered into an agreement and nominated a British solicitior, Mark Howell, as sole arbitrator. This was accepted by the court.
Under the agreement, the FEI and Johnson agreed that the decision of the tribunal imposing a one-year suspension on the rider should be set aside.
In accordance with the tribunal decision, the FEI was satisfied that Johnson had established how the pramoxine had entered the horse’s system, that it was her first violation under the Equine Anti-Doping Rules, and that she bore no significant fault or negligence.
Given that the FEI Bureau had decided to downgrade pramoxine, meaning that its presence would no longer be considered an anti-doping rule violation, then it was appropriate to apply a more lenient sanction.
The suspension – or period of ineligibility – was reduced to three months.
The fine of 2000 Swiss francs imposed on Johnson by the FEI Tribunal, together with the order to pay 3000 Swiss francs in costs towards the cost of the FEI procedure, would remain.
The deal was agreed between counsel Mike Morgan for Johnson, and Mikael Rentsch, on behalf of the FEI. Howell reviewed the agreement and said he was satisfied it was a bona fide settlement of the dispute.
“It is within the FEI’s powers to agree, as a matter of fairness in these specific circumstances, to apply the principle of proportionality,” he said. Given the upcoming reclassification of pramoxine, the FEI could apply this principle while still remaining true to public policy principles, he said.
Rentsch, who is the FEI’s legal director, said following the court’s decision: “Given the fact that pramoxine has been recently reclassified as a controlled medication, effective as of 1 January 2018, the FEI agreed as a matter of fairness and based on the principle of proportionality, that the period of ineligibility initially imposed by the FEI Tribunal should be reduced. Three months was deemed appropriate given the circumstances.”