The Court of Arbitration for Sport has released its full report on the findings of Cesar Cielo, Vinicius Waked, Henrique Barbosa, and Nicholas dos Santos, and their justification for upholding the punishment of a warning that was handed down by the CBDA.
The CAS appears to have been very thorough in their investigation, and pointed to the specific rules, not written by the CAS but instead agreed upon by FINA and all of their member federations, that they used in their decision.
The key to this, in the mind of the CAS, is that they believe that the athletes took sufficient care to avoid contamination, especially in the case of Cielo, where the caffeine pills were prescribed by a doctor. While the pharmacy denied any possibility of fault initially, apparently in their official statement they have admitted to handling furosemide earlier in the day (though the report doesn’t indicate that the lab took fault for the contamination).
The CAS also acknowledged that athletes take responsibility for whatever they put in their bodies, but that since they were supposed to be made with a “pure substance” that contained no mixture of ingredients, and that there was a doctor’s prescription, that Cielo’s care in the issue was at a high level; especially with the lab being a WADA-certified lab (though, now WADA will have to investigate decertifying the lab).
Furthermore, the conclusion of the urine test was that the athletes’ urine was not dilluted at all. This is different than saying that there was a “low level of concentration of furosemide.” Saying that the urine was not dilluted means that regardless of the level of furosemide, it had absolutely no masking affect on the urine tests, so if the athletes were using it to cover up any illegal substances, those substances would have shown up on the test as well.
The “short half-life” of furosemide that has often been cited further enhances this idea. If furosemide breaks down that quickly, but still had trace elements in the urine, then that means it had to have been taken fairly shortly before the test. But if it was taken shortly before the test, but still did not dillute the urine, there was clearly no attempt at a coverup.
FINA did not dispute any of the facts in the case, but requested a 3-month ban solely on the basis of the idea that athletes are responsible for whatever they put in their bodies, though that was apparently not their opinion when they signed the WADA Anti-Doping Code (hence the inclusion of the exceptions for certain substances).
My take on this result is that there are some people who will not be convinced that 1) these four swimmers are not cheaters and/or 2) that the “no suspension” was an appropriate punishment, regardless of what any report says. But for those who were on the fence because of some uncertainty about the details, the findings of the investigation and CAS hearing should definitively pull them in the direction that the CAS made the correct decision in holding up the no-ban.
The ultimate result goes back to a point I’ve made several times. If Cielo and the Brazilians were not trying to cheat, which seems to be the official interpretation of the facts, then fighting doping in swimming and dangerous precedents should not equate to attacking the Brazilians who tested positive. It should equate to attacking the anti-doping code and the leniancy that it allows for, and the system that is place, which is the only way to ensure the idea of athletes being responsible for whatever they put in their bodies.
Read through the press release, and leave us your updated reactions in the comments (like we had to tell you to do that…).
The following press release has been posted unedited.
CASE OF CIELO, DOS SANTOS, BARBOSA AND WAKED: THE COURT OF ARBITRATION FOR SPORT (CAS) COMMUNICATES THE REASONS FOR ITS DECISION
Lausanne, 29 July 2011 – Following the announcement of the CAS decisions on 21 July 2011 in the case of FINA v. Cesar Cielo, Nicholas dos Santos, Henrique Barbosa and Vinicius Waked and the Brazilian Aquatics Confederation (CBDA), the CAS Panel in charge of these matters has now delivered its final award with reasons.
The CAS Panel, composed of Alan Sullivan QC (Australia) President, Olivier Carrard (Switzerland) and Jeffrey Benz (USA) decided to apply Article 10.4 of the FINA Doping Control Rules, identical to Article 10.4 of the World Anti-Doping Code (WADC), to each of the four Brazilian swimmers. Such article provides that:
“Where a Competitor or other Person can establish how a Specified Substance entered his or her body or came into his or her Possession and that such Specified Substance was not intended to enhance the Competitor’s sport performance or mask the Use of a performance-enhancing substance, the period of Ineligibility found in Article 10.2 [applicable in case of prohibited substances] shall be replaced with the following:
First violation: At a minimum, a reprimand and no period of Ineligibility from future Competitions and at a maximum, two years’ of Ineligibility.
[…]
The Competitor’s or other Person’s degree of fault shall be the criterion considered in assessing any reduction of the period of Ineligibility”. [According to Article 10.7 of the FINA DC Rules, the minimum sanction for a second anti-doping rule violation with a specified substance is one year of ineligibility].
Contrary to the situation that existed before the implementation of the FINA DC Rules/WADC 2009 edition, furosemide and other diuretics can now be considered as ‘specified substances’ in accordance with Article 10.4 above.
In the present matter, the CAS Panel was satisfied that:
- The caffeine capsules were prescribed by the doctor of Cesar Cielo since the end of 2009;
- The caffeine capsules were manufactured by the same pharmacy since that time;
- The caffeine used for the preparation of the capsules was pure and not mixed with other substances;
- The substance furosemide was detected by a WADA-accredited laboratory in Rio de Janeiro (LABDOP) in the caffeine capsules that remained in the bottle of capsules used by the Athletes;
- The pharmacy that prepared the caffeine capsules admitted that on the same day, it had also made up, for other clients, several prescriptions for the treatment of heart disease, an ingredient of which was furosemide;
- The urine concentration of the athletes was normal and was not diluted, which means that furosemide could not have been used as a masking agent in this case.
The above-mentioned elements were not challenged by FINA, which acknowledged that the furosemide was not intended to enhance the performance of the Athletes or to mask the use of a performance enhancing substance and which accepted the application of Article 10.4 FINA DC Rules. However, FINA argued that the fault committed by the athletes was sufficiently serious to justify the imposition of a period of a three-month suspension in the cases of Cielo, Barbosa and dos Santos and a one-year suspension in the case of Waked.
The CAS Panel recognised that the use of food supplements by athletes was generally risky, but that, in the present case, the athletes had taken sufficient precautions to reduce their fault or negligence to the minimum. Accordingly, the CAS Panel has decided to apply the minimum sanctions provided in the FINA DC Rules.
The final award, with the grounds, is published on the CAS website (www.tas-cas.org).
Braden I would have agreed if the Brazilians had recommended a year suspension for Waked from the start and this was upheld by CAS. The rules are absolutely clear and the CAS decision is correct. However, the Brazilians took a “no foul” approach to all four swimmers and USED THIS as the basis for their ruling. CAS then said “we support the Brazilians in respect of three of the swimmers BUT not in terms of the fourth. The point is actually terribly simple and Roland identified the contradiction exceptionally well: With Waked CAS was willing to ban him for a year for a second offence (as they had every right to) despite the fact that the Brazilians gave him a… Read more »
I still saw that both decisions were made on the precedent of rules, not the precedent of precedents. In arbitration, precedents are almost irrelevant. The CAS had no authority or liability to overturn the CBDA’s decision on the other three, though the CBDA made a poor judgement. As an arbitration court, the CAS can only work with what they are given in the first place, which is what the CBDA suspension, what FINA wants, the facts of the case, and what the rules say about said case. Arbitration rarely considers precedents over specifically outline rules, no matter how badly they might want to. The Waked decision was in line with other decisions, because it’s in line with the rules, not… Read more »
What I find interesting is that CAS seems to be saying all four were guilty of having Furosemide in their urine but some were more guilty than others. What I do not understand is that (i) Cielo is the only one with a script (at least from the sounds of it); (ii) Cielo is the only one who engages a pre-testing process (at least from the sounds of it); (iii) all four test positive for Furosemide on the same day at the same meet (fact); (iv) CAS believes that the athletes (notice they include all four) “had taken sufficient precautions to reduce their fault or negligence to the minimum” yet Waked gets screwed by actually being punished and the others… Read more »
Jimbo – there are many valid arguments in this case for suspension of the Brazilians, but the Waked vs. Cielo is not one. The rules specifically allow for a reduction in suspension for a first offense only. A “one strike” rule. If Cielo were to test positive again, he would get the full time. As would Jessica Hardy, Daynara de Paula, Fred Bousquet, or anybody else on a second offense.
WADA is as incompetent as NATO or any world body. Try any UN body -whaaaahhh!
We all know they suck but what can we do?
I guess at least they are not dropping bombs (6000 sorties ) on one country whilst zillions are famined out a few hours away.
I need some caffeine.
They talked what i already knew:The impossibility of cheating(using Furosemide) with a non diluted urine(despite all the naysayers here telling the opposite), and the difference of a SMALL amount and a TINY one.BUT, i was thinking CAS will release a complete statement(with quantity and details), not a simply press release.
And this differs from any number of other inadvertent cross-contamination scenarios, including Brazilian ones, in which way?
Sounds like what really needs to happen is for FINA to change the minimum punishment from warning/one strike to three month minimum suspension.
I agree as to the minimum suspension, though I don’t believe that FINA has the authority to act outside of the Anti Doping Code. For example, when the IOC tried to institute their 6-month rule, it looks like they might be overturned because it was outside of what was agreed to in the Anti-Doping Code.
I’d guess that FINA doesn’t have the authority to withdraw from the anti-doping code either, as an IOC-supported monopoly on the sport. So it would have to be a WADA-approved changed, which from what we saw last time is about a three-year process because all of the different governing bodies involved. My gut feeling, with all of the changes in doping culture, is that WADA… Read more »