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Pre-Shanghai CAS Hearing For Brazilians?

Jul 4, 2011  - Craig Lord

FINA will press for an urgent Court of Arbitration appeal hearing before pool racing at the world championships begins on July 24 in Shanghai if current investigations conclude within days that Brazil was wrong to issue only warnings to four swimmers, including Olympic and world champion Cesar Cielo, who tested positive for the diuretic furosemide. 

Cornel Maculescu, Executive Director of FINA, told SwimNews: "If the decision is to appeal, then it should be done urgently with CAS because the championships are there just in front of us. If we agree with the decision taken in Brazil, then that is another matter."

FINA awaits the paperwork from Brazil's federation, the Confederação Brasileira de Desportos Aquáticos (CBDA), on the cases of Cielo, Nicholas Santos, Henrique Barbosa and Vinicius Waked, all but the latter members of Brazil's world titles squad in Shanghai later this month. They tested positive for furosemide, on the banned list in part because of its property as a masking agent, at the Maria Lenk Trophy in May. All train together and took the same food supplement that Cielo, in self-defence, claims was contaminated in the pharmacy that made up a product that the Olympic 50m freestyle champion says he has used long-term. 

Of the four, Waked's case looks the weakest by some margin: he has already served a suspension after testing positive for Isometheptene. He returned from that ban in April 4 last year. 

On the FINA record:

Doping Offence - Vinicius Rocha Barbosa Waked (BRA)

On December 19th, 2009, swimmer Vinicius Rocha Barbosa Waked (BRA) was tested positive to the substance Isometheptene (Class S 6.b Specified Stimulants) following an in-competition doping control test conducted during Trofeu Open de Natacao. The Brazilian Swimming Federation imposed a sanction of 2 months’ ineligibility on the athlete starting on February 4th, 2010.

Under FINA Rule DC 10.3, Waked could be be suspended for two years. That rule states that where a competitor can establish that the use of a substance was not intended to enhance performance, a second violation results in a two-year ban. The let out is to be found in DC 10.5.1, in which an athlete can cancel out the "multiple-case" clause if it is proven that he bears "no fault or negligence".

For Barbosa and Santos, their place in Shanghai is in doubt because they booked their tickets at the meet that resulted in a warning that renders their results void.

Marculescu, who told Brazilian reporters that Cielo "is one of the big swimmers of the era… and excellent athlete who we all admire .. and it is important to say so", noted that four swimmers were involved and not only the Olympic champion. Asked about the merits of the case and Brazil's decision, he took a neutral line, saying: "We don't know. We will decide when we have seen the information from Brazil.  We have to wait and understand the issues and take a position in consultation with lawyers and with WADA."

All eyes then turn to Brazil today as the CBDA and its technical committee meets today to discuss the cases. Given the urgency of the matter, the Brazilian federation will come under pressure on the issue of whether it has indeed lodged paperwork with FINA, not by pigeon but by express delivery. 

Dr Eduardo De Rose, of the Brazilian Olympic Committee's anti-doping team and a member of the panel that heard the latest cases in Brazil, told reporters: "We analysed various factors in arriving at our decision. The urine sambles show that Furosemide did not mask any other substance. They were not to blame. How could they have known that the supplement they were taking was contaminated?" 

Such observations are fascinating when set alongside the question: is the anti-doping regime working in terms of being a tool capable of catching those who may and do cheat, whether through choice or systematic abuse? Following Dr De Rose's line of thought, not a single East German or Chinese swimmer would ever have been suspended under such conditions. 

De Rose added: "It [the supplement] was made by the same pharmacy as always, in Santa Bárbara D'Oeste. There was no negligence." Apart from that of the pharmacy, of course, and the world of swimming awaits news that that pharmacy has been fined, suspended, closed down. The doctor continued: " We believed that it was not just to punish them."

Whatever the merits of the cases, they raise what is a growing problem in the anti-doping regime: inconsistency in anti-doping decisions and penalties. A decade ago, FINA had some of the toughest anti-doping rules in world sport and strict liability was the watchword in the wake of the China doping crisis of the 190s, when more then 40 Chinese swimmers tested positive, most for anabolic substances. 

When the World Anti-Doping Agency came into being, much of FINA's newest rules were adopted for all sports as part of the WADA Code that now governs all Olympic sports. Marculescu noted that FINA was proud of the fact that 80% of the WADA Code stemmed from FINA rules. However, the Code also nodded to civil laws around the world as national anti-doping agencies, many formed for the first time, took on greater powers.

Marculescu noted: "The problem with the new code is that it changed completely the structure [of anti-doping procedure]. There was strict liability, with every athlete responsible for what was in their body. You have a substance there, you are guilty."

Now, FINA must work through federations and national anti-doping agencies - and Marculescu admitted that that was not always as smooth a process as it ought to be. "There is no strict liability," he told SwimNews. "The sanction goes from a  warning to 2 years. That's a wide difference. By creating national anti-doping agencies WADA divided responsibility … we work with our federations and there is not always great understanding between the NADAs and us. Countries have their own testing regimes and these [four] cases were from national tests. When national cases come up, they [come under] civil law. That can be really complex."

Asked if the matter was then out of FINA's hands, he replied: "No, no. When the national body has decided, then we can intervene and look at matters according to FINA rules. We can appeal and so can WADA. We have our rules and we will apply them … but we are proud that WADA rules are 80% based on FINA rules."

As Cielo and teammates prepare to travel to China from Friday this week, they will doubtless have an eye on how the wider world of swimming is viewing their cases.  Butterfly ace Geoff Huegill AUS) Tweeted: "How do you get off with a warning?; fellow Australian Meagen Nay chirped "They are kidding, right? Ridiculous…"; and Olympic 100m freestyle champion Alain Bernard (FRA), described the news as "bad for world swimming … I'm surprised, like everyone. At first view, the Brazilian federation's sanction seems rather light."