File updated with FINA statement

FINA has, if only inadvertently, today sent a message to world-class swimmers that they can miss three out-of-competition tests and, well - get away with it. After a hearing before the FINA Doping Panel, according to the Spanish swimming federation, Rafael Munoz, of Spain, has been cleared to race on despite the fact that he missed three tests in the months that followed the Rome world championships last July.

The 50m butterfly world record holder met FINA representatives in Budapest, Hungary, on the eve of the European Championships on Margaret Island, in accordance with the widely held opinion that it would be wrong to allow the athlete to race before a hearing at which he might then have to be deprived of any results obtained, while other athletes might be deprived of their moment in the sun. That scenario is not quite out of the way yet.

Missing three tests carries a ban of between 2 months and 2 years under the WADA (World Anti-Doping Agency) Code but FINA ruled out one of the missed tests after accepting his plea of a "personal situation'' that occurred after the world championships, where the Spaniard took bronze in the 50m and 100m 'fly finals. WADA may appeal that decision and Munoz could still face a ban from the highest anti-doping authority. 

A spokesman for WADA said: "We will review the reasons for the decision and will subsequently determine whether or not to use our independent right of appeal to the Court of Arbitration for Sport."

Several hours after the news broke in the Spanish media, FINA issued a statement that hinted at the nature of the mitigating circumstances:

"The [Anti-Doping] Panel after taking into consideration the arguments of the swimmer’s defence, in particular the report presented by Dr. José Carlos Jaenes Sánchez, his doctor at the time of the first filing failure, considered that the swimmer was in a vulnerable psychological condition; therefore, this first occurrence within the scope of FINA DC Rule 2.4 was not taken into consideration.

"Nevertheless, Mr. Muñoz still has recorded two filing failures and the FINA DC Rule 2.4 will again apply if a third whereabout failure (filing failure or missed test) happens until August 25, 2011, the end of the relevant 18-month period counted from the first filing failure established to the satisfaction of the Panel (February 25, 2010)."

While there is no suggestion that Munoz's sincerity is in doubt (just as there was no suggestion that the sincerity of Oussama Mellouli and Jessica Hardy was in doubt, though both served penalties, both after testing positive for banned substances, with mitigating circumstances provided in both cases), the message to the worldwide swimming community is a poor one: if you miss three tests - and there are a fair few athletes who have missed two, find a personal excuse, find a doctor or other worthy person to back it up and you have a mitigating circumstance that gets round the rule. Precedent has been set in this case: hard to think of another case where psychological vulnerability allows an athlete to bypass the rule book and then race on, their vulnerability apparently behind them only months later.

In contrast to the latest swimming case, track athletes in Britain have been fined £1,000 for each missed test, while such cases have been dealt with severely by international governing bodies and related agencies. Christine Ohuruogu, Olympic 400m champion for Britain, was suspended from competing at the 2006 European Athletics Championships and received a one-year ban - IAAF and BOA - for her offense of three missed tests, which also included some fairly convincing mitigating circumstances.

Back in the pool and in the case of Mellouli - where the athlete admitted to taking a stimulant in order to sit up and study for an exam - his explanation was accepted, his vulnerability under pressure of circumstance accepted - but not excused. It helped reduce the penalty - but did not remove it. The US-based Tunisian lost a world title and served time out, for what was, investigators accepted, a genuine mistake.

The question comes down to this in all doping cases: did you fall foul of the rules? The rule is there to protect all athletes and the integrity of the sport of swimming. Three strikes and you're out in this case. The rule was skirted, an excuse accepted. But not for Mellouli, not for Hardy, not for many Chinese athletes. 

For Munoz, the decision provides freedom to compete. He told Europe Press: "I'm very satisfied and feel free after having such a weight lifted from me. I was sincere and defended my innocence in the case.' I'm relaxed, everything worked out well and now I go into the Europeans highly motivated."

Munoz does not receive a warning from FINA, as many others have before him in similar circumstances, although in this case there is "no case to answer" now that the decision arrived at has been made. The international federation's cautionary note on the risks associated with another failure to show is clear. Should he miss another test in the coming year (18 months after the case was brought), Munoz could still be sanctioned by FINA, in common with all swimmers who have two misses against their names.