In Cielo & ors v CBDA (the Brazilian National Swimming Federation), the Court of Arbitration for Sport was again considering the penalty to be applied in relation to athletes who registered positive anti-doping test results, where the cause was found to be an inadvertent ingesting of prohibited substances, from taking of contaminated supplements.
4 Brazilian swimmers had positive test results for Furosemide (a diuretic, on the prohibited list as a masking agent) at a Brazilian national swimming event (Maria Lenk) in May 2011. Each athlete accepted the A Test and waived the B sample analysis. The athletes had taken caffeine tablets, with the benefit of medical advice (caffeine is not a prohibited substance under the FINA Rules.) There was evidence from Mr Cielo (undisputed) that about 90% of elite male freestyle swimmers take caffeine at swimming events. The athletes, and team doctor, had taken extreme care in relation to the pharmacy, and taking of the caffeine tablets, without problem, for some months. At the Maria Lenk, in May 2011, however, all 4 had positive results. Ultimately, it was determined that the cause of the adverse test results was the contamination of the caffeine capsules by Furosemide. (There was evidence of an unusual, one-off, error, at the pharmacy.)
FINA agreed that the 2 pre-conditions for reduced penalty had been met:
- that the athletes had established how the Specified Substance entered their bodies;
- that the athletes had shown that the Specified Substance was not intended to enhance performance or mask the use of a performance enhancing substance.
The Tribunal concluded:
- The taking of caffeine was to be treated as a “supplement” rather than a “medication”.
- The degree of “fault” in this case was at the very lowest end of the spectrum contemplated by the FINA Rules/WADC. (It was difficult, the Tribunal concluded: “to see what, if anything, else the athletes could have done reasonably or practically to avoid the positive test results”.)
- Under the FINA Rules/WADC, however, the defence of No Fault or Negligence was not available (see the detailed discussion of the relevant rules applying to this case).
- Accordingly, the Tribunal concluded the appropriate sanction to be a Warning.
- (In relation to 1 athlete, a previous sanction had been imposed. Rejecting an argument that a principle of proportionality ought to apply, the Tribunal imposed the minimum sanction of 1 year, and then, having regard to his waiving the B sample, exercised its discretion to start the 1 year from the date of his sample collection.)