CAS 2011_A_2495 FINA vs César Augusto Cielo Filho, Nicholas Araujo Dias dos Santos, Henrique Ribeiro Marques Barbosa, Vinicius Rocha Barbosa Waked & CBDA

  • CAS 2011/A/2495 FINA v. César Augusto Cielo Filho & CBDA
  • CAS 2011/A/2496 FINA v. Nicholas Araujo Dias dos Santos & CBDA
  • CAS 2011/A/2497 FINA v. Henrique Ribeiro Marques Barbosa & CBDA
  • CAS 2011/A/2498 FINA v. Vinicius Rocha Barbosa Waked & CBDA

CAS 2011/A/2495 Fédération Internationale de Natation (FINA) v. César Augusto Cielo Filho & Confederação Brasileria de Desportos Aquáticos (CBDA) and CAS 2011/A/2496 FINA v. Nicholas Araujo Dias dos Santos & CBDA and CAS 2011/A/2497 FINA v. Henrique Ribeiro Marques Barbosa & CBDA and CAS 2011/A/2498 FINA v. Vinicius Rocha Barbosa Waked & CBDA


  • Aquatics (swimming)
  • Doping (furosemide)
  • Contamination of a caffeine capsule with a diuretic
  • Nature of caffeine for the purposes of the FINA Rules / WADC
  • Appropriate sanction with regard to the individual athlete’s degree of fault
  • Appropriate sanction to a recidivist
  • Commencement of the period of ineligibility

1. Neither the FINA Rules nor the WADC defines, or distinguishes, what is a “medication” on the one hand and what is a “supplement” on the other. Caffeine is readily available, without medical intervention, in many forms such as in energy drinks and in coffee. Moreover, an ordinary person would not regard caffeine as a medication. Therefore caffeine can be considered a “supplement” as that term is used in the comment to Rule DC10.4 (FINA Doping Control Rules). It is irrelevant, for so classifying it, that it was “prescribed” as opposed to being bought over the counter. The way the caffeine was acquired cannot change its fundamental character. It follows that Rule DC 10.4 is applicable and that Rule DC 10.5.1 is not available to the athletes. As a result, the athletes cannot establish that they bear “No Fault or Negligence” for the purpose of Rule DC 10.5.1 and that no sanction is appropriate.

2. Rule DC 10.4 prerequisites’ are satisfied where none of the alleged facts as to how the prohibited substance entered the athletes’ bodies have been contested and where it was agreed that the athlete did not wish to enhance their sportive performance. Rule DC 10.4 expressly provides that the athlete’s degree of fault is the sole criterion for determining the appropriate sanction. In this respect, the fact that the athletes have taken the necessary precautions before taking caffeine pills (prescription from their doctor, controlled pharmacy, certificate of purity of the caffeine) and that more precautions could not have been expected from them, should be taken into consideration.

3. An athlete who has committed a second doping offence is subject to Rule DC 10.7. Under this rule, a 1 year suspension which is the mandated minimum period of ineligibility does not infringe the principle of proportionality.

4. By waiving the testing of his B Sample, an athlete admits his anti doping rule violation and, in these circumstances is entitled to the benefit of Rule DC 10.9.2 which confers a discretion on a panel to determine that the period of ineligibility may start as early as the date of the sample collection.



In May 2011 the Brazilian Water Sports Confederation, Confederação Brasileira de Desportos Aquáticos (CBDA), has reported anti-doping rule violations against the 4 Athletes after their samples tested positive for the prohibited substance Furosemide.

Here the Athletes used caffeine capsules, prescribed by their sports medicine specialist, since 2010. However the batch of caffeine capsules compounded and used in May 2011 became contaminated with the substance Furosemide in the pharmacy.

On 1 July 2011 the CBDA Anti-Doping Panel concluded that there is ‘no fault or negligence’ on the part of the Athletes and therefore decided that the appropriate sanction is a warning and the disqualification of the Athlete’s competition results.

Hereafter in July 2011 FINA appealed the CBDA decision with the Court of Arbitration for Sport (CAS).

In these cases the CAS Panel concludes that the only appropriate sanction to impose on the 3 Athletes is a warning and therefore confirms the CBDA decision of 1 July 2011.

Previously the Athlete Vinicius Rocha Barbosa Waked had committed an anti-doping rule violation in February 2010 due to inadvertently using a medicine which contained a stimulant.
As a result the Panel concludes that the Athlete has committed another anti-doping rule violation at the lowest end of the fault spectrum.

The CBDA decision of 1 July 2011 is set aside and the CAS Panel decides to impose a 1 year period of ineligibility on the Athlete, starting on the date of the sample collection, i.e. on 7 July 2011.

Therefore the Court of Arbitration for Sport decides on 29 July 2011:

In CAS 2011/A/2495 FINA v. César Augusto Cielo Filho and CBDA

1.) The Appeal filed by the Federation Internationale de Natation (“FINA”) on 8 July 2011 against Mr César Augusto Cielo Filho and the Confederação Brasileria de Desportos Aquaticos (“CBDA”) concerning the decision taken by the President of the CBDA on 1 July 2011 is dismissed.

2.) The Decision of the CBDA of 1 July 2011 is confirmed.

3.) (…)

4.) All other claims are dismissed.

In CAS 2011/A/2496 FINA v. Nicholas Araújo Dias dos Santos and CBDA

1. The Appeal filed by the Federation Internationale de Natation (“FINA”) on 8 July 2011 against Nicholas Araújo Dias dos Santos and the Confederação Brasileria de Desportos Aquaticos (“CBDA”) concerning the decision taken by the President of the CBDA on 1 July 2011 is dismissed.

2. The Decision of the CBDA of 1 July 2011 is confirmed.

3. (…)

4. All other claims are dismissed.

In CAS 2011/A/2497 FINA v. Henrique Ribeiro Marques Barbosa and CBDA

1.) The Appeal filed by the Federation Internationale de Natation (“FINA”) on 8 July 2011 against Mr Henrique Ribeiro Marques Barbosa and the Confederação Brasileria de Desportos Aquaticos (“CBDA”) concerning the decision taken by the President of the CBDA on 1 July 2011 is dismissed.

2.) The Decision of the CBDA of 1 July 2011 is confirmed.

3.) (…)

4.) All other claims are dismissed.

In CAS 2011/A/2498 FINA v. Vinicus Rocha Barbosa Waked and CBDA

1.) The Appeal filed by the Federation Internationale de Natation (“FINA”) on 8 July 2011 against Mr Vinicus Rocha Barbosa Waked and the Confederação Brasileria de Desportos Aquaticos (“CBDA”) concerning the decision taken by the President of the CBDA on 1 July 2011 is upheld.

2.) The Decision of the CBDA of 1 July 2011 is set aside.

3.) Mr Vinicus Rocha Barbosa Waked is suspended for a period of one year from 7 May 2011.

4.) Mr Vinicus Rocha Barbosa Waked’s results obtained at the Maria Lenk Swim Meet in Rio de Janeiro, Brazil in May 2011 are disqualified. The results, medals, points and prizes obtained by Mr Vinicus Rocha Barbosa Waked at the Maria Lenk Swim Meet in Rio de Janeiro, Brazil, in May 2011, are forfeited. The results, medals, points and prizes obtained by Mr Vinicus Rocha Barbosa Waked since the Maria Lenk Swim Meet in Rio de Janeiro, Brazil, in May 2011, are cancelled.

5.) (…)

6.) All other claims are dismissed.

Original document

Parameters

Legal Source
CAS Appeal Awards
Date
29 July 2011
Arbitrator
Benz, Jeffrey G.
Carrard, Olivier
Sullivan, Alan John
Original Source
Court of Arbitration for Sport (CAS)
Country
Brazil
Language
English
ADRV
Adverse Analytical Finding / presence
Legal Terms
Commencement of ineligibility period
De novo hearing
No Fault or Negligence
No intention to cheat
No intention to enhance performance
Period of ineligibility
Principle of proportionality
Prompt / Timely Admission
Reprimand / warning
Rules & regulations International Sports Federations
Second violation
Sport/IFs
Swimming (FINA) - World Aquatics
Other organisations
Confederação Brasileira de Desportos Aquáticos (CBDA) - Brazilian Water Sports Confederation
Laboratories
Rio de Janeiro, Brazil: Laboratório Brasileiro de Controle de Dopagem – LBCD – LADETEC / IQ - UFRJ
Doping classes
S5. Diuretics and Other Masking Agents
Substances
Caffeine
Furosemide
Various
Athlete support personnel
Contamination
Disqualified competition results
Supplements
Document type
Pdf file
Date generated
28 February 2012
Date of last modification
28 June 2023
Category
  • Legal Source
  • Education
  • Science
  • Statistics
  • History
Country & language
  • Country
  • Language
Other filters
  • ADRV
  • Legal Terms
  • Sport/IFs
  • Other organisations
  • Laboratories
  • Analytical aspects
  • Doping classes
  • Substances
  • Medical terms
  • Various
  • Version
  • Document category
  • Document type
Publication period
Origin