Related case:
CAS 2019_A_6541 Hiromasa Fujimori vs FINA
March 6, 2020
In February 2019 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Japanese swimmer Hiromasa Fujimori after his A and B samples tested positive for the prohibited substance Methylephedrine in an extreme low estimated concentration of 16 picograms/mL. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the FINA Doping Panel.
The Athlete denied the intentional use of the substance, he was tested before without issues and he could not explain how the substance entered his system. Previously he had tested all the supplements and medications he was using that he believed could have caused his positive test and none showed the presence of the prohibited substance.
The Athlete could not recall using a cold medication and therefore in his honesty, when asked, he could not identify what product likely caused his positive drug test for Methylephedrine, a common stimulant found in over-the-counter cold medications. Ultimately, valuing honesty and integrity, the Athlete refused to permit his legal team to even suggest that he believed a cold medication might have caused his positive test.
The FINA Doping Panel deeply appreciates the Athlete’s commitment to integrity and is is firmly convinced that the Athlete did not intend to enhance his sport performance through the use of a prohibited substance. The Panel concludes that the most likely source of Athlete’spositive test was either a contaminated supplement or some contamination arising from a medication containing Methylephedrine.
The Panel finds that the Athlete had given the answer to this Panel that he believed an over-the-counter cold medication had caused his positive test, a high probability existed that, because he had identified the source of his positive, he would have received only a relatively light, i.e., 3 to 6 month suspension, like other Japanese athletes who had tested positive for this same substance coming from a cold medication. Importantly, a 3 to 6 month suspension would have allowed the Athlete to compete in the upcoming 2020 Tokyo Olympic Games.
Regrettably, however, even though the substance at issue is a “Specified Substance,” meaning that it is a substance categorized by WADA as “more likely to have been consumed by an Athlete for a purpose other than the enhancement of sport performance,” the rules do not permit the Panel to impose a downward departure from two years ineligibility without the Athlete having identified the source of his positive test.
The Panel hands are tied in this regard and regrets the lack of express authority within the rules to reduce the Athlete’s sanction in this case. The Panel considers that, on the facts of this case (which include a common supplement contaminant and Specified Substance, at a very low picogram level (i.e., 16 trillionths of a gram), coupled with strong evidence of lack of intent, an Athlete should not be prejudiced by telling the truth that he is unable to identify source and there should be some ability to depart downward from two years ineligibility.
Arguably, the Panel deems that this is even more the case where, as here, the Athlete did not receive notice of his positive test as early as he might have and the delay of about two months between sample collection and notification of his positive A Sample may have made it somewhat more difficult to review his diet and possible exposures and identify the source of his positive test.
The Panel therefore urges WADA to promptly review this case and the relevant rules with a view to determining whether an exception can be made in this case or through amending the rules to permit discretion for a downward sanction departure to be exercised in unique circumstances.
Ultimately the Panel is hopeful that through the intervention of WADA and/or FINA (through amending its rules if necessary) the Athlete may receive a more lenient sanction than appears to be presently available to the Panel to issue under the FINA DC.
Nevertheless the Panel considers that a 2 year period of ineligibility, may not be totally fair, but is only outcome available to the Panel under the Rules.
Therefore the FINA Doping Panel decides on 31 October 2019 to impose a 2 year period of ineligibility on the Athlete, starting backdated on 1 January 2019.
Finally FINA is directed by the Panel to communicate promptly with WADA and to determine whether a reduction of the foregoing 2 year period of ineligibility can be achieved as explained in this decision.
