CAS 2019_A_6541 Hiromasa Fujimori vs FINA

CAS 2019/A/6541 Hiromasa Fujimori v. Fédération Internationale de Natation (FINA)

Related case:

FINA 2019 FINA vs Hiromasa Fujimori
October 31, 2019


  • Aquatics (swimming)
  • Doping (methylephedrine)
  • Proof of the source of the prohibited substance required to reduce the period of ineligibility
  • Balance of probability
  • Proportionality of the sanction
  • Imposition of an “alternative solution”
  • Measure of the sanction

1. In order to benefit from a fault related reduction, an athlete must prove the source of the prohibited substance. The applicable standard of proof for an athlete to establish the source of the prohibited substance and that there was no significant fault or negligence is by a balance of probability. It is not sufficient for an athlete merely to make protestations of innocence and to suggest that the prohibited substance must have entered his/her body inadvertently from some supplement, medicine or other product. An athlete must adduce concrete evidence to demonstrate that a particular supplement, medication or other product that the athlete took contained the substance in question.

2. The meaning of “by a balance of probability” is that the occurrence of the scenario suggested by the athlete must be more likely than its non-occurrence and not the most likely among competing scenarios. There is no need to decide which is the most likely between two or more competing scenarios, but rather the athlete must prove that the chain of events presented by him/her did happen, more likely than not. Of course, the athlete is allowed to address other scenarios put forward in an effort to support his/her position. However, the other party does not have the burden of proving the prevailing likelihood of a different scenario and it is not obliged to put forward any other competing scenarios.

3. The principle of proportionality is embodied in the provisions of Article 10.5 of the World Anti-Doping Code (WADC). The “No Significant Fault or Negligence” and “No Fault or Negligence” exceptions to an otherwise strict liability anti-doping rule are indeed embodiments of the proportionality, and there is no gap in the rules that may allow the principle of proportionality to be utilized. Even an “uncomfortable feeling” regarding a sanction mandated in the rules is not sufficient to invoke the principle of proportionality where the applicable rules include a sanctioning regime which is proportionate and contains clear and concise mechanism which allows for a reduction of the applicable sanction.

4. There is no basis to find ways outside of the rules to circumvent the application of the provisions of the 2015 WADC and to impose “alternative solutions” to a decision based on the simple application of the rules and regulations in force.

5. The measure of the sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rules can be reviewed only when the sanction is evidently and grossly disproportionate to the offence.


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.

Consequently the FINA Doping Panel decided on 31 October 2019 to impose a 2 year period of ineligibility on the Athlete, starting backdated on 1 January 2019.

In the complete and reasoned Decision the FINA Doping Panel went into substantial lengths to highlight the honesty and integrity of the Athlete. Against this analysis of the Athlete’s character, the FINA Doping Panel made it evident that it was bound to apply the rules and that it was limited by these rules and mandated to impose a sanction which it did not deem justified or appropriate for the Athlete’s fault.

Hereafter in October 2019 the Athlete appealed the FINA Decision of 31 October 2019 with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to annul the appealed Decision and to impose a reprimand or a reduced sanction.

The Athlete admitted the violation and denied the intentional use of the substance. He argued that he he identified the source of the prohibited substance and can prove No Significant Fault or Negligence or Negligence, or that the sanction is otherwise neither proportionate nor justified.

FINA accepted that the violation was not intentional and acknowledged that there were substantial delays in the procedure. Nevertheless it requested to dismiss the appeal and to uphold the appealed Decision.

The Sole Arbitrator remarks that there are four main issues which need to be addressed:

  1. Was the Athlete able to prove the source of the prohibited substance allowing him to benefit from a reduction of the period of ineligibility?
  2. Is the period of ineligibility proportionate or should it otherwise be eliminated or reduced?
  3. Should an alternative solution be imposed?
  4. When should the period if ineligibility commence?

The Sole Arbitrator concludes that the Athlete failed to establish the origin of the Prohibited Substance and therefore cannot enjoy a reduction of the sanction under Rule 10.5.1 FINA DC. It is inappropriate to circumvent the application of the applicable rules by imposing the principle of proportionality which is already embodied in the FINA DC rules or by seeking an alternate solution.

There is no justification not to confirm the 2 year period of ineligibility issued by the FINA Doping Panel in application of Rule 10.2.2 FINA DC. The Sole Arbitrator further refuses to replace his discretion with that of the FINA Doping Panel and modify the start date of the sanction which was already backdated to shortly after the sample collection date.

Therefore the Court of Arbitration for Sport decides on 6 March 2020 that:

1.) The appeal filed by Mr Hiromasa Fujimori on 28 October 2019 against the decision rendered on 27 August 2019 by the Doping Panel of the Federation Internationale de Natation is dismissed.

2.) The decision rendered on 27 August 2019 by the Doping Panel of the Federation Internationale de Natation in the case relating to Mr Hiromasa Fujimori is confirmed.

3.) (…).

4.) (…).

5.) All other motions or prayers for relief are dismissed.

Original document

Parameters

Legal Source
CAS Appeal Awards
Date
6 March 2020
Arbitrator
Lalo, Ken E.
Original Source
Court of Arbitration for Sport (CAS)
Country
Japan
Language
English
ADRV
Adverse Analytical Finding / presence
Legal Terms
Admission
Burdens and standards of proof
Case law / jurisprudence
Commencement of ineligibility period
No intention to enhance performance
Period of ineligibility
Principle of proportionality
Rules & regulations International Sports Federations
Sole Arbitrator
Substantial delay / lapsed time limit
Sport/IFs
Swimming (FINA) - World Aquatics
Laboratories
Beijing, China: National Anti-Doping Laboratory China Anti-Doping Agency
Analytical aspects
Atypical Finding (ATF)
B sample analysis
Doping classes
S6. Stimulants
Substances
Methylephedrine
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Date generated
18 May 2021
Date of last modification
7 June 2021
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