The CAS hearing in the matter of the positive tests for Cesar Cielo, Vanecius Waked, Nicolas dos Santos, and Henrique Barbosa has concluded in Shanghai, according to an official press release by the Court for Arbitration of Sport.

They will announce their decision on Thursday, July 21 at 6 PM, which equates to 7 AM Thursday morning in Rio and 6 AM Thursday in New York.

While the current public sentiment seems to be greatly in favor of banning Cielo, it’s not clear that the laws side in that favor. The official World Anti-Doping Code, which all FINA nations have agreed to, offers up an option of no ban for testing positive for this particular substance (furosemide, which is not a performance enhancer; rather it is used to cover up the presence of performance enhancers in urine tests).

After reading, vote in our poll on the right side of your screen for how long Cielo’s ban should be. This is going to be a quick one, so vote fast!

There are three different issues at play here: rules, precedent, and emotion.

Rules are Rules

The CBDA has seen this particular infraction has the lowest possible infraction, based on evidence presented to them, and thus has taken advantage of the lowest-possible punishment. If this case, with the evidence presented, is not worthy of the minimum punishment, then why would that minimum punishment even need exist?

In terms of negligence, only extreme cases of demonstrated care would eliminate that ban. The example given is if a competitor intentionally gives an athlete a banned substance. However, according to the World Anti-Doping Code, not going to extreme levels of care does not supersede an athlete’s ability to demonstrate accidental ingestion. If an athlete can prove that there was no intent to use a “Specified Substance” (defined under the precedent section), then it does not matter how negligent they were.

For those interested, the most pertinent article of the Anti-Doping Code is section 10.5.

Precedent is Precedent

The case of Brazilian female swimmer Dayanara de Paula, who was given a 6-month ban in August of 2010 for a positive test for the same substance, has been used as a hallmark for why the CAS should give Cielo a similar ban. That suspension, however, was not appealed to the CAS, and thus they are unlikely to be influenced by it. De Paula also continued to race after the ban was given, which put her in a whole different boat. Furthermore, if de Paula’s 6-month ban is the full-blown standard for accidental furosemide ingestion, then WADA should just write that into the code rather than leaving a range.

Using Jessica Hardy’s 1-year suspension too would not work in the favor of the crowd pushing for a ban. According to the World Anti-Doping Code, the most that the CAS could have reduced Hardy’s suspension, for a demonstration of no significant fault or negligence, was by one-half, which is exactly what they did when they took it from two to one year(s). In that instance again, the CAS ruled in favor of a minimum punishment, which is what Cielo was given. What Hardy tested positive for, Clenbuterol, is not eligible for the “reprimand” clause of “Specified Substances” like furosemide is, as defined by the World Anti-Doping Code.

The overwhelming majority of CAS decisions are to reduce or uphold a National Federations ban, though it’s not unheard of for them to extend a ban. In 2009, they extended the ban, at the request of the IAAF (Tracks equivalent of FINA) of several Russian athletes who were accused of “urine substitution” where they tried to pass anothers urine off as their own. That situation, however, was blatant and severe, and one that had no defense of accidental contamination.

Emotions

The response of public opinion seems to be overwhelmingly in favor of giving Cielo a ban and keeping him out of the World Championships. This opinion is based on the fact that if somebody tests positive for a banned substance, everyone would like to see a punishment. But the minute an internationally recognized court-of-arbitration decides that they care more about public opinion than their rules that they (as well as all National Federations, and therefore by extension all athletes) have agreed to, then they’re opening a whole different can of worms.

In many parts of the world, there’s probably also a hint of general Cielo dislike, as he’s never been a popular figure in many corners of the swimming world.

Conclusion

Phrases thrown around include suggestions that the CAS  “needs to do the right thing” and that “rules are rules,” when in fact the rules, as written were followed by Brazilian swimming. Unless there was some evidence presented in the closed hearing that the rest of us are not privy to, it does not seem like the CAS has legal footing to upend the given zero-suspension. The only basis for overturning the zero-suspension would be if some new evidence were presented that indicated that there was intentional use by the Brazilians in question, in which case all of the above is null and void, and all bets are off.

It’s a hard thing to hear, and this opinion is probably going to make a lot of people angry, but I can’t see any clear contradiction of the rules or precedents in the CBDA’s decision.

In an ideal world, the CBDA would have given Cielo a 2-month suspension at the time of the positive test, which would have kept him out of the Paris Open, satisfied those who just want to hear the word “suspension,” and still allow for the “no-harm, no-foul” situation where he gets to compete in World’s.

Waked is a whole different situation, as the above rules only apply to first-time offenses. For Waked, who this is his second positive test, by the rules, the minimum punishment allowed seems to be one-half of the two-year ban, which is one year.

Brazilian media reports (like this one) show the Brazilians in good spirits after the hearing. The CAS is also announcing the decision earlier than their initial timetable of Friday, July 22. I’d call those both good signs that I’m right.

Press Release

The following is the press release, unedited, that the CAS put out announcing the conclusion of the hearing.

The hearing in the arbitration procedures between FINA, the CBDA and the Brazilian swimmers Cielo, Dos Santos, Barbosa and Waked has concluded.

The panel of CAS arbitrators (Alan Sullivan QC (Australia) President, Olivier Carrard (Switzerland) and Jeffrey Benz (USA)) heard the parties, their representatives and their witnesses during the hearing which took place in Shanghai, China. The four swimmers attended the hearing in person.

The CAS decision in each case will be made public on 21 July 2011 at 12h00 (Swiss time), (18h00 in Shanghai / 07h00 in Brazil)