19th March 2019

Swimmer banned despite proving doctor’s infusion was source of AAF

Brazilian swimmer Henrique Martins de Souza has been sanctioned with a one year ban by the international swimming federation (FINA), despite proving that an a adverse analytical finding (AAF) for ostarine was the result of a contaminated amino acid intravenous infusion administered by a sports doctor. De Souza was prescribed an intravenous infusion of 13 amino acids in 250ml of saline from the company Fiale Laboratório de Estéreis e Injetáveis by Dr. Lucas Mendes Penchel, of the Clinica Penchel in Belo Horizonte, Brazil, on 25 March 2018. He was administered the solution on 26 March, and returned an AAF a day later.

Dr. Penchel testified that he switched to an intravenous infusion rather than a powder form supplement because in March 2018, the Athlete was ill and losing weight and strength. Dr. Penchel testified that he had received a certification as to his knowledge of anti-doping rules. Section M2 of the World Anti-Doping Agency’s (WADA) Prohibited List prohibits ‘intravenous infusions and/or injections of more than a total of 100ml per 12 hour period, except for those legitimately received in the course of hospital treatments, surgical procedures or clinical diagnostic investigations’. The Panel concluded that Dr. Penchel was unaware of the limit.

‘Thus, the Panel was confronted with a situation where the evidence at the hearing demonstrated that the Athlete had unwittingly committed a rule violation with which he had not been charged’, reads the Decision (PDF below), referring to the violation of Section M2 of WADA’s Prohibited List. ‘Dr. Penchel is apparently not a member of the BSF [Brazilian Swimming Federation] or any other national swimming federation. Therefore, the FINA Doping Panel lacks authority over him in relation to the strong likelihood that he violated sport anti-doping rules by providing an over-limit infusion.’

Two sealed glass ampoules bearing the marking ‘FIALE® Lote 1707281’ were received by the ‘Laboratório de Análises Clinicas de Faculdade de Medicina do ABC’. Dr. Penchel had forwarded the ampoules to the Laboratory, and the FINA Doping Panel was satisfied that they had detected ostarine.

The FINA Doping Panel found that De Souza’s anti-doping rule violation (ADRV) was not intentional; that he had established how the substance entered his system; had demonstrated no significant fault or negligence, adding that the he could have ‘potentially’ reduced his sanction further. However, it held that ‘while the Athlete’s degree of fault in using the amino acid product from FIALE Laboratory under the care of his physician was low, the Athlete’s investigation into the infusion limit was not sufficient and his reliance on Dr. Penchel regarding the infusion rules turned out to be misplaced. 

‘The Panel finds the athlete’s degree of fault to have been moderate because as an elite athlete he should have been aware of the infusion rule and, while his reliance on a physician who held himself out to be an expert in the rules is understandable, reliance on his physician does not absolve him of his personal responsibility to know and follow the rules’. Therefore, De Souza’s ban will run from 11 May 2018, the date of his provisional suspension, to 10 May 2019. 

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