FINA Releases Statement on Australian Kylie Palmer’s Positive Doping Test; Expedited Hearing Unlikely

FINA has released its official statement regarding the positive doping test findings for Australian record holder and 2008 Olympic gold medalist Kylie Palmer.  As just reported yesterday, Palmer has withdrawn from 2015 FINA World Championships under a voluntary provisional suspension after being notified of a positive doping test dating back to 2013.

Per FINA’s statement, as part of an in-competition doping control test on July 31, 2013, a sample from Palmer “showed low levels of a prohibited substance.” The statement also reveals that, per the request of FINA’s Doping Control Review Board (DCRB) two additional tests were performed in 2013, which both proved negative.  As a result, in January 2014, the FINA DCRB recommended that “no further action was needed” and decided not to proceed with the case given the low levels detected of the prohibited substance, as well as the absence of the same substance (or any others) in the subsequent tests.   The substance has still yet to be disclosed, although The Courier speculates the substance to be of the diuretic variety.

In a twist, however, in February of this year, the World Anti-Doping Association (WADA) requested that FINA provide documents specifically attributed to Palmer’s case.  After reviewing such documents, WADA then decided to file an appeal with the Court of Arbitration of Sport (CAS) in Lausanne, requesting CAS to order FINA to “bring forward the July 31, 2013 findings as an anti-doping rule violation in accordance with DC 7.1.3.”   This led to FINA’s notifying Palmer and Swimming Australia of the positive test from 2013 and Palmer’s subsequent acceptance of the voluntary provisional suspension. Note – copy of DC 7.1.3 direct from FINA’s Doping Control Rules is provided in its entirety at the end of this article.

Doping Code 7.1.3 indicates that, unless a therapeutic use exemption (TUE) was provided, FINA should promptly notify the athlete, the athlete’s member federation, the athlete’s national anti-doping organization and WADA of the anti-doping rule that was indeed violated.  The code also indicates that FINA shall promptly notify the athlete of his/her right to promptly request the analyses of the B sample (or waiver thereof).  As such, WADA must indeed be questioning why the athlete and her federation were not notified immediately after the initial positive test, as well as why no additional action was taken at the actual time of the incident.

Swimming Australia told the Sydney Morning Herald today that it is unlikely that an expedited hearing for Kyle Palmer will take place to reinstate her for Worlds, saying there is “no indication at this stage that FINA will assemble its Doping Tribunal in time for Palmer to take to the water in Russia.”

For its part, Swimming Australia is also questioning the time span between when the positive samples were taken and then FINA’s response.  In a statement issued via the Australian Swimmers’ Association, Palmer said she had ‘no idea how the prohibited substance came into her system and is continuing to investigate the matter to the extent that she is able given the passage of time’.  Swimming Australia Chief Executive, Mark Anderson summarizes SA’s present stance as follows: “Suffice to say that clearly we have been concerned about the length of time that it’s taken and have expressed our concern to FINA.” Anderson further stated that the time span situation “does create difficulties. We are very mindful of that.”

Anderson also indicated that Palmer’s continued financial assistance is a matter that will likely be decided on once more steps with towards resolution of this ordeal have been taken with FINA. Said Anderson, “Kylie needs to contest this case as an individual and we can’t impact on that. It’s important we don’t. In terms of athlete payments, at the moment there’s no position. We’ll wait for the process to unfold and see what the findings are.”

DC 7.1.3 If the review of an Adverse Analytical Finding under DC 7.1.2 does not reveal an applicable TUE or entitlement to a TUE as provided in the International Standard for Therapeutic Use Exemptions, or departure from the International Standard for Testing and Investigations or the International Standard for Laboratories that caused the Adverse Analytical Finding, FINA shall promptly notify the Athlete, Athlete’s Member Federation, Athlete’s National Anti-Doping Organisation and WADA, in the manner set out in DC 14.1, of: (a) the Adverse Analytical Finding; (b) the anti-doping rule violated; (c) the Athlete’s right to promptly request the analysis of the B Sample or, failing such request, that the B Sample analysis may be deemed waived; (d) the scheduled date, time and place for the B Sample analysis if the Athlete or FINA chooses to request an analysis of the B Sample; (e) the right of the Athlete and/or the Athlete’s representative to attend the B Sample opening and analysis in accordance with the International Standard for Laboratories if such analysis is requested; and (f) the Athlete’s right to request copies of the A and B Sample laboratory documentation package which includes information as required by the International Standard for Laboratories. If FINA decides not to bring forward the Adverse Analytical Finding as an anti-doping rule violation, it shall so notify the Athlete, Athlete’s Member Federation, the Athlete’s National Anti-Doping Organization and WADA.