CAS 2016/A/4416 Fédération Internationale de Football Association (FIFA) v. Confederación Sudamericana de Fútbol & Brian Fernández
Football
Doping (cocaine)
Determination of the standard period of ineligibility for a non-intentional ADRV
Impossibility to eliminate the period of ineligibility based on No Fault or Negligence
Reduction of the standard sanction based on Non-Significant Fault
Assessment of the appropriate period of ineligibility
1. Art. 19 (1) of the FIFA Anti-Doping Regulations (ADR), which provides for a period of ineligibility of four years, is not applicable where the offence is not intentional. According to the rule, anti-doping rule violation resulting from an Adverse Analytical Finding for a substance which is only prohibited in-competition shall not be considered intentional if the substance is not a specified substance and the player can establish that the prohibited substance was used out-of-competition in a context unrelated to sport performance. Art. 19 (2) ADR (Art. 10 (2) (2) WADC) provides for a (standard) period of ineligibility of two years in case an athlete has acted negligently.
2. Where a player admitted having taken a substance which is not a specified substance and which is only prohibited In-Competition voluntarily, the otherwise applicable period of ineligibility of two years cannot be eliminated on the ground that the player bore No Fault or Negligence.
3. In order to establish whether or not an athlete acted with Non-Significant Fault (NSF), the athlete’s behaviour must be compared to the standard of care that can be expected from a “reasonable person” in the athlete’s situation. CAS jurisprudence has found that the threshold of NSF is met if the athlete observes the clear and obvious precautions which any human being would take in the specific set of circumstances. Obviously, a reasonable person would never have consumed drugs to begin with, in particular drugs like cocaine the addictive character of which is well known. However, when assessing whether or not an athlete acted with NSF, the athlete’s level of fault must be assessed in relationship to the anti-doping rule violation. In light of the WADC on the basis of which the ADR have been modelled, it can be considered in cases where an athlete establish that he consumed cocaine in a recreational / social context unrelated to sport performance that the athlete qualifies for NSF.
4. In light of CAS jurisprudence distinguishing between different categories of negligence, i.e. light, normal and significant negligence, only the first two categories allow for a reduction of the otherwise applicable period of ineligibility according to Art. 22 (2) ADR. In case of NSF, the applicable sanction can be reduced down to one half of the otherwise applicable sanction i.e. from 12 – 24 months. In order to determine which category of negligence is applicable in a particular case, it is helpful to consider both the objective and the subjective levels of fault. While the objective element describes what standard of care could have been expected from a reasonable person in the player’s situation, the subjective element describes what could have been expected from that particular player, with regard to his personal capacities.
On 10 May 2015 the Argentinian football player Brian Leonel Fernández tested positive for the prohibited substance cocaine and a provisional suspension was ordered on 5 June 2015 by the Argentine Football Association (ASA).
On 17 June 2015 the Athlete’s A and B samples, provided on 28 May 2015 tested again positive for cocaine and the Disciplinary Unit of the South American Football Confederation (CONMEBOL) issued a provisional suspension on 9 July 2015.
On 21 October 2015 the CONMEBOL Disciplinary Unit decided to impose a 2 year period of ineligibility on the Athlete with 1 year as suspended sanction as confirmed by the CONMEBOL Appeal Chamber on 14 December 2015.
Hereafter in January 2016 the International Football Federation (FIFA) appealed the CONMEBOL decision of 14 December 2015 with the Court of Arbitration for Sport (CAS).
FIFA requested the Panel to set aside the CONMEBOL decision and to impose a 2 year period of ineligibility on the Athlete. Since the Athlete’s first sample on 10 May 2015 was analysed by a laboratory not accredited by WADA, the anti-doping violation committed on 28 May 2015 cannot be qualified as a second violation.
CONMEBOL contended that the Athlete had admitted the use of cocaine, the violation was unrelated to sport and the Athlete had a problematic background resulting in an addiction. The Athlete underwent therapy for his addiction and the circumstances were ground for imposing a reduced sanction.
Even thought the Parties agree that the Athlete’s use of cocaine was not intentional and unrelated to sport performance, the Parties are in dispute whether or not further reductions apply tot the period of ineligibility under the Rules.
In this case the Panel finds that the objective level of negligence is not negligible, since the prohibited substance has been ingested rather close to the sporting event. The Athlete, thus, did not take any particular precautions with respect to observing a “cooling-off” period. Considering the Athlete’s reduced ability to exert control over and steer his private life, the Panel finds that the Athlete’s subjective level of negligence is lower. Balancing both aspects the Panel finds that this is a case on the borderline between normal and light degree of negligence and, thus, deems a period of ineligibility amounting to 18 months to be appropriate.
Therefore the Court of Arbitration for Sport decides on 7 November 2016 that:
1.) The Appeal filed by the Fédération Internationale de Football Association on 25 January 2016 against the decision issued by the Appeal Chamber of CONMEBOL’s Disciplinary Unit (CDU) dated 14 December 2015 is partially upheld.
2.) The decision issued by the Appeal Chamber of CONMEBOL’s Disciplinary Unit (CDU) dated 14 December 2015 is set aside.
3.) Mr Brian Fernández is sanctioned with a period of ineligibility of 18 months, starting from the date of the present award, with credit given for any period of ineligibility already served.
4.) (…).
5.) (…).
6.) All other or further claims are dismissed.
