1 Mar 2017
CAS 2016/A/4596 Fédération Internationale de Football Association (FIFA) v. Saudi Arabian Olympic Committee (SAOC) & Saudi Arabian Anti-Doping Committee (SAADC) & Mohammed Mohammed Noor Adam Hawsawi
- Doping (Amfetamine)
- Admissibility of new arguments presented after the hearing
- Obligation to report the concentration of a non-threshold substance
- Differing concentrations of the prohibited substance in the A and B samples
- Out-of-competition ingestion
- Context unrelated to sport performance
- Effect of a partly respected provisional suspension on the period of ineligibility
1. Arguments that were not contained in the answer and do not appear to have been advanced in any of the proceedings before the first instance body but were submitted for the first time after the conclusion of the CAS hearing in a document which the CAS panel in charge directed should be strictly limited to responding to the arguments and expert evidence adduced at that hearing are late and inadmissible.
2. For a non-threshold substance, it is the mere presence of the substance in an athlete’s body rather than the amount or concentration of the substance, that constitutes an anti-doping violation. There is nothing in the WADA International Standard for Laboratories (ISL) or the WADA Code that requires a laboratory to specify the concentration of a non-threshold substance in an A-sample or B-sample as a precondition to recording an adverse analytical finding. Article 6 (2) and (3) of the FIFA Anti-Doping Regulations also makes it clear that, in the case of a non-specified substance such as Amfetamine, it is the mere presence of the substance in a player’s bodily sample that establishes an anti-doping violation.
3. The analysis of a B-sample is intended to confirm the presence of a prohibited substance. However this does not mean that it is either intended or expected to yield identical values as the A-sample. The WADA ISL makes clear that, in the case of a non-threshold substance, the laboratory method for analysing the B-sample is not aimed at having identical results or at gaining information on the background or quantification, but only at confirming the presence of the prohibited substance. In other terms, the ISL only requires the identification in the B-sample of the same prohibited substance that was found in the A-sample, and it does not require the chromatograms or the quantities or the ‘background noises’ to be exactly the same.
4. An athlete who is aware that the substance s/he is consuming has powerful pharmacological properties but takes no steps to verify the origin or content of the substance, purchases it from unknown vendors in unlabelled packages, with no indication of the ingredients or origin must know or have known that there is a significant risk that his/her consumption of the substance involves a significant risk of anti-doping violation.
5. It is extremely difficult, if not impossible, to infer the date of ingestion from the level of concentration in a sample without also knowing the size of the dose and further information about the individual’s metabolic rate. Therefore, the mere fact that the concentration of a substance in a sample is relatively low does not establish that it was ingested out of competition.
6. The ingestion of a prohibited substance such as Amfetamine with a view to alleviate chronic joint pain is not “unrelated to sport performance”. Professional footballers are regularly required to engage in high impact, high intensity cardiovascular exercise which places considerable physical demands upon the individual’s body and joints. The effect of a chronic joint condition is likely to be at its most acute – and to have the greatest inhibiting impact – during such periods of intense physical activity. Against this backdrop, the deliberate use of a powerful artificial stimulant to reduce or remove chronic joint pain is likely to have a significant and non-incidental effect on sport performance. Accordingly, the consumption of the substance cannot be characterised as being “unrelated to sport performance”.
7. If an athlete only respected some but not all of a provisional suspension, s/he is not entitled to receive credit for any period of the provisional suspension. An athlete’s obligation to respect a provisional suspension in order to receive credit for that period of ineligibility applies to the provisional suspension as a whole and not merely to a portion of it. It is incumbent upon the athlete, as the subject of a provisional suspension, to abide by the terms of the suspension and to exercise due care and responsibility in ascertaining what sporting activities and events fall within its scope.
In November 2015 the Saudi Arabian Anti Doping Committee (SAADC) has reported an anti-doping rule violation against the football player Mohammed Mohammed Noor Adam Hawsawi after his A and B samples tested posititive for the prohibited substance Amfetamine.
Consequently on 28 February 2016 the SAOC Hearing Panel decided to impose a 4 year period of ineligibility on the Athlete, starting on the date of the decision. Following the Athlete's appeal on 17 April 2016 the SAOC Appeal Panel decided to annul the sanction of 4 years. Instead the Appeal Panel imposed only a period of ineligibility for the time already served by the Athlete until the date of the Appeal Decision.
Hereafter the International Football Federation (FIFA) appealed the SAOC Appeal Panel Decision with the Court of Arbitration for Sport (CAS). FIFA requested the Panel to set aside the SAOC Appeal Panel Decision and to impose a 4 year period of ineligibility on the Athlete.
The Athlete denied that he had committed an anti-doping rule violation nor that he had acted intentionally. He requested the Panel to impose no period of ineligiblity or alternatively only a reduced sanction with credit for the time already served.
Also the Athlete disputed the validity of the test results and argued that the Lausanne Lab failed to specify the concentration of Amfetamine in his B-sample. He asserted that the Lab misidentified the presence of Amfetamine due to incorrect parameters were used during chemical analysis of a urine sample. Instead the Lab didn't identifiy the presence of the non-prohibited substance β-Methylphenethylamine in his samples.
Following assessment of the evidence the Panel concludes that:
- the Laboratory carried out the tests of the Athlete’s A-sample and B-sample in accordance with the WADA ISL and did not mistakenly identify a non-prohibited substance as Amfetamine; and
- the Laboratory was not required to specify the concentration of Amfetamine in the Player’s B-sample, which was irrelevant to the question whether he had committed an anti-doping violation.
In view of the Athlete's conduct the Panel concludes that the Athlete's anti-doping rule violation was intentional whereas there are a number of facts that substantially undermined the credibility of the Athlete's version of events.
The Panel deems that the Athlete failed to demonstrate that the substance was used out-of-competition and in a context unrelated to sport performance. Furthermore the Panel considers that the Athlete had participated in two matches during the period of his provisional suspension.
Therefore the Court of Arbitration for Sport decides on 1 March 2017 that:
- The appeal filed by the Fédération Internationale de Football Association on 9 May 2016 is upheld.
- The decision rendered by the Appeal Panel of the Saudi Arabian Olympic Association dated 17 April 2016 is set aside.
- Mohammed Mohammed Noor Adam Hawsawi is suspended for a period of four (4) years as from 15 December 2016, with credit given for any period of suspension already served.
- All other motions or prayers for relief are dismissed.