CAS 2009/A/2019 Jakub Wawrzyniak v. Hellenic Football Federation (HFF)
Related cases:
- CAS 2009/A/1918 Jakub Wawrzyniak vs Helenic Football Federation - Partial Award
August 13, 2009 - CAS 2009/A/1918 Jakub Wawrzyniak vs Hellenic Football Federation - Final Award
January 21, 2010
- Football
- Doping (Methylhexaneamine)
- Applicable law: principle of non-retroactivity and of lex mitior
- Presence of a substance similar to a prohibited substance
Identification of a second violation - Additional sanction
1. Under a well established CAS jurisprudence, in order to determine whether an act constitutes an anti-doping rule infringement, the Panel applies the law in force at the time the act was committed. In other words, new regulations do not apply retroactively to facts that occurred prior to their entry into force, but only for the future. The principle of non-retroactivity is however mitigated by the application of the “lex mitior” principle.
2. A substance which is not explicitly included in the applicable list of prohibited substance like Methylhexaneamine, but which is however a substance similar to a prohibited substance – must be prohibited under the principle that not only are the listed substances prohibited, but also any other substances with a similar chemical structure or similar biological effect(s). Methylhexaneamine must therefore be considered as a prohibited substance similar to the Tuaminoheptane, a specified prohibited stimulant specifically mentioned in the 2008 Prohibited List. As a result, the presence of Methylhexaneamine in the Player’s bodily samples constitutes an anti-doping rule violation.
3. According to Article 52.5 of the 2009 FIFA ADR for the purpose of imposing sanctions, an anti-doping rule violation will only be considered a second violation if FIFA can establish that the player committed the second anti-doping rule violation after he had received notice of the first anti-doping rule violation. In this respect, if a later-in-time but earlier discovered violation has been established and that after its notification an earlier-in-time but later discovered violation is established, those violations have to be treated as one single first violation.
Case #1
In April 2009 the Hellenic National Council for Combating Doping (ESKAN) reported an anti-doping rule violation against the football player Jakub Wawrzyniak after his A and B samples - collected in April 2009 - tested positive for the prohibited substance 4-Methylhexan-2-amine (methylhexaneamine, 1,3-dimethylamylamine, 1,3 DMAA).
Following a number of proceedings the Court of Arbitration for Sport (CAS) decided ultimately on 21 January 2010 to impose a 3 month period of ineligibility on the Athlete.
Case #2
Previously in February and in March 2009 the Athlete was also tested and thereupon in June 2009 ESKAN reported a new anti-doping rule violation against the Athlete for the presence of the substance Methylhexaneamine. Consequently new disciplinary proceedings were started against the Athlete.
On 23 July 2009 the Disciplinary Committee of the Hellenic Football Federation (HFF) decided to impose a 2 year period of ineligibility on the Athlete for his second anti-doping rule violation.
The Athlete filed an appeal in July 2009 and on 7 October 2009 the HFF Appeals Committee decided to set aside the decision of 23 July 2009 and to impose a reduced 1 year period of ineligibility on the Athlete.
Hereafter in December 2009 the Athlete appealed the decision of the HFF Appeals Committee with CAS for new proceedings. Because of case #1 he asserted that the had already been judged and sanctioned and he invoked the principle of ne bis in idem.
The Athlete admitted the violation and denied the intentional use of the substance. He argued that he acted with no fault or negligence and that there were no aggravating circumstances.
The Panel assessed and addressed the issues raised by the Athlete and determines:
- Methylhexaneamine must be considered as a prohibited substance similar to the Tuaminoheptane, a specified prohibited stimulant specifically mentioned in the 2008 Prohibited List.
- The presence of Methylhexaneamine in the Athlete’s bodily samples collected at the Prior Controls (case #2) constitutes an anti-doping rule violation.
- The violations have to be treated as one single first violation under Article 52.5 of the 2009 FIFA ADR.
- In case #2 the Athlete committed the violation (based on the Prior Controls) before any notification of the violation based on the April Controls (case #1) had occurred.
- The Decision in case #2 did not properly apply the relevant rules and must therefore be reversed.
- The Athlete already gave a timely admission of the anti-doping rule violation in case #1.
- No sanction, additional to the ineligibility applied in case #1 has to be imposed on the Athlete.
Therefore the Court of Arbitration for Sport decides on 21 May 2010:
1.) The appeal filed by Mr Jakub Wawrzyniak against the decision issued on 1 July 2009 by the Appeals Committee of the Hellenic Football Federation is upheld.
2.) The decision adopted by the Appeals Committee of the Hellenic Football Federation on 7 October 2009 is set aside.
(...)
