CAS 2006/A/1155 Everton Giovanella v. Fédération Internationale de Football Association (FIFA)
- Football
- Doping (19-norandrosterone, 19-noretiocholanolone)
- Participation of a third party to the arbitration proceedings
- Power of FIFA to review the sanctions adopted by a national federation in doping matters
- Procedural violations in the adoption of a decision
1. According to the relevant provisions of the CAS Code, a third party can participate as a party to the arbitration proceedings already pending among other subjects in two situations, joinder or intervention, but subject to a common condition: that it is bound by the same arbitration agreement binding the original parties to the dispute or that it agrees in writing to such participation. Although de facto interested in the outcome of the appeal, a national federation is not a party in the FIFA proceedings leading to the decision concerning the extension worldwide of the effects of a decision adopted by its disciplinary bodies. As a result, it cannot be compelled to participate in the appeals arbitration concerning the same appealed decision. In addition, pursuant to the CAS Code, the joinder of a third party in the proceedings is possible only upon the request of the respondent, and not of the appellant. The appellant, in fact, has the possibility to name, in the statement of appeal, a plurality of respondents, if he wishes that the proceedings involve all the parties that he might think to be interested in their outcome.
2. The provisions of the FIFA Statutes concerning the obligation of the national football association to abide by the FIFA rules do not confer on FIFA the power to intervene and review disciplinary decisions adopted by national federations in anti-doping matters. Well to the contrary, the FIFA Disciplinary Code expressly states that national associations are responsible for enforcing sanctions imposed against infringements committed in their area of jurisdiction. In addition, the FIFA Disciplinary Code specifically excludes the review of the substance of the domestic decision by the competent FIFA body called to decide on the extension of the effects of sanction imposed by the domestic association.
3. According to Art. R57 of the CAS Code, the Panel has full power to review the facts and the law. The Panel consequently hears the case de novo and can consider all new contention submitted before it. This implies that, even if a violation of the principle of due process occurred in prior proceedings, it may be cured by a full appeal to the CAS. In fact, the virtue of an appeal system which allows for a full rehearing before an appellate body is that issues relating to the fairness of the hearing before the tribunal of first instance “fade to the periphery”.
In October 2005 the Royal Spanish Football Federation (RFEF) imposed a 2 year sanction on the Brazilian football player Everton Giovanella after he tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone (Nandrolone). Thereupon the FIFA Disciplinary Committee decided on 10 October 2005 to to extend this period of ineligibility worldwide.
Next the Athlete's appeals were dismissed:
- on 7 November 2005 by the RFEF Appeal Committee;
- on 13 July 2006 by the FIFA Disciplinary Committee;
- on 25 August 2006 by the FIFA Appeal Committee.
Hereafter in September 2006 the Athlete appealed the FIFA Appeal Committee decision with the Court of Arbitration for Sport (CAS). The Panel settled this case based on the written submissions of the Parties.
The dispute to be determined by the Panel follows the adoption of the Appealed Decision, whereby the review of the sanction adopted on the Athlete by the RFEF with the RFEF Decision has been denied and the effects of such sanction have been extended to the international level. In other words, and in substance, the dispute concerns the challenge brought by the Athlete against both the sanction adopted by the Spanish football federation, and against the extension worldwide of the effects of the RFEF Decision.
The Panel concludes that no room is left for a review of the merits of the RFEF Decision, i.e. for a new assessment of the existence, or not, of an anti-doping rule violation. The Panel deems that any and all criticisms submitted by the Athlete against the merits of the RFEF Decision, with respect to the “severe irregularities” allegedly affecting the sanction adopted on the Athlete, in order to have the sanction annulled, cannot be reviewed by this Panel.
Therefore the Court of Arbitration for Sport decides on 22 February 2007 that:
1.) The appeal filed by Mr Everton Giovanella against the decision issued on 25 August 2006 by the Chairman of the FIFA Appeal Committee is dismissed.
2.) The decision issued on 25 August 2006 by the Chairman of the FIFA Appeal Committee is confirmed.
(…)
