CAS 2008/A/1494 Fédération Internationale de Football Association (FIFA) v. Federazione Italiana Giuoco Calcio (FIGC) & Alessio Recchi
- Football
- Doping (benzoylecgonine)
- Internally final and binding decision and right to lodge an appeal with the CAS
- Criteria for establishing lack of “significant fault or negligence”
- Standard of proof for the facts alleged by the player
- Relevant and non-relevant circumstances with regard to the degree of the athlete’s fault
- Prohibited substance and lack of intention to enhance the player’s sports performance
- Commencement of the ineligibility period
1. If to all parties no further appeal is possible in the national disciplinary doping proceedings, there is an internally final and binding decision, against which FIFA, according to its regulations, has the right to lodge an appeal to the CAS within 21 day after notification. Where the conditions for appeal to CAS are fulfilled, independently on the applicability of Article R47 of the CAS Code, FIFA’s appeal is admissible and CAS has jurisdiction.
2. Along with the well-established CAS case law and in line with the WADA Code, a player, in order to establish that he bears no significant fault or negligence, must prove a) how the prohibited substance came to be present in his body and b) that his fault or negligence, when viewed in the totality of the circumstances was not significant in relationship to the anti-doping rule violation. In this respect, the burden of proving the above is a very high hurdle for an athlete to overcome. The mitigation of mandatory sanctions is possible only in cases where the circumstances are truly exceptional and not in the vast majority of cases.
3. With regard to the standard of proof required from the indicted player, the player must establish the facts that he alleges to have occurred by a “balance of probability”. According to CAS case-law, the balance of probability standard means that the indicted player bears the burden of persuading the judging body that the occurrence of the circumstances on which he relies is more probable than their non-occurrence or more probable than other possible explanations of the doping offence.
4. Where the player’s departure from the required duty of utmost caution was clearly significant, the player’s behaviour is considered to be significantly negligent even if the player’s explanations of how the prohibited substance came into his body are plausible. This is the case where the player knew that he had consumed the prohibited substance a few days before the match, but did not tell anyone about it, nor had he seen a doctor for advice, nor did he made a comment on the Doping Control Form. The circumstances, that he admitted the anti-doping rule violation, participated in an anti-doping program and/or played the lowest professional championship of the national football, are not relevant as with regard to the degree of his fault.
5. If the prohibited substance is not listed as a specified substance, it is also irrelevant whether the player had no intention of enhancing his sport performance. Only if the prohibited substance is listed as a “specified substance”, is it relevant to give evidence for the declaration that the specified substance was not intended to enhance sporting performance.
6. If acknowledged delays in the judging process are not attributable to the player, and the latter timely admitted the anti-doping rule violation, it is fair to make use of the possibility contemplated by the applicable regulations and, thus, to start the period of suspension at an earlier date than the day of notification of the CAS award.
On 30 October 2007 the Italian Football Federation (FICG) Federal Court of Justice decided to impose a 1 year period of ineligibility on the Italian Athlete Alessio Recchi after his sample tested positive for the prohibited substance Cocaine.
In first instance the Athlete admitted the violation and the FICG accepted that the conduct of the Athlete was non-siginificant negligent as mitigating circumstances. Hereafter in February 2008 FIFA appealed the FICG decision of 30 October 2007 with the Court of Arbitration for Sport (CAS).
The CAS Panel finds that the Athlete’s degree of ‘fault or negligence’, viewed in the totality of the circumstances in this case, is clearly “significant” in relation to the anti-doping rule violation.
The circumstances, that he admitted the anti-doping rule violation, participated in an anti-doping program and/or played the lowest professional championship of the Italian football, are not relevant as with regard to the degree of his fault.
The Panel concludes that the Athlete did not demonstrate that he bears no significant fault or negligence.
Therefore the Court of Arbitration for Sport decides on 30 April 2009:
1.) CAS has jurisdiction to entertain the appeal of the Fédération FIFA.
2.) The appeal of FIFA against the decision dated 30 October 2007 of the Corte di Giustizia Federale is upheld.
3.) The decision dated 30 October 2007 of the Corte di Giustizia Federale is set aside.
4.) Mr Alessio Recchi is suspended for a period of two years, to be reduced with the suspension period of one year already served, with the remaining period of one year starting from 25 September 2008.
5.) (…).
6.) (…).
7.) All other prayers for relief are rejected.
