CAS 2008/A/1495 Fédération Internationale de Football Association (FIFA) v. Federazione Italiana Giuoco Calcio (FIGC) & Edgar Alfredo Schurtz
- Football
- Doping (furosemide)
- Internally final and binding decision and right to lodge an appeal to the CAS
- Criteria for establishing the lack of “significant fault or negligence”
- Standard of proof for the facts alleged by the athlete
- Relevant and non-relevant circumstances with regard to the degree of the athlete’s fault
- 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. A player that uses the same medicine for years without searching for an alternative treatment or asking for a Therapeutic Use Exemption, is considered to knowingly and wilfully accepting the risk that this medicine could be a specified substance that would be present in his body at a doping-test. The circumstances, that the player immediately admitted the anti-doping rule violation, played (the highest level of) non-professional Futsal and was not aware of the need of a Therapeutic Use Exemption, are not relevant as with regard to the degree of his fault.
5. 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 14 September 2007 the Italian Football Federation (FICG) Federal Court of Justice Decision decided to impose a 1 year period of ineligibility on the Brazilian Athlete Edgar Alfredo Schurtz after his sample tested positive for the prohibited substance furosemide.
In first instance the Athlete admitted the violation and stated that he had used the medicine Lasix for his condition he suffered for years. 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 14 September 2007 with the Court of Arbitration for Sport (CAS).
The CAS Panel finds that the Athlete did not supply any information that might explain why especially this medicine was used and not some other medicine that was not on the Prohibited List. Besides, the Athlete failed to inform the Panel about the nature of “Lasix” or the timing of its ingestion.
Neither did the Athlete provide the Panel with a contemporaneous medical records file substantiating the non sport-related prescription for the Specified Substance. Under these circumstances the Panel concludes that the Player failed to prove that he had no intent to enhance his sport performance or mask the use of a performance-enhancing substance.
Therefore the Court of Arbitration for Sport decides on 30 April 2009:
1.) CAS has jurisdiction to entertain the appeal of the FIFA.
2.) The appeal of FIFA against the decision dated 14 September 2007 of the Corte di Giustizia Federale is upheld.
3.) The decision dated 14 September 2007 of the Corte di Giustizia Federale is set aside.
4.) Mr Edgar Alfredo Schurtz 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 26 September 2008.
5.) (…).
6.) (…).
7.) All other prayers for relief are rejected.
