CAS 2012/A/2922 World Anti-Doping Agency (WADA) v. Federaçao Pernambucana de Futebol & Alex Bruno Costa Fernandes
- Football
- Doping (norandrosterone)
- Applicable law
- CAS power of review
- Duty of sports federations with regard to athletes’ anti-doping results management
1. If a national legislation itself expressly states that official sports practice in the country is governed by national and international rules, then international sports rules are directly applicable in this country. Accordingly, any athlete registered with a national federation is directly bound by the international rules accepted by that federation, including any provision therein giving jurisdiction to the CAS. It is the case in Brazilian sport.
2. Although, under Article R57 of the CAS Code, “the Panel shall have full power to review the facts and the law”, it is not its role to rectify the deficiencies displayed by the laboratory or another body in connection with internal procedures during the pre-hearing stage of the disciplinary proceedings. This is particularly true when the authorised disciplinary bodies of the national association concerned decided to exonerate the athlete of all wrongdoings precisely because of those self same deficiencies. In such a specific case, the function of the panel in applying the de novo standard as an appellate body is only to determine, on the basis of the evidence submitted, whether the disciplinary bodies’ evaluation is soundly based and whether the conclusion consequently derived from those facts by the disciplinary bodies is equally sound.
3. It is the responsibility and duty of all sports federations to conduct themselves in a fashion which is beyond reproach and is scrupulously in accordance with their anti-doping rules and policies contained within their organization’s rulebook. An athlete has the right to expect his anti-doping results management to be dealt with appropriately at every stage of the process as well as to have access to an expedited and comprehensive hearing on the merits.
In August 2011 the Brazilian Pernmbuco Football Federation has reported an anti-doping rule violation against the Athlete Alex Bruno Costa Fernandes and after his A sample tested positive for the prohibited substance 19-norandrosterone (Nandrolone).
After notification a provisional suspension was ordered and the Athlete requested the analysis of the B sample but the Brazilian LADETEC laboratory reported that they had forwarded the sample container to the Laboratory in Cologne.
On 4 June 2012 the Tribunal de Justiça Desportiva Pernambuco (TJD/PE) decided to drop the charges and to acquit the Athlete due to bureaucratic deficiencies had obstructed the requested analysis of the B sample as violation of the Athlete’s rights.
In September 2013 WADA decided to appeal the Brazilian decision of 4 June 2012 with the Court of Arbitration for Sport (CAS).
After a period of deliberations between the involved parties the opening and analysis of the Athlete’s B sample was scheduled in the LADETEC laboratory. However in August 2013 WADA revoked the accreditation of the LADETEC in Rio de Janeiro due to non-compliance with the International Standard for Laboratories (ISL) and the related Technical Documents.
In October 2012 WADA informed the Athlete that the B sample analysis would take place in the accredited laboratory in Cologne which confirmed the presence of the substance 19-norandrosterone.
WADA requested the CAS Panel to set aside the Brazilian decision of 4 June 2012 and to impose a 2 year period of ineligibility on the Athlete.
The Athlete requested the Panel to dismiss the WADA appeal and asserted that the proceeding was a completely mess since the beginning of the proceeding. He complained that the International Standards for Laboratories were not respected and that the results management was effected by a series of irregularities and delays as violation of his rights.
The Panel concludes that it is undisputed that the presence of the Prohibited Substance in the Athlete’s urine was established by a WADA-accredited laboratory. Therefore, the burden of adducing exculpatory circumstances should, under normal circumstances, be shifted to the Athlete.
However, the Athlete was in truth deprived of the any possibility of establishing how the Prohibited Substance – if any – entered his system. Given not only this fact but also the number of deficiencies which occurred from the Athlete’s notification up to the opening of the B sample coupled with the revocation of the LADETEC’s WADA accreditation, the Panel cannot reasonably rely on the presumption set forth in article 14 ADR, according to which “WADA-accredited laboratories are presumed to have conducted sample analysis and custodial procedures in accordance with the International Standard for Laboratories”. It follows inexorably that the commission by the Player of the anti-doping rule violation with which he was charged has not been established to the comfortable satisfaction of the Panel.
Therefore the Court of Arbitration for Sport decides on 10 December 2013 that:
1.) WADA’s appeal against the decision of the “Tribunal de Justiça Desportiva de Pernambuco” dated 4 June 2012 is dismissed.
2.) The decision issued by the “Tribunal de Justiça Desportiva de Pernambuco” on 4 June 2012 is upheld.
(…)
5.) All other or further claims and counterclaims are dismissed.
