CAS 2014/A/3842 World Anti-Doping Agency (WADA) v. Confederação Brasileira de Futebol (CBF) & Erivonaldo Florêncio De Oliveira Filho
Football
Doping (stanozolol)
Standing to be sued
WADA standing to appeal to the CAS
Observance of the athlete’s right to laboratory documentation
Requirements related to a reduction of the standard sanction
1. Under well-established CAS jurisprudence, (at least) for international purposes the decisions of a national sport tribunal that, although independent in its adjudicating activity, is an integral part of the organisational structure of the national federation and does not pass the “stand-alone test”, must be considered to be the decisions of that national federation. This is exactly the same legal situation in public international law, where States are internationally liable for judgments rendered by their courts, even if under their constitutional law the judiciary is wholly independent of the executive branch. Even though the national sport tribunal may be “autonomous” from the national federation, the latter entrusts its disciplinary powers to the national sport tribunal which is an integral part of the organizational structure of the national federation. As a result, the national federation has standing to be sued.
2. According to the FIFA Statutes and to the FIFA ADR, WADA has the right to file an appeal before the CAS against an internally final and binding doping-related decision notably where the sanction was modified and reduced.
3. Evidence of the non-observance of an athlete’s right to laboratory documents is not brought where the athlete does not provide any evidence sustaining that he was not informed of his right to request copies of the A & B documentation package.
4. Under FIFA ADR, in order to establish that there were specific circumstances providing for the reduction of his sanction under No Fault or Negligence and No Significant Fault or Negligence, an athlete shall first prove (i) how the Prohibited Substance entered his system and also (ii) establish that he bears No Significant Fault or Negligence. Even if an athlete complies with the first requirement, he must fulfil his personal duty to ensure that no Prohibited Substance enters his body. The risks associated with food supplements in the sports framework are widely known in the sporting community. Where these risks were seemingly just ignored by the athlete, who blindly consumed them without the minimal care, the athlete did not discharge his burden of proof in this regard. Therefore, the athlete’s degree of fault or negligence, viewed in the totality of the circumstances, is clearly significant in relation of the anti-doping rule violation, and the standard sanction cannot be reduced.
On 9 April 2014 the Disciplinary Commission of the Superior Tribunal de Justiça Desportiva do Futebol (STJC), the Brazilian High Sports Court of Football, decided to impose a 2 year period of ineligibility on the Athlete Erivonaldo Florêncio De Oliveira Filho after his sample tested positive for the prohibited substance stanozolol.
The Athlete appealed the decision of 9 April 2014 and on 5 June 2014 the STJD decided to reduce the Athlete’s period of ineligibility to one year on the condition that the Athlete submits to monthly blood and urine tests which confirm that his body is free of any prohibited substances for a period of two years, failing which the Athlete’s initial two-year period of ineligibility would be reinstated.
Hereafter in December 2014 WADA appealed the STJD decision of 5 June 2014 with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the STJD decision and to impose a 2 year period of ineligibility on the Athlete. WADA argued that the Athlete acted with significant fault and failed to prove how the substance entered his body.
The Panel rejects the Athlete’s arguments and concludes that it is undisputed that the analysis of the Athlete’s sample established an anverse analytical finding of the substance stanozolol and thus finds that the Athlete committed an anti-doping rule violation under the FIFA Rules.
The Sole Arbitrator finds that the Athlete’s degree of fault or negligence, viewed in the totality of the circumstances, is clearly significant in relation of the anti-doping rule violation, and thus the sanction cannot be reduced under the FIFA Rules. In consequence, the sanction on the Athlete in this case is fixed at a 2 year period of ineligibility.
According to the rules applicable to this proceeding (i.e. the FIFA ADR), the Sole Arbitrator considers that the STJD erred by reducing the ordinary two-year ban to a one-year ban and by conditioning part of the sanction upon the player showing that his body would be clean for the total period of the sanction. There is no such possible sanction available to the Athlete under the applicable regulations.
Therefore the Court of Arbitration for Sport decides on 9 July 2015 that:
1.) The appeal filed by World Anti-Doping Agency against the Appealed Decision rendered by the Superior Tribunal de Justiça Desportiva of CBF on 4 December 2014 with regard to the athlete Mr. Erivonaldo Florêncio De Oliveira Filho is upheld.
2.) The Decision of the Superior Tribunal de Justiça Desportiva of the CBF dated 5 June 2014 is set aside.
3.) Mr. Erivonaldo Florêncio De Oliveira Filho is sanctioned with a two-year period of ineligibility, starting on 13 November 2013, and all results, medals, points and prizes obtained during this period of ineligibility are forfeited.
4.) (…).
5.) (…).
6.) All other prayers for relief are dismissed.
