CAS 2016/A/4676 Arijan Ademi v. Union of European Football Associations (UEFA)
Related case:
UEFA Appeals Body 2015 Arijan Ademi vs UEFA
May 12, 2016
Football
Doping (stanozolol)
Admissibility of belatedly filed exhibits not introducing meaningful new evidence
Exceptional admissibility of evidence submitted belatedly
Regime applicable to an ADRV according to UEFA ADR
Proof of source of the prohibited substance for the purposes of lack of intent (Article 9.01 UEFA ADR)
Proof of lack of intent
System of reduction of the sanction based on No Significant Fault or Negligence
1. Even if the language of Article 62(6) of the UEFA Statutes which states that the CAS shall not take into account facts or evidence which the appellant could have submitted at an earlier stage, can be read to refer to only one of the parties, it would be unfair and unjust to allow only one party to the proceedings i.e. the respondent to utilize a procedural safeguard which is there to encourage the parties to litigate efficiently and fairly and avoid hearings being decided based on a new set of evidence which was or could have been available earlier. Additionally, where the admissibility of some exhibits submitted by a party merely simplifies the panel’s work in understanding parts of a testimony, the exhibits cannot be considered as introducing meaningful new evidence such that the other party’s right to be heard is limited. Therefore, those exhibits should be allowed into evidence and their late introduction should be considered in assessing the costs to be assessed in the arbitral award.
2. According to Article R56 of the CAS Code, a CAS panel has the right to allow late additional evidence in exceptional circumstances. Such may be the case of a late request filed by an athlete to have the product containing the prohibited substance analysed, as such analysis may be relevant, especially where there is no good reason to prevent such analysis from the player who is trying to support his position and minimize any sanction imposed on him.
3. A finding of an anti-doping rule violation (ADRV) results, prima facie, in a period of suspension of four years under the UEFA Anti-Doping Regulations (ADR). In order for the period of suspension to be reduced to two years, it is for the player to establish on the balance of probabilities that his ADRV was not intentional under the UEFA ADR. The period of suspension may be reduced or eliminated, if the player can establish on the balance of probabilities that he bears No Fault or Negligence or No Significant Fault or Negligence for the presence of a prohibited substance in his systems and can also establish on the balance of probabilities the source of such prohibited substance.
4. The establishment of the source of the prohibited substance in a player’s sample is not mandated in order to prove an absence of intent. The fact that the UEFA ADR, based on WADC, represents a new version of an anti-doping Code whose own language should be strictly construed without reference to case law which considered earlier versions now inconsistent is relevant. The relevant provisions (Article 9.01(a) and (c) UEFA ADR) do not refer to any need to establish source. Furthermore, the theoretical possibility that a panel might be persuaded by a player’s simple assertion of his innocence of intent when considering not only his demeanour, but also his character and history, even if such a situation may inevitably be extremely rare, can be envisaged.
5. The special circumstances of a case and the totality of the evidence i.e. the possibility that the prohibited substance came from a product used by the athlete, combined with the credible testimony provided by the player, as further supported by the evidence of a witness and of the club doctors, can lead to consider on the balance of probabilities that a player discharged his burden of proving lack of intent to cheat.
6. The definition of “No significant fault or negligence” requires a player to establish “that his fault or negligence, when viewed in the totality of the circumstances and taking into account the no fault or negligence criteria, was not significant in relation to the antidoping rule violation”. The “totality of the circumstances” include the level of a professional player purchasing a product from a non-secure source and using a suspicious package and pills. The “no fault or negligence criteria” refers to the player not knowing or suspecting, and not being able to “reasonably have known or suspected, even with the exercise of utmost caution” that he may have used an unsafe product. Finally, the significance is “in relation to the antidoping rule violation”. In this respect, the use of stanozolol, a steroid notoriously used for doping and not allowed in and out of the competition is relevant.
On 19 November 2015 the Control, Ethics and Disciplinary Body (CEDB) of the Union of European Football Associations (UEFA) decided to impose a 4 year period of ineligibility on the Athlete Arijan Ademi after his A and B samples tested positive for the prohibited substance stanozolol. On 12 May 2016 the UEFA Appeals Body decided to uphold the imposed sanction rendered by the CEDB on 19 November 2015.
Hereafter in June 2016 the Athlete appealed the decision of the UEFA Appeal Body with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel to annul the UEFA decision and to impose a reduced sanction.
The Athlete stated that he suffered from a hip injury in August 2015 which was treated with certain supplements and medication prescribed by his doctor. In September 2015 he used the over-the-counter supplement product Megamin as recommended by his physiotherapist, trainer and coach.
The Athlete asserted that he bears no significant fault or negligence and acted without intention to cheat nor to enhance his performance. He argued that he checked the ingredients of the Megamin product before using with his doctor; he mentioned the product on the Doping Control Form; and the analysis report of the Cologne Laboratory confirmed that the used Megamin pilsl were contaminated.
UEFA argued that the Athlete intentionally had used the prohibited substance and that the products used by the Athlete including Megamin could not have been properly analysed.
The Pills' container was open when sent to the Cologne Laboratory; the Athlete caused confusion by sending the products used by him to various labs without ensuring a proper chain of custody; most tests and primarily those evidencing suspected readings of stanozolol are not reliable (but for the tests run by the Cologne Laboratory); the RIKILT and AEGIS laboratories on blisters (different formats of Megamin) are not teaching and additionally not consistent; the blisters could have been easily tampered with; various blisters produced differing results; the batch number and date of the Pills' container was illegible so no comparable products could be tested; other Megamin products were of different formats (contained in blisters and not bottles).
The CAS Panel finds that the tests of the Megamin were not conclusive and that the Athlete has not been able to establish the source of the stanozolol. Also the Athlete’s actions and ommissions can not be considered as evidencing No Significant Fault or Negligence.
However the Panel finds that the Athlete established, on the basis of probability, that he did not knowingly ingested stanozolol or otherwise intended to cheat. In the special circumstances of this case, the Athlete discharged his burden of proving lack of intent.
Therefore the Court of Arbitration for Sport decides on 24 March 2017 that:
1.) The appeal filed on 27 June 2016 by Mr Arijan Ademi against the decision of the UEFA Appeals Body of 12 May 2016 is partially upheld.
2.) The decision of the UEFA Appeals Body of 12 May 2016 is amended as follows:
Mr Arijan Ademi is suspended from participation in any football-related activity for a period of two (2) years, commencing on 7 October 2015.
3.) The present arbitration proceeding shall be free, except for the CAS Court Office fee of CHF 1,000 (one thousand Swiss Francs), which has already been paid by the Appellant and which is retained by the CAS.
4. (…).
5.) All other or further motions or prayers for relief are dismissed.
