TAS 2016/A/4452 Mohamed Youssef Belaili c. Confédération Africaine de Football (CAF)
CAS 2016/A/4452 Mohamed Youssef Belaili vs Confédération Africaine de Football (CAF)
Football
Doping (Cocaine)
Excessive formalism
Nature of unintentional doping use
Significant Fault or Negligence
1.) When a party has been informed very insufficient en partially erroneous about his obligation to pay the appeal fees nor about the consequences of non-payment, and he didn’t receive the opportunity to regularize his appeal, the rejection on the basis of inadmissibility constitutes a case of excessive formalism.
2.) According to Article 19 of the FIFA Anti-Doping Rules, the duration of the sanction will be four years when the anti-doping rule violation does not involve a specific substance, unless the athlete or others can establish that the violation was unintentional. The burden of proof, as to the unintentional nature of the violation, is hard and difficult to demonstrate for the involved athlete. However, after examination of the whole file, the written submissions and the hearing, it is established that the athlete or others had no intention to violate the anti-doping rules, then it is justified to reduce the sanction both under the applicable rules and under the principle of proportionality.
3.) The athlete whom, in competition, has smoked the chicha water pipe without inquiring the contents, has failed to establish No Significant Fault or Negligence.
On 20 October 2015 the Confederation of African Football (CAF) decided to impose a 4 year period of ineligibility on the Algerian football player Mohamed Yossef Balaili after his sample tested positive for the prohibited substance cocaine. The Athlete’s appeal against this decision was dismissed on 31 January 2016 by CAF due to the appeal was inadmissible as he or his club failed to pay timely the fees for the appeal.
Hereafter the Athlete appealed the CAF decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to annul the CAF decision of 31 January 2016 and to set aside the 4 year period of ineligibility.
The Athlete admitted the violation and denied the intentional use of the substance. He stated that at a party, 2 days before the competition, he had smoked using the chicha (water pipe) which also contained cocaine without his knowledge. He disputed the excessive formalistic attitude of CAF in this matter and argued that the obligation to pay the $ 3,000 fee was not communicated by CAF to him. His subsequent request to CAF to allow payment was not answered while he had the intention to settle this payment.
CAF asserted that there were failures in the communication between the Algerian Football Federation (FAF) and the Athlete (or his club). CAF contended that at first their communications regarding the disciplinary proceedings against the Athlete was submitted to the FAF and the Athlete failed to appear at the hearing of the CAF Disciplinary Panel. Later CAF was informed by FAF about the Athlete’s appeal but afterwards when requested FAF failed to confirm the payment for fees. As a result and in accordance with the Rules the appeal with CAF was inadmissible.
The Panel agrees that CAF showed excessive formalism in this case and establish that the Athlete’s right for a fair trial was violated because he was not informed properly of his obligation to pay fees nor of the consequences of the non-payment leading to inadmissibility of the appeal. Instead of referring the case back to CAF the Panel will render a decision about the reported anti-doping rule violation.
Considering the evidence in this case the Panel finds that the Athlete admitted the violation and that it was not intentional. In view of the Athlete’s conduct and his degree of fault the Panel finds that a 2 year period of ineligibility is appropriate starting on the date of the provisional suspension, i.e. on 19 September 2015.
Therefore the Court of Arbitration for Sport decides on 4 November 2016:
1.) The Athlete’s appeal filed on 9 February 2016 is admissible.
2.) The CAF Appeal Panel decision of 31 January 2016 is set aside.
3.) Establish that the Athlete has committed an anti-doping rule violation and a 2 year period of ineligibility is imposed on him starting on 19 September 2015.
4.) (…)
5.) (…)
6.) All other motions or prayers for relief are dismissed
