CAS 2016/A/4512 World Anti-Doping Agency (WADA) v. Turkish Football Federation (TFF) & Ahmet Kuru
Football
Doping (clomiphene)
Specific sporting or general intent to violate an anti-doping rule
A plain reading of Art. 19.3 of the FIFA Anti-Doping Regulations leaves little doubt that the drafters intended for the requirement of “intent” to be satisfied by a situation in which there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and the player manifestly disregarded that risk. Therefore, there is no need to prove that, in addition, there was a separate and distinct intent to cheat by enhancing performance on the field of play. This interpretation is supported
(i) by the absence of any indication of a separate intent requirement, whether in the WADC, commentary or CAS jurisprudence, and
(ii) by the fact that the structure of the WADC and of the anti-doping rules enacted pursuant to the WADA model rules is based on strict liability, in part due to the inherent difficulty associated with proving the specific intent of an athlete whose sample has tested positive to a prohibited substance.
In December 2015 the Turkish Football Federation (TFF) has reported an anti-doping violation against the Athlete Ahmet Kure after his A and B samples tested positive for the prohibited substance clomiphene.
Previously in December 2014 the TFF denied the Athlete’s TUE application for clomiphene as medication.
On 1 February 2016 the TFF Disciplinary Board decided to impose a 6 month period of ineligibility on the Athlete which was confirmed by the TFF Appeal Committee on 11 February 2016.
Hereafter in March 2016 the World Anti-Doping Agency (WADA) appealed the TFF decision with the Court of Arbitration for Sport (CAS).
WADA requested the Panel to set aside both TFF decisions and to impose a 4 year period of inelibibility on the Athlete for the intentional use of a prohibited substance under the FIFA ADR.
The TFF and the Athlete contended that the substance was used as for the treatment of the Athlete’s medical condition and not for cheating nor to enhance sport performance as reason that a reduced sanction was imposed by the TFF.
The Sole Arbitrator is comfortably satisfied that the Athlete’s conduct, having been clearly warned when his TUE application was declined of the risks associated with taking the medication, knew that his conduct would constitute an anti-doping rule violation and disregarded the significant risk associated therewith.
While the Sole Arbitrator is, to a degree, sympathetic to the Athlete’s position that the resulting sanction of a four-year period of ineligibility appears harsh if the use of the medication was indeed solely aimed at treating his medical condition, the rules do not permit another outcome. The Player had the ability to resubmit a TUE application meeting stated requirements, and he chose not to do so. Instead, he chose to roll the dice, in full knowledge of the risks he was taking for his career.
The Sole Arbitrator concludes that the Athlete’s conduct is to be considered “intentional” within the meaning of Art. 19 para. 3 FIFA ADR, and results in a period of ineligibility of four years under Art. 19 para 1(b) FIFA ADR.
Therefore the Court of Arbitration for Sport decides on 21 November 2016 that:
1.) The appeal filed by the World Anti-Doping Agency on 24 March 2016 is upheld.
2.) The decision of the Appeal Committee / Arbitration Board of the Turkish Football Federation dated 11 February 2016 and confirming the disqualification of Mr Ahmet Kuru from “official games for 6 months” is set aside.
3.) Mr. Ahmet Kuru is sanctioned with a four-year period of ineligibility commencing on the date of this award with credit given for the time already served by Mr. Ahmet Kuru between 4 December 2015 and 3 June 2016.
(…).
