CAS 2015/A/4215 Fédération Internationale de Football Association (FIFA) v. Korea Football Association (KFA) & Kang Soo Il
Football
Doping (methyltestosterone)
CAS jurisdiction
Admissibility of a cross or subsequent appeal
Notion of contaminated product
Determination of the applicable sanction for a non-specified substance
Burden of proof regarding the establishment of the absence of significant fault
Absence of reduction of a sanction on grounds of “prompt admission”
1. According to FIFA ADR, FIFA has an option of filing a direct appeal to the CAS against any anti-doping rule violation decision rendered at national level without necessarily having to first exhaust the remedies available at the relevant National Anti-Doping organisation if no other party has appealed the said decision. This is regardless of whether or not the player in question is an international-level player.
2. Article 75.4 in the FIFA ADR (like Article 13.2.4 in the 2015 WADA Code) does not establish a right of a party to submit a cross appeal within the answer. These regulations respect and adopt the change that was made against the 2010 edition of the CAS Code which no longer allows a counter or cross appeal to be submitted as part of the answer. Instead, under these new provisions, a party wishing to challenge a decision is obliged to file a separate, independent appeal within the time limits stipulated in the CAS Code. So Article 75.4 FIFA ADR do nothing more than extend the time period in which a party to a doping appeal may file a cross appeal (or any subsequent appeal). In such cases, the time limit for a party to submit its cross or subsequent appeal is extended until the moment it submits the answer. This time limit can thus be longer than the normal filing period of 21 days. This possibility is perfectly in line with Article R49 of the CAS Code which gives preference to the time-limits set forth in a federation’s regulations. The standard 21-day deadline remains the default situation otherwise. In addition, any cross appeal must specifically comply with the usual procedural requirements set forth under Article R47 et seq of the Code.
3. Pursuant to the FIFA ADR, a contaminated product is one which contains a prohibited substance that is not disclosed on the product label or in information available in a reasonable internet search. In this regard, the fact that the ingredients are written in a language unfamiliar to a player does not take away the fact that the contents of the product are clearly disclosed on the product label as required by the FIFA ADR.
4. Subject to the player establishing the existence of circumstances warranting a reduction or elimination of the period of ineligibility, the maximum ineligibility period applicable for the non-intentional use of a non-specified substance is 2 years as provided for under the FIFA ADR.
5. As the party claiming not to have been significantly at fault or negligent, a player bears the burden of proof which, in accordance with the FIFA ADR is on a “balance of probability”. The totality of the circumstances vis-à-vis the criteria for No Fault or Negligence to establish whether the player’s fault was not significant in comparison to the anti-doping rule violation must be considered. Notably the fact that the player did exercise utmost caution to avoid the use of a prohibited substance is relevant. In this respect, lack of knowledge of a foreign ingredient label should heighten a player’s duty to investigate the substances contained therein and proceed to have such ingredient translated before using the product. The lack of evidence that the player made such efforts suggests negligence on his part and therefore excludes a reduction of the otherwise applicable sanction based on no significant fault or negligence.
6. No grounds exists for reducing the maximum 2-year period of ineligibility on the grounds of prompt admission. In this respect, the FIFA ADR is only applicable to players who are otherwise liable to the maximum 4 year ineligibility period.
In June 2015 the Korea Football Association (KFA) reported an anti-doping rule violation against the Football Player Kang Soo Il after his sample tested positive for the prohibited substance Methyltestosterone.
On 22 June 2015 the Disciplinary Committee of the Korea Professional Football League (K-League) decided to sanction the Athlete with a 15-match ban from playing in any K-League competition. After interference by the Asian Football Confederation (AFC) the KFA Disciplinary Committee reversed the K-League decision and decided on 12 August 2015 to impose a 6 month period of ineligibility on the Athlete.
In its decision the Disciplinary Committee considered that the Athlete’s violation was non intentional, he gave a prompt admission and he acted without significant fault or negligent due to his use of a contaminated facial cream product with Japanese information on the label.
Hereafter in September 2015 the International Football Federation (FIFA) appealed the KFA decision with the Court of Arbitration for Sport (CAS). FIFA requested the Panel to set aside the KFA decision of 12 August 2015 and to impose a 2 year period of ineligibility on the Athlete.
FIFA accepted that the Athlete’s violation was non intentional but contended that there was no prompt admission, the facial cream Microgen was not a “contaminated product”, the Athlete failed to establish that he bears no significant fault or negligence and he failed to consult his team doctor or to conduct a reasonable research on the internet befor using the product.
The Athlete argued that the 6-month period of ineligibility should be upheld on grounds that he was not significantly at fault or negligent. He stated that Microgen was a contaminated product, meaning he is entitled to a reduction of the otherwise applicable 2-year period of ineligibility under the FIFA Rules. Also he asserted that in the event that the Panel finds Microgen not to be a contaminated product, he is still entitled to a reduction of the 2-year period of ineligibility on the grounds that he was not significantly at fault or negligent. The KFA wants the 6-month period of ineligibility upheld, saying it was arrived at after a consideration of the Athlete’s conduct, the particulars of the substance he applied and the prompt admission he gave.
The Panel establish that the violation was non intentional and holds that the used Mocrogen cream was not a contaminated product due to the product label mentioned in Japanes that it contained the prohibited product Methyltestosterone. There are also no grounds for reducing the sanction for the Athlete’s prompt admission.
The Panel finds the Athlete failed to establish that he was not significantly at fault or negligent. He is therefore liable to the maximum 2-year period of ineligibility. As a professional sportsman, the Athlete should have perceived a higher degree of risk when applying the facial cream, and consequently exercised greater care and investigation given that (i) he was applying cream stored in a tube which had already been opened (ii) the cream had not been prescribed by a doctor but had merely been recommended to him by a friend; and (iii) the ingredients of the cream were inscribed in a language he was unfamiliar with. His failure to consider these factors amounted to a significant fault and a breach of duty to take appropriate care.
Therefore the Court of Arbitration for Sport decides on 29 June 2016 that:
1.) The appeal filed by the Fédération Internationale de Football Association against the Korea Football Association’s 5th Disciplinary Committee decision dated 12 August 2015 is upheld.
2.) The Korea Football Association’s 5th Disciplinary Committee decision dated 12 August 2015 is set aside.
3.) Mr. Kang Soo Il is sanctioned with a two (2)-year period of ineligibility as from the date of this award with credit given for any period of ineligibility served by Mr. Soo Il, as well as an additional forty-three (43) days credit due to delay in the underlying procedure unattributable to him.
4.) (…).
5.) (…).
6.) All other motions or prayers for relief are dismissed.
