CAS 2010/A/2236 Diego Roque Navarro v/ ADoP
On 3 March 2010 the Disciplinary Committee of the Portuguese Football Federation (FPF) decided to impose a 1 year period of ineligibility on the football player Diego Roque Navarro after his A and B samples tested positive for the prohibited substance Human Chorionic Gonadotropin (HCG).
On 16 June 2010 the Athlete’s appeal was dismissed by the FPF Council of Justice and the previous FPF decision confirmed. On 30 August 2010 the Anti-doping Authority Portugal (ADoP) rendered a new decision and imposed a 2 year period of ineligibility on the Athlete for his anti-doping rule violation.
Hereafter in September 2010 the Athlete appealed the ADoP decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to impose the proportional sanction of a 1 year period of ineligibility and asserted that the procedural rights were violated: the right to be heard, the prohibition of reformation in pejus and the principle of res judicata.
The Athlete argued that the new Portuguese Law, or at least its regime of sanctions, could not apply to his case, on the basis of articles 62, 74 and 76 of this same new Law. Only the regime of sanctions of article 10 of the Anti-Doping Regulations of the FPF which were in force when the facts took place, namely on August 21, 2009, should apply, according to the Athlete.
The Panel reviewed carefully the system put in place by the new Portugues Law and implemented at the federation level. It was surprised that after two levels of internal jurisdiction where an athlete is part to the procedure whereas ADoP is not, ADoP can simply assess the decision taken by the competent body of the relevant federation and then replace it on the simple basis of article 18 par. 1 lit. N and article 57 par. 4 of the new Law, together with article 47 par, 3 of the new anti-doping regulations of the FPF, without the athlete being materially part to the procedure before ADoP.
The Panel finds first that the regime put in place by the new Law and the new regulations of the FPF does not provide ADoP with a right to appeal but with the right to check and amend decisions taken by jurisdictional bodies of sport federations. The Athlete is therefore wrong when he claims that ADoP cannot issue a new decision when it did not appeal against the previous ones. Secondly, the Panel holds that the purpose of ADoP's right to amend decisions is obviously to make sure that the principles of the new Law and the sanctions provided by the corresponding regulations were properly applied in all aspects and not only for the benefit of the athletes.
Eventually, and in response to the Athlete's general remark on the admissibility of ADoP’s prerogatives in any State of Law, the Panel stresses that such prerogatives are based on Portuguese State Law. In the absence of a decision of a Portuguese constitutional court, invalidating the new Law and the corresponding federation regulations, the Panel has not sufficient grounds not to recognize ADoP's prerogatives.
Based on all these considerations, the Panel finds that the Athlete's submissions with respect to these matters must be rejected and that the Athlete committed an anti-doping rule violation which constitutes a disciplinary offence, as provided under article 54 of the new Law.
Reviewing the present case de novo in application of article R57 of the Code, the Panel considers that in view of the absence of any mitigating or aggravating circumstances, of the lack of any elements that would plead in favor of negligence, and not of intent, on the Athlete's side, and in view of the substance at stake, neither the sanction imposed by ADoP nor the sanction imposed by the Disciplinary Committee should be confirmed. Taking into account the circumstances of the present case and having considered the Parties' submissions and requests for relief, the Panel indeed decides to sanction the Athele with a 18 month period of ineligibility.
Therefore the Court of Arbitration for Sport decides:
1.) The appeal of the Player, Diego Roque Navarro, is partially upheld.
2.) The decision issued by the Autoridade Antidopagem de Portugal (ADoP) on August 30, 2011 is set aside and replace by the present award.
3.) The Player, Diego Roque Navarro is sanctioned with a period of ineligibility of 18 months starting on 25 September 2009.
4.) The costs of the arbitration to be determined and served on the Parties by the CAS Court Office shall be borne for 2/3 by the Autoridade Antidopagem de Portugal (ADoP).
5.) Each party shall bear its own costs.
6.) All other motions or prayers for relief are dismissed.
