CAS 2013/A/3262 Joel Melchor Sánchez Alegría v. Fédération Internationale de Football Association (FIFA)
Football
Doping (methylhexameanine)
Admissibility of the appeal
De novo hearing
Lack of intent to enhance sport performance
Degree of fault or negligence
Personal duty of the athlete to ensure that no prohibited substance enters his body
1. If particular items are missing in a Statement of Appeal, it can be reasonable for the CAS and in accordance with article R48 of the CAS Code, to accept the Statement of Appeal as filed and grant a short deadline of 5 days to supplement the initial submission and not deprive the appellant of its right to appeal based solely on the straightforward application of a procedural rule.
2. Pursuant to article R57 CAS Code, a CAS panel has full power to review the facts and the law de novo on an appeal, which may include, in certain circumstances, that potential violations of the principle of due process or of the right to be heard in prior instances, may be cured in the appeal before the CAS.
3. In order to satisfy lack of intent to enhance sport performance, the athlete shall demonstrate to the adjudicating body’s comfortable satisfaction that the prohibited substance was not intended to enhance his sport performance, and produce corroborating evidence in addition to his own statement that establish a lack of intent to the comfortable satisfaction of the adjudicating body. In particular, the athlete needs to prove that the ingestion of the specified substance, rather than the product itself, was not intended to enhance his sport performance. In any case, the mere fact that the athlete allegedly did not know that the product contained the specified substance does not establish an absence of intent. An athlete may only argue an absence of intent to enhance performance when his behaviour was not reckless, but only oblivious.
4. There are several factors to determine the athlete’s degree of fault and eventually reduce the period of ineligibility, including
(i) the fact that before taking the product for the first time the athlete consulted with personal trainers,
(ii) read the product label,
(iii) conducted internet research,
(iv) consulted with the team’s physician about all the nutritional supplements and products he was taking.
In this respect, the fact that the label of the product contains a warning in English which was allegedly not understood by the athlete is no excuse. The facts that no internet research was made, that no team doctor was consulted but only a nutritionist who does not work in the world of football, and that the athlete did not disclose the product in his doping control form, shall be considered not only as a clear lack of the minimum diligence, but also as a sign that the athlete was trying to conceal that he was taking the product. Therefore, the athlete’s degree of fault or negligence, viewed in the totality of the circumstances, is clearly significant in relation to the anti-doping rule violation and the sanction cannot be eliminated or reduced.
5. The FIFA Anti-Doping Regulations impose a personal duty upon each football player to ensure that no prohibited substance enters the football player’s body, which necessarily means that the player must have taken all available precautions to avoid any anti-doping rule violations. Accordingly, the fact that this is a personal duty, means the player cannot avoid liability by simply arguing that another person was negligent.
In December 2012 the International Football Federation (FIFA) has reported an Anti-Doping Rule violation against the Peruvian football player Joel Melchor Sanchez Alegria after his A and B samples tested positive for the prohibited substance methylhexaneamine (dimethylpentylamine).
On 1 March 2013 the FIFA Disciplinary Committee decided to impose a 2 year period of ineligibility on the Athlete. On 6 May 2013 the FIFA Appeal Committee rejected the Athlete’s appeal and confirmed the FIFA decision of 1 March 2013.
Hereafter in June 2013 the Athlete appealed the FIFA Appeal Committee decision with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel to set aside the FIFA decision of 6 May 2013 and to impose a reduced sanction or only a reprimand. The Athlete argued that a violation occurred of the principle of due process and the right to be heard and the Athlete’s statement was misinterpreted.
After having examined the file, the Panel considers that the Athlete has not substantiated the allegations. The Athlete simply states that there has been apparent infringement of these rights, but he does not contribute any convincing evidence in this respect, which leads the Panel to conclude that any of the aforementioned rights was actually infringed.
The Panel finds that the presence of the substance methylhexaneamine in the Athlete’s samples is proven and objectively constitutes an anti-doping rule violation. The Panel and the parties agree that the source of the Athlete’s violation was the ingestion of Hermo Rage Black, which contained the specific substance methylhexaneamine. Accordingly, the Panel hold that the Athlete successfully established how the substance entered his system. However the Panel finds that the Athlete has not demonstrated an absence of intent to enhance his sport performance to its comfortable satisfaction. The Panel rules that the Athlete’s degree of fault or negligence, viewed in the totality of the circumstances, is clearly significant in relation to the anti-doping rule violation and the Athlete’s sanction cannot be reduced.
Therefore the Court of Arbitration for Sport decides on 30 September 2014 that:
1.) The appeal filed on 20 June 2013 by Mr. Joel Melchor Sánchez Alegría against the decision adopted by the FIFA Appeal Committee on 6 May 2013 is dismissed.
2.) The decision adopted by the FIFA Appeal Committee on 6 May 2013 is confirmed.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.
