CAS 2012/A/2762 Bayer 04 Leverkusen v. Union of European Football Associations (UEFA)
Football
Doping (whereabouts information)
Importance of an effective and credibly functioning anti-doping system
Definition of “immediately” from a legal perspective
Events not attributed to force majeure and responsibility of a club to report the change of the whereabouts of its players
CAS power of review with regard to the measure of a sanction imposed by a disciplinary body at first instance
1. It is of paramount importance today that an effective and credibly functioning anti-doping system is in place in order to make sure that the sports community together with WADA and the national anti-doping agencies around the world may fight one of the greatest challenges to modern international sports, namely the use of illegal performance enhancing drugs. Such anti-doping regimes and control systems should, however, always be carried out with appropriate consideration for athletes’, and in this case the club’s, expectations that they will be treated fairly.
2. The definition of the term “immediately” means “without any delay or lapse of time; instantly, directly, straightway; at once” and “without intermediary, intervening agency, or medium”. While in legal usage (under English law) it does not mean instantaneous, it nevertheless connotes proximity in time and proximity in causation. In addition, a CAS panel is obliged to interpret the rules in question in keeping with the perceived intention of the rule maker and not in a way that frustrates it. Having regard not only to the aforementioned definitions, but in particular to the scope and purpose of the UEFA ADR, the term “immediately” from a legal perspective entails that the taking of action must be within a short time at some speed and without intervening time or space and without delay or intervention.
3. Events preventing a club from making the report of the changes of the whereabouts on time that cannot be attributed to Acts of God or force majeure but solely to administrative confusion, are insufficient to relieve such club from its responsibilities to report the change of the whereabouts of its players immediately as “at once” or “instantly”.
4. Even though a CAS panel has full power of review of the disputed facts and law in the exercise of its jurisdiction, the measure of the sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rule can be reviewed only when the sanction is evidently and grossly disproportionate to the offence.
On 26 January 2012 the UEFA Control and Disciplinary Board decided to impose a €25,000 fine on the German football club Bayer 04 Leverkusen (the Club). This decision was upheld by the UEFA Appeals Body on 23 March 2012. The Club was fined for two instances of whereabouts filing failures in September 2011 and in December 2011 violating the UEFA Whereabouts Rules.
The Club did not dispute its failure in December 2011 but dit dispute the whereabouts filing on 23 September 2011. The Club asserted that the absence of of a sick football player was reported by the team doctor minutes before the training in question in the situation that a NADA doping control and an UEFA doping control took place at the same time. The Club Offical’s sick report to UEFA was interupted by the unannounced NADA doping control and therefore more than 1 hour later reported when the UEFA doping controllers had already arrived at the training location.
Hereafter in April 2012 the Club appealed the UEFA decision with the Court of Arbitraton for Sport (CAS). The Club requested the Panel to set aside or to reduce the imposed €25,000 fine on the basis that the Club did not commit the reported whereabouts filing failure on 23 September 2011.
The UEFA contended that the club did not “immediately send updates of all information required on the [whereabouts] form so that it maintained accurate at all times” as required by Article 11 of the Whereabouts Rules. Therefore, the club was “non-compliant” for the purposes of the Whereabouts Rules, as Article 16 provides that “teams are considered to have committed a non-compliance, if they submit late, incomplete or inaccurate team whereabouts, or if one or more of the players are absent without advance notice from a doping control”. The UEFA refutes the Club’s argument that a visit of more than one doping control at the same time should constitute an exceptional circumstance that would exempt the club from its duty to immediately update its whereabouts information.
The Panel finds that the Club has committed a non-compliance of the UEFA ADR, including Exhibit E, by failing to report the changes of the whereabouts of the football player before 12.59 p.m. on Friday 23 September 2011, more than one hour after the player reported that due to sickness he was unable to attend the training.
The Panel does not regard a fine of €25,000 under these circumstances to be unreasonable or disproportionate given the negligence of the club, the amount which the club received for taking part in the UEFA Champions League season 2011/2012 and the fact that the club is a long-standing member of the German Bundesliga.
Therefore the Court of Arbitration for Sport decides on 15 March 2013:
1.) The Appeal filed by Bayer 04 Leverkusen on 2 April 2012 is dismissed.
2.) (…).
3.) (…).
4.) Any other requests, motions or prayers for relief shall be dismissed.
