CAS 2015/A/4184 Jobson Leandro Pereira de Oliveira v. Fédération
Internationale de Football Association (FIFA), award of 25 April 2016 (operative part of 24 March 2016)
Related case:
CAS 2010_A_2307 WADA vs Jobson Leandro Pereira de Oliveira, CBF & STJD
September 14, 2011
Football
Extension of sanction to have worldwide effect under the FIFA DC
Two-stage process
Purpose and ratio of articles 136 et seq. FIFA DC
Scope of review of the underlying decision
Proper citation under article 137(a) FIFA DC
Compliance of a disciplinary decision with the regulations of FIFA
Sanction for second anti-doping rule violation and right to work
1. In extending sanctions to have worldwide effect in accordance with the FIFA Disciplinary Code (FIFA DC), FIFA is required to adopt a two-stage process. First, a doping-related legally binding sanction imposed by another international sports association, national anti-doping organisation or other state body that complies with fundamental legal principles will be automatically adopted by FIFA. Subsequently, as a second and distinct step, FIFA may act to extend the sanction to one that will have a worldwide effect, provided that some requirements of the FIFA DC are met. This second step is not automatic, and will only occur if FIFA explicitly so decides.
2. Articles 136 et seq. FIFA DC must be interpreted in light of their underlying ratio. Those provisions are intended to strike a balance between opposing interests. On the one hand, there is a need to avoid a situation in which a player who has committed a serious offence, such as an anti-doping rule violation, and who has been suspended by a national association, might be able to transfer to another federation and continue to play there. On the other hand, the provisions also seek to protect players by ensuring no automatic extension of a national sanction on a worldwide scale unless certain minimum legal requirements are met. In principle, however, a person who has been found guilty of a serious disciplinary violation should be subject to a global ban; the alternative approach would undermine the effectiveness of a national sanction.
3. In the context of a recognition/extension procedure FIFA’s power to review the underlying decision is limited. Accordingly it is not open to FIFA to review the decision de novo; put differently FIFA may not review the substance of the decision. It is only to be established whether the procedure leading to the underlying decision, as well as to the legality of its content and of the extension of its effects have been fulfilled.
4. An athlete who first refuses to accept documents related to anti-doping proceedings opened against him and later on, despite having agreed to a specific location and time where and when to accept the respective documents, does not show up in the agreed upon location at the agreed upon time, cannot in good faith argue that he was not properly cited in the meaning of article 137(a) FIFA DC. This follows from the legal principle of venire contra factum proprium which provides that where the conduct of one party has induced legitimate expectations in another party, the first party is estopped from changing its course of action to the detriment of the second party.
5. The operative part of a disciplinary decision needs to comply with the regulations of FIFA for it to be extended to have worldwide effect. An appropriate test appears to be to examine whether the act committed by the person sanctioned also violates the regulations of FIFA and whether the sanction does not exceed the sanctions provided for under the regulations of FIFA. However, notwithstanding whether this first test is complied with, it also needs to be examined whether a blatant violation of the FIFA Statutes or regulations occurred, which should lead to the consequence that the sanction cannot be extended to have worldwide effect; for a blatant violation to occur the violation needs to be of a certain gravity and it needs to be proven that such violation indeed occurred.
6. A four-year period of ineligibility imposed on an athlete for a second anti-doping rule violation is rather lenient when taking into account the greater range of sanctions provided for in the WADA Code for a second anti-doping rule violation. Furthermore whereas an athlete has the freedom to choose an occupation, his profession is subjected to certain generally accepted rules, including anti-doping regulations. It is generally accepted in CAS jurisprudence and by the Swiss Federal Tribunal that professional athletes may be suspended for violating anti-doping regulations. Accordingly a four-year period of ineligibility is not an unacceptable limitation of the fundamental freedom to work.
In March 2014 the Saudi Arabian Anti Doping Committee (SAADC) has reported an anti-doping rule violation against the Brazilian football player Jobson Leandro Pereira de Oliveira for his refusal after he was notified of an out-of-competition doping control.
Previously on 14 September 2011 the Athlete was sanctioned by the Court of Arbitration for Sport (CAS) for 2 years for committing an anti-doping rule violation.
The Athlete denied the SAADC allegation and despite his confirmations he failed repeatedly in the receipt of relevant documents nor did he appear on two scheduled hearings of the Saudi Arabian Anti-Doping Disciplinary Panel.
As a result on 16 April 2014 (the Original Decision) a 4 year period of ineligibility was imposed on the Athlete. When appealed in May 2014 the Saudi Arabian Anti-Doping Appeal Panel decided on 27 Augustus 2014 to impose a 8 year period of ineligibility on the Athlete.
In April 2014 and in September 2014 the Saudi Arabian Football Federation (SAFF) informed the International Football Federation (FIFA) and the World Anti-Doping Agency (WADA) about the two sanctions imposed on the Athlete. SAFF provided FIFA a complete case file while the Athlete in his submissions to FIFA denied that he had been formally notified of any anti-doping related proceedings in Saudi Arabia against him.
However on 20 March 2015 WADA requested the Saudi Arabian Anti-Doping Appeal Panel to re-open the case against the Athlete on the basis that he was not effectively notified in March 2014 and that he didn’t had the opportunity to appeal. On 13 April 2015 the Saudi Arabian Anti-Doping Appeal Panel decided to cancel its Decision of 27 August 2014 and the case was referred back to the Saudi Arabian Anti-Doping Disciplinary Panel. This Decision of Cancellation was communicatied in April 2014 to the FIFA Disciplinary Committee, to the Athlete, his Brazillian Club, the CBF, the SAFF and WADA.
The FIFA Disciplinary Committee evaluated the case file against the Athlete and decided on 21 April 2015 to impose a 4 year period of ineligibility on the Athlete with worldwide effect under the FIFA Rules. This FIFA Decision is based on the original Saudi Arabian Disciplinary Decision of 16 April 2014 and it also followed the outcome of any possible appeal lodged against the Original Decision rendered by the by the Saudi Arabian Anti-Doping Disciplinary Panel.
On 7 May 2015 the SAADC informed the Athlete that the Original Decision of the Saudi Arabian Anti-Doping Disciplinary Panel of 16 April 2014 was reinstated and in force. The SAADC rejected the assumptions of the Athlete and WADA that he was not effectively notified in March 2014 and that he didn’t had the opportunity to appeal.
In April 2015 the Athlete filed an appeal against the FIFA Disciplinary Committee Decision of 21 April 2015 and in May 2015 the Athlete also appealed with CAS against the Saudi Original Decision of 16 April 2014. However on 28 May 2015 the FIFA Appeal Committee dismissed the Athlete’s appeal and confirmed the FIFA Decision of 21 April 2015. In August 2015 the Athlete withdrew his appeal with CAS due to CAS had no jurisdiction.
Hereafter in August 2015 the Athlete filed a new appeal with CAS against the FIFA Appeal Committee Decision of 28 May 2015.
The Player argued that the FIFA Decision of 21 April 2015 and the FIFA Appeal Decision of 28 May 2015 are based on the wrong premise that the subject matter is whether the original Saudi Disciplinary Decision of 16 April 2014 shall be extended to have worldwide effect. He argued that neither the annulled Saudi Appeal Decision nor the original Saudi Disciplinary Decision comply with the FIFA Rules.
FIFA rejected the Athlete’s arguments and holds that the original Saudi Disciplinary Decision of 16 April 2014 was valid and reinstated when the Saudi Appeal Decision hereafter was annulled. Also the FIFA Disciplinary Decision of 21 April 2015 was clear, in accordance with the FIFA Rules and confirmed by the FIFA Appeal Committee on 28 May 2015.
The CAS Panel notes that the main issues to be resolved are:
1.) Which decision is to be taken as the basis for deciding whether the sanction imposed should be extended to have worldwide effect?
2. )What is the scope of review to be applied by FIFA in the context of article 137 of the FIFA Disciplinary Code? In this regard the Panel considers:
- a) The relevant rules
- b) The purpose and ratio of the relevant rules
- c) The scope of review
3.) Should the relevant decision be extended to have worldwide effect? In this regard the Panel addresses whether:
- a) Has the Player been cited properly?
- b) Did the Player have the opportunity to state his case?
- c) Has the relevant decision been communicated properly?
- d) Does the relevant decision comply with the regulations of FIFA?
- e) Would extending the sanction conflict with public order and accepted standards of behaviour?
Based on the main issues and after having taken into due consideration both the regulations applicable and all the evidence produced and all arguments submitted, the Panel concludes that:
i.) The Original Saudi Disciplinay Decision of 16 April 2014 is to be taken as the basis for deciding whether the sanction imposed should be extended to have worldwide effect.
ii.) The scope of review to be applied by the Panel is limited to ascertaining that the conditions of article 137 of the FIFA Disciplinary Code have been complied.
iii.) The Original Saudi Disciplinay Decision of 16 April 2014 shall be extended to have worldwide effect.
Therefore the Court of Arbitration for Sport decides on 25 April 2016 that:
1.) The appeal filed by Mr Jobson Leandro Pereira de Oliveira on 17 August 2015 against the Decision issued on 28 May 2015 by the Chairman of the FIFA Appeal Committee is dismissed.
2.) The Decision issued on 28 May 2015 by the Chairman of the FIFA Appeal Committee is confirmed.
(…)
5.) All other motions or prayers for relief are dismissed.
