CAS 2017/A/5139 World Anti-Doping Agency (WADA) v. Confederação Brasileira de Futebol (CBF) & Olivio Aparecido da Costa
Football
Doping (testosterone)
Standing to be sued
Strict liability
Balance of probability standard
Athletes’ personal duty in connection with anti-doping
Constant interpretation of anti-doping rules
1. For international purposes, the decisions of a national sport tribunal, although independently reached, must be considered to be the decisions of the national federation. In other words, the national federation is to be considered responsible vis-à-vis other international sports bodies for the decisions rendered by the national sports tribunal. This is exactly the same situation as in public international law where States are internationally liable for decisions rendered by their courts, even if under their constitutional law the judiciary bodies are independent from the executive branch.
2. According to art. 6 of the FIFA Anti-Doping Regulations, it is each player’s personal duty to ensure that no prohibited substance enters his/her body. Accordingly, it is not necessary that intent, fault, negligence or knowing use on one player’s part be demonstrated in order to establish an anti-doping rule violation under art. 6 of said regulations.
3. The balance of probability standard entails that an athlete has the burden of persuading a panel that the occurrence of the circumstances s/he relies on is more probable than their non-occurrence or more probable than the other possible explanations of positive testing.
4. Athletes bear a personal reasonability to ensure that no prohibited substance reaches their system. Athletes cannot shift their personal duty onto their doctors, regardless of whether a doctor prescribed such substance.
5. In spite of the fact that some athletes may have had limited education, it should be noted that the anti-doping rules cannot be interpreted differently based on different levels of education or cultural background. This would defeat the whole purpose of having a consistent and fair anti-doping system.
On 10 October 2016 the Brazilian High Sports Court for Football (STJD) decided to impose a 1 year period of ineligibility on the football player Olivio Aparecido Da Costa after his sample tested positive for the prohibited substances 3α-hydroxy-5α-androstan-17-one (androsterone); 5α-androstane-3α,17β-diol; Etiocholanolone; and Testosterone.
Here the Athlete stated that the positive test result was caused by the prescribed Androgel product that contained testosterone which he had used as treatment for his condition.
Hereafter in May 2017 the World Anti-Doping Agency (WADA) appealed the Brazilian decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to annul the STJD decision of 10 October 2016 and to impose a 4 year period of ineligibility on the Athlete.
WADA argued that the Athlete failed to establish with evidence that he suffered from a medical condition and he failed to demonstrate the origin of the product. He also failed to show that the violation was not intentional, nor did he provide additional evidence to substantiate his version of the events.
The Brazilian Football Confederation (CBF) rejected that it was a party in the disciplinary procedure before the STJD and therefore not be a part of the proceedings before CAS.
Contrary to their arguments the Sole Arbitrator finds that the CBF is legitimately a party to the proceedings.
The Athlete denied the intentional use of the prohibited substance and argued there were grounds for No Significant Fault or Negligence. He contended that the sanction of 1 year was valid and that the positive test result was caused by the prescribed Androgel he had used about 3 weeks before the doping test. He stated that he was unaware that the Androgel contained Testosterone, nor that he knew what Testosterone was due to lack of anti-doping education.
The Sole Arbitrator holds that the evidence given by the Athlete was inconsistent and he attempted to shift his responsibility onto the doctors that treated him as an unacceptable defence. The Athlete failed to demonstrate that he took the utmost care when using his libido treatment, nor that he acted unintentionally. Further it is clear that he manifestly disregarded the risk of using the Androgel.
Therefore the Court of Arbitration for Sport decides on 7 December 2017 that:
1.) The Appeal filed on May 11, 2017 by the World Anti-Doping Agency, is upheld.
2.) The Decision rendered by the First Disciplinary Committee of the Superior Tribunal de Justicia Desportiva, on October 10, 2016 is set aside.
3.) Mr. Olivio Apareicido Da Costa is sanctioned with a period of ineligibility of four (4) years commencing on the date of this Award, reduced by any suspension time already served by the Athlete pursuant to the STJD's decision.
4.) All of Mr. Olivio Apareicido Da Costa's individual competitive results from and including 11 May, 2016 are therefore disqualified, with all resulting consequences including forfeiture of medals, points and prizes.
5.) The costs of these proceedings, to be determined and served by the CAS Court Office by separate letter to the Parties, shall be equally borne by the Confederação Brasileira de Futebol and Mr. Olivio Aparecido Da Costa.
6.) The Confederação Brasileira de Futebol and Mr. Olivio Aparecido Da Costa are ordered to pay to the World Anti-Doping Agency, in equal shares, an amount of CHF 8'000 (eight thousand Swiss Francs), i.e. CHF 4'000 (four thousand Swiss Francs) by the Confederação Brasileira de Futebol and CHF 4'000 (four thousand Swiss Francs) by Mr. Olivio Aparecido Da Costa, as contribution towards the legal fees and expenses incurred by the World Anti-Doping Agency in connection with this arbitration procedure.
7.) All other motions or prayers for relief are rejected.
