CAS 2017/A/5061 Samir Nasri v. Union des Associations Européennes de Football (UEFA)
- Football
- Doping (intravenous infusion)
- Criteria to fulfill when administering intravenous infusion
- Need of a qualified acute medical condition in order for a
- TUE to be granted
- Individual responsibility of the athlete
- Conditions for granting a retroactive TUE
1. The WADA Therapeutic Use Exemption (TUE) Physician Guidelines on Intravenous Infusions or Injections (July 2016 version), under part 3, require that when an intravenous infusion is administered, four criteria should be fulfilled: (i) a “clearly defined diagnosis”, (ii) “supportive evidence that no permitted alternative treatment” was available, (iii) that the treatment was “ordered by a physician and administered by qualified medical personnel in an appropriate medical setting”, and finally (iv) that “adequate medical records” be kept.
2. A TUE may be granted only if the athlete can show that the prohibited method was needed to treat an “acute medical condition”. The latter must have been of a kind that the non-administration of the prohibited method would have led to “a significant impairment to health” of the athlete.
3. Given that, according to Article 2.01 b i) UEFA Anti-Doping Regulations (ADR), it is the responsibility of the athlete that no prohibited method is used, s/he cannot simply rely on the decision taken by a medical doctor to take an intravenous infusion, especially if the doctor is unknown to him/her and has no doping-related experience.
4. According to Article 4.3 of the WADA International Standards for Therapeutic Use Exemptions (ISTUE), a retroactive TUE may only be granted if either (a) “an emergency treatment or treatment of an acute medical condition was necessary” or (b) “due to other circumstances, there was insufficient time or opportunity for the Athlete to submit” a TUE application. The athlete’s intent or even a necessity to fly back to Europe three or four days later does not constitute circumstances which would have left insufficient time to apply for a TUE, in the sense of Article 4.3 b ISTUE.
During Christmas 2016 in Los Angeles, USA, the French football player Samir Nasri suffered from fever, vomiting and diarrhea. As treatment a local doctor prescribed an intravenous infusion of a sodium chloride solution. The Athlete recovered but in the meantime, it had become known through social media and traditional media that the Athlete had received an intravenous infusion of 500 ml on 26 December 2016. The Athlete confirmed to his club Sevilla FC that he had taken two infusions of no more than 50 ml each in an interval of more than 6 hours.
In January 2017 the doctor of Sevilla FC applied for a retroactive TUE for the Athlete’s intravenous infusion on 26 December 2016. However this request was rejected by the TUE Committee of UEFA on 7 February 2017. Also in March 2017 the TUE Committee of WADA declinded the Athlete’s request for Review.
Hereafter in March 2017 the Athlete appealed the UEFA TUE Committee decision of 7 February 2017 with the Court of Arbitration for Sport (CAS). Due to the UEFA Control, Ethics and Disciplinary Body had initiated anti-doping proceedings against the Athlete requested in April 2017 to suspend these proceedings until a final decision of CAS in this dispute about the TUE.
The Athlete filed medical evidence in his defence, requested the CAS Panel to set aside the decision of 7 September and to approve the requested TUE retroactively. The UEFA contended that the Athlete violated the UEFA ADR and that the TUE Committee rightfully refused the Athlete’s TUE application as he used the prohibited method of an intravenous infusion.
The Panel thoroughly considered the submissions of the Parties, the written and oral testimonies as well as the explanations provided by the Athlete at the hearing. The Panel finds that the Athlete failed to establish, by the balance of probability, that the cumulative conditions for obtaining a retroactive TUE for the intravenous infusion of 500 ml administered an 26 December 2016 are fulfilled.
No medical evidence provided, in particular but not limited to, by the local doctor’s medical report indicates an acute medical condition or even an emergency situation where no reasonable alternative treatment was available. Due to his responsibility as an athlete, the Athlete could not leave the decision to administer an intravenous infusion to the local doctor but he was the one to decide about the treatment.
The Panel acknowledges, however, that, in the afternoon of 26 December 2016, the Athlete was in an unfortunate situation: family holidays abroad over Christmas time, sick in a hotel room, no medical personnel experienced in doping-related matters around. In his statement at the hearing, which the Panel considers credible and compelling, he explained his situation and conceded that he may have taken wrong decisions.
However, according to Article 4.1 and 4.3 ISTUE, for the issue of whether or not a retroactive TUE should be granted, considerations concerning intent or the degree of negligence are irrelevant. The Athlete was under the strict obligation not to receive an intravenous infusion of 500 ml without a present TUE and, though an experienced professional player, did not respect that prohibition.
Therefore the Court of Arbitration for Sport decides on 15 December 2017 that:
1.) The appeal filed by Mr Samir Nasri on 31 March 2017 against the decision of the UEFA TUE Committee of 7 February 2017 is dismissed.
2.) The decision issued by the UEFA TUE Committee on 7 February 2017 is upheld.
(…)
5.) All other motions or prayers for relief are dismissed.
