CAS 2018/A/5546 José Paolo Guerrero v. FIFA
CAS 2018/A/5571 WADA v. FIFA & José Paolo Guerrero
CAS 2018/A/5546 José Paolo Guerrero v. Fédération Internationale de Football Association (FIFA) & CAS 2018/A/5571 World Anti-Doping Agency (WADA) v. FIFA & José Paolo Guerrero
- Football
- Doping (cocaine)
- System of reduction of the period of ineligibility
- Principles applicable to the establishment of the source of the prohibited substance
- Reliance on officials as factor in the evaluation of fault or negligence
- Application of the principle of proportionality in the reduction of the period of ineligibility
1. Article 19.3 of the FIFA Anti-Doping Regulations (ADR) provides that an anti-doping rule violation (ADRV) in respect of a non-specified prohibited substance that is banned only in-competition (such as cocaine) shall not be considered intentional if an athlete can establish that the substance was used out-of-competition in a context that was unrelated to sport performance. In order to benefit from an elimination of or further reduction in the period of ineligibility, it is necessary to establish no fault or negligence, or no significant fault or negligence. As provided in the regulatory definitions of these concepts, it is a pre-condition to their possible application to establish the source of the prohibited substance.
2. The following principles apply to the establishment of the source of the prohibited substance: (i) it is for an athlete to establish the source of the prohibited substance, not for the anti-doping organisation to prove an alternative source to that contended for by the athlete; (ii) an athlete has to do so on the balance of probabilities. Evidence establishing that a scenario is possible is not enough to establish the origin of the prohibited substance; (iii) an athlete has to do so with evidence, not speculation; (iv) it is insufficient for an athlete to deny deliberate ingestion of a prohibited substance and, accordingly, to assert that there must be an innocent explanation for its presence in his/her system; and (v) if there are two competing explanations for the presence of the prohibited substance in an athlete’s system, the rejection of one does not oblige (though it may permit) the hearing body to opt for the other. There is always available to the hearing body the conclusion that the other is not proven. For the hearing body in such a situation there are three choices, not just two.
3. A reasonable belief that team officials would, as had been the case in the past, ensure the safety of any food or drink served in designated areas and therefore that an athlete was not risking the entry into his/her body of a prohibited substance, is not a defence to an ADRV nor does it establish that there has been no fault or negligence; but it certainly bears weightily on the evaluation degree of fault.
4. CAS jurisprudence since the coming into effect of the 2015 World Anti-Doping Code (WADC) is clearly hostile to the introduction of proportionality as a means of reducing yet further the period of ineligibility provided for by the WADC. The WADC has been found repeatedly to be proportional in its approach to sanctions, and the question of fault has already been built into its assessment of length of sanction.
In November 2017 the International Football Federation (FIFA) reported an anti-doping rule violation against the Peruvian football player José Paolo Guerrero after his A and B samples tested positive for the prohibited substance Cocaine. The Athlete explained that the positive test was the result of the ingestion of tea containing coca leaves.
On 8 December 2017 the FIFA Disciplinary Committee decided to impose 1 year period of ineligibility on the Athlete for his anti-doping rule violation. The Athlete appealed and on 20 December 2017 the FIFA Appeal Committee decided to reduce the sanction and to impose a 6 month period of ineligibility on the Athlete.
Hereafter in January and in February 2018 both the Athlete and the World Anti-Doping Agency (WADA) appealed the FIFA Appeal Committee decision with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel to set aside and to annul the FIFA decision of 20 December 2017. He argued that he had established on the balance of probabilities that the Cocaine in his body was the result of his ingestion of tea containing coca leaves in the Visitors’ Room in the Swisshotel Lima Peru on 5 October 2017. Because he reasonably assumed that only food and drink compliant with strict team food and beverage protocols would be served in the Visitors’ room, he asserted that he bore No Fault or Negligence and not any period of ineligibility should have been imposed on him at all.
The FIFA stated that the Athlete had established on the balance of probability, as and for the reasons found by the FIFA Disciplinary Committee and Appeal Committee, that the Cocaine in his body was the result of his ingestion of coca leaves tea in the Visitors Room in the Swisshotel Lima Peru on 5 October 2017. The FIFA deemed that the Athlete bore some Fault or Negligence and that the imposed sanction was justified and proportional.
WADA requested the Panel to set aside the FIFA decision of 20 December 2017 and to impose an appropriate sanction on the Athlete. WADA accepted that the Athlete had established that the use of the Cocaine was out-of-competition and unrelated to sport performance. However WADA contended that the Athlete didn’t demonstrate that any tea he consumed in the days before the doping control in fact contained coca leaves or was contaminated therewith. Neither did the Athlete indentify which of the 3 different teas, consumed on different days and in different locations was the source of the positive test.
As accepted by the parties the Panel holds that the Athlete’s ingestion of the prohibited substance was used out-of-competition in a context unrelated to sports performance, the maximum period of ineligibility to which he would be liable is two years.
The Panel accepts that the drinking of coca tea was part of Peruvian culture and that its drinking in Lima, deliberately or inadvertently, would be plausible in a sense that its drinking in Lausanne would not be.
Based on the evidence regarding the possible sources of the prohibited substance the Panel establish that the coca tea drunk in the Peruvian national team’s private dining room in the Swisshotel in Lima, 2 days before the match, indeed was the source of the prohibited substance.
Considering the Athlete’s conduct and his degree of fault in this case the Panel finds that his fault was not significant and concludes that under the FIFA ADR a 14 month period of ineligibility is an appropriate sanction.
The Panel notes that it is conscious of the much quoted legal adage “Hard cases make bad law”, and the Panel cannot be tempted to breach the boundaries of the WADC (or FIFA ADR) because their application in a particular case may bear harshly on a particular individual. Legal certainty is an important principle to depart from the WADC would be destructive of it and involve endless debate as to when in future such departure would be warranted. A trickle could thus become a torrent; and the exceptional mutate into the norm.
Therefore the Court of Arbitration for Sport decides on 30 July 2018 that:
1.) The appeal filed by Mr José Paolo Guerrero against the decision rendered by the FIFA Appeal Committee on 20 December 2017 is dismissed.
2.) The cross-appeal filed by the World Anti-Doping Agency against the decision rendered by the FIFA Appeal Committee on 20 December 2017 is partially upheld.
3.) The decision rendered by the FIFA Appeal Committee on 20 December 2017 is modified as follows:
Mr José Paolo Guerrero is declared ineligible for a period of 14 months for violation of art. 6 of the FIFA Anti-Doping Regulations starting as from the date of notification of this Award. The period of ineligibility already served by Mr José Paolo Guerrero shall be credited against the total period of ineligibility to be served.
4.) The present award is pronounced without costs, except for the CAS Court Office fee of CHF 1,000 (one thousand Swiss Francs) already paid by Mr José Paolo Guerrero and by the World Anti-Doping Agency, which are retained by the CAS.
5.) (…).
6.) All other motions or prayers for relief are dismissed.
