CAS 2017/A/5022 Fédération Internationale de Football Association (FIFA) v. Confederação Brasileira de Futebol (CBF) & Cristiano Lopes
Football
Doping (19-norandrosterone; 19-noretiocholanolone; stanozolol)
Metabolites of a prohibited substance
Intent
Relation between intent and the defence of no fault/negligence or no significant fault/negligence
Admission of the anti-doping rule violation
1. The mere fact that metabolites of prohibited substances were found in an athlete’s sample is sufficient to conclude that an anti-doping rule violation was committed.
2. The definition of “intent” in Article 19.3 of the FIFA Anti-Doping Regulations (ADR) incorporates so-called “indirect intent” or “dolus eventualis”. It follows that in order for the anti-doping rule violation to be committed intentionally, the player i) must have known that there was a significant risk that his/her conduct might constitute or result in an anti-doping rule violation; and ii) manifestly disregarded that risk. Notwithstanding the fact that establishing how the substance entered the athlete’s system is no formal prerequisite in the FIFA ADR, although theoretically, looking at the full spectrum of possibilities and circumstances, an athlete may establish the lack of intent without proving how the substance entered his body, practically it is highly unlikely that an athlete would be able to meet the burden to prove the absence of intent without establishing how the substance entered his body.
3. If an athlete has failed to establish that the anti-doping rule violation was committed unintentionally, it is not necessary to assess whether he/she may have had “No Fault or Negligence” or “No Significant Fault or Negligence” in committing the anti-doping rule violation, as the threshold of establishing that an anti-doping rule violation was not committed intentionally is lower than proving that an athlete had “No (Significant) Fault or Negligence” in committing an anti-doping rule violation. This for example follows from the fact that proof as to how the prohibited substance entered the athlete’s system is a mandatory prerequisite in order to benefit from the fault-related deductions, but is not strictly required in order to prove the absence of intent. Indeed, the conclusion that a violation was committed intentionally excludes the possibility to eliminate the period of ineligibility based on fault-related grounds.
4. As provided for by Article 23.2 and 23.3 FIFA ADR, in case a player admits an anti-doping rule violation before having received notice of a sample collection this may lead to reduction of the period of ineligibility. However, in case a player admits an anti-doping rule violation upon being confronted with the anti-doping rule violation, this may only lead to a reduction of the period of ineligibility upon the approval and at the discretion of both WADA and FIFA. In the absence of any approval from FIFA and WADA in this respect, it is not possible to reduce the period of ineligibility on this basis.
In April 2016 the International Football Federation (FIFA) has reported an anti-doping rule violation against the Brazilian football player Cristiano Lopes after his A and B samples tested positive for the prohibited substances 19-norandrosterone, 19-noretiocholanolone (Nandrolone) and Stanozolol. The Athlete admitted the violation and explained that he used supplements to lose weight and that the substance Stanozolol was administered by way of injection.
1.) On 13 June 2016 the Brazilian High Sports Court for Football (STJD) decided in first instance to impose a 5 month period of ineligibility on the Athlete. Here the Court accepted that the violation was not intentional and that he acted without Significant Fault or Negligence.
2.) Both the Athlete and the Brazilian Doping Control Authority (ABCD) appealed the STJD first instance decision and in the second instance decision of 26 September 2016 the STJD imposed a 2 year period of ineligibility on the Athlete.
3.) Again the Athlete and the ABCD appealed against the second instance decision and on 8 November 2016 the STJD Full Court in the third instance decision confirmed the 2 year period of ineligibility imposed on the Athlete.
Hereafter in March 2017 FIFA appealed the STJD third instance decision of 8 November 2016 with the Court of Arbitration for Sport (CAS). FIFA requested the Panel to set aside the STJD decision of 8 November 2016 and to impose a 4 year period of ineligibility on the Athlete.
FIFA contended that the anti-doping rule violation was established since the Athlete had admitted the violation and had accepted the test results. FIFA rejected the Athlete’s claim that he gave a prompt admission, rejected his explanation how the substances entered his system and that the violation was not intentional. His explanation that the Lipo 6 Black supplement in question was used to reduce his weight is not credible. This supplement as alleged source of the positive test was analysed in the Los Angeles Lab and it did not contain Nandrolone metabolites.
In this proceedings the Athlete failed to file any written submission within the prescribed deadline while the Brazilian Football Confederation (CBF) requested CAS to be excluded from the proceedings. However the Panel rules that the CBF is standing to be sued and properly named as a respondent in this arbitration. Here the Panel holds that the CBF had the responsibility for the doping control in this case. While the STJD may be autonomous, the CBF entrusts its disciplinary power to the STJD which is an integral part of the organizational structure of the CBF.
The Panel has no doubt that the Athlete committed an anti-doping rule violation as it was undisputed between the parties that the prohibited substances were found in the Athlete’s samples. Also undisputed between the parties was that the Lipo 6 Black supplement did not contain Nandrolone metabolites. The analysis of the supplement was unclear whether it was negative for Stanozol metabolites. The Panel deems the Athlete’s previous testimony credible, corroborated by his wife, that the Stanozolol entered the Athlete’s system by way of injection. The Panel dismiss the Athlete’s argument that the Stanozolol was used in order to lose weight and regards that he failed to explain how the Nandrolone metabolites entered his system.
Accordingly the Panel concludes that the Player failed to establish No (Significant) Fault or Negligence nor did he demonstrate that the anti-doping rule violation was not intentional. Consequently the standard period of ineligibility to be imposed on the Player is four years.
Therefore the Court of Arbitration for Sport decides on 28 September 2017 that:
1.) The appeal filed by the Fédération Internationale de Football Association on 6 March 2017 against the decision issued on 8 November 2016 by the Full Court of the Superior Court of Sports Justice is partially upheld.
2.) The decision issued on 8 November 2016 by the Full Court of the Superior Court of Sports Justice is set aside.
3.) A period of ineligibility of four years is imposed on Mr Cristiano Lopes. The four-year period of ineligibility imposed on the Player shall be calculated from 13 June 2016, with a period of 30 days to be credited against the period of ineligibility imposed.
4.) (…).
5.) (…).
6.) (…).
7.) All other and further motions or prayers for relief are dismissed.
