CAS 2011/A/2594 Ricardo Jorge Cecília Batista v. Portuguese Football Federation (PFF)
Football
Doping (prednisolone)
CAS jurisdiction
Regularity of the disciplinary procedure (de novo hearing)
Burden of proof regarding a reduction of a sanction for doping
1. As a team member of a national football club, a player is registered at the national federation and therefore obliged to abide by the federation’s statutes and consequently the federation’s Anti-Doping Regulations (ADR) and the applicable law according to which appeals against decisions rendered by the sports judicial bodies are referred to the Court of Arbitration for Sport. A player’s registration at the national federation also subjects him to the FIFA Statutes. In the context of the relationship between clubs, national federations and international federations, the organization lower in the hierarchy joins the higher one as member and thereby accepts the latter’s “offer” to arbitrate”. As a FIFA member and a body subordinated to FIFA, a national football federation has subjected any final and binding decisions issued by its bodies to appeals pursuant to the FIFA Statutes. Therefore, it cannot be appealed to any higher sports body within the country and an appeal may be filed before the CAS.
2. Art. R57 of the CAS Code grants a CAS panel full power to review the facts and the law. Therefore, any prejudice which a player suffered as a result of a delayed decision rendered by a disciplinary body is cured by virtue of the appeal to the CAS, which grants the player the right to file fresh arguments, facts and laws. In any case, any prejudice suffered or right infringed at the first instance body level is cured by virtue of the CAS hearing de novo.
3. According to the applicable regulations regarding specified substances, once it is not in dispute that a banned substance was found in a player’s body, the burden of proof shifts to the player to adduce evidence which would support the reduction of the sanctions imposed by the regulations. In order to benefit from such reduction, the player shall prove (i) how the banned substance entered his body or came to his possession to the comfortable satisfaction of the hearing panel; (ii) that he had no intention of enhancing his performance; and (iii) that he had no intention of masking the use of a performance enhancing substance. Those requirements are cumulative.
In March 2011 the Anti-Doping Authority Portugal (ADoP) has reported an anti-doping rule violation against the football player Ricardo Jorge Cecília Batista after his A and B samples tested positive for the prohibited substance Prednisolone. As a result the Disciplinary Committee of the Portuguese Football Federation (FPF) decided on 25 July 2011 to impose a 2 year period of ineligibility on the Athlete.
The Athlete appealed and the FPF Council of Justice decided on 8 September 2011 to uphold the FPF first instance decision.
Hereafter in October 2011 the Athlete appealed the FPF Coucil of Justice decision with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel to set aside the decision of 8 September 2011 and argued that disciplinary procedures were violated and hence invalid. The FPF contended that CAS has no jurisdiction and rejected the arguments of the Athlete.
The Sole Arbitrator establish that CAS has jurisdiction in this case and holds that it is not in dispute that the Athlete committed an anti-doping offence after the ADoP analysis showed the presence of Prednisolone in his body. The Arbitrator considers that the Athlete´s appeal is purely based on the rightful sanction which ought to be imposed and on the alleged invalidity of the Decision due to procedural irregularities committed at the Disciplinary Committee and Council of Justice level.
The Sole Arbitrator dismiss the Athlete's arguments regarding the alleged invalidity of the disciplinary procedure and regarding the violation of the adversary system. Regarding the error of fact committed by the Council of Justice the Arbitrator finds that the Athlete failed to produce evidence in support of this matter. Further the Sole Arbitrator deems that the Athlete failed to establish how the substance entered his system and failed to establish that the violation was not intentional. Consequently the Arbitrator concludes that the imposed sanction of 2 years is proportional.
Therefore the Court of Arbitration for Sport decides on 11 April 2012:
1.) The Court of Arbitration for Sport has jurisdiction to decide the appeal filed by Mr. Ricardo Jorge Cecília Batista against the decision dated 8 September 2011 issued by the Council of Justice of the Portuguese Football Federation.
2.) The appeal filed by Mr. Ricardo Jorge Cecília Batista against the decision dated 8 September 2011 issued by the Council of Justice of the Portuguese Football Federation is dismissed.
3.) The Council of Justice of the Portuguese Football Federation decision dated 8 September 2011 is fully upheld.
4.) Mr. Ricardo Jorge Cecília Batista is suspended for a period of two (2) years with effect from the date of this award, deducting the period of suspension already served since 7 April 2011.
(…)
7.) All other and further claims or prayers for relief are dismissed.
