CAS 2011/A/2604 Fédération Internationale de Football Association (FIFA) v. Confederacão Brasileira de Futebol (CBF), Superior Tribunal de Justiça Desportiva do Futebol (STJD) & Tarcisio France da Silva
Football
Doping (fenproporex)
Jurisdiction of CAS over decisions passed by a justice body which is an integral part of the organisational structure of the national federation
Direct applicability of the FIFA anti-doping rules on professional Brasilian athletes
Use of plastic bottles as container for the samples
Proof of the use of plastic bottles as a cause for the Adverse Analytical Finding
Starting date of the suspension
Credit for the period already served even if such period was not served as provisional suspension
1. The STJD is a justice body which is an integral part of the organisational structure of the CBF, with no legal personality of its own: its independence and autonomy in adjudicating the disputes brought before it does not entail that the STJD is a body which could legally stand alone if the CBF did not exist. The decisions rendered by the STJD, although independently adopted by the STJD, must be considered to be decisions of the CBF. Therefore, the CAS has jurisdiction ratione materiae over decisions rendered by the STJD but does not have jurisdiction rationae personae to hear an appeal against the STJD.
2. A professional athlete registered with the CBF, by his deliberate act of registering, contractually agrees to abide by the statutes and regulations of the CBF. Article 1 para. 2 of the CBF Statutes, then, provides inter alia that all athletes must comply with the rules of FIFA. In addition, Brazilian legislation strengthens the status of international sports rules within the Brazilian sports system. Article 1 para. 1 of Lei Pelé expressly states that official sports practice in Brazil is governed by national and international rules and by sporting practice rules of each type of sport, accepted by the respective national federations. Article 3 para. III of Lei Pelé specifically imposes on athletes practising professional sport the duty to abide by international sports rules, besides Lei Pelé and national sports rules. As a result, international sports rules are directly applicable to Brazilian sport; accordingly, any athlete registered with a Brazilian federation is directly bound by the international rules accepted by that federation, including any provision therein giving jurisdiction to the CAS, as is the case here with doping-related decisions under Article 61 of the Statutes, which entitles FIFA to appeal to the CAS against doping-related decisions adopted by national federations.
3. The relevant provisions of the FIFA ADR provide for the use of collection equipment that complies with the requirements stipulated in the WADA International Standard for Testing; the latter, then, does not set, within the minimum criteria that the sample collection equipment must meet, the fact that it is composed by glass containers.
4. The mere submission that the plastic nature of the bottle containing the sample makes a sabotage theoretically possible, since the bottle could be pierced by a needle, without offering any evidence or making any submission of an actual sabotage of the sample, is not enough to establish, even on a balance of probability, that the use of plastic bottles could reasonably have caused the Adverse Analytical Finding. Indeed, mere speculation regarding a fact is not proof that such fact did actually occur.
5. The period of suspension should start, in principle, as soon as the decision providing for ineligibility is communicated to the athlete concerned. However, substantial delays occurring in the arbitration proceedings, which are not attributable to the athlete, but are caused by the length of the appeals proceedings before the previous instance, the time taken to transmit the complete file of the case to the next instance and the time taken to forward the decision to the International Federation allow a CAS panel to set the starting date of the ineligibility period at an earlier date. A delay of thirteen months in the proceedings is to be considered as substantial.
6. As long as an athlete was not eligible to play for six months after the finding of his commission of an anti-doping rule violation, it would be unfair and result de facto in a total suspension of two years and six months not to give him credit for that period. The fact that such prior period was not served as a provisional suspension is no impediment to that conclusion. Article 53 para. 1 ADR, while providing for the obligation to give credit for periods of provisional suspension, does not exclude (but logically requires) credit for periods of suspension imposed and served on the basis of “final” disciplinary decisions subsequently set aside.
In November 2010 the Brazilian Football Confederation (CBF) has reported an anti-doping rule violation against the football player Tarcisio France da Silva after his A and B samples tested positive for the prohibited substance Fenproporex.
On 7 December 2010 the Disciplinary Commission of the Brazilian High Sports Court for Football (STJD) decided to impose on the Athlete a 1 year period of ineligibility. The Athlete appealed and on 7 April 2011 the STJD decided to reduce the sanction to a 6 month period of ineligibility.
Hereafter in October 2011 the International Football Federation (FIFA) appealed the STJD decision of 7 April 2011 with the Court of Arbitration for Sport (CAS).
FIFA requested the Panel to set aside the STJD decision and to impose a 2 year period of ineligibility on the Athlete. Regarding the Athlete’s anti-doping rule violation and the appropriate sanction FIFA contended that the FIFA Status and Rules are applicable to Brazilian Sport and any that any athlete registered with a Brazilian federation is accordingly bound by the international rules accepted by that federation.
The CBF indicated that it would not participate in the arbitration and that the STJD was the administrative body in cours. The Athlete did not submit any response to the appeal filed by FIFA.
The STJD acknowledged that CAS has jurisdiction over this case (ratione materiae) but asserted that CAS has no jurisdiction over the STJD as party (ratione personae) to these arbitration proceedings.
Considering the relevant Rules the Panel establish that the FIFA appeal is admissible and that CAS has jurisdiction to hear this appeal against the CBF and the Athlete. On the other hand, CAS establish that it does not have jurisdiction rationae personae on the STJD.
In this case the Panel determine that there are two main questions to examine:
1.) the first is whether the Athlete can be found to have committed an anti-doping rule violation;
2.) the second, to be addressed in the event the Athlete is found to have committed an anti-doping rule violation, concerns the sanction to be imposed on him, with respect to its duration and starting date.
The Panel finds that there was no departure from the IST and no actual sabotage of the Athlete’s sample was proven and thereby the Adverse Analytical Finding is confirmed. As a result thereof, the Athlete is responsible of the anti-doping rule violation contemplated by Article 5 ADR. Consequently the Panel finds that a sanction of 2 years must be imposed on the Athlete. Here the Panel considers that there were substantial delays in the proceedings of 13 months not attributed to the Athlete.
Therefore the Court of Arbitration for Sport decides on 4 December 2012:
1.) The CAS has jurisdiction ratione materiae and ratione personae to entertain the appeal of the Fédération Internationale de Football Association (FIFA) in respect of the Confederação Brasileira de Futebol (CBF) and Mr Tarcisio France da Silva, while it has no jurisdiction ratione personae in respect of the Superior Tribunal de Justiça Desportiva do Futebol (STJD).
2.) The appeal filed by the Fédération Internationale de Football Association (FIFA) on 22 December 2011 against the decision taken by the Superior Tribunal de Justiça Desportiva do Futebol of the Confederação Brasileira de Futebol on 7 April 2011 is upheld.
3.) The decision taken by the Superior Tribunal de Justiça Desportiva do Futebol of the Confederação Brasileira de Futebol on 7 April 2011 is set aside.
4.) A suspension of 2 (two) years is imposed on Mr Tarcisio France da Silva commencing on 1 October 2011, with credit given for any period of suspension at that time already served.
(…).
7.) All other prayers for relief are dismissed.
