CAS 2011/A/2605 Fédération Internationale de Football Association (FIFA) v. Confederacão Brasileira de Futebol (CBF), Superior Tribunal de Justiça Desportiva do Futebol (STJD) & Mr Vinicius Sarturi Hess
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
Admissibility of an appeal before the entire case file has been received by the appellant
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. The fact that a statement of appeal is lodged before the entire case file has been received by the appellant does not imply its inadmissibility. Nothing in the FIFA system prevents the lodging of an appeal immediately upon receipt of the challenged decision and parts of the case file, or sanctions such “early” appeal with the inadmissibility thereof. However, the rights of the respondent(s) must not be impaired by such an “early” filing of the appeal. They are not impaired if the respondent has been given the possibility to state his case after the filing by the appellant of its appeal brief, lodged upon receipt and consideration of the entire disciplinary file.
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 eleven 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 of the FIFA 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 Vinicius Sarturi Hess after his sample 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 denied the intentional use of the substance, disputed the admissibility of the appeal and argued that it is based on an incomplete case file.
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 11 months not attributed to the Athlete.
Therefore the Court of Arbitration for Sport decides on 1 October 2012 that:
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 Vinicius Sarturi Hess, 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 Vinicius Sarturi Hess 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.
