CAS 2016/A/4434 Fenerbahçe SK v. UEFA, FC Shakhtar Donetsk and Mr. Frederico "Fred" Rodrigues de Paula Santos
Mr. Frederico "Fred" Rodrigues de Paula Santos is a Brazilian football player and member of the Brazililian national team during the Copa Américan competition held in June and July 2015. He is also a member of the Ukrainian football club Shakhtar Donetsk fielded in two matches against the Turkish football club Fenerbahçe SK on 28 July 2015 and on 5 August 2015.
In July 2015 and again in August 2015 the football club Fenerbahçe SK became aware of press reports that the Brazilian football player Frederico “Fred” Rodriques A and B samples had tested positive for the prohibited substance Hydrchlorothiazide as a member of the Brazililian national team during the Copa Américan competition.
In spite of the Athlete’s anti-doping rule violation he was fielded in the 2 matches between Shakhtar Donetsk and Fenerbahçe SK in July and August 2015. As a result Shakhtar won and advanced to the Play-off Round of the UCL 2015/2016 competition, while Fenerbahçe was eliminated from the competition.
Fenerbahçe had filed 2 Protests with UEFA in July and in August 2015 asserting that a provisional suspension should have been imposed on the Athlete and forfeiture of the matches between Shakhtar and Fenerbahçe. However between July 2015 and November 2015 both the UEFA Control, Ethics and Disciplinary Body and the UEFA Appeals Body rejected Fenerbahçe’s Protests.
Finally on 14 December 2015 the South American Football Confederation (CONMEBOL) decided to impose a 1 year period of ineligibility on the Athlete starting backdated on 26 June 2015 with worldwide effect for all types of matches.
Hereafter in February 2016 Fenerbahçe appealed the UEFA Appeals Body decision of 26 November 2015 with the Court of Arbitration of Sport (CAS). Fenerbahçe requested to set aside the UEFA decision of 26 November 2015, to declare the Athlete suspended for UEFA competition and to forfeit the match of 28 July 2015 in the favour of Fenebahçe.
Fenerbahçe contended that a retroactive period of ineligibility must be imposed on the Athlete for his anti-doping rule violation including retroactive disqualification of competitive results. In accordance with the Rules and as a consequence forfeiture of the match should be imposed on Shakhtar because the club knowingly fielded a player in the match who had committed an anti-doping rule violation.
The UEFA and Shakhtar asserted that Shakhtar's actions in fielding the Athlete when he was eligible to play (not having been suspended, provisionally or definitively, either by CONMEBOL or any other football or doping authority in the world) was fully compliant with the applicable rules and regulations.
The UEFA noted that both the Athlete and WADA had already filed an appeal against the CONMEBOL decision and the imposed sanction. Also the UEFA argued that it had no jurisdiction over de Copa Amèrican where the Athlete tested positive which is an entirely CONMEBOL competiton. Further CONMEBOL nor UEFA had ordered a provisional suspension on the Athlete after his A sample tested positive. This was not mandatory in the case of an positive test for a specific substance such as Hydrochlorothiazide. The UEFA rejected Fenerbahçe’s argument that the retroactive or backdated sanction against the Player should have effect on his club’s matches played after the date in question.
The Panel concludes that UEFA is not obliged to cancel or disqualify any competitive results of Shakhtar obtained in the match subject to Fenerbahçe’s First Protest and prior to the date on which the retroactive suspension decision was communicated. Only the competitive results (if any) of the Athlete as an individual (e.g., prizes won) are subject to disqualification or cancellation as a result of the retroactive sanction, but not those of the team.
The Panel dismissed Fenerbahçe’s claim that the match in question should be declared forfeited as a result of a disciplinary measure imposed on Shakhtar for knowingly fielding a player who had committed a doping offense and although UEFA had advised Shakhtar not to field him.
Therefore the Court of Arbitration for Sport decides on 18 January 2017 that:
1.) The appeal filed on 5 February 2016 by Fenerbahçe SK against the decision of the Appeals body of UEFA dated 26 November 2015 is dismissed.
2.) The decision taken by the Appeals Body of UEFA on 26 November 2015 is confirmed.
3.) The costs of the arbitration, to be determined and served on the parties by the CAS Court Office, shall be borne by Appellant.
4.) Fenerbahçe SK shall make contributions in relation to the costs and expenses of this proceeding in the amounts of: four thousand Swiss francs (CHF 4,000) to UEFA; four thousand Swiss francs (CHF 4,000) to FC Shakhtar Donetsk; and twelve thousand Swiss francs (CHF 12,000) to Mr. Frederico "Fred)' Rodrigues de Paula Santos.
