CAS 2010/A/2307 World Anti-Doping Agency (WADA) v. Jobson Leandro Pereira de Oliveira, Confederação Brasileira de Futebol (CBF) & Superior Tribunal de Justiça Desportiva (STJD)
- Football
- Doping (cocaine)
- CAS Jurisdiction ratione personae over the STJD
- CAS Jurisdiction ratione personae over any athlete registered with a Brazilian federation
- Impossibility to re-classify a substance
- Standard of utmost care
- Player’s age and degree of experience
- Commencement of the suspension period
1. The STJD is a justice body which is an integral part of the organizational structure of the CBF, with no legal personality of its own. At least for international purposes the decisions of the STJD, although independently reached, must be considered to be the decisions of the CBF. As a result, the STJD has no autonomous legal personality and may not be considered as Respondent on its own in a CAS appeal arbitration concerning one of its rulings. Consequently, the CAS does not have jurisdiction ratione personae over the STJD.
2. According to Brazilian law, 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. In particular, athletes practicing professional sport have the duty to abide by international sports rules. As a result of these provisions and in accordance with CAS jurisprudence, international sports rules are directly applicable to Brazilian sport. Hence, 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.
3. Under the FIFA Anti-Doping Regulations (ADR), the inclusion of a substance in the Prohibited List and its classification is final. Thus, a panel is bound by the fact that cocaine was classified as a prohibited substance and it cannot re-classify it as a specified substance.
4. In accordance with the applicable strict standard of utmost care, except only in the most “truly exceptional cases”, the presence of prohibited substances in an athlete’s system constitutes a failure in fulfilling that duty. A cocaine-dependency syndrome is not specific and decisive, and cannot be considered an exceptional circumstance which is so “truly exceptional” as to explain a player’s departure from the expected standard of behavior.
5. The age and experience of an athlete must be considered in the context of all the relevant circumstances in order to determine whether they might mitigate the athlete’s fault or negligence.
6. Four months after the decision was rendered appears to be a reasonable span of time to hear a doping case. In case of an adjudicating process of almost twenty months since the date of the sample collection, with this duration not attributable to the player, it is fair to apply the principle set forth in Article 53 (2) of the FIFA ADR and to start the period of ineligibility at an earlier date than the day of notification of the award.
On 6 May 2010 the Brazilian football Superior Court of Sport Justice (STJD) decided by majority to impose a reduced 6 month period of ineligibility on the football player Jobson Leandro Pereira de Oliveira after he twice had tested positive for the prohibited substance Cocaine in December 2009.
Hereafter in December 2010 the World Anti-Doping Agency (WADA) appealed the STJD Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of inelgibility on the Athlete.
The Athlete asserted with evidence that he bore no significant fault or negligence because, at the relevant time, he was allegedly suffering from an irresistible coercion caused by his Cocaine-dependence syndrome that did not allow him to control the use of Cocaine:
Preliminary the Panel establishes that it does have jurisdiction ratione personae over WADA, the Athlete, the CBS and the Appealed Decision. The Panel holds that it does not have jurisdiction personae over the STJD.
In this case the Panel assessed and addressed the following issues:
- a.) Has the Athlete committed an anti-doping rule violation?
- b.) If the answer to question a) is affirmative, what would be the appropriate sanction to be imposed on the Athlete?
- c.) What would be the legal consequences of the Panel’s findings?
The Panel finds that the elements offered by the Athlete are not sufficient to establish, on the balance of probability, that he bore no ‘significant fault or negligence’. The Panel does not find the evidence presented by the Athlete to be specific and decisive to explain the Athlete’s departure from the expected standard of behavior.
Moreover, the Panel is not convinced that the circumstances of the present case are ‘truly exceptional’ so as to reduce the Athlete’s responsibility. In fact, the Panel finds that the Athlete’s degree of fault or negligence, viewed in the totality of the circumstances, is clearly ‘significant’ in relation to the anti-doping rule violation.
The Panel has found that article 47 (1) FIFA ADR is not applicable to the case at hand, as Cocaine is not considered a ‘specified substance’ under the FIFA ADR. Furthermore, the Panel has found that the Athlete's degree of fault or negligence, viewed in the totality of the circumstances, was clearly ‘significant’ in relation to the anti-doping rule violation.
In addition, the Panel has found that imposing a two-year period of ineligibility on the Athlete is compatible with international law and human rights requirements.
Therefore the Court of Arbitration for Sport decides on 14 September 2011:
1.) The CAS has jurisdiction both ratione materiae and ratione personae to entertain the appeal of the World Anti-Doping Agency (WADA) against the Confederação Brasileira de Futebol (CBF) and Mr Jobson Leandro Pereira de Oliveira, while it has no jurisdiction ratione personae in respect of the Superior Tribunal de Justiça Desportiva (STJD).
2.) The Appeal of WADA against the decision of the STJD dated 6 May 2010 of the STJD is upheld.
3.) The decision dated 6 May 2010 of the STJD is set aside.
4.) Mr Jobson Leandro Pereira de Oliveira is suspended from 6 September 2010 for a period of two years, less the period of suspension of six months already served.
(…)
7.) All other prayers for relief are dismissed.
