CAS 2011/A/2562 Fédération Internationale de Football Association (FIFA) v. Federación Venezolona de Fútbol (FVF) & José Javier Villafraz Quintero
Football
Doping (modafinil)
Hierarchy of norms and exceptions to the principle
FIFA Anti-Doping Regulations as lex specialis for appeals regarding doping related issues
Scope of the appeal
Power of review of the International Federation over decisions taken at national level
Substantial delay
1. It follows from the principle of hierarchy of norms that rules and resolutions enacted by an association must be in compliance with the highest regulatory framework, i.e. the Statutes of the association. In case of contradiction between lower ranking norms and the Statutes it is the latter that take precedence. However, there are also exceptions to the principle of hierarchy of norms. One of them is a – certain – standing practice by the respective organs of the association. Obviously the threshold for such a deviating standing practice should not be set too low, because otherwise Statutes would lose their status as supreme and predominant rules of an association.
2. Doping cases within FIFA are on a constant basis handled according on the basis of the FIFA Anti-Doping Regulations. This happens even with the knowledge of the supreme organ of FIFA, the General Assembly, since the latter is not only competent to decide on amendments of the Statutes, but also enact the FIFA ADR. In view of all of this, FIFA for its appeals regarding doping related issues can rely on the provisions in the FIFA ADR, which constitutes a proper lex specialis.
3. When the appealed decision confirms (or modifies) the original decision, after a review by the same judging authority, it is that latter decision that forms the basis of any appeal and the receipt of which that starts deadlines running. This is different from two separate judging authorities (even where they are both constituted under one governing body or federation) where the second hears an appeal by a party from the decision of the first and often annuls, confirms or replaces the decision of the first judging body.
4. The role of an International Federation is to ensure that the national associations and federations are properly complying with its regulations, so it should “step in” only after all appeals or reviews at a national level are complete. The final decision (the appealed decision) of a national body is final and binding upon an athlete at national level only. It cannot be right to state that an internal review could have the effect of making a decision final and binding upon the International Federation.
5. 22 months from the sample date to a final hearing constitute a “substantial delay” for an adverse finding where the B sample had not been requested, the infraction itself not contested nor any arguments regarding fault or negligence advanced.
On 13 January 2011 the Consejo de Honor of the Venezuelan Football Federation (FVF) decided to impose a fine and a 1 year period of ineligibility on the football player José Javier Villafraz Quintero after he tested positive for the prohibited substance Modafinil. The Athlete appealed but on 22 June 2011 the FVF Consejo de Honor decided to uphold the decision of 13 January 2011.
Hereafter in September 2011 the International Football Federation (FIFA) appealed the FVF decision of 22 June 2011 with the Court of Arbitration for Sport.
FIFA requested the Panel to set aside the FVF decision of 22 June 2011 and to impose a 2 year period of ineligibility on the Athlete. FIFA contended that the Athlete failed to produce any convincing evidence on how the prohibited substance entered his body. The Athlete had simply alleged that he felt unwell and took some medicine. The team doctor and physiotherapist of the Athlete’s club have both denied providing the Athlete with any medication containing Modafinil. The Athlete has also failed to provide any proof that the other medications he had allegedly taken were contaminated with a prohibited substance. The Athlete’s arguments therefore were pure speculations which were not substantiated with any proof whatsoever.
The Athlete and the FVF requested the Panel to dismiss the FIFA appeal and to confirm the FVF decision of 22 June 2011. The Athlete did not contest the violation itself but challenged the admissibility of the FIFA Appeal because it was filed after the deadline to appeal had expired as stipulated in the applicable FIFA Rules.
The Panel notes a potentional conflict between the FIFA Statutes and the FIFA ADR since both sources of regulation are in contradiction in respect of the time limit to appeal. Nevertheless the Panel establish that the appeal was admissible and been brought by FIFA expressly under article 62 par. 4 of the FIFA ADR. In the Panel’s opinion that was the most appropriate route and it constitutes a proper lex specialis for doping related issues. Further the Panel determine that only when it was in possession of the complete case file FIFA was in the position it could file its appeal with CAS in September 2011 for a de novo hearing.
The Panel notes that it is uncontended that the Athlete committed the anti-doping offence when the Laboratory confirmed the presence of the substance Modafinil in the urine sample. Accordingly the Panel finds that the Athlete committed an anti-doping rule violation under the FIFA ADR without grounds for reducing the standard 2 year period of ineligibility in this case. Since there were substantial delays in the proceeding not attributed to the Athlete, the Panel deems that the sanction wil start on the date of the sample collection, i.e. on 23 May 2010.
Therefore the Court of Arbitration for Sport decides on 28 August 2012 that:
1.) The appeal filed by Fédération Internationale de Football Association on 7 September 2011 against the decision of the Consejo de Honor of Federación Venezolona de Fútbol dated 22 June 2011 is allowed.
2.) Mr José Javier Villafraz Quintero is hereby sanctioned with a two year period of ineligibility starting on 23 May 2010 and therefore expiring on 22 May 2012.
(…)
5.) All other or further claims are dismissed.
