CAS 2017/A/5144 Fédération Internationale de Football Association (FIFA) v. Confederación Sudamericana de Fútbol (CONMEBOL) & José Angulo Caicedo
Football
Doping (cocaine and metabolites)
FIFA right of appeal
Applicable law
Assessment of the period of ineligibility
1. Art. 75 para. 7 of the CONMEBOL Disciplinary Regulations does not address appellants who have not been parties in the proceedings conducted before the Disciplinary Tribunal of CONMEBOL. Instead, the provision is only addressed to “the interested parties” in those proceedings. FIFA’s right of appeal constitutes a different and separate way of challenge of Anti-Doping decisions aimed at guaranteeing that international Anti-Doping standards are always respected at the international level (international competitions and/or international players), and that an equal treatment is granted by the disciplinary bodies to all the members of the football family. For this reason, FIFA’s right of appeal is not subjected to the ordinary legal requirements that may be established at the national or confederative level for the parties of the disciplinary proceedings, but to the general requirements and conditions established in FIFA’s own regulations (i.e. the FIFA Anti-Doping Regulations, ADR).
2. FIFA ADR provides for a set of provisions that are intended to guarantee that its anti-doping regulations will always prevail over any other anti-doping regime, either by its direct application by the adjudicating body or by the exercise of FIFA’s right of appeal against anti-doping decisions in front of CAS, that would be ultimately subjected to the FIFA regulations. With regard to the CONMEBOL Anti-Doping Regulations (ADR), in line with the principle of hierarchy of rules, these regulations also seek (or at least should seek) guaranteeing that the standards established by the FIFA ADR are always respected. Therefore, all potential inconsistencies existing between the regulations of CONMEBOL and those of FIFA on anti-doping matters must be solved in favor of FIFA regulations, that guarantee a uniform fight against doping and an equal treatment of all the football players with regard to anti-doping rule violations. This solution is the most respectful with the principle of hierarchy of laws that is inherent to the lex sportiva.
3. The burden of proof lies on the player to demonstrate that his/her anti-doping rule violation was not intentional or that (s)he acted with No Fault or Negligence or Non-Significant Fault if (s)he wants to benefit from a reduction of the 4-year period of ineligibility. If the player could not establish on a balance of probability that (s)he unintentionally committed the anti-doping violation and in addition, failed to establish that (s)he consumed cocaine in a recreational / social context unrelated to sport performance that would qualify for Non-Significant Fault, this, far from justifying a reduction of the period of suspension, shows the athlete’s fault which prevents any reduction of the period of suspension provided under the relevant applicable regulations.
In August 2016 the South American Football Confederation (CONMEBOL) has reported an anti-doping rule violation against the Ecuadorian football player José Angulo Caicedo after his A and B samples tested positive for the prohibited substance Cocaine. Consequently the CONMEBOL Disciplinary Tribunal decided on 3 April 2017 to impose a fine and a 1 year period of ineligibility on the Athlete.
Hereafter in May 2017 the International Football Federation (FIFA) appealed the CONMEBOL decision with the Court of Arbitration for Sport (CAS). FIFA requested the Panel to set aside the Decision of 3 April 2017 and to impose a 4 year period of ineligibility on the Athlete.
FIFA contended that in First Instance the Athlete had admitted that the Cocaine had entered his system within 24 hours before the match. Howevere he failed to demonstrate that the violation was not intentional nor how the substance had entered his system. FIFA rejected the Athlete’s explanation that he inadvertently ingested cocaine by drinking out of a water bottle on the day of the match in which his brother had put some cocaine. FIFA held that this version of the facts is not credible in itself and is also indeed in contradiction with the scientific conclusions made by experts of the concentrations of the prohibited substances found in the Athlete’s sample.
CONMEBOL argued that its Disciplinary Bodies are independent and have autonomy to decide and apply their own rules. In particular, the Disciplinary bodies of CONMEBOL can only apply the FIFA Regulations when there is an absence of specific provisions. Otherwise not only they have to apply the rules of CONMEBOL, the Panel had to render a decision in this case in accordance with the regulations of CONMEBOL.
The Athlete asserted that FIFA had failed to request the grounds of the Appealed Decision and, thus, the appeal is not admissible. Both the CONMEBOL ADR and the CONMEBOL DR require that the grounds of the relevant decision are requested within the given deadline (art. 75.7 of the CONMEBOL DR), before filing an appeal.
The Panel holds that the FIFA appeal is admissible and filed in accordance with FIFA Rules. The present appeal must be adjudicated in accordance with the FIFA Regulations, and in particular the FIFA ADR. Additionally, the Panel can also take into account the provisions of the CONMEBOL ADR that are not in conflict with the FIFA ADR. In addition, pursuant to art. 57, para. 2 of the FIFA Statutes, Swiss law will also be applied where necessary on a subsidiary basis.
The Panel finds to its comfortable satisfaction that the presence had been established of a prohibited substance in the Athlete samples and accordingly that he had committed an anti-doping rule violation.
The Panel considered the Athlete’s version of the facts and finds that there are multiple inconsistencies in his story and not supported by the record.
The Panel deems that the Athlete failed to establish on a balance of probability how the substance entered his system, that the consumption was not intentional and to demonstrate that, ultimately, he bears no fault or negligence, or no significant fault or negligence. As a result, the Panel considers that there are no grounds to eliminate or reduce the sanction. Since there were delays in the proceedings not attributed to the Athlete the Panel holds that the period of ineligibility starts on the date of the sample collection, i.e. on 20 July 2016.
Therefore the Court of Arbitration for Sport decides on 18 December 2017 that:
1.) The appeal filed by the Fédération Internationale de Football Association on 17 May 2017 is partially upheld.
2.) The Decision passed on 3 April 2017 by the Tribunal de Disciplina of CONMEBOL is set aside.
3.) The period of ineligibility of Mr José Angulo Caicedo is four years starting on 20 July 2016, date of the sample collection.
4.) All individual results obtained by Mr José Angulo Caicedo as from 20 July 2016 are disqualified.
5.) (…).
6.) (…).
7.) Any other motions or prayers for relief are rejected.
