CAS 2008/A/1551 World Anti-Doping Agency (WADA) v. Comitato Olimpico Nazionale Italiano (CONI), Federazione Italiana Giuoco Calcio (FIGC) & Nicolò Cherubin
- Football
- Doping (refusal or failure to submit to sample collection)
- Time and form of notification of sample collection
There is no refusal or failure to submit to a doping control without compelling justification if it cannot been established when and in what form a player was made aware that s/he was required to attend for doping testing. In this respect, there is no violation of the WADC if it cannot be established that the player was told or directed not to leave the anti-doping station in a manner which enabled him to understand that s/he would be in breach of his/her duties if s/he did so.
In December 2007 the Italian Football Federation (FIGC) reported an anti-doping rule violation against the football player Nicolò Cherubin for his refusal or failure to submit to sample collection during a match on 31 October 2007.
The Doping Control Officers (DCOs) reported that the Athlete attended the Doping Control Station. Because the Athlete wanted to have a shower he left the testing station room. The DCO attempted to follow the Athlete and lost sight of him for about half an hour because he could not enter the closed changing room. Thereupon the Athlete returned to the Doping Control Station and provided a sample.
In January 2008 the Federal Court of Justice of the Italian Football Federation (FCJ) dismissed the charges brought against the Athlete. Following an appeal the CONI Giudice di Ultima Instanza in Materia Doping (GUI) decided on 20 March 2008 to impose a sanction of 1 month on the Athlete.
Hereafter the World Anti-Doping Agency (WADA) appealed the GUI decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the appealed decision and to impose a sanction between 1 year and 2 years.
Following assessment of the case the Panel determindes that:
- Not has been established when and in what form the Athlete was made aware that he was required to attend for doping testing.
- The contemporaneous record showed the Athlete's presence at the anti-doping station at 22.25 as confirmed by the testimonies of the DCOs.
- The Athlete must have learnt from some source that he was to proceed to the control station.
- It has not been proven that the Athlete actually refused or failed in the meaning of article 2.3 to give his sample at 22.25.
- The Athlete left the station without having been told by the DCOs not to do so in terms he could readily understand as being a formal injunction linked to a possible sanction.
- There were no circumstances enabling the Athlete to believe that if he immediately returned after taking a shower rather than waiting around while his team-mate was being tested that would be sufficient.
Therefore the Court of Arbitration for Sport decides on 18 March 2009:
1.) CAS has jurisdiction to entertain the appeal filed on 9 May 2008 by WADA against the Decision of the GUI dated 20 March 2008.
2.) The appeal filed on 9 May 2008 by WADA against the Decision of the GUI dated 20 March 2008 is dismissed.
3.) The Decision issued on 20 March 2008 by the GUI is upheld and is not to be set aside.
4.) (…).
5.) All other prayers for relief are dismissed.
