CAS 2008/A/1557 Federazione Italiana Giuoco Calcio (FIGC), Daniele Mannini, Davide Possanzini & Comitato Olimpico Nazionale Italiano (CONI) v. World Anti-Doping Agency (WADA)
- Football
- Refusal or failure to submit to sample collection
- Revision of a CAS award upon the parties’ agreement
- Conditions of revision of a CAS award
- Admissibility of the revision of a CAS award and diligence of the claimant
- Athletes’ access to information regarding the anti-doping violation procedures
- Failure to submit to sample collection and different types of doping control
1. The Swiss Private International Law Act (PILA) and the CAS Code do not provide for a review of international arbitral awards. However, if the parties agree to submit a request for revision to an arbitral tribunal directly, the latter is competent to undertake such revision under the rules which govern a revision of court decisions applied mutatis mutandis to a review of “international” arbitral awards.
2. When deciding on the revision of a first award, the CAS panel applies a dual test: first, the panel determines whether the revision is admissible and, second, whether the application of the new facts/evidence should lead to a modification of the initial award. As to the admissibility of the revision, the panel has to check whether the new facts/evidence existed at the time of the initial award, whether the claimants are able to prove that they were unable to produce the alleged new facts/new evidence in the previous proceedings and whether the new facts are “relevant” and “conclusive” in the sense that they could likely lead to a modification of the initial award on the merits.
3. For the admissibility of the revision of a CAS award, the claimants have the burden of proving that they were not negligent in omitting to present these facts in the previous proceedings. The test of diligence is fundamental and must be applied strictly because otherwise the doctrine of “res judicata” and basic principles of due process would be undermined. A revision cannot be a means for parties to make up for past mistakes and any negligence in their management of their burden of proof.
4. According to the established CAS case law, it is very important that athletes have access to relevant information and that the practices of the authorities that enforce the sports regulations be consistent and predictable. One of the corollaries of the diligence required of professional athletes is that athletes must be given a fair opportunity to fully inform and educate themselves, with user-friendly tools and materials, regarding the regulations and procedures. When regulations and procedures emanate from anti-doping organizations and are enforced via a pyramid of international and national sports federations, associations and anti-doping bodies, it must be ensured at each level that the rules are effectively implemented and that efficient processes are put in place to inform and educate the athletes.
5. Article 2.3 of WADC is generic in nature, in the sense that it simply defines the anti-doping violation consisting of a failure to submit to sample collection. It does not define the different types of doping controls that exist for sample collection or the related procedural requirements for the testing. Those details are found in underlying anti-doping rules.
On 20 March 2008 the CONI Giudice di Ultima Istanza (GUI) decided to impose a sanction of 15 days on the football players Daniele Mannini and Davide Possanzin because of a delay in providing blood and urine samples on the occasion of a doping control on 1 December 2007.
Thereupon in May 2008 the World Anti-Doping Agency (WADA) appealed the GUI Decision with the Court of Arbitration for Sport (CAS). On 29 January 2009 the CAS Panel decided to impose a sanction of 1 year on the Athletes.
Hereafter in February 2009 the Italian Football Federation (FIGC) and the Athletes requested CAS for new arbitration and for a stay of execution of the rendered CAS Award of 29 January 2009. The Parties in this case reached a new arbitration agreement which authorizes the Panel to “re-open” the proceedings.
FIGC and the asserted that there is a series of new facts and/or new evidence on the basis of which the Panel should now reach a different conclusion, i.e. that the Athletes did not commit an anti-doping rule violation.
In relation to the reasoning in the first CAS Award and given the additional evidence, the Panel assessed whether the Athletes did or did not know precisely what their duties were with respect to the applicable doping-control procedure, and, if not, whether they are responsible for the lack of knowledge.
The Panel determines that through no fault or negligence of their own the Athletes themselves had no more than an “impressionistic” view of what their exact duties were in terms of reporting immediately to the control station and remaining in uninterrupted visual control of the chaperones.
The Panel establishes that the Athletes were far from believing that no exceptions were possible or from understanding the gravity of the sanction which would ensue in case of a breach.
As a result and contrary to its finding in its first CAS Award, the Panel now finds that when the Athletes stopped off in the changing room for somewhere between 10 and 25 minutes before proceeding to the control station they were not conscious of the fact and could not know that despite the circumstances (losing the game and being summoned by the coach and President) this delay and loss of visual control would according to the rules be deemed a failure or a refusal to submit to the doping control.
Accordingly, the Panel concludes that the Athletes cannot be deemed to have refused or failed to submit to sample collection.
Therefore the Court of Arbitration for Sport decides on 27 July 2009:
1.) The Request for Arbitration filed by the Federazione Italiana Giuoco Calcio on 12 February 2009 is upheld to the extent it requested a revision of the Award rendered by the Panel on 29 January 2009.
2.) The Panel’s Award of 29 January 2009 is retracted.
3.) The Appeal filed by the World Anti-Doping Agency on 16 May 2008 against the decision issued on 20 March 2008 by the Judges of Final Jurisdiction on Doping Issues of CONI is dismissed.
4.) The decision issued on 20 March 2008 by the Judges of Final Jurisdiction on Doping Issues of CONI is confirmed.
5.) All other motions or prayers for relief are dismissed.
(…).
