CAS 2018/A/5615 Jared Higgs v. Bahamas Football Association (BFA)
- Football (beach soccer)
- Doping (failure to submit to sample collection/doping control)
- Sample collection for anti-doping purposes
- Ex post substitution of grounds for the conduct of tests
- Duty to substantiate
- Onus to substantiate
- Threshold of sufficient substantiation
1. A sample collection needs to have anti-doping purposes for an appellant’s non-compliance therewith to potentially constitute an Anti-Doping Rule Violation. In case of doubt, it must be assessed and interpreted from a reasonable person’s perspective whether the sample collection was conducted for anti-doping or for other (permissible) medical purposes. When doing so, a panel takes into account that, absent any indication to the contrary, a sports organisation would opt for the alternative most in line with the applicable regulations. Regulations such as the FIFA Anti-Doping Regulations, the World Anti-Doping Code and the International Standard on Testing and Investigations were all drafted with a view to safeguarding “the principles of respect for human rights, proportionality, and other applicable legal principles”, so any tests conducted under its guise must abide by all the mandatory requirements in those regulations.
2. The original purpose of a testing cannot be substituted with another purpose at a later point in time. It must be clear from the outset for the subject of the test, for what purpose the testing is being conducted and therefore what rules shall apply to it.
3. The duty to substantiate and, in particular the prerequisites that a party must fulfil in order to dispose of its duty to sufficiently substantiate its submissions is intrinsically linked to the principle of party presentation and thus is a procedural question. There are links also to the law applicable to the merits since, in particular, what must be submitted by a party will be dictated by the law applicable to the merits.
4. The onus of substantiation is linked to the law applicable to the merits as the onus of presentation follows from the burden of proof.
5. Submissions are in principle sufficiently substantiated if they are detailed enough (i) for a panel to determine and assess the legal position claimed and (ii) for a counterparty to be able to defend itself.
In January 2017 the Bahamas Football Association (BFA) ordered a Provisional Suspension of the football player Jared Higgs for his failure to attend a drug test with the Bahamas Beach Soccer National Training Team on 17 January 2017.
Between January and June 2017 the BFA attempted to contact the Athlete while the Athlete neither attempted to contact the BFA. When the Athlete finally appeared at a competition on 10 June 2017 and was informed about the Notification and the Provisional Suspension resulting in the Athlete's misconduct and bicker with the BFA.
Consequently on 17 July 2017 the BFA Disciplinary Committee decided to impose a fine and a ban of 4 matches on the Athlete for his misconduct and failure to submit to sample collection.
The Athlete appealed the Disciplinary Decision with the BFA Appeals Committee. Yet in accordance with the WADC and the FIFA-ADR the BFA Appeals Committee decided on 22 January 2018 to impose a 4 year period period of ineligibility on the Athlete for his refusal to take a drug test.
Hereafter in March 2018 the Athlete filed an appeal with the Court of Arbitration for Sport (CAS) and requested the Panel to set aside both the BFA Disciplinary Decision of 17 July 2017 and the BFA Appeal Decision of 22 January 2018.
The Athlete denied that he had committed an anti-doping rule violation and argued that both Appealed Decisions were erroneous and invalid due to procedural failures and numerous violations of due process.
Considering the parties’ submissions and the testimonies of the witnesses and experts at the hearing, the Panel observes that the main issues to be resolved are:
- Did the Athlete’s failure to report to the BFA offices on 16 January 2017 constitute an ADRV?
- If not, did the Athlete’s conduct violate any other rules of the BFA?
- Were the sanctions imposed in the Appealed Decision appropriate?
- Did the Athlete’s conduct on 10 June 2017 at the Beach Soccer Stadium violate BFA rules?
- If so, were the sanctions imposed in the BFA Disciplinary Committee Decision and/or the Appealed Decision appropriate?
- Is the Athlete entitled to damages?
The Panel determines that the Athlete had received the Appealed Decision on 19 February 2018 and that the Appeal with CAS was filed in March 2018 within the 21-day deadline. The Panel rejects the Athlete's request for damages because he failed to provide any evidence of financial losses.
The Panel establishes that the sample collection conducted by the BFA on 17 January 2017 was not intended to fall under the FIFA ADR, the WADC, the Bahamas ADR and the ISTI. Accordingly, it follows that the Athlete’s failure to participate in the testing cannot be qualified as an ADRV, since the sample collection was – clearly – not for anti-doping purposes.
The Panel deems that the Athlete should not have been sanctioned under the FIFA ADR or the WADC. Instead, the Panel finds that the Athlete – in principle – should have been disciplined under the Code of Conduct for not complying with the Pre-Competition Testing.
As such, the Appealed Decision, regarding the Athlete's sanction under the FIFA ADR and WADC is set aside whereas there is no need anymore to consider the various alleged procedural violations during the proceedings.
The Panel regards that the Athlete indeed had used offensive, insulting or abusive language or gestrues on 10 June 2017 when he was informed about the Provisional Suspension. In this matter the Panel confirms the Decision of 17 July 2017 for the imposition of a fine and a ban of 4 matches.
Therefore the Court of Arbitration for Sport decides on 25 March 2019 that:
- The appeal filed on 12 March 2018 by Jared Higgs against the decision rendered by the Bahamas Football Association Appeals Committee on 22 January 2018 is upheld.
- The decision rendered by the Bahamas Football Association Appeals Committee on 22 January 2018 is set aside, and replaced as follows:
Jared Higgs shall serve (to the extent he has not already done so) a ban of four (4) matches and pay a fine or USD 40 to the Bahamas Football Association.
- All other motions or prayers for relief are dismissed.