In February 2018 the Brazilian Doping Control Authority (ABCD) has reported an anti-doping rule violation against the football player after his sample tested positive for the prohibited substance Fenoterol.
ABCD contended that the Athlete had committed a second anti-doping rule violation because the violation was committed after the Athlete had been notified that he had committed a first anti-doping rule violation.
In both proceedings the Athlete admitted the violation and demonstrated with evidence that the substance had been used as medication for his asthma which was mentioned on the Doping Control Form.
The Athlete asserted that ABCD's notification of his first anti-doping rule violation occurred on the same day he provided the second sample during his preparation for the match. Based on ne bis in idem and lis pendens the Athlete argued that he can't be prosecuted for one and the same anti-doping rule violation for which the TJD-AD already had imposed a sanction and appealed.
In view of the evidence the Rapporteur finds that ABCD has not proven that the Athlete was duly notified of his first anti-doping rule violation on the day of the second sample collection. The Rapporteur accepts that the two reported anti-doping rule violations must be considered as one single violation and that lis pendens had been established. Further the Rapporteur finds that the Athlete had not acted intentionally due to his Asthma, yet had failed prior to apply for a TUE.
Therefore the TJD-AD Panel decides on 16 October 2019 that the Athlete had not committed a second anti-doping rule violation due the principle of lis pendens.
