CAS 2021_A_8296 WADA vs FIFA & Vladimir Obukhov

CAS 2021/A/8296 World Anti-Doping Agency (WADA) v. Fédération Internationale de Football Association (FIFA) & Vladimir Obukhov

• Football
• Doping (methandienone)
• Non-binding force of CAS precedents
• Purpose and limits of the provision on substantial assistance
• Conditions for finding substantial assistance
• Consequences of a finding of substantial assistance
• Determination of the period of ineligibility to be suspended

1. Each case must be decided on its own facts. Although consistency is a virtue, correctness remains a higher one.

2. Substantial Assistance is an essential mechanism in the fight against doping. It is therefore important that the objective to encourage athletes, subject to the imposition of an ineligibility period, to come forward if they are aware of doping offences committed by other persons, is not undermined by an overly restrictive application of the provision. At the same time, however, it is important that “benefits” to athletes are not applied too lightly, without clear evidence of Substantial Assistance: the fight against doping is a serious matter, and only effective assistance in its pursuit can entitle an athlete to obtain a benefit with respect to the ineligibility period he/she has to serve for his/her anti-doping rule violation.

3. For Substantial Assistance to be found, it is not necessary that the information is in itself a sufficient basis to secure the finding of an anti-doping rule violation, but only for the bringing of a case – which means that there is a likelihood, and not necessarily a certainty, of a violation. Indeed, Substantial Assistance may also result in “discovering” an anti-doping rule violation – irrespective of its subsequent “establishment”, for which additional elements (such as a hearing of the accused) may be needed. In summary, concrete (and not merely speculative) information must be provided, which (at least) would be considered sufficient to bring a case – even though this information, however important, might need further corroboration in order to secure a finding against another person.

4. A finding of Substantial Assistance may only entail the suspension of a portion of the ineligibility period, and not the reduction of the sanction. In other words, the deciding body cannot directly impose a reduced sanction, it has to impose the full ineligibility period to be served for the anti-doping rule violation, and then suspend a portion of such period.

5. The criteria to be considered in the determination of the extent to which the otherwise applicable period of ineligibility may be suspended are i) the seriousness of the anti-doping rule violation; and ii) the significance of the Substantial Assistance rendered, provided however that iii) no more than three-quarters of the otherwise applicable period of ineligibility may be suspended. In connection with the seriousness of the anti-doping rule violation, any performance-enhancing benefit which the person providing Substantial Assistance may be likely to still enjoy must be considered, while in the assessment of the importance of the Substantial Assistance, a) the number of individuals implicated, b) the status of those individuals in the sport, c) whether a scheme of trafficking under Article 2.7 or administration under Article 2.8 of the WADC was involved, and d) whether the violation involved a substance or method which is not readily detectible in testing, are to be taken into account. As a general matter, the earlier in the results management process the Substantial Assistance is provided, the greater the percentage of the otherwise applicable period of ineligibility may be suspended. The maximum suspension of the ineligibility period shall only be applied in very exceptional cases.

In 2016, Professor Richard McLaren issued two reports about systemic doping in Russia. These reports identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered.

Hereafter in January 2019 the World Anti-Doping Agency (WADA) recovered the internal database of the Moscow Laboratory (LIMS). Following investigation of allegations of organized doping practices, and in particular of the LIMS, WADA provided international federations with investigation reports on the athletes implicated in these organized doping practices.

As a result in March 2021 the International Football Federation (FIFA) reported an anti-doping rule violation against the football player Vladimir Obukhov for the use of the prohibited substance Metandienone in March 2013. After notification the Athlete admitted the violaton and provided substantial assistance to FIFA.

The Athlete provided evidence to FIFA about players of the Football Club Torpedo Moscow under instructions using medical products administered by medical personel. Following a Cooperation Agreement the FIFA Disciplinary Committee decided on 14 July 2021 to impose a reduced 6 month period of ineligibility on the Athlete.

Hereafter in September 2021 the World Anti-Doping Agency (WADA) appealed the FIFA decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibilty on the Athlete.

WADA finds that in this case there is no dispute that the Athlete committed an anti-doping rule violation attracting a period of ineligibility of two years. The only issue to be decided within these appeal proceedings is whether any part of the applicable two-year period of ineligibility could be suspended based on the Substantial Assistance provision set by the 2012 FIFA ADR.

WADA contended that this should be answered in the negative. Therefore, it requests the Panel to set aside the Decision and impose on the Athlete a period of ineligibility of two years.

FIFA and the Athlete argued that the Appealed Decision was correctly adopted, with full regard for the specificities of the case and with a sanction that is just and proportionate.

In light of the Parties’ submissions and requests, the Panel assessed and addressed the following issues:

• did the Athlete provide Substantial Assistance within the meaning of the FIFA ADR?
• if he did, is the Athlete entitled to a “reduction” or to a “suspension” of the otherwise applicable ineligibility period? If so, in what measure?
• if he did not, what are the consequences to be drawn?

The Panel confirms that FIFA’s finding that the cooperation given by the Athlete amounted to Substantial Assistance under Article 20 of the FIFA ADR. The challenge brought in this respect by WADA to the Decision is to be dismissed.

The Panel deems finds that the period of ineligibility to be imposed on the Athlete should be suspended only in the measure of 12 months. Even though the Substantial Assistance did not lead to any further proceedings, it concerned an anti-doping rule violation occurring 8 years before it was rendered, it was promptly given as soon as the Athlete received a notification of his potential anti-doping rule violation, it concerned the practice of a doctor, i.e. of an individual having peculiar responsibilities within a football club, it exposed a potential violation that could involve a number of other players and individuals.

Therefore the Court of Arbitration for Sport decides on 16 June 2022 that:

1. The appeal filed by the World Anti-Doping Agency (WADA) on 8 September 2021 against the decision rendered by the Disciplinary Committee of the Fédération Internationale de Football Association (FIFA) on 14 July 2021 in the matter concerning Mr Vladimir Obukhov is partially granted.
2. The decision rendered by the Disciplinary Committee of the Fédération Internationale de Football Association (FIFA) on 14 July 2021 is modified as follows:
   
   

   1. Mr Vladimir Obukhov is declared ineligible for a period of twenty-four (24) months starting the date of this Award, with credit given for the period of suspension already served from 2 June 2021 to 2 December 2021.
   
   2. The remaining ineligibility period imposed on Mr Vladimir Obukhov is suspended in a measure of 12 months on the basis of the Substantial Assistance provided pursuant to the Cooperation Agreement signed by Mr Obukhov and the Fédération Internationale de Football Association (FIFA).
   
   

3. The Award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by the World Anti-Doping Agency (WADA), which is retained by the CAS.
4. (…).
5. All other prayers for relief are dismissed.