CAS 2018/A/5853 Fédération Internationale de Football Association (FIFA) v. Tribunal Nacional Disciplinario Antidopaje (TNDA) & Damián Marcelo Musto
- Football
- Dopage (hydrochlorotiazide; furosemide)
- Material scope of the FIFA Statutes’ arbitration clause related to doping-related decisions
- FIFA’s right to appeal doping-related decisions directly to the CAS in the context of national-level players
- Impact of the national anti-doping law on CAS jurisdiction
- Discretion not to issue a preliminary award on jurisdiction
- Late transmission of the Laboratory Documentation Package
- Determination of the applicable period of ineligibility in the context of a negligent ADRV
- Commencement of the period of ineligibility
1. By virtue of holding a license, a player submits to an arbitration clause by reference and is bound to the FIFA arbitration clause related to appeals by FIFA against doping-related decisions. Doping-related decisions of anti-doping organizations to whom the interested national federations delegated their disciplinary responsibilities and powers in doping matters are covered by the material scope of the arbitration clause, since the list of decisions referred to in Article 58 para. 5 of the FIFA Statutes is not exhaustive (“in particular”).
2. The FIFA ADR, in principle, differentiate in relation to the internal means of recourses between national-level players and international-level players. A decision may be appealed to a national-level appeal body before the appeal to CAS in cases involving national-level players whereas a final decision may be appealed exclusively to CAS in cases involving international-level players. However, in special circumstances, FIFA has a right to appeal doping-related decisions in the context of national-level players directly to the CAS, i.e. where no other party with a right to appeal has challenged the decision (before the national-level appeal body) and, therefore, the decision became legally “final” within the national anti-doping organization’s process.
3. A player may be submitted to two different sets of rules, i.e. the FIFA ADR to which he submitted by entering into a license agreement with the interested national federation and a national law. Both sets of rules are not identical. The mere fact, however, that both sets of rules to which the player is submitted are not identical has no impact on the CAS jurisdiction. On the contrary, it suffices that the arbitration agreement is found in either one of the applicable sets of rules in order to establish the jurisdiction of the CAS. This is all the more true considering that the FIFA ADR make it clear that they want to be applicable to all players irrespective of any concurrent set of rules.
4. According to Article R55 para. 5 of the CAS Code, it is at the discretion of the panel (“may rule”) whether to render a preliminary decision on its jurisdiction or to rule on its jurisdiction in the final award. When applying such discretion the panel – in principle – takes account of the reasoning submitted by the party requesting a preliminary decision, in particular why a preliminary decision is necessary to safeguard its interests and to prevent it from possible harm or why a decision on jurisdiction, for some other reasons, is urgent. Absent any compelling reason and/or urgent necessity for a preliminary decision, a preliminary award on jurisdiction should not be rendered.
5. The fact that a player was only provided with the Laboratory Documentation Package (“LDP”) at a late stage in the proceeding does not affect the case in an irreparable manner. The LDP is – for sure – an important source of information. The documents help to understand whether or not there have been deviations from the applicable International Standards. But the latter is a legal analysis that can be performed also at a later stage, i.e. before the appellate instance. Thus, the fact that the player was only provided with the LDP before CAS does not amount to a breach of a party’s procedural rights.
6. The breadth of sanction for a negligent anti-doping rule violation under Article 22 para. 1 lit. a FIFA ADR is from a reprimand to 24 months ineligibility, depending on the player’s degree of fault. In exercising discretion to determine the appropriate sanction within this range, a difference is made between “normal degree of fault” ranging between 12-24 months and a “light degree of fault” ranging between a reprimand and 12 months. In order to determine into which category of fault a particular case might fall, it is helpful to consider both the objective and the subjective level of fault. The objective element describes what standard of care could have been expected from a reasonable person in the athlete’s situation. The subjective element describes what could have been expected from that particular athlete, in light of his/her personal capacities.
7. If there were delays in the context of the analysis of a player’s sample and, in particular, in the procedure before the anti-doping authority, if these delays were substantial and if they cannot be attributed to the player, there is room to backdate the player’s sanction at the discretion of the deciding body, pursuant to Article 28 para. 1 FIFA ADR. However, one must note that backdating a period of ineligibility in team sports effectively amounts to waiving part of the sanction, since – differently from individual sports – “competitive results achieved during the period of ineligibility” can – in principle – not be disqualified (the exception being when multiple players test positive at the same time). Thus, restraint must be shown when backdating the period of ineligibility in order not to undermine the FIFA ADR. The fact that the player was adversely affected by the sanction, because he could not participate in the team preparations for one season, should be taken into account.
On 19 June 2018 the Argentinian National Disciplinary Anti-Doping Tribunal (TNDA) decided to impose a 7 month period of ineligibility on the football player Damián Marcelo Musto after his A and B samples tested positive for the prohibited substances Furosemide and Hydrochlorothiazide.
Hereafter in August 2018 FIFA appealed the TNDA decision with the Court of Arbitration for Sport (CAS). FIFA requested the Panel to set aside the Appealed Decision and to impose a sanction of 2 years.
FIFA contended that the Athlete failed to establish the source of the prohibited substances found in his samples. The Athlete had also not demonstrated on a balance of probability that the supplements and capsules were contaminated.
FIFA accepted that the violation was not intentional. However it argued that the Athlete had acted negligently as he had not checked his supplements, nor mentioned these products on the doping control form.
The Athlete requested the Panel to dismiss FIFA's appeal and to uphold the Appealed Decision. He denied the intentional use of the substances and argued that he had established on a balance of probabilities how the prohibited substances had entered his system.
Further he asserted that CAS had no jurisdiction to consider this appeal because he is an national-level player. His rights were violated in the course of the anti-doping process because a departure of the ISTI had occurred.
The Panel determines that CAS has jurisdiction to entertain the present appeal and it settled some other procedural issues raised by the Athlete.
The Panel assessed and adressed the following issues:
- Is the appeal to be dismissed because of fundamental and incurable breaches of the Player’s right to defense?
- Is the appeal to be dismissed because there were breaches of the WADA ISTI?
- In case the aforementioned questions are answered in the negative, did the Player commit an ADRV, what is the proper length of the period of ineligibility and when shall the latter commence?
The Panel concludes:
- There were no fundamental (and not otherwise curable) breaches of the Athlete's right of defense demanding that FIFA's appeal be dismisses.
- The Athlete's samples were in proper condition when analysed by the Madrid Laboratory.
- A breach of the WADA ISTI per se does not invalidate the AAF. Only if the Athlete can establish that the departure from the WADA ISTI could have reasonably caused the ADRV, the onus shifts to FIFA to proof that in the case at hand such departure did not cause the AAF.
- The samples tested in the Madrid Laboratory stem from the Athlete and were not tampered with throughout the whole external chain of custody.
- The alleged degradation of the samples may not invalidate the findings of the Madrid Laboratory.
- The presence of prohibited substances has been established in the Athlete's samples by the Madrid Laboratory and accordingly he committed an anti-doping rule violation.
- The Athlete acted at the higher end of light degree of fault or negligence.
Therefore the Court of Arbitration for Sport decides on 2 July 2019:
1.) The appeal filed by the Fédération Internationale de Football Association on 7 August 2018 against the decision issued by the Tribunal Nactional Disciplinario Antidopaje on 19 June 2018 is partially upheld.
2.) The decision of the Tribunal Nacional Disciplinario Antidopaje dated 19 June 2018 is set aside.
3.) Mr Damián Marcelo Musto is declared ineligible for a period of 11 months for having committed an anti-doping rule violation pursuant to Article 6 of the FIFA Anti-Doping Regulations. The period of ineligibility shall start on 5 April 2019. Mr Damián Marcelo Musto shall receive credit for the period of ineligibility effectively served from 19 June 2018 until 15 August 2018.
4.) (…).
5.) (…).
6.) All other motions or prayers for relief are dismissed.
