26 May 2014
CAS 2013/A/3395 Anderson Luis de Souza v. Confederação Brasileira de Futebol (CBF) & Fédération Internationale de Football Association (FIFA), consent award of 26 May 2014
Football
Doping
Authority of an arbitral tribunal to issue a consent award under Swiss law
Control of the bona fide nature of the settlement agreement by the arbitral tribunal in a consent award
Legal nature of the Superior Tribunal de Justiça Desportiva do Futebol (STJD)
1. Under Swiss Law, an arbitration tribunal has authority to issue an award embodying the terms of the parties’ settlement, if the contesting parties agree to a termination of their dispute in this manner. The panel’s ratification of their settlement and its incorporation into a consent award serves the purpose of enabling the enforcement of their agreement.
2. It is the task of the arbitrator to verify the bona fide nature of the settlement agreement, to ensure that the will of the parties has not been manipulated by them to commit fraud and to confirm that the terms of the settlement agreement are not contrary to public policy principles or mandatory rules of the law applicable to the dispute.
3. The STJD is a justice body which is an integral part of the organizational structure of the CBF, with no legal personality of its own and (at least) for international purposes the decisions of the STJD, although independently reached, must be considered to be the decisions of the CBF. As a result, the STJD has no autonomous legal personality and may not be considered as respondent on its own in a CAS appeal arbitration concerning one of its rulings; consequently, the procedural position of the STJD before the CAS must be encompassed within that of the CBF. Against this background, the fact that the STJD was not called as a party to the proceedings does not affect the validity nor the enforceability of a subsequent settlement agreement and of a consent award.
In April 2013 the Confederaçãoo Brasileira de Futebol (CBF), the Brazilian Football Confederation, has reported an anti-doping rule violation against the Portuguese football player Anderson Luís De Souza after his sample tested positive for the prohibited substances hydrochlorothiazide and tamoxifen.
On 14 June 2013 the Regional Commission of the Brazilian Sports Court of Football in Rio de Janeiro (TJD/RJ) decided to impose a 30 day period of ineligibility on the Player, starting on the date of the provisional suspension.
Hereafter both the Player and the TJD/RJ Procecutor appealed this decision with the Superior Tribunal de Justiça Desportiva do Futebol (STJC), the Brazilian High Sports Court of Football.
On 26 September the STJC decided to impose a 1 year period of ineligibility on the Player.
After rejection of the Player’s objections against the STJC decision, the Player appealed this decision with the Court of Arbitration for Sport (CAS) in november 2013.
The Player submitted that the decision issued by the STJD was based on an adverse analytical finding indicating the presence of the substances in his samples, analyzed by the (former) WADA-accredited laboratory LADETEC, but that there were serious doubts concerning the validity and accuracy of the test itself, as well as with regard to the International Standard of Laboratories (ISL), issued by the World Anti-Doping Agency (WADA).
In particular, the Player stated that the LADETEC had its accreditation revoked by WADA in August 2013 and that consequently, there was no certainty as to whether the test conducted on the Player’s sample was accurate and in respect of the ISL.
In addition, the Player argued that FIFA had decided, together with WADA, to use the WADA-accredited laboratory in Lausanne, Switzerland, to analyze blood and urine samples, to be taken on the occasion of the upcoming 2014 FIFA World Cup in Brazil, which, according to the Appellant, demonstrated that an analysis conducted by LADETEC may not be considered reliable.
Accordingly the Player argued that as serious doubts existed as to the accuracy of the adverse analytical finding reported by LADETEC on his samples, the Player requested to ask FIFA to submit the documentation packages related to both his A and B samples to the attention of an expert of its choice, possibly Mr. Martial Saugy, Director of the WADA-accredited laboratory in Lausanne, and to request another laboratory of its choice, possibly the WADA-accredited laboratory in Lausanne, for additional sample analysis regarding his A and B samples.
On 2 December 2013 FIFA informed the CAS that, based on the recent suspension of the laboratory in Rio de Janeiro, it had asked Mr. Martial Saugy, Director of the WADA-accredited laboratory in Lausanne, to analyse the documentation package related to the Player’s A and B-sample. The results of the analyses made by Mr. Saugy led him to inform FIFA, on the 18 October 2013 that "Because of the non-proved identification of Tamoxifen, we suggest to FIFA Medical Office to be very careful with this adverse analytical finding made by the Rio laboratory."
On the 03 December 2013 all the Parties finally agreed to the suspension of the proceedings pending a retesting of the Player's A and B samples.
On 6 March 2014, FIFA addressed a letter to the CAS informing that the results of such a retesting conducted by the laboratory in Lausanne, according to which "No Prohibited Substance(s) or Metabolite(s) or Marker(s) of a Prohibited Method(s) on the test menu were detected."
In addition, the Doping Control Report, signed by Mr. Saugy, further affirmed that "After further investigation, traces of hydrochlorothiazide were found at level below the limit of detection of the initial testing procedure. The sample was received in unusual container. The chain of custody can not be guaranteed".
Finally, and particularly in view of said results, all of the Parties have agreed, in the context of the afore-mentioned CAS proceedings, to sign an agreement which shall be incorporated within a Consent Award; and thus it is agreed between the parties with their consent:
1.) The Appeal filed by Mr. Anderson Luís de Souza is upheld.
2.) The Appealed Decision is set aside.
3.) It could not be established that Mr. Anderson Luís de Souza has committed an anti-doping rule violation.
4.) The arbitration costs, to be determined and served by the CAS Court Office in due course, shall be borne by the Appellant Mr. Anderson Luís de Souza.
5.) Each party shall bear their own legal and other costs incurred in connection with the present proceedings.
6.) The parties request the panel to issue a Consent Award reflecting the terms of this agreement.
7.) The Consent Award and a press release setting forth the results of the proceedings shall be made public by CAS.
8.) With the execution of the present agreement the parties declare themselves reciprocally settled and with no right whatsoever to claim anything against the other party.
Therefore the Court of Arbitration for Sports rules:
1.) The Settlement Agreement executed by the Player Mr Anderson Luís De Souza, the Confederação Brasileira de Futebol (CBF) and the Fédération Internationale de Football Association (FIFA) on 20 March 2014 is hereby ratified by the CAS with the consent of the Parties, and its terms are incorporated into this arbitral award.
2.) The terms of the Settlement Agreement dated 20 March 2014 replace the decision of the Superior Tribunal de Justiça Desportiva de Futebol of 26 September 2013.
3.) The costs of the present arbitration, which shall be determined and separately communicated to the Parties by the CAS Court Office, shall be borne by the Appellant.
4.) Each party shall bear all of its respective legal and other costs incurred in connection with this arbitration.
5.) All other or further claims are dismissed.
