CAS 2008/A/1576 FIFA v/ Malta Football Association & Ryan Grech

CAS 2008/A/1628 WADA v/ Malta Football Association & Ryan Grech

CAS 2008/A/1576 Fédération Internationale de Football Association (FIFA) v. Malta Football Association (MFA) & R. and CAS 2008/A/1628 World Anti-Doping Agency (WADA) v. MFA & R.

• Football
• Doping (cocaine)
• Scope of application of FIFA anti-doping regulations and of national anti-doping regulations
• Application of FIFA anti-doping regulations by reference?
  Sanction

1. In line with CAS jurisprudence, the system put in place under the FIFA Disciplinary Code (FDC) shows that FIFA has exclusive competences at international level whereas national federations have exclusive competences at national level. Therefore, the FDC is not directly applicable when it comes to sanctions imposed against players on national matches and competitions. In order to ensure the harmonization of doping sanctions at national level FIFA cannot claim the direct applicability of the FDC antidoping regulations but must use its disciplinary prerogatives provided under article 152 FDC in order to have national antidoping regulations amended accordingly. Once the national antidoping regulations have been harmonized, it is then FIFA’s and WADA’s duty to ensure that those national regulations are correctly applied by the national judicial bodies, using their right of appeal if necessary.

2. Although the FDC antidoping regulations can apply at national level per reference through national civil law or through the Statutes and antidoping regulations of the relevant national association, as a general rule the FDC antidoping regulations don’t prevail on national antidoping regulations. If the decision appealed against and the ’parties’ submissions deal with the sanction of a player at national level, the national association antidoping regulations should be applied independently and without any reference to the FDC antidoping regulations which are therefore not applicable.

3. Pursuant to the applicable national association antidoping rules the presence of metabolite of cocaine and cocaine in a ’player’s bodily sample constitutes an anti-doping rule violation or a doping offence which should be sanctioned by a twelve months suspension in case of a first doping offence. The national regulations being applicable, there is no particular circumstances which could justify the extension of the period of suspension.

In January 2008 the Malta Football Association (MFA) reported an anti-doping rule violation against the football player Ryan Grech after his sample tested positive for the prohibited substance Cocaïne. The Athlete explained that one of his friends had spiked his drink at a new year's party he had attended.

Consequently the MFA Control and Disciplinary Board decided on 25 March 2008 to impose a sanction of 1 year. Thereupon the MFA Appeals Board decided on 17 April 2008 decided to impose a reduced 9 month period of ineligibility on the Athlete.

Hereafter in June 2008 FIFA and in August 2008 WADA appealed the MFA decision with the Court of Arbitration for Sport (CAS). They requested the Panel to set aside the Appealed Decision and to impose a sanction of 2 years.

The Panel established that the MFA had not imposed a standard sanction of 1 year on the Athlete for his anti-doping rule violation. In view of the MFA Doping Charter the Panel deems that there were no particular circumstances which could justify the imposition of a reduced sanction or an extended sanction.

Therefore the Court of Arbitration for Sport decides on 9 February 2009:

1.) The FIFA’s and World Anti-Doping Agency’s appeals against the decision dated April 17, 2008 of the MFA Appeals Board are partly upheld.

2.) The decision issued by the MFA Appeals Board is set aside.

3.) The Player, R., is declared ineligible from the 19 February 2008 until the 19 November 2008 and for an additional period of three months starting on the date of notification of the present award to the Parties.

4.) All other motions or prayers for relief are dismissed.

5.) (…)

CAS 2008/A/1575 FIFA v/ Malta Football Association & Gilbert Martin

CAS 2008/A/1627 WADA v/ Malta Football Association & Gilbert Martin

CAS 2008/A/1575 Fédération Internationale de Football Association (FIFA) v. Malta Football Association (MFA) & M. and CAS 2008/A/1627 World Anti Doping Agency (WADA) v. MFA & M.

• Football
• Doping (cocaine)
• Scope of application of FIFA anti-doping regulations and of national anti-doping regulations
• Application of FIFA anti-doping regulations by reference?
  Sanction

1. In line with CAS jurisprudence, the system put in place under the FIFA Disciplinary Code (FDC) shows that FIFA has exclusive competences at international level whereas national federations have exclusive competences at national level. Therefore, the FDC is not directly applicable when it comes to sanctions imposed against players on national matches and competitions. In order to ensure the harmonization of doping sanctions at national level FIFA cannot claim the direct applicability of the FDC antidoping regulations but must use its disciplinary prerogatives provided under article 152 FDC in order to have national antidoping regulations amended accordingly. Once the national antidoping regulations have been harmonized, it is then FIFA’s and WADA’s duty to ensure that those national regulations are correctly applied by the national judicial bodies, using their right of appeal if necessary.

2. Although the FDC antidoping regulations can apply at national level per reference through national civil law or through the Statutes and antidoping regulations of the relevant national association, as a general rule the FDC antidoping regulations don’t prevail on national antidoping regulations. If the decision appealed against and the parties’ submissions deal with the sanction of a player at national level, the national association antidoping regulations should be applied independently and without any reference to the FDC antidoping regulations which are therefore not applicable.

3. Pursuant to the applicable national association antidoping rules the presence of metabolite of cocaine and cocaine in a player’s bodily sample constitutes an anti-doping rule violation or a doping offence which should be sanctioned by a twelve months suspension in case of a first doping offence. The national regulations being applicable, there is no particular circumstance which could justify the extension of the period of suspension.

In January 2008 the Malta Football Association (MFA) reported an anti-doping rule violation against the football player Gilbert Martin after his sample tested positive for the prohibited substance Cocaïne. Consequently the MFA Control and Disciplinary Board decided on 25 March 2008 to impose a sanction of 1 year on the Athlete.

Hereafter in June 2008 FIFA and in August 2008 WADA appealed the MFA decision with the Court of Arbitration for Sport (CAS). They requested the Panel to set aside the Appealed Decision and to impose a sanction of 2 years.

The Athlete admitted the violation and denied the intentional use of the substance. He acknowledged that he recreationally had use Cocaine at a new year's eve party.

The Panel established that the MFA had imposed a sanction of 1 year on the Athlete for his anti-doping rule violation. In view of the MFA Doping Charter the Panel deems that there are no particular circumstances which could justify the imposition of an extended sanction.

Therefore the Court of Arbitration for Sport decides on 9 February 2009:

1.) The FIFA’s and World Anti-Doping Agency’s appeals are fully dismissed and the decision dated March 25, 2008 of the MFA Control and Disciplinary Board is upheld.

2.) The Player, M., is declared ineligible from 19 February 2008 until 18 February 2009.

3.) All other motions or prayers for relief are dismissed.
4.) (…).

CAS 2008/A/1557 Federazione Italiana Giuoco Calcio (FIGC), Daniele Mannini, Davide Possanzini & Comitato Olimpico Nazionale Italiano (CONI) v. World Anti-Doping Agency (WADA)

• Football
• Refusal or failure to submit to sample collection
• Revision of a CAS award upon the parties’ agreement
• Conditions of revision of a CAS award
• Admissibility of the revision of a CAS award and diligence of the claimant
• Athletes’ access to information regarding the anti-doping violation procedures
• Failure to submit to sample collection and different types of doping control

1. The Swiss Private International Law Act (PILA) and the CAS Code do not provide for a review of international arbitral awards. However, if the parties agree to submit a request for revision to an arbitral tribunal directly, the latter is competent to undertake such revision under the rules which govern a revision of court decisions applied mutatis mutandis to a review of “international” arbitral awards.

2. When deciding on the revision of a first award, the CAS panel applies a dual test: first, the panel determines whether the revision is admissible and, second, whether the application of the new facts/evidence should lead to a modification of the initial award. As to the admissibility of the revision, the panel has to check whether the new facts/evidence existed at the time of the initial award, whether the claimants are able to prove that they were unable to produce the alleged new facts/new evidence in the previous proceedings and whether the new facts are “relevant” and “conclusive” in the sense that they could likely lead to a modification of the initial award on the merits.

3. For the admissibility of the revision of a CAS award, the claimants have the burden of proving that they were not negligent in omitting to present these facts in the previous proceedings. The test of diligence is fundamental and must be applied strictly because otherwise the doctrine of “res judicata” and basic principles of due process would be undermined. A revision cannot be a means for parties to make up for past mistakes and any negligence in their management of their burden of proof.

4. According to the established CAS case law, it is very important that athletes have access to relevant information and that the practices of the authorities that enforce the sports regulations be consistent and predictable. One of the corollaries of the diligence required of professional athletes is that athletes must be given a fair opportunity to fully inform and educate themselves, with user-friendly tools and materials, regarding the regulations and procedures. When regulations and procedures emanate from anti-doping organizations and are enforced via a pyramid of international and national sports federations, associations and anti-doping bodies, it must be ensured at each level that the rules are effectively implemented and that efficient processes are put in place to inform and educate the athletes.

5. Article 2.3 of WADC is generic in nature, in the sense that it simply defines the anti-doping violation consisting of a failure to submit to sample collection. It does not define the different types of doping controls that exist for sample collection or the related procedural requirements for the testing. Those details are found in underlying anti-doping rules.

On 20 March 2008 the CONI Giudice di Ultima Istanza (GUI) decided to impose a sanction of 15 days on the football players Daniele Mannini and Davide Possanzin because of a delay in providing blood and urine samples on the occasion of a doping control on 1 December 2007.

Thereupon in May 2008 the World Anti-Doping Agency (WADA) appealed the GUI Decision with the Court of Arbitration for Sport (CAS). On 29 January 2009 the CAS Panel decided to impose a sanction of 1 year on the Athletes.

Hereafter in February 2009 the Italian Football Federation (FIGC) and the Athletes requested CAS for new arbitration and for a stay of execution of the rendered CAS Award of 29 January 2009. The Parties in this case reached a new arbitration agreement which authorizes the Panel to “re-open” the proceedings.

FIGC and the asserted that there is a series of new facts and/or new evidence on the basis of which the Panel should now reach a different conclusion, i.e. that the Athletes did not commit an anti-doping rule violation.

In relation to the reasoning in the first CAS Award and given the additional evidence, the Panel assessed whether the Athletes did or did not know precisely what their duties were with respect to the applicable doping-control procedure, and, if not, whether they are responsible for the lack of knowledge.

The Panel determines that through no fault or negligence of their own the Athletes themselves had no more than an “impressionistic” view of what their exact duties were in terms of reporting immediately to the control station and remaining in uninterrupted visual control of the chaperones.

The Panel establishes that the Athletes were far from believing that no exceptions were possible or from understanding the gravity of the sanction which would ensue in case of a breach.

As a result and contrary to its finding in its first CAS Award, the Panel now finds that when the Athletes stopped off in the changing room for somewhere between 10 and 25 minutes before proceeding to the control station they were not conscious of the fact and could not know that despite the circumstances (losing the game and being summoned by the coach and President) this delay and loss of visual control would according to the rules be deemed a failure or a refusal to submit to the doping control.

Accordingly, the Panel concludes that the Athletes cannot be deemed to have refused or failed to submit to sample collection.

Therefore the Court of Arbitration for Sport decides on 27 July 2009:

1.) The Request for Arbitration filed by the Federazione Italiana Giuoco Calcio on 12 February 2009 is upheld to the extent it requested a revision of the Award rendered by the Panel on 29 January 2009.

2.) The Panel’s Award of 29 January 2009 is retracted.

3.) The Appeal filed by the World Anti-Doping Agency on 16 May 2008 against the decision issued on 20 March 2008 by the Judges of Final Jurisdiction on Doping Issues of CONI is dismissed.

4.) The decision issued on 20 March 2008 by the Judges of Final Jurisdiction on Doping Issues of CONI is confirmed.

5.) All other motions or prayers for relief are dismissed.

(…).

CAS 2008/A/1513 Emil Hoch v. Fédération Internationale de Ski (FIS) & International Olympic Committee (IOC)

• Cross-country skiing
• Doping (assistance to an anti-doping rule violation)
• CAS power of review and breach of procedural fundamental principles
• Serious antidoping offence
• Calculation of the ineligibility period in case of multiple anti-doping rules violation

1. The CAS has full power to review the facts and the law of an appeal, and therefore hears the case de novo, without being limited by the submissions and evidence that was available to the initial procedure. Furthermore, the procedural principles of the arbitration tribunal’s independence and impartiality and of “fair proceedings” are guaranteed to a similar extent as before the state courts. Therefore, the breach of procedural fundamental principles in the initial proceedings can no longer be alleged in the appeal arbitration proceedings before CAS because the de novo hearing has cured any lack of due process in the decision appealed against.

2. Is considered to be a serious anti-doping offence an anti-doping offence that consists in providing substantial help for multiple third-party anti-doping rule violations; this is also the case for persons involved in a larger doping conspiracy and thus demonstrating a high degree of criminal energy, and where the doping practices are particularly dangerous for the athletes concerned.

3. A lifetime ban is only justified where the seriousness of the offence is most extraordinary, for instance, where an intentional assistance to anti-doping rules violation is committed on a minor or for the leader of a doping conspiracy. However, a lifetime ban is not proportionate so long as one cannot exclude that other people, including higher-ranking officials, pulled the strings in the doping conspiracy, even if the person accused had a decisive responsibility in the doping scandal, but not the sole or supreme leadership responsibility.

Emil Hoch was the trainer (coach) of the Austrian crosscountry ski team at the Winter Olympic Games in Turin, Italy, in 2006 (the Torino Winter Games 2006. During the Torino 2006 Olympic Games (February 2006) the Appellant shared a room with Mr Markus Gandler, the Austrian team director, in a private house on Via Banchetta in Pragelato.

The house was located a short distance from the chalet in which the athletes of the Austrian cross-country ski team were housed (Martin Tauber, Roland Diethart, Jürgen Pinter, Johannes Eder). These athletes were under the care of and trained by the Appellant.

On the night of 18 February 2006 the Italian police executed a search warrant in the accommodation of the Austrian cross-country ski team and support staffin Pragelato. In the course of the search the police seized various items, both in the chalet, in which the athletes were housed, and in the building in which, among others, also the Appellant lived during the Torino 2006 Olympic Games.

The Italian police documented the search in a written record. In addition, according to the record, the Italian police seized the following further items from a dustbin at the entrance to the apartment, which was adjacent to the bedroom occupied by the Appellant and Mr Markus Gandler. The Appellant admits having collected the medical items found in his bag from the athletes at their home in order to dispose of them. Immediately after the police had conducted the search the Appellant left Turin before daybreak to drive home to Austria.

As a result of the above-mentioned events various proceedings were initiated - amongst others - by the IOC instituted proceedings against the athletes of the Austrian cross-country ski team (Tauber, Diethart, Pinter, Eder). All of them were declared by the IOC to be permanently ineligible for all future Olympic Games.

The athletes filed an appeal against this disciplinary sanction with the CAS. By decision dated 4 January 2008 the CAS dismissed the appeals by Eder, Tauber and Pinter (CAS 2007/A/1286, 1288, 1289).

By decision of 4 January 2008 the CAS partially upheld the appeal filed by Mr Diethart and reduced the period of this ineligibility (CAS 2007/A/1290).

FIS also instituted doping proceedings against the above-mentioned four athletes.

• Regarding the violation of Article 2.6.2 the Respondent, Emil Hoch is declared ineligible from participating directly or indirectly in any capacity in any FIS sanctioned events for a period of two years;
• Regarding the violation of Art. of 2.8 the Respondent, Emil Hoch is declared ineligible from participating directly or indirectly in any capacity in any FIS sanctioned event for life;

Hereafter the Appellant filed a Statement of Appeal with the Court of Arbitration for Sport (CAS) against the decision issued on 28 February 2008 by the FDP. After granting the Parties the right to be heard on the lOC's intervention the Panel issued a decision dated 27 June 2008 by which the IOC was allowed to participate as Co-Respondent (i.e. Second Respondent), together with the FIS in the arbitration procedure CAS 2008/A/1513 initiated by the Appellant.

The Court of Arbitration for Sport decides on 26 January 2009:

1.) The Appeal filed by Mr. Emil Hoch against the decision rendered on 28 February 2008 by the FIS Doping Panel is partially upheld;

2.) The decision rendered on 28 February 2008 by the FIS Doping Panel is set aside as far as the period of ineligibility is concerned;

3.) Mr. Emil Hoch shall be ineligible to participate directly or indirectly in any capacity in any FIS sanctioned events up to 18 September 2022;

4.) This award is rendered without costs, except for the Court Office fee of CHF 500.00 (five hundred Swiss Francs) paid by the Appellant, which is retained by the CAS;

5.) Each Party shall bear its own costs;

6.) All other claims are dismissed.

CAS 2008/A/1551 World Anti-Doping Agency (WADA) v. Comitato Olimpico Nazionale Italiano (CONI), Federazione Italiana Giuoco Calcio (FIGC) & Nicolò Cherubin

• Football
• Doping (refusal or failure to submit to sample collection)
• Time and form of notification of sample collection

There is no refusal or failure to submit to a doping control without compelling justification if it cannot been established when and in what form a player was made aware that s/he was required to attend for doping testing. In this respect, there is no violation of the WADC if it cannot be established that the player was told or directed not to leave the anti-doping station in a manner which enabled him to understand that s/he would be in breach of his/her duties if s/he did so.

In December 2007 the Italian Football Federation (FIGC) reported an anti-doping rule violation against the football player Nicolò Cherubin for his refusal or failure to submit to sample collection during a match on 31 October 2007.

The Doping Control Officers (DCOs) reported that the Athlete attended the Doping Control Station. Because the Athlete wanted to have a shower he left the testing station room. The DCO attempted to follow the Athlete and lost sight of him for about half an hour because he could not enter the closed changing room. Thereupon the Athlete returned to the Doping Control Station and provided a sample.

In January 2008 the Federal Court of Justice of the Italian Football Federation (FCJ) dismissed the charges brought against the Athlete. Following an appeal the CONI Giudice di Ultima Instanza in Materia Doping (GUI) decided on 20 March 2008 to impose a sanction of 1 month on the Athlete.

Hereafter the World Anti-Doping Agency (WADA) appealed the GUI decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the appealed decision and to impose a sanction between 1 year and 2 years.

Following assessment of the case the Panel determindes that:

• Not has been established when and in what form the Athlete was made aware that he was required to attend for doping testing.
• The contemporaneous record showed the Athlete's presence at the anti-doping station at 22.25 as confirmed by the testimonies of the DCOs.
• The Athlete must have learnt from some source that he was to proceed to the control station.
• It has not been proven that the Athlete actually refused or failed in the meaning of article 2.3 to give his sample at 22.25.
• The Athlete left the station without having been told by the DCOs not to do so in terms he could readily understand as being a formal injunction linked to a possible sanction.
• There were no circumstances enabling the Athlete to believe that if he immediately returned after taking a shower rather than waiting around while his team-mate was being tested that would be sufficient.

Therefore the Court of Arbitration for Sport decides on 18 March 2009:

1.) CAS has jurisdiction to entertain the appeal filed on 9 May 2008 by WADA against the Decision of the GUI dated 20 March 2008.

2.) The appeal filed on 9 May 2008 by WADA against the Decision of the GUI dated 20 March 2008 is dismissed.

3.) The Decision issued on 20 March 2008 by the GUI is upheld and is not to be set aside.

4.) (…).

5.) All other prayers for relief are dismissed.

CAS 2007/A/1434 IOC v/ FIS & Jürgen Pinter

CAS 2007/A/1435 WADA v/ FIS & Jürgen Pinter

The circumstances stated below are a summary of the main relevant facts regarding the Austrian cross-country skiing team and the Athlete Jürgen Pinter:

1.) the so-called “blood bag affair” in Salt Lake City. On 26 February 2002, shortly after the end of the 2002 Olympic Winter Games held in Salt Lake City, USA, a cleaning team discovered several bags containing blood transfusion equipment in the chalet that had been rented out to the Austrian cross-country skiing team and accompanying staff. It was later established that in-between 30 January and 25 February 2002, Mr Walter Mayer, the Austrian cross-country ski head coach, performed medical acts for which he had no medical training, certification and authorisation, He notably extracted blood from two athletes, irradiated it with ultraviolet light and re-injected it into the athletes body.

2.) The Italian police raid during the Torino Olympic Games, On the night of 18 February 2006, the Italian police acting on a search warrant raided the Austrian team's housing at the Torino Olympic Games.

3.) The “Meliou report”: On 19 February and 7 March 2006, the Torino Prosecutor's Office appointed a team of experts to evaluate the nature of the material seized by the Italian police during its raid of 18 February 2006.

4.) The decision of the IOC executive board.

5.) The report of the Australian Ski Federation disciplinary board.

6.) The decision rendered bij de FIS doping panel. Based upon articles 7.2 and 8.1.2 of the FIS Anti-Doping Rules 2005/2006, Messrs Eder, Tauber, Diethart and Pinter's case had to be brought before the FIS Doping Panel, which had to adjudicate whether a violation of the applicable FIS ADR occurred.

In this case the parties concentrated their submissions on two main issues namely:

1.) whether there had been constructive possession of a Prohibited Method by Mr Jürgen Pinter (article 2.6 FIS ADR); and

2.) whether he had assisted, encouraged or had engaged in
another form of complicity in an Anti-Doping Rule violation by another athlete or other athletes (Article 2.8 FIS ADR).

Following assessment of the filed evidence the Panel finds that constructive possession of a Prohibited Method has been established to the required Standard of proof.

As a result the Panel concludes that Mr. Pinter was in possession of a Prohibited Method. The Panel further establises that there had been sufficient collaboration to constitute complicity by Mr. Pinter.

Therefore the Court of Arbitration for Sport decides on 20 November 2018:

1.) The appeals of the IOC and of the WADA against the decision rendered on 22 November 2007 by the FIS Doping Panel are upheld.

2.) The decision rendered on 22 November 2007 by the FIS Doping Panel is set aside.

3. Mr Jürgen Pinter is found guilty of anti-doping rule violations (article 2.6 and article 2.8 FIS ADR) and is declared ineligible for a period of four years running from 1 March 2006.

4.) Mr Jürgen Pinter's results obtained during the above-mentioned period of ineligibility, his eventual medals, his points and prizes are forfeited.

5.) This award is pronounced without costs, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) already paid and to be retained by the CAS.

6.) Each party shall bear its own legal and other costs.

7.) All other motions or prayers for relief are dismissed.

The debate about doping use outside elite sports in Finland got in full swing in September 2007, when the then Minister of Culture and Sports Stefan Wallin expressed his concern about doping use becoming more common outside elite sports. He even questioned whether doping use was becoming a national disease. Wallin’s question has remained unanswered, and the debate about doping outside elite sports has relied mostly on stereotypes and false
information (e.g. Seppälä & Karila 1996; cf. FST5 2011; MOT 2011)

In 2009, the Ministry of Education and Culture decided to carry out a comprehensive research project examining the size and nature of the doping phenomenon outside elite sports in Finland. This report illustrates, in a compact form, the essential findings of that research project finalized in January 2012 (Salasuo & Piispa 2012). The topic is relatively unknown in Finland (see Kinnunen 2003). Its social location is still being shaped, partly due to
the fact that there has been very little public debate about the subject and the amount of research data is still very limited (see nevertheless Karila 2003; Salospohja 2008; Raevuori 2009; Kainulainen 2011).

Taking doping out of context of elite sports means extending the research object from the effects of doping substances to a wider socio-cultural framework of substance use. In this framework, individuals make choices and communicate with one another on the basis of different motives, positions and roles. When
studying the issue, the various deliberate plans and pursuit of goals have to be taken into account. These are typically guided by intelligence, emotions, habits, traditions, the example of others and illusion or information about what is expected of human beings. Thus, the following elements have to be studied:
the consequences of action, the associations on which the action relies, the attitude of others, the motives of the research subjects and the conventional way to act (see Sulkunen 2003).

Hence, the definition of the research topic is considerably broader in comparison with the traditional medical approach of the Finnish doping research. In this study, with an aim to gain extensive knowledge to fuel the debate on doping outside elite sports, we aimed at answering the following questions: What is doping when it is not used to enhance one’s performance in elite sports? What is the cultural and social framework of doping, how the use of doping and the users themselves relate to the society as a whole, how frequent doping use is, what are the users’ motives and how various health considerations are linked to the phenomenon? To sum up, what is the social location of doping outside elite sports?
In this study, the doping phenomenon was cross-studied from the perspectives of as many actors as possible. We had very little prior knowledge of the research object, hiding deep in the shadows of the society. In order to tackle the research challenge we gathered extensive empirical data (see Charmaz 2006). The research approach was similar to Clifford Geertz’s (1973) thick
description to the extent that, as the analysis progressed, we aimed at a theoretically aware approach.

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