CAS 2008_A_1511 Jamie O'Hara vs WADA & UEFA

21 Oct 2008

CAS 2008/A/1511 O'Hara v/WADA & UEFA

The details set out below are a summary of the main relevant facts, as established by the Panel on the basis of the written submissions of the parties, the evidence produced, and the hearing held on 7 July 2008. Additional facts may be set out, where relevant, in connection with the legal discussion (below. section4),
The Player bas suffered from severe acne and urticaria fot several years. This condition required medical treatment, including a prescription of Roaccutine.
In March 2007, the Player was sent by the Club's doctor. Dr Kalpesb Parmar, to see a consultant dermatologist Dr David G. Paige. Dr Paige prescribed a course of prednisolone.
Before taking this medication, the Player requested a Standard Therapeutic Use Exemption ("TUE"), which was granted by UEFA.
Before pre-season training for the 2007/2008 season, the Player slopped this treatment.
In December 2007, the Player’s condition deteriorated.
On 29 December 2007, the Player went to see Dr Parmar, who instructed him to return home and rest. During the day, the Player's condition further deteriorated and he was driven to the local hospital by his family.

At the hospital, the Player was given an intravenous injection of hydrocortisone and, upon his discharge was prescribed a 3-day course of prednisolone. He took this treatment, which was completed on 1 January 2008.
On 31 December 2007, dr Parmar filled an application for a TUE to the UEFA TUE Commission
On 2 January 2008, UEFA acknowledged receipt of the application and requested additional information. UEFA's email also mentions that "as long as the player has not received a positive decision from the UEFA TUE committee it is the player's own risk to participate to any match without any valid TUE and therefore being tested positive ", Dr Parmar provided the requested information by return.

On the same day, UEFA informed Dr Parmar that UEFA's offices were officially closed from 22 December 2007 to 6 January 2008 included and that a decision on the application would not be made before 7 January 2008.
On 4 January 2008, UEFA requested additional information and documentation concerning the application and he Player's treatment. This information and documentation was provided on 7 January 2008.

Performance-enhancing drugs among fitness athletes [2009]

1 Jul 2009

Prestatiebevorderende middelen bij fitnessbeoefenaars / Eindred. Olivier de Hon; J.H. Stubbe, A.M.J. Chorus, L.E. Frank, P. Schermers, P.G.M. van der Heijden. - TNO Kwaliteit van Leven; Universiteit Utrecht; i.o.v.: Dopingautoriteit. - Capelle a/d IJssel : Dopingautoriteit, 2009

In sports, the use of various performance-enhancing drugs is prohibited. These are often called ‘doping’ substances. It is not clear how many people use performance-enhancing drugs in the Netherlands. No recent studies have been conducted on the prevalence of performance-enhancing drugs in unorganized sports.
Therefore, the Anti-Doping Authority of the Netherlands commissioned TNO Quality of Life to investigate the prevalence and determinants of use of performance-enhancing drugs by athletes visiting Dutch fitness centres. In the current study, the concept of ‘doping’ was not strictly defined as substances on the Prohibited List of the World Anti-Doping Agency (WADA). Firstly, not all substances on this list are of primary interest to the commissioners of this study, nor to fitness athletes looking for performance enhancement (for example corticosteroids and cannabinoids). Secondly, some relevant substances are not on the Prohibited List, for example thyroid hormones and oral anti-diabetic medication. Therefore, these substances were included in the current study. Furthermore, use of performance-enhancing drugs was defined as using doping substances at least once in the preceding year.

The research questions of the study were:
1. What is the prevalence of use of performance-enhancing drugs by athletes (15 years and older) visiting Dutch fitness centres?
2. Which determinants are related to the use of performance-enhancing drugs by athletes (15 years and older) in Dutch fitness centres?
3. Are there trends in the determinants of use of performance-enhancing drugs?
4. How can the prevalence be assessed in a reliable and relatively simple manner in future studies?

Questionnaires were conducted among owners and athletes of fitness centres. A total of 500 centres were randomly selected from the trade register of the Dutch Chambers of Commerce (which listed a total of 1839 of such centres). At least three attempts were made to contact the owners of fitness centres by telephone. A total of 188 owners were reached of which 92 agreed to participate in this study (response rate = 49%). Characteristics of fitness centres participating in the current study were compared with characteristics of centres participating in the Dutch National Fitness Monitor. The findings showed that centres participating in the current study were a representative sample of the Dutch fitnessbranch. Participating in research about performance-enhancing drugs can be threatening to athletes visiting Dutch fitness centres. Respondents may be reluctant to reveal sensitive information. To tackle the problem of response errors, two web-based surveys were conducted. The first survey was conducted to compare the prevalence and determinants with earlier studies. This is the classical method. The second survey was conducted to investigate whether there was an underestimation of the true prevalence caused by response errors due to social desirability. This is the randomized response method. This second method will result in a more reliable and valid estimation of the prevalence of use of performance-enhancing drugs, if respondents experience the questions about performance-enhancing drugs as threatening.

A total of 718 athletes from 92 fitness centres completed the questionnaire; 246 respondents completed the first survey (i.e. classical method) and 447 respondents the second survey (i.e. randomized response method). 8.8% of owners of fitness centres answered there was a good chance that athletes visiting their centre used performance-enhancing drugs. One out of ten athletes knew at least one person who used performance enhancing drugs. These drugs were classified into the following categories: anabolic steroids, prohormones, substances to counteract side-effects, growth hormone and/or insulin, stimulants (to reduce weight), and miscellaneous substances. The classical method resulted in prevalences varying between 0.0% and 0.4% for the different types of performance-enhancing drugs with an overall prevalence of 0.4%. The randomized response method resulted in prevalences varying between 0.8% and 4.8% for the different types of performance enhancing drugs with an overall prevalence of 8.2%. The overall prevalence of the two survey methods differed significantly.

Therefore, it can be concluded that the randomized response method resulted in a more reliable and valid estimation of the prevalence of use of performance-enhancing drugs. The overall prevalence of performance-enhancing drugs was low and therefore it was not possible to carry out an analysis of determinants. As a result, the third question about trends in determinants of performance enhancing drugs could not be answered. A literature research was carried out to investigate which determinants were related to use of performance-enhancing drugs in earlier European studies. The literature search showed that the following determinants were related to performance-enhancing drugs use: gender, educational level, use of various substances (legally prohibited drugs, tobacco, alcohol, coffee, dietary supplements, intention to use performance-enhancing drugs), exercise behaviour (participating in exercise, number of training hours per week, participating in body building), body image (desire to lose weight, self esteem, mental health, and trait anxiety) and social network (knowing people who use performance-enhancing drugs, having a friend who uses doping, and choice of education). The last research question addressed the question how this prevalence can be assessed in a reliable and relatively simple manner in future studies. The current study showed that the classical method led to an underestimation of the prevalence. Therefore, the randomized response method is more suitable for estimating the prevalence of use of performance-enhancing drugs in the future. Studies on the determinants of performance-enhancing drugs should be separately conducted from studies on the prevalence. To enable an analysis of determinants of performance-enhancing drugs, it is important to have a lot of respondents using performance-enhancing drugs. This can be accomplished by including fitness centres that are suspected to have many athletes using performance-enhancing drugs. However, for prevalence studies a representative sample of respondents is essential. Therefore, selecting centres with a high prevalence of performance-enhancing drugs is not the correct strategy, because the results of this selected group of athletes cannot be generalized to the population at large.

The Dutch elite athlete and anti-doping policy [2010]

1 Oct 2010

De Nederlandse topsporter en het antidopingbeleid / Irene Eijs, Aarno Havenga, Olivier de Hon. - Dopingautoriteit; NL Sporter; Vereniging van Contractspelers (VVCS); AtletenCommissie NOC*NSF. - Capelle aan den IJssel : Dopingautoriteit, 2010

Background and research methods
Doping use is a real threat to sports. It undermines the spirit of fair play and poses health risks to the athletes. Athletes have no choice but to follow existing doping procedures. The Anti-Doping Authority the Netherlands (‘Dopingautoriteit’) periodically assesses the opinions of Dutch (elite) athletes on several aspects of doping policies in order to evaluate these policies, and possibly to adjust them. In 2009/2010 this study was performed in cooperation with NL Sporter (the Dutch independent interest group for elite athletes), the ‘Vereniging van Contractspelers’ (VVCS, the Dutch representative organisation for professional football/soccer players), and the Athlete Committee of the National Olympic Committee NOC*NSF. The study was financed by the Ministry of Health, Welfare, and Sports. In cooperation with certified research company Intomart GfK a digital questionnaire was sent to 888 elite athletes with an official ‘elite status’, as determined by NOC*NSF. In addition, 453 professional football/soccer players (all members of the VVCS) were approached via email. A representative group of 38% of all ‘status athletes’ responded. The response amongst football players was 21% and can be considered to be indicative of this particular group of athletes. The study was performed in the first few months of 2010.

Whereabouts , dopingcontrols en Therapeutic Use Exemptions (TUEs)
One of the most recent changes in the doping regulations, the introduction of a whereabouts administration, is the most controversial antidoping rule. Less than 20% of all status athletes think this rule is necessary for their own sport, with 61% having experience in fulfilling this requirement. A group of 38% of these athletes regularly experiences problems in filing whereabouts information. This percentage is somewhat lower in younger athletes and in females. The two most important antidoping organisations that collect whereabouts information from Dutch athletes receive similar complaints, but WADA’s ‘ADAMS system’ experiences technical and software related problems more often than Dopingautoriteit’s ‘Sportergegevens’. Athletes perceive whereabouts regulations as a major impact on their personal lives. The software used to collect whereabouts information is considered unnecessary laborious and filing whereabouts information, and keeping them updated, costs a lot of time. The combination of not knowing where one will be at a certain point of time in the future, and the knowledge that administrative mistakes may lead to ‘missed tests’ and possible sanctions leads to a high level of uncertainty. This uncertainty is increased by the fear that a doping control officer might not be able to find an athlete, even when the athlete is present at the specified location. This leads to the situation that of all athletes that have to fulfil whereabouts requirements, 47% feels that the influence of doping regulations on their personal lives is too big. Amongst those athletes who do not have this requirement, this percentage is much lower: 19%. There are strong clues that irritation about the whereabouts requirements seriously lowers the support of antidoping regulations in general.

Submitting to the practice of doping controls receives far more support. Problems are encountered less frequently and more than half of the ‘status athletes’ find it important that out of competition controls are performed to discourage doping use. 79% Of these athletes have been tested themselves in the previous year; in the last survey (in 2003) this was 57%. Football/ soccer players are tested less frequently (32% has been tested in the previous year). One in every twenty athletes (of those who have been tested) has one or more registered ‘missed tests’ in its name. These were most often caused by filing the wrong whereabouts information, or sudden changes in schedule due to traffic jams, changed weather, or other unforeseen circumstances. It is of more concern that two cases of registered ‘missed tests’ have been caused by the inability to find the particular athlete, who actually was present at the filed location.

Athletes are well-informed on the possibility to ask for a therapeutic exemption to use prohibited substances or methods (TUE procedure). Knowledge about, and experiences with, this procedure is somewhat scarcer amongst football/soccer players. Approximately 20% of all athletes with TUE-experience has encountered a problem of some sort, like the return of an (incomplete) request or a lack of clarity related to the duration and/or region of validity of the acquired exemption.

Attitudes ,policy, and knowledge
The attitude of Dutch athletes towards doping in general is very dismissive. No less than 91% would feel guilty if doping would be used and 95% states that they only want to win if this can be achieved on their own strength. Athletes prefer that antidoping efforts are predominantly focussed on internationally harmonised policies, increased education in general, and especially targeted at coaches and support personnel. Relatively speaking, older athletes expect more often that tougher sanctions and the availability of alternative methods to improve performance (better training facilities, better nutrition, innovations) will be efficient deterrents of doping use. When compared to other athletes, football/soccer players favour more out of competition controls. Knowledge on the Prohibited List is reasonable; on the procedures surrounding doping controls it is even better. In the past seven years, knowledge on doping related issues has improved.

Education
Of all educational materials that are offered by ‘Dopingautoriteit’,
the fan booklet and the website are best known, and are used most often. Status athletes seek doping related information at the Dopingautoriteit, or consult a specialised sports physician. Football/ soccer players seek this sort of information in their direct (club) environment; they have not yet found the way to Dopingautoriteit. Over the last decade, the general practitioners are increasingly less often consulted on doping matters. Consultation of specialised physicians, internet, and NOC*NSF is on the rise.
Existing educational materials receive great satisfaction. One noticeable result is that satisfaction about educational meetings has dropped somewhat over the last seven years (from 95% to 84%). These meetings could be personalised and targeted at specific questions and requests of the athletes that are present. An email service ranked highest for athletes when asked in what way they would like to receive future updates on doping related issues.

The ‘100% Dope Free’ campaign’, started in 2007 at the initiative of the Athlete Committee of NOC*NSF and Dopingautoriteit, is not yet known amongst all elite athletes. About two thirds of all status athletes are familiar with the campaign; for football/soccer players this percentage is just 8%. The different aspects of the campaign are judged in a positive manner by 50-66% of all athletes.

Based on the results, a number of actionable recommendations
have been made. These are listed in the last paragraph of this report (page 23).

Health Risks of Illegal Doping Trade over the Internet [2010]

1 Sep 2010

Gezondheidsrisico's illegale doping via internet / Hans Wassink, Bart Coumans, Olivier de Hon. - Capelle a/d IJssel : Dopingautoriteit, 2010

Abstract:

Health Risks of Illegal Doping Trade over the Internet. In the Netherlands it is estimated that there are 160,000 doping users who take these substances particularly for cosmetic purposes, i.e. more muscle and less body fat. It is suspected that a significant proportion of these users purchase doping over the internet. The purpose of this research is to better understand the doping trade over the internet and the associated (additional) health and other risks.

An overview of research in the Netherlands on illegal doping trade over the internet was done. In addition, during the period November 2009 to February 2010 sites were reviewed in particular those selling anabolic steroids and human growth hormone. A selection of these websites was made followed by a qualitative analysis of the (additional) health risks based on the information and advices on these websites. Based on the research overview it can be concluded that it seems that the trade of illicit doping over the internet increases. There are some indications that these substances are more often counterfeited than the 'regular' doping trade. The most recent estimate indicates that approximately 30% of the doping buyers buy the substances over the internet. Internet plays a distinct role in information even when only looking for buying opportunities. Besides health risks, there are also financial and legal risks of buying these products over the internet.

The analysis of websites offering illegal doping brings various risks to the fore. Besides the fact that the use of doping already gives substantial health risks and that 50-60% of illegal doping is counterfeited, users run additional risks following the advices given. Large doses are almost standard advice to beginners, and on
websites the tone of voice about doping use is frivolous and the information given is very unbalanced (risks are minimized; risk groups like minors and women are seldom specifically warned).

The findings from this research will be used in the prevention and education activities of the Anti-Doping Authority of the Netherlands mainly focused on athletes and fitness instructors in gyms. To better map trends, future prevalence studies should include doping trade over the internet. It is known that ordinary drug sales over the internet can vary considerably in quality. It is recommended
that the quality and risks of the illicit doping trade over the internet should be monitored. Finally, cooperation and exchange with the national Health Campaign "The dangers of internet medication’ and the Trimbos Institute (centre on mental health and drug addiction) are recommended.

Social psychological determinants of the use of performance-enhancing drugs by gym users [2007]

13 Feb 2007

Social psychological determinants of the use of performance-enhancing drugs by gym users / C. H. Wiefferink, S. B. Detmar, B. Coumans, T. Vogels and T. G.W. Paulussen. - (Health Education Research 23 (2008) 1 (13 February) p. 70-80)

The aim of this study is to identify the social psychological determinants of the use of performance-enhancing drugs by gym users who practice bodybuilding, fitness, powerlifting or combat sports. In this questionnaire-based study, 144 respondents answered questions on their actual use and intention to use such drugs and also on their background characteristics and beliefs, such as their attitudes, social influences and self-efficacy. While all social psychological determinants correlated with intention to use these drugs, the most important predictors were personal norms, beliefs about performance outcomes and the perceived behavior of others. Non-users held more restrictive norms about using performance-enhancing drugs, were less optimistic about the performanceenhancing outcomes and believed that fewer significant others used performance-enhancing drugs than users and ex-users. The results of this study indicate that users attribute advantages to performance-enhancing drugs and are inclined to overlook the risks of using them. Preventive interventions should focus on influencing personal norms and social processes.

Strategy for Stopping Steroids [2012]

19 Mar 2012

Strategy for Stopping Steroids / Malene Radmer Johannisson, Mathias Warnecke, Jakob Berget, Bart Coumans, Hans Wassink, Charlotta Rehnman Wigstad, Erika Sjöblom, Michal Rinkowski, Michael Petrou. - Anti-Doping Denmark (ADD), Cyprus Anti Doping Authority, Dopingautoriteit - Anti-doping Authority Netherlands, European Commission, Polish Commission Against Doping in Sport, Polish Institute of Sport, Stockholm förebygger alkohol- och drogproblem (STAD) - Stockholm Prevents Alcohol and Drug Problems. - Broendby : Anti Doping Danmark, 2012

Use of Anabolic Androgenic Steroids and other similar doping substances is a substantial problem in Europe – primarily among young men – which until recently has not been given much attention. Steroids and similar doping substances can have serious physical, psychological and social side-effects for the individual user, and the substances also constitute a societal problem due to the user’s health problems and behaviour. In the White Paper on Sport launched in 2007, the European Commission points out that doping constitutes a threat to sport and a serious threat to the health of the individual using doping. The Commission also states that one must focus upon the fight against doping both in law enforcement initiatives as well as in health and prevention, and do so at a European level. Finally, the Commission recommends that trade in illicit doping substances be treated in the same manner as trade in illicit drugs throughout the EU. This report illustrates the current situation and the work performed in relation to all aspects of fitness doping – from production and trafficking to young men’s focus on the muscular body and prevention to health risks and treatment of users. It is the aim that the report should represent “good practice” and serve as inspiration for other countries in the EU keen on working with doping in the fitness sector. The report is a result of the collaboration between: Anti Doping Denmark; Anti-Doping Authority, the Netherlands; STAD – Stockholm Prevents Alcohol and Drug Problems, Sweden; Polish Institute of Sport, represented by Polish Commission Against Doping in Sport; CyADA – Cyprus Anti-Doping Authority.

CAS 2008_A_1452 Kazuki Ganaha vs Japan Professional Football League

26 May 2008

CAS 2008/A/1452 Kazuki Ganaha v/ Japan Professional Football League

Football
Doping
Burden of proof
Intravenous infusion justified by a legitimate medical treatment
No fault of the athlete

1. Under the applicable 2007 WADA Code and the Anti-Doping Regulations of the J-League, the prohibited method is described as “Intravenous infusions are prohibited, except as a legitimate medical treatment”. Under the wording of the 2007 WADA Code, the party alleging the infraction has to prove that there was an intravenous infusion and that it was not legitimate medical treatment.

2. The intravenous infusion of normal saline and vitamin B1 performed by the team doctor of a Japanese football club is a legitimate medical treatment for the Player within the meaning of the 2007 WADA Code, taking into consideration that at the time of the facts, the Japanese League had not adopted those provisions of the WADA Code which related to sanctions. The Anti-Doping Regulations of the - League which were in force at the time of the infusion provide that the Anti-Doping Special Committee is “entitled” to impose a sanction. There is an entitlement to impose a penalty but there is no mandatory obligation that a penalty be imposed for every infraction. In such circumstances, there is no need to decide if there has been a violation because it is not a case where any sanction should be imposed on the Player whose conduct is not deserving of any sanction.

3. Under the Anti-Doping Regulations of the J-League, a Player who bears no fault should not be sanctioned even he had committed an anti-doping violation by using a prohibited method.


On 23 April 2007 an intravenous infusion was performed on Mr. Ganaha by Dr Goto, The Kwasaki Frontale team doctor.
On 10 May 2007 the Japan Professional Football League (J.League) determined that this treatment could not "'be approved as an acute and legitimate medical treatment of the health condition of Mr. Ganaha". J.League imposed a sanction on Mr Ganaha on the basis of findings made at a meeting of J.League's Doping Control Committee on 3 May 2007 that the infusion infringed the J.League Anti-Doping Regulations which incorporated the WADA Code and Mr Ganaha was suspended for 6 official games.

The decision to sanction Mr Ganaha was then the subject of ongoing correspondence between the parties and also with a number of other parties involved in, or interested in professional football in Japan. In December 2007 Mr Ganaha filed an appeal against the J.League decision with the Court of Arbitration for Sport (CAS).

Considering the particular circumstancess in this case the CAS Panel finds that the intravenous infusion was a legitimate medical treatment for Mr. Ganaha within the meaning of the 2007 WADA Code the Panel notes that at the time the J.League had not adopted those provisions of the WADA Code which related to sanctions. The Panel concludes that Mr. Ganaha acted totally without fault.

Therefore the Court of Arbitration for Sport decides on 28 May 2008:

1.) The Appeal is upheld and the sanction imposed on the Appellant by the Respondent dated 10 May 2007 that the Appellant be suspended from six official games be cancelled.
2.) The costs of the present arbitratiort, to be determined and served by the CAS Court Office, shall be borne by the Respondent.
3.) The Respondent shall contribute towards the legal and other costs incurred by the Appellant in connection wjth these arbitration proceedings, in the amount of US $ 20.000,00.
4.) The Respondent shall bear its own costs.

CAS 2007_A_1446 WADA vs Qatar Football Association & Hamad Rakea Humood Alanezi

21 Aug 2008

CAS 2007/A/1446 WABA v/ Qatar Football Association & Hamad Rakea Humood Alanezi

The Player signed an employment contract with the Qatari football club "Al-Arabi Sports Club" for the period from March 2007 to May 2007. In consideration for his work with the Al-Arabi Sports Club*s first team, the Player received a total amount of 30,000 USD, another 30,000 USD being paid to a third party, namely the Al Refa Club from Bahrein,
On 1 April 2007, on the occasion of an in-competition test performed on an urine sample provided by the Player during a football game between Al-Arabi Sports Club and Al-Ahli Sports Club, the Player tested positive to 19-norandrosterone at a concentration
higher than the 2 ng/ml threshold stated in the World Anti-Doping Agency Technical Document,
In a letter datcd 3 June 2007, the QFA notified the Player of the presence of a prohibited substance in his bodily specimen and explained that this was in violation "of the Qatar Football Association Regulations and the Regulations Doping Control for FIFA competition In and Out of Competitions [sic]. As consequence, you [the Player] could be seriously sanctioned by the competent judicial bodies in accordance with the abovementioned
Regulations" In the same letter, the QFA informed the Player of his right to request the analysis of the B-sample> as provided by the QFA and FIFA anti-doping rules. The Player did not request the analysis of the B-sample.
On 6 June 2007, the Player was questioned by the QFA General Secretary, Mr. Said Al-Mohannadi, the QFA Medical Officer, Dr. Saadalla Mohamed Seemer and the QFA Legal Advisor, Mr. Ettore Mazzilli. During his examination, the Player declared that he
had never in his life taken any substance to improve his physical ability or his sports performance and that he had not taken any medicine during the three days preceding the game in which he tested positive. However, he took medicine under medical
prescription for about 45 days, from 15 January 2007 until the end of February 2007.

CAS 2007_A_1445 WADA vs Qatar Football Association & Ali Jumah A.A. Al-Mohadanni

21 Aug 2008

CAS 2007/A/1445 WADA v/ Qatar Football Association & Ali Jumah A.A. Al-Mohadanni

In 2007 the Player was playing for the Qatari football club named "Qatar Sports Club". On 7 April 2007, on the occasion of an in-competition test performed on a urine sample provided by the Player during a football game between AI-Khor Sports Club and Qatar Sports Club, the Player tested positive to 19-norandrosterone at a concentration higherthan the 2ng/ml threshold stated in the World Anti-Doping Agency Technical Document, namely more thian 20 ng/ml.
On 3 June 2007, the QFA notified the Player of the presence of a prohibited substance in his bodily specimen and of has right to request the analysis of the B-sample, as provided by the QFA anti-doping rules. The Player did not request the analysis of the B-sample,
In the following days, the Player appeared spontaneously several times before the Head of the QFA Doping Control Committee. During those hearings, the Player declared that he had taken some nutritional supplements called Yohimbine, just before the game and
that he had bought all of them in a local supermarket in Doha. He claimed that he had believed that those were natural products containing only vitamin and mineral salts particularly useful for a football player during that part of the season when the climate in
Qatar is usually very hot and with a really high percentage of humidity. In order to prove bis statement, the Player provided the Head of the QFA Doping Control Committee with a box of the pills that he claimed to have used, emphasizing that those pills can be easily purchased in several local supermarkets, even without medical prescription.

CAS 2007_A_1370 FIFA vs STJD & CBF & Ricardo Lucas Dodô

11 Sep 2008

CAS 2007/A/1370 FIFA v. Superior Tribunal de Justiça Desportiva do Futebol (STJD) & Confederação Brasileira de Futebol (CBF) & Mr Ricardo Lucas Dodô

CAS 2007/A/1376 WADA v. Superior Tribunal de Justiça Desportiva do Futebol (STJD) & Confederação Brasileira de Futebol (CBF) & Mr Ricardo Lucas Dodô

Related case:
Swiss Federal Court 4A_460_2008 Ricardo Lucas Dodô vs FIFA & WADA
January 9, 2008

Football
Doping (Fenproporex)
CAS Jurisdiction
Applicable law
No fault or negligence
No significant fault or negligence
Burden of proof
Duty of care of the athlete
Commencement of the suspension period

1. The “stand-alone test” is the decisive test to reveal whether a given sports justice body pertains in some way to the structure of a given sports organization or not. If it appears that, would the sports organization not exist, the sports justice body would not exist and would not perform any function, then the sports justice body has no autonomous legal personality and may not be considered as a Respondent on its own in a CAS appeal arbitration concerning one of its rulings. Consequently, the procedural position of the sports justice body before the CAS must be encompassed within that of the sports organization.

2. If a national legislation itself expressly states that official sports practice in the country is governed by national and international rules, then international sports rules are directly applicable in this country. Accordingly, any athlete registered with a national federation is directly bound by the international rules accepted by that federation, including any provision therein giving jurisdiction to the CAS.

3. The right of appeal to CAS against national decisions – granted to FIFA and WADA – confirms that national football associations have expressed the clear wish to pursue uniform interpretation and application of anti-doping rules and sanctions vis-à-vis athletes of international status throughout the football world. Such uniform interpretation and application would be imperilled or impeded if the CAS – absent any mandatory rule or public policy principle imposing such legal course – had to accord precedence to domestic anti-doping rules over a FIFA disciplinary system contractually accepted, on a basis of reciprocity, by all national football associations and their affiliated clubs and registered individuals.

4. In order to establish that he bears no fault or negligence, the athlete must prove (1) how the prohibited substance came to be present in his/her body and, thus, in his/her urine samples, and (2) that he/she did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he/she had used or been administered the prohibited substance.

5. In order to establish that he/she bears no significant fault or negligence, in addition to the proof of how the prohibited substance came to be present in his/her body, the athlete must prove that his/her fault or negligence, when viewed in the totality of the circumstances and taking into account the requirement of utmost caution, was not significant in relationship to the anti-doping rule violation.

6. The athlete must establish the facts that he/she alleges to have occurred by a “balance of probability”. According to CAS jurisprudence, the balance of probability standard means that the indicted athlete bears the burden of persuading the judging body that the occurrence of the circumstances on which he/she relies is more probable than their non-occurrence or more probable than other possible explanations of the doping offence.

7. The WADA Code provides that the athlete is personally responsible for the conduct of people around him/her from whom he/she receives food, drinks, supplements or medications, and cannot simply say that he/she trusts them and follows their instructions.

8. When delays in the judging process are not or only partially attributable to the athlete, it is fair to apply ex officio the principle set forth by Article 10.8 of the WADA Code and, thus, to start the period of suspension at an earlier date than the day of notification of the award.


In June 2007 the Brazilian Football Confederation (CBF) has reported an anti-doping rule violation against the Athlete Ricardo Lucas Dodô after his A and B samples tested positive for the prohibited substance Fenproporex.
In July 2007 several nutritional supplements regularly used by the Dodô's team were sent to the University of Sao Paulo Laboratory for Toxicological Analyses to be tested in order to ascertain the possible presence of Fenproporex and hereafter the substance was found in some caffeine capsules.

Considering te contamination reports about the supplements the Brazilian Sports Disciplinary Commission accepted the Players statement and decided on 24 July 2007 to impose a 120 day period of ineligibility on the Player.

The Player appealded this decision and on 2 August 2007 the
Brazilian High Sports Court for Football (STJD) decided to set aside the Discplinary Commission’s decision and to acquit the Player with termination of his provisional suspension. The STJD accepted the Player’s argument that he had been an innocent victim of contamination and that he had not been negligent.

Hereafter in September 2007 FIFA and WADA appealed the STJD decision with the Court of Arbitration for Sport (CAS).

The CAS Panel is not willing to share the STJD’s conclusion that the explanation offered by the Player is acceptable. In the Panel’s view, the evidence submitted by the Player as to both the ingestion of a caffeine capsule prior to the match and the contamination of that caffeine capsule is unsatisfactory. The Panel finds that, on the balance of probability, the Player has failed to establish how the prohibited substance entered his system and the Panel finds that the Player’s degree of “fault or negligence”, viewed in the totality of the circumstances, is clearly “significant” in relation to the anti-doping rule violation.

Therefore the Court of Arbitration for Sport decides on 11 September 2008:

1.) The CAS has jurisdiction ratione materiae and ratione personae to entertain the appeals of the Fédération Internationale de Football Association (FIFA) and the World Anti-Doping Agency (WADA) in respect of the Confederação Brasileira de Futebol (CBF) and Mr Ricardo Lucas Dodô, while it has no jurisdiction ratione personae in respect of the Superior Tribunal de Justiça Desportiva do Futebol (STJD).
2.) The appeals of FIFA and WADA against the decision dated 2 August 2007 of the STJD are upheld.
3.) The decision dated 2 August 2007 of the STJD is set aside.
4.) Mr Ricardo Lucas Dodô is suspended from 6 December 2007 to 7 November 2009.
(…)

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