CAS 2007_A_1364 WADA vs FA Wales & Ceri James

12 Dec 2007

CAS 2007/A/1364 WADA v/FAW and James

On March 24, 2007, Mr. James was selected for an in-competition urine test on the occasion of the Welsh Premier Football League match between Haverfordwest County and WTFC. The urine sample was collected in conformity with the applicable regulations by UK Sport, the National Anti-Doping Organization for the United Kingdom, and FIFA Doping Control Regulations. The sample was sent to the Drug Control Centre of King’s College (London), a
laboratory accredited by WADA.
With a letter of 13 April 2007, UK Sport notified the FAW that the Drug Control Centre had found the “A” urine sample collected from Mr. James (sample No. A1071966) positive for Benzoylecgonine, which is classified as a stimulant on the WADA Prohibited List.
With a letter of 17 April 2007, the FAW notified Mr. James that his urine sample was found positive for Benzoylecgonine, and that he had the right to have the “B” sample analysed. The FAW also informed Mr. James that it would convene a Review Panel to decide whether a doping offence has been committed and whether an interim suspension should be put in place until the matter was concluded.
With a letter of 19 April 2007, Mr. James notified Mr. Paul Evans, the Head of Discipline and Welfare at the FAW, that he “[could] not argue with the result of the sample.” Mr. James followed up with a letter on 20 April 2007, stating that he “will not be needing the B Sample.”
At the FAW Review Panel meeting on 20 April 2007, the panel concluded that there was prima facie evidence that a doping offence has been committed. Furthermore, the panel decided that
an interim suspension was appropriate. With a letter of 24 April 2007, Mr. James was notified of the Review Panel’s decision and told that he must not participate in any football activity until all disciplinary proceedings had been completed.
On 22 May 2007, an Appeals Panel of the FAW found that the presence of a prohibited substance in Mr. James’s body was clear and unchallenged, but took note of the good character evidence submitted by Mr. James and the fact that this was Mr. James’s first offence. The Appeals Panel noted that the FAW Regulation 11.2.1 specifies a minimum suspension of 6 months and a fine for a first offence.
As a result, the Appeals Panel decided to suspend Mr. James from all participation in football for 6 months and 10 days, from 21 April 2007 until 31 October 2007. Mr. James was ordered to pay a fine of £250.00, suspended for two years from 24 March 2007 and payable only if Mr. James breached the FAW Doping Control Regulations during this period. In addition, Mr. James was ordered to pay the cost of the hearing in the amount of £300.00.

On 27 August 2007, WADA filed a Statement of Appeal with the Court of Arbitration for Sport (CAS) against the decision of the FAW Appeals Panel Decision.

The Court of Arbitration for Sport pronounces:
1. The appeal filed by the World Anti-Doping Association on 27 August 2007 is upheld, and the Appealed Decision issued by the Appeals Panel of the FAW on 22 May 2007 is varied to impose a two-year sanction.
2. Mr. Ceri James is declared ineligible for a period of two years, from 25 April 2007 to 24 April 2009.
3. The award is pronounced without costs, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) already paid by the World Anti-Doping Association and to be retained by the CAS.
4. Each party shall bear its own costs.

CAS 2006_A_1192 Chelsea Football Club vs Adrian Mutu

21 May 2007

CAS 2006/A/1192 Chelsea Football Club Ltd. v. M.

Football
Breach of the employment contract without just cause
Standing to be sued
Dispute settlement system of the FIFA
Competence to impose sanctions

1. A club is entitled to direct its appeal at a player in order to require him to accept the FIFA jurisdiction to rule on the issue of sanction and of compensation as the FIFA Regulations provide that every player must have a written contract with the club employing him and that the contract shall be subject to the rules of FIFA which are applicable to any dispute arising out of the breach of that contract by one of the parties.

2. Art. 42 of the FIFA Regulations and Circular no. 769 expressly distinguish, for jurisdictional purposes, between the “triggering elements” or “liability stage” of a claim and the “remedies” or “quantum” stage. The “triggering elements” of the dispute may be decided either by the DRC or by a national football tribunal provided that
(a) that national tribunal is composed of “members chosen in equal numbers by players and clubs, as well as an independent chairman”, and
(b) both parties to the dispute agree to the national tribunal determining the triggering elements. Then it is the DRC alone that is exclusively competent to determine what sporting sanctions should be imposed and what financial compensation should be awarded.


In October 2004 the Player Adrian Mute tested positive for the prohibited substance cocaine and the Club terminated the contract with the Player with immediate effect. On 4 November 2004, the FA’s Disciplinary Commission imposed a seven-month ban on the Player commencing on 25 October 2004. The FIFA Disciplinary Committee extended the sanction in order to obtain a worldwide effect by a decision dated 12 November 2004.

On 10 November 2004, the Player appealed against the Club’s decision with the Board of Directors of the FAPL and on 19 January 2005 Chelsea filed a claim for compensation against the Player.
At the hearing on 19 January 2005 the panel was informed of an agreement between Chelsea and Adrian Muti as to the method of resolution of the Player’s appeal and Chelsea’s claim for compensation.

By joint letter dated 26 January 2005, the Parties agreed to refer the “triggering element of the dispute”, that is, the issue of whether the Player had acted in breach of the employment contract with or without just cause or sporting just cause, to the Football Association Premier League Appeal Committee (FAPLAC).

On 20 April 2005, FAPLAC decided that the Player had committed a breach of contract without just cause within the protected period against Chelsea.

Hereafter in April 2005 the Player appealed the decision with the Court of Arbitration of Sport (CAS). On 15 December 2005 CAS decided to dismissed the Player’s appeal (Award in the matter CAS/A/786).

On 11 May 2006 Chelsea applied to FIFA for an award of compensation against the Player Adrian Muti. That application followed the 20 April 2005 decision and was consistent with the claim dated 4 February 2005. In particular, Chelsea requested that the DRC should award an amount of compensation in favour of the Club following the established breach of contract committed by the Player without just cause.

On 26 October 2006, the DRC decided that it did not have jurisdiction to make a decision in the dispute between Chelsea and the Player and that the claim of Chelsea was therefore not admissible (the “FIFA Decision”).

On 22 December 2006 Chelsea filed an appeal against the FIFA Decision with CAS.

The Court of Arbitration for Sport decides on 21 May 2007:

1.) The appeal filed by Chelsea Football Club against the decision rendered on 26 October 2006 by the FIFA Dispute Resolution Chamber is upheld;
2.) The decision rendered on 26 October 2006 by the FIFA Dispute Resolution Chamber is set aside;
3.) The matter is referred back to the FIFA Dispute Resolution Chamber which does have jurisdiction to determine and impose the appropriate sporting sanction and/or order for compensation, if any, arising out of the dispute between Chelsea Football Club and M.;
4.) (…);
5.) (…);
6.) All other prayers for relief are dismissed.

CAS 2006_A_1155 Everton Giovanella vs FIFA

22 Feb 2007

CAS 2006/A/1155 Everton Giovanella v. Fédération Internationale de Football Association (FIFA)

Football
Doping (19-norandrosterone, 19-noretiocholanolone)
Participation of a third party to the arbitration proceedings
Power of FIFA to review the sanctions adopted by a national federation in doping matters
Procedural violations in the adoption of a decision

1. According to the relevant provisions of the CAS Code, a third party can participate as a party to the arbitration proceedings already pending among other subjects in two situations, joinder or intervention, but subject to a common condition: that it is bound by the same arbitration agreement binding the original parties to the dispute or that it agrees in writing to such participation. Although de facto interested in the outcome of the appeal, a national federation is not a party in the FIFA proceedings leading to the decision concerning the extension worldwide of the effects of a decision adopted by its disciplinary bodies. As a result, it cannot be compelled to participate in the appeals arbitration concerning the same appealed decision. In addition, pursuant to the CAS Code, the joinder of a third party in the proceedings is possible only upon the request of the respondent, and not of the appellant. The appellant, in fact, has the possibility to name, in the statement of appeal, a plurality of respondents, if he wishes that the proceedings involve all the parties that he might think to be interested in their outcome.

2. The provisions of the FIFA Statutes concerning the obligation of the national football association to abide by the FIFA rules do not confer on FIFA the power to intervene and review disciplinary decisions adopted by national federations in anti-doping matters. Well to the contrary, the FIFA Disciplinary Code expressly states that national associations are responsible for enforcing sanctions imposed against infringements committed in their area of jurisdiction. In addition, the FIFA Disciplinary Code specifically excludes the review of the substance of the domestic decision by the competent FIFA body called to decide on the extension of the effects of sanction imposed by the domestic association.

3. According to Art. R57 of the CAS Code, the Panel has full power to review the facts and the law. The Panel consequently hears the case de novo and can consider all new contention submitted before it. This implies that, even if a violation of the principle of due process occurred in prior proceedings, it may be cured by a full appeal to the CAS. In fact, the virtue of an appeal system which allows for a full rehearing before an appellate body is that issues relating to the fairness of the hearing before the tribunal of first instance “fade to the periphery”.


The Court of Arbitration for Sport decides on 22 February 2007 that:

1.) The appeal filed by Mr Everton Giovanella against the decision issued on 25 August 2006 by the Chairman of the FIFA Appeal Committee is dismissed.
2.) The decision issued on 25 August 2006 by the Chairman of the FIFA Appeal Committee is confirmed.
(…)

CAS 2006_A_1153 WADA vs Portuguese Football Federation & Nuno Assis Lopes de Almeida

24 Jan 2007

CAS 2006/A/1153 WADA v/ Portuguese Football Federation & Nuno Assis Lopes de Almeida

Related case:
Swiss Federal Court 4A_170_2007 Nuno Assis Lopes de Almeida
June 8, 2007

Football
Doping (19-norandrosterone)
Notification of a decision
Scope of “doping-related decisions” with regard to WADA’s right of appeal
Respect of the right of proper defence
Sanction

1. As a basic rule, a decision or other legally relevant statement is considered as being notified to the relevant person whenever that person has the opportunity to obtain knowledge of its content irrespective of whether that person has actually obtained knowledge. Thus, the relevant point in time is when a person receives the decision and not when it obtains actual knowledge of its content.

2. A 6-month suspension of a player for a doping offence is indisputably a “doping-related decision” as set forth under Article 61 para. 5 of the FIFA Statutes. The fact that a higher judicial body later acquitted the player exclusively on procedural grounds rather than entering into the substance does not change the nature or the cause of the proceedings initially opened, which remains the doping offence. Therefore, WADA is entitled to appeal against the acquittal decision.

3. A CAS panel’s scope of review is basically unrestricted. It has the full power to review the facts and the law. Hence, if there has been procedural irregularities in the proceedings before the first instance bodies, it can be cured by the arbitration proceedings if the party has been given all opportunities to exercise its right to be heard, both in writing and orally. Any potential breaches with respect to principle of natural justice are therefore remedied.

4. A two-year suspension for a first time doping offence is legally acceptable. However – provided that the applicable regulations do not incorporate the sanction of a 2-year suspension provided for in the World Anti-Doping Code but permit the tribunal dealing with the matter to exercise its discretion to impose a sanction of between 6 months and two years – in case of procedural delay, with the result that the player is left in a state of uncertainty for a period of 12 months, added to the fact that the player has already been suspended for a certain period of time after which he has reintegrated his team, a lesser sanction may be imposed so that it is not perceived as being a bigger penalty than one continuous suspension.


Mr. Nuno Assis Lopes de Almeida is a Portuguese professional footballer who played in 2006 for the club Sport Lisboa e Benfica.

In December 2005 the Federação Portuguesa de Futebol (FPF), the Portuguese Football Federation, reported an anti-doping rule violation against the Athlete Nuno Assis after his A and B sample tested positive for the prohibited substance 19-norandrosterone (nandrolone, norandrostenedione or norandrostenediol).
After ordering a provisional suspension, the FPF Disciplinary Committee decided on 9 June 2006 to impose a 6 month period of ineligibility on the Athlete. The Athlete appealed this decision and on 14 July 2006 the FPF Judicial Board decided to set aside the FPF decision of 9 June 2006 on technicalities, specifically the disregard for the defence of the Athlete, and aquitted the Athlete after he already served a 5 month period of ineligibility.

Hereafter WADA appealed the decision of the FPF Judicial Board with the Court of Arbitration for Sport and requested to set aside the decision of 14 July 2006 and to impose a 2 year period of ineligibility on the Athlete.
The Athlete asserted that he was the victim of a conspiracy; he disputed the reliability of the doping test; and claimed that there were irregularities with the transport, the testing and the analytical reports.

The CAS Panel concludes that there were no irregularities in the proceedings before the FPF Disciplinary Committee; there were no inconsistencies with the doping test result of the WADA laboratory in Portugal; it has been established that the Athlete committed an anti-doping rule violation; and the Athlete failed to produce evidence for his “wild and unsubstantiated allegations”.

Therefore the Court of Arbitration for Sport decides on 24 January 2007:

1.) The appeal filed on 25 August 2006 by the World Anti-Doping Agency against the decision issued on 14 July 2006 by the Judicial Board of the Portuguese Football Federation is upheld.
2.) The decision issued on 14 July 2006 by the Judicial Board of the Portuguese Football Federation is set aside.
3.) Mr Nuno Assis Lopes de Almeida is ineligible to play football for 12 months as from the notification of this award, less 161 days already served under the provisional suspensions.
4.) All other motions or prayers for relief are dismissed.
5.) This award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss Francs) paid by the World Anti-Doping Agency, which is retained by the CAS.
6.) Mr Nuno Assis Lopes de Almeida and the Portuguese Football Federation, remaining jointly and severally liable, are ordered to pay to the World Anti-Doping Agency a contribution towards all its costs incurred in connection with the present arbitration procedure in an amount of CHF 5,000 (five thousand Swiss Francs).

CAS 2006_A_1149 WADA vs Federación Mexicana de Fútbol Asociación (FMF) & José Salvador Carmona Alvarez

16 May 2007

CAS 2006/A/1149 & 2007/A/1211 World Anti-Doping Agency (WADA) v. Federación Mexicana de Fútbol (FMF) & José Salvador Carmona Alvarez

Football
Doping (stanozolol)
Stay of the CAS proceedings
Coexistence of national and international regimes in doping cases
Notification of the Adverse Analytical Finding to the athlete
Analysis by two different laboratories
Lifetime suspension

1. A letter requesting a stay of the CAS proceedings pending the decision of another jurisdictional body does not constitute an implicit acceptance that this body’s decision will be authoritative and definitive. If the intention is to confer such an effect to the decision of that body, then the case before the CAS should be withdrawn. The very notion of suspension implies the possibility of resumption.

2. The coexistence of national and international authority to deal with doping cases is a familiar feature, and it is well established that the national regime does not neutralise the international regime. National associations have vested disciplinary authority in international federations precisely in order to eliminate unfair competition, and in particular to remove the temptation to assist national competitors by over-indulgence.

3. An athlete cannot invoke more or less identifiable rules for giving formal notice that are peculiar to his home country in order to escape the charge of a doping offence. This would be utterly inimical to the establishment and maintenance of a uniform international regime in the fight against doping.

4. An athlete is entitled to the assurance that his specimens are analysed in an accredited laboratory in accordance with a rigorous protocol. However, there is no such thing as entitlement to “the most favourable laboratory”, which means that the fact that a second (non accredited) laboratory has analysed the same sample and has come to a negative result that is different from the (positive) result of the first (accredited) laboratory does not give rise to a doubt that should be resolved in favour of the athlete by an acquittal. What matters is only whether the adverse analytical finding was made by a properly accredited laboratory properly following protocol.

5. Professional athletes are no different than others whose work is regulated – much as physicians or public servants or accountants – who face disqualification if they violate the rules to which they are held. The anti-doping rules are designed and intended to protect athletes who compete fairly, and to punish those who do not. The latter must be prepared to face the consequences when they transgress the rules, even if these consequences are as serious as a lifetime suspension that deprives them of the possibility to pursue their preferred profession.


The Court of Arbitration for Sport decides on 16 May 2007 that:

1.) The World Anti-Doping Agency’s appeals against the decision dated 20 July 2006 of the FMF’s Disciplinary Commission and against the decision of the Comisión de Apelación y Arbitrage del Deporte dated 4 December 2006 are upheld.
2.) The decision dated 20 July 2006 of the FMF’s Disciplinary Commission is set aside.
3.) The decision of the Comisión de Apelación y Arbitrage del Deporte dated 4 December 2006 has no effect on the system of sanctions established under the FIFA Statutes and Regulations.
4.) The Player, Mr José Salvador Carmona Alvarez, is declared ineligible with immediate and lifetime effect.
(…).

CAS 2006_A_1035 Abel Xavier vs UEFA

31 Aug 2006

TAS 2006/A/1035 Abel Xavier c/ UEFA
CAS 2006/A/1035 Abel Xavier vs UEFA

Mr. Abel Xavier is an football player for the English team FC Middlesbrough.

In October 2005 the Union of European Football Associations (UEFA) reported an anti-doping rule violation against the Athlete Abel Xavier after his A and B samples tested positive for the prohibited substance methandienone. Laboratory analysis of the Athlete’s supplements showed that one of the products contained the prohibited substance.
Considering that the concentration found in the Athlete’s sample was too high to be caused by oral administration three day prior to the doping test the UEFA Disciplinary Authority decided on 25 November 2005 to impose a 18 month period of ineligibility on the Athlete, starting on 14 October 2005.

After dismissal by the UEFA Appeal Commission the Athlete appealed the UEFA decision of 25 November with the Court of Arbitration for Sport (CAS). The Athlete argued that the imposed sanction was disproportional.

Based on the UEFA rules the CAS Panel finds that a 12 month period of ineligibility appropriate for a first anti-doping rule violation. The older age of the Athlete can’t be considered an aggravating circumstance to impose a longer period of ineligibility on the Athlete.
Therefore the Court of Arbitration for Sport Panel decides on 31 August 2006 to partial reform the UEFA decision of 21 December 2005 and to impose a 12 month period of ineligibility on the Athlete, starting on 14 October 2005.

CAS 2005_C_841 CONI

26 Apr 2005

Advisary Opinion CAS 2005_O_841 CONI

On 26 November 2004 an Italian criminal court (the “Tribunale di Torino”) issued a judgment sentencing the team’s doctor of an Italian professional football club to a term of imprisonment (whose execution was however suspended), for the crime of fraud in sports competition (the “Judgment”).
Police investigation, in fact, found that the team’s doctor controlled, at the club’s premises, a large amount of pharmaceutical products, including products containing substances prohibited under anti-doping regulations, and/or subject to restrictions for the purchase and use. As a result, the Tribunale di Torino, relying in particular on the evidence given by Court appointed experts, came to the conclusion that in the period 1994-1998 a large quantity of pharmaceutical substances and medical treatments, both included and not included in the list of prohibited substances, had been administered to club’s players not therapeutically but for the specific purpose of enhancing their sport performances.
The Judgment is not final and is subject to appeal according to Italian law.

On 7 March 2005, CONI submitted to CAS the request for an advisory opinion pursuant to Article R60 of the Code of Sport-related Arbitration (the “CAS Code”).
More specifically, the request for an advisory opinion was made by CONI to know if, based on the sport law in force in the period between 1994 and 1998 or nowadays,
(i) “the use of pharmaceutical substances not expressly prohibited by Sport Law, can be disciplinary sanctioned”; and
(ii) “under which methods of investigation the use of pharmaceutical substances supplied to athletes and not included in the prohibited list can be assessed by sport authorities”.
CONI specified also that the CAS opinion was requested considering also a specific request of FIGC” and that it was seeking CAS opinion “in order to know if and under which circumstances pharmaceutical and medical treatments which are not prohibited
by national or international sport rules, can influence the regularity of sport competition”.
In accordance with Article R61 of the CAS Code, the CAS President appointed the following Panel: Mr François Carrard (President), Mr Massimo Coccia and Mr Luigi Fumagalli. By letter dated 18 March 2005 he also reformulated and forwarded to the Panel the following questions:
“1. Can the use of pharmaceutical substances which are not expressly prohibited by sports law be sanctioned by disciplinary measures?
2. By which methods of investigation the use of pharmaceutical substances supplied to athletes and which are not included in the prohibited list can be assessed by sports authorities ?”
On 24 March 2005 the President of the Panel, on behalf of the Panel, advised CONI that before rendering its opinion, the Panel was requesting some additional information, and namely:
“1. Copies of the judgement referred to in your request of March 7, 2005.
2. Copies of the “specific request of FIGC” – Italian Football Association –referred to in page 2 of your request of March 7, 2005;
3. Texts of the Italian sports regulations, in particular disciplinary, medical and anti-doping regulations, applicable to football during the entire period 1994-1998 (including the relevant lists of prohibited substances and methods).
4. Texts of the applicable FIFA regulations, in particular disciplinary, medical and anti-doping regulations, applicable during the same entire period 1994-1998 (including the relevant lists of prohibited substances and methods).
5. The report which, according to recent press news, was issued by the “Commissione Scientifica Antidoping” of CONI, or by his President Prof. Luigi Frati, with regard to some the issues raised by the judgment referred to in your request of March 7, 2005”.

CAS 2005_C_976 FIFA & WADA

21 Apr 2006

Advisory opinion CAS 2005/C/976 & 986 Fédération Internationale de Football Association (FIFA) & World Antidoping Agency (WADA)
CAS 2005_O_976
CAS 2005_O_986

Football
Doping
Duty of FIFA to amend its Anti-Doping Rules in accordance with the WADC
Differences between the WADC and the FIFA Anti-Doping Rules
Limits on the power of an association to impose sanctions

1. As an association governed by Swiss law, FIFA is free, within the limits of mandatory Swiss law, to adopt such anti-doping rules it deems appropriate, whether or not such own rules comply with the WADC. However, FIFA is a recognized International Federation under Rule 26 of the Olympic Charter. According to Rule 26 para. 2 of the Olympic Charter, FIFA is obliged to implement the WADC. Not implementing the WADC does not render the WADC applicable by substitution, but may lead to sanctions as provided in Rule 23 of the Olympic Charter.

2. The most significant deviation of the FIFA Anti-Doping Rules from the WADC are:
- (1) the minimum duration of the ineligibility period for a first offense; - (2) the degree of fault which is relevant for the determination of the individual sanction;
- (3) the absence of a rule allowing complete elimination of the suspension in case of “no fault or negligence”;
- (4) the option of a probationary sanction;
- (5) the absence of a right of the WADA to review the granting or denial of a TUE;
- (6) the absence of any substantial assistance provision;
- (7) the presence of a rule to determine the relevant time period during which an offense is considered as a “second offense”; and
- (8) the absence of an appropriate right of information of the WADA on anti-doping decisions issued by FIFA bodies, as a condition to exercise its right of appeal.

3. As an association governed by Swiss law, FIFA is free, within the limits of mandatory Swiss law, to determine such sanctions on anti-doping violations as it deems appropriate. This includes FIFA’s competence to establish lower minimum sanctions than provided by the WADC. The competent sanctioning bodies of FIFA are obliged to apply the Anti-Doping Rules of FIFA only and may not take recourse to the WADC alternatively.


The Fédération Internationale de Football Association (FIFA) and the World Anti-Doping Agency (WADA) have each filed a request for an Advisory Opinion in order to resolve a dispute arising out of the implementation of the World Anti-Doping Code (WADC) into the FIFA Disciplinary Code (FIFA DC).

FIFA and WADA are in dispute as to whether certain rules of the WADC concerning the imposition of sanctions for anti-doping rule violations are admissible under Swiss law. FIFA is particularly concerned about the standard sanction of a two years' ineligibility (art. 10.2 WADC) with the limited possibility of eliminating or reducing the sanction only in the event of exceptional circumstances (art. 10.5 WADC).

FIFA takes the view that Swiss law requires an individual assessment of the sanction, based on the objective and subjective circumstances of the individual case. WADA submits that the WADC is compatible with Swiss law, and that the FIFA DC has disregarded a number of mandatory provisions of the WADC.

CAS 2005_A_876 Adrian Mutu vs Chelsea Football Club

15 Dec 2005

CAS 2005/A/876 Adrian Mutu v/Chelsea Football Club

Football
Employment contract between a player and a club
Admitted use of cocaine
Unilateral breach of contract without just cause

There is no basis in the wording of the FIFA Regulations for a distinction between a player unlawfully walking out under a contract and another player who breaches his contract through other serious misconduct, like the player’s taking cocaine or committing a serious on or off the pitch offence which goes to the roots of his contract with his employer. The Player’s admitted use of cocaine constitutes the “unilateral breach without just cause” provided by the FIFA Regulations and triggers the consequences deriving thereof, no matter whether this breach causes the Club to give notice of termination or whether the Club continues to hold on to and insist upon performance of the contract despite the Player’s breach.


The Court of Arbitration for Sport decides on 15 December 2005:

1.) The appeal filed by M. against the decision issued by the Football Association Premier League is dismissed.
2.) (...).

CAS 2009_A_2019 Jakub Wawrzyniak vs Hellenic Football Federation

21 May 2010

CAS 2009/A/2019 Jakub Wawrzyniak v. Hellenic Football Federation (HFF)

Related cases:
CAS 2009/A/1918 Jakub Wawrzyniak vs Helenic Football Federation - Operative Part
August 13, 2009
CAS 2009/A/1918 Jakub Wawrzyniak vs Hellenic Football Federation
January 21, 2010

1. Under a well established CAS jurisprudence, in order to determine whether an act constitutes an anti-doping rule infringement, the Panel applies the law in force at the time the act was committed. In other words, new regulations do not apply retroactively to facts that occurred prior to their entry into force, but only for the future. The principle of non-retroactivity is however mitigated by the application of the “lex mitior” principle.
2. A substance which is not explicitly included in the applicable list of prohibited substance like Methylhexaneamine, but which is however a substance similar to a prohibited substance – must be prohibited under the principle that not only are the listed substances prohibited, but also any other substances with a similar chemical structure or similar biological effect(s). Methylhexaneamine must therefore be considered as a prohibited substance similar to the Tuaminoheptane, a specified prohibited stimulant specifically mentioned in the 2008 Prohibited List. As a result, the presence of Methylhexaneamine in the Player’s bodily samples constitutes an anti-doping rule violation.
3. According to Article 52.5 of the 2009 FIFA ADR for the purpose of imposing sanctions, an anti-doping rule violation will only be considered a second violation if FIFA can establish that the player committed the second anti-doping rule violation after he had received notice of the first anti-doping rule violation. In this respect, if a later-in-time but earlier discovered violation has been established and that after its notification an earlier-in-time but later discovered violation is established, those violations have to be treated as one single first violation.

Jakub Wawrzyniak (the “Player” or the “Appellant”) is a professional football player of Polish nationality, born on 7 July 1983.
The Hellenic Football Federation (HFF or the “Respondent”) is the national football association for Greece. It is affiliated to the Fédération Internationale de Football Association (FIFA), the governing body of international football.
In the early months of 2009 the Player, who was at the time playing for the Greek football team FC Panathinaikos, underwent numerous doping controls performed by the Hellenic National Council for Combating Doping (“Eskan”).
On 5 April 2009 the Player took part in a football match between FC Panathinaikos and FC Skoda Xanthi of the Greek 1st National Division Championship. After that football match, the Player underwent a doping control (the “April Control”).
After the laboratory analysis, Eskan informed the HFF that the “A” sample collected from the Player at the April Control had tested positive for Methylhexaneamine. The adverse analytical finding of the “A” sample was notified to the Player on 6 May 2009 and thereafter confirmed by the “B” sample analysis.
As a result of the above, disciplinary proceedings (the “First Disciplinary Proceedings”) were started against the Player before the competent Greek authorities for an anti-doping rule violation.

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