CAS 2009/A/1918 Jakub Wawrzyniak v. Hellenic Football Federation (HFF)
CAS 2009/A/2019 Jakub Wawrzyniak vs Hellenic Football Federation
May 21, 2010
CAS 2009_A_1918 Jakub Wawrzyniak vs Helenic Football Federation - Operative Part
August 13, 2009
Principles of tempus regit actum and lex mitior in anti-doping rules violations
Substances similar to prohibited substances listed by the WADA administration
Meaning of no (significant) fault or negligence in the WADA Code and in the regulations of the Federations
Substances pharmacologically classified as stimulants and not identified under the monitoring programme
False information provided by the medical personnel and exemption from fault and negligence
Meaning of the balance of probability standard
CAS’ power of review and discretion of the disciplinary body of an association to set a sanction
1. In order to determine whether an act constitutes an anti-doping rule infringement, the Panel applies the principle tempus regit actum, i.e. 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, unless there are grounds for the application of the lex mitior principle.
2. The classification of a substance as “similar” to one of the listed substances made by the WADA administration can be challenged. The determination of similarity to substances expressly listed on the list of prohibited substances requires in fact the similarity to one (or several) of the listed substances; moreover, the similarity of a substance to a prohibited substance must be accompanied by the fulfilment of any two of the three criteria: the potential performance enhancement, the potential health risk, and the violation of the spirit of sport. Two of these three criteria must be met for a substance to be treated as similar and, thus, prohibited.
3. According to the CAS case law, the expressions “No Fault or Negligence” or “No Significant Fault or Negligence” should be considered as having the same meaning in all regulations (HFF, FIFA and WADC).
4. The WADA Prohibited List is an “open list” and “all substances pharmacologically classified as a stimulant and not identified under the Monitoring Programme are by definition prohibited”. This means that, even if the WADA administration could only identify the substance at a given time, Methylhexaneamine was still a prohibited substance already before that time because it was a stimulant.
5. Even in cases where the doping offence has occurred following false information
In April 2009 the Hellenic National Council for Combating Doping (ESKAN) has reported an anti-doping rule violation against the Player Jakub Wawrzyniak after his A and B samples tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).
In June 2009 the Player filed an appeal with the HFF Appeal Committee after the Disciplinary Committee of the First Instance of the Super League in Greece sanctioned him on 4 June 2009 with a three month period of ineligibility. However the HFF Appeal Committee decided on 1 July 2009 to impose a 1 year period of ineligibiltiy which was upheld by the FIFA Disciplinary Committee on 27 July 2009 and the sanction was extended worldwide by FIFA.
In July 2009 the Player appealed the Decision of 1 July 2009 of the HFF Appeal Committee with the Court of Arbitration for Sport (CAS).
Considering the circumstances the CAS Panel is led to the conclusion that, on a “balance of probability”, Methylhexaneamine entered into the Player’s body through the ingestion of TightXtreme and that the Player has not used this substance in order to enhance his sporting performance. As a result, the Player “qualifies” for the application of the reduced sanction provided in specific circumstances by the pertinent rules when a “specified substance” is involved in the anti-doping rule infringement.
Therefore on 21 January 2010 the Court of Arbitration for Sport decides:
1.) The appeal filed by Mr Jakub Wawrzyniak against the decision issued on 1 July 2009 by the Appeals Committee of the Hellenic Football Federation is partially upheld.
2.) The decision adopted by the Appeals Disciplinary Committee of the Hellenic Football Federation on 1 July 2009 is amended as follows:
3.) The Player Jakub Wawrzyniak is declared ineligible for the period of three (3) months, starting on 5 April 2009.
4.) All other motions or prayers for relief are dismissed.