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