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