Related cases:
AAA No. 77 190 00288 08 JENF USADA vs Jessica Hardy - Interim Award
August 1, 2008
CAS 2009_A_1870 WADA vs Jessica Hardy & USADA
May 21, 2010
CAS 2011_O_2422 USOC vs IOC
October 4, 2011

In July 2008 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the Athlete Jessica Hardy after her A and B samples tested positive for the prohibitied substance clenbuterol.

After an Interim Award of 1 August 2008 the North American Court of Arbitration for Sport Panel (AAA) considered the Athlete's negligence with the use of contaminated supplements and decided in a Final Award on 30 May 2009 to impose a 1 year period of ineligibility on the Athlete.

Related cases:
AAA No. 77 190 00288 08 USADA vs Jessica Hardy
May 30, 2009
CAS 2009_A_1870 WADA vs Jessica Hardy & USADA
May 21, 2010
CAS 2011_O_2422 USOC vs IOC
October 4, 2011

In the matter of the Arbitration between claimant USADA and respondent Jessica Hardy, agree that testing of the supplements used by Respondent JESSICA HARDY in July 2008, has not yet been completed; and agree that the completion of the supplement testing is potentially relevant to issues in this case; limited evidence on the issue of whether respondent Jessica Hardy has violated La Fédération Internationale de Natation ("FINA") Doping Control Rules DC 2.1 and 2.2. for the presence of the substance clenbuterol in her sample.
The hearing has been bifurcated into two phases.The first phase of the arbitration hearing (hereinafter referred to as “PHASE ONE”) was limited to the issue of whether Respondent Jessica Hardy has violated FINA DC 2.1 and 2.2 for the presence of the substance clenbuterol in sample and the imposition of any presumptive period of ineligibility. The second phase of the arbitrational hearing (referred to as "PHASE TWO") will be limited to the issue of wether exceptional circumstances exist pursuant to FINA DC 10.5 that might reduce or eliminate the presumptive periode of ineligibility.

Hiram Cruz (“The Respondent”), is a top ranked member of the United States Judo Association. He is currently ranked number one in the 55g weight category, and has been ranked as low as number eleven in the 60k weight category.

On February 18,2003, as part of an out-of-competition drug test, Respondent provided a urine sample at the request of a USADA Doping Control Officer. The UCLA accredited laboratory (“UCLA Lab"), which conducted the test, received the sample on February 20, 2003. On February 21, 2003, the laboratory screening test performed from the “A”-sample of Respondent’s urine specimen indicated the presence of a prohibited substance.

The A confirmation testing was performed on February 28, 2003, and it revealed the presence of Hydroxy-androstenedione, a metabolite of the prohibited anabolic steroid, 4-androstene-6 α-ol-3,17-dione (=6αOH-androstenedione) (“Hydroxy-androstendione”), in each of three “aliquots” from the “A” sample from which the three separate analyses were performed. This finding was reported to USADA. The Respondent was notified of such finding by letter of March, 2003. That letter advised Respondent that if he chose not to accept the “A” sample test results he had the right to request and observe the “B” sample analysis. On March 25, 2003, the UCLA Lab tested the “B” sample. The three replicates from the B sample also were positive for
Hydroxy-androstenedione. The UCLA Lab reported that Respondent’s urine sample was positive..

By letter of April 22,2003, the USADA Anti-Doping Review Board
recommended inter alia the minimum two-year suspension from the date the positive sample was collected, February 18, and the retroactive cancellation of all competitive results which occurred on or after that date. Respondent advised USADA of his election to proceed to arbitration, which USADA formally initiated in its May 5, 2003 letter to AAA and International Judo Federation (IJF).

Respondent is likewise responsible for the presence of the prohibited substance in his body. Respondent failed to meet his burden of proof to establish a defence that may have allowed for reduction in sanctions. USADA produced evidence supported by able argumentation that Respondent had not met the burden of proving that a reduction in the suspension period is warranted. The case law clearly indicated that the proportionality doctrine has to date been applied in a sports specific and conduct specific manner taking into account the specific international federation rules and, in the case of United States athletes, the USADA Protocol.

The panel of North American Court of Arbitration for Sport decides as follows:
- A doping violation occurred on the part of Respondent.
- The minimum suspension for a first offender of two (2) years to take place effective from February 18, 2003 is imposed on Respondent pursuant to IJF 17.
- All competitive results which occurred on or after that date are cancelled.
- A two-year period of ineligibility beginning February 18, 2003, from access to the training facilities of the USOC Training Centers or other programs and activities of the USOC, including grants, awards or employment is imposed.

The administrative fees and expenses of the American Arbitration Association and the compensation and expenses of the arbitrators shall by borne entirely by USADA.

Claimant USAD vs respondent Emily Brunemann, this case involves Respondent's first anti-doping violation, which she admits. Respondent tested positive for a diuretic that is now designated as a Specified Substance under the 2009 Fédération Internationale de Natation ("FINA") rules. She tested positive during the period when the 2003 version of the WADA Code was in effect.The UCLA Laboratory determined the finding of the substance hydrochlorothiazide and triamterene.
This Panel must resolve several issues before an appropriate sanction can be imposed. Because respondent tested positive for a banned substance in August 2008 (when the 2003 WADA Code was in effect) and this hearing was held on January 9, 2009 (after the 2009 WADA Code became effective, the parties agree the doctrine of lex mitior is applicable to this case. What is in dispute is how lex mitior should be applied.

Claimant USADA and respondent Kicker Vencill on January 21, 2003, as part of an out-of-competition drug test, provided a urine sample at the request of a USADA Doping Control Office. The UCLA accredited laboratory ("UCLA Lab"), which conducted the test, received the sample on January 22, 2003. In the specimen the precense of 19-norandrosterone and 19-noretiocholanolone was detected.
Respondent through his pleading pre-hearing brief, oral argument and testimony given at the evidentiary hearings contends that the doping charge should be dismissed.

Confirming its interim Award the panel decides as follows;
1 A doping violation occurred on the part of Respondent.
2 The minimum suspension of four (4) years to take place effective from January 21, 2003 is imposed.
3 There is no retroactive sanction imposed involving cancellation of all results achieved in competitions during the period prior to the date the suspension takes effect and extending back to six (6) months before the collection of the positive sample.
4 The administrative fees and expenses of the American Arbitration Association and the compensation and expenses of the arbitrators shall be borne by USADA.
.

CAS 2009/A/1817 WADA & FIFA v. Cyprus Football Association (CFA), Carlos Marques, Leonel Medeiros, Edward Eranosian, Angelos Efthymiou, Yiannis Sfakianakis, Dmytro Mykhailenko, Samir Bengeloun, Bernardo Vasconcelos & CAS 2009/A/1844 FIFA v. Cyprus Football Association and Edward Eranosian

CAS 2009/A/1817 World Anti-Doping Agency (WADA) & Fédération Internationale de Football Association (FIFA) v. Cyprus Football Association (CFA), C. Marques, L. Medeiros, E. Eranosian, A. Efthymiou, Y. Sfakianakis, D. Mykhailenko, S. Bengeloun, B. Vasconcelos and CAS 2009/A/1844 FIFA v. CFA and E. Eranosian

Football
Doping (oxymesterone)
General reference to CAS in the Statutes of the International Federation and CAS jurisdiction
De novo review and limit of the Panel’s review to the evidence adduced in the arbitration
No direct applicability of the WADA Code
Principle of non-retroactivity and application of the lex mitior principle in anti-doping rule violations
Assistance of the text and the interpretative notes included in the WADC for the interpretation of the FIFA provisions
Interpretation of “substantial assistance” in light of the FIFA Cooperation Rule
Significant negligence and administration of mislabelled food supplements
Revision of the sanction imposed by a disciplinary body by CAS and principle of proportionality
Conditions for the application of Article 65.4 of the FIFA DC

1. A coach of a team, registered with a National Federation (NF), is deemed to have agreed, by his act of registering, to abide by the statutes and regulations (including the anti-doping regulations) of the NF. In addition, being subject to the statutes and regulations of the NF, he is also bound by the rules of the International Federation (IF). As a result, the rules set in the statutes of the IF are binding for the coach and, to the extent they provide for an appeal to the CAS, they constitute a general reference and the basis for the jurisdiction of a CAS panel to hear an appeal against a decision of a body of the NF.

2. According to Article R57 of the CAS Code, the Panel has full power to review the facts and the law of the case. The hearing before the Panel constitutes a hearing de novo, i.e. a rehearing of the merits of the case. The Panel’s scope of review is not limited to consideration of the evidence that was adduced before the body that issued the challenged decision, but can extend to all evidence produced before the Panel. However, the arbitral nature of the CAS proceedings limits the Panel’s power of review to the evidence adduced in the arbitration, to be evaluated on the basis of the relevant evidentiary rules. The Panel, therefore, is bound to issue an award only on the basis of the evidence that has been brought before it: the failure of a party to submit evidence available to it in support of its case can only be considered in light of the rules on the burden of proof and cannot prevent the Panel from issuing an award.

3. The fact that FIFA is a signatory to the WADC does not mean that the WADC applies between FIFA and its affiliates. As made clear by the Introduction to the WADC, in order to be applied, the provisions of the WADC require implementation in the rules of the relevant organization. Indeed, the WADC can be used to help with interpretation, where the content of the FIFA rules is equivalent to the WADC: however, it is not possible to have recourse to the WADC to alter or amend the FIFA provisions where their content is not equivalent to the WADC.

4. In doping-related issues, the principle of non-retroactivity is mitigated by the application of the “lex mitior” principle: the new provisions must also apply to events which have occurred before they came into force if they lead to a more favourable result for the athlete. Except in cases where the penalty pronounced is entirely executed, the penalty imposed is, depending on the case, either expunged or replaced by the penalty provided by the new provisions.

5. The FIFA provisions, to the extent they make reference to the concepts of “No Fault or Negligence” or of “No Significant Fault or Negligence”, correspond to the rules contained in the WADC. As a result, the understanding and interpretation of the FIFA rules can be informed in such respect by the text and the interpretative notes included in the WADC.

6. The FIFA Cooperation Rule does not require that “substantial assistance” be provided in the discovery or establishment of an anti-doping rule violation; it simply requires that “help” be given which leads to the exposure or proof of a doping offence. If “help” appears as having the same meaning as “assistance” and “exposure” can be equated to “discovery”, it is clear that the WADC requires a condition (that the assistance be “substantial”) not contemplated by the FIFA DC. Therefore, for the purposes of the application of the FIFA Cooperation Rule, contrary to what other panels had to do while applying the WADC or rules of sport federations exactly corresponding to the WADC provisions, it is not necessary to consider whether the assistance provided by the relevant subject was “substantial” or not. The Panel has simply to verify whether “help” was provided which led to the exposure of the doping offence by another person.

7. An athlete who blindly accepted the pills administered by his coach, without refusing nor asking questions or making any enquiry, and without conducting further investigations with a doctor or another reliable specialist is considered as having acted with significant negligence. The risks associated with contamination of products or mislabelled food supplements should henceforth be well known among athletes.

8. Under CAS jurisprudence the measure of the sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rules can be reviewed only when the sanction is evidently and grossly disproportionate to the offence.

9. Under Article 65.4 of the FIFA DC, it is necessary that the help is given leading to the exposure or proof of the doping offence by another person. The fact that a coach admitted his doping offence, provided for testing the pills he had distributed, apologized for his actions and explained all the elements surrounding them, or that he withdrew an action brought before national courts against the NF does not trigger the application of the FIFA Cooperation Rule, since there is a simple confession of his actions and not provision of help leading to the exposure or proof of the doping offence by another person.

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The Court of Arbitration for Sport (CAS) decides on 26 October 2010 that:

1.) The appeals filed by the World Anti-Doping Agency and by the Fédération Internationale de Football Association against the decision issued on 2 April 2009 by the Judicial Committee of the Cyprus Football Association concerning Mr Edward Eranosian are upheld.
2.) Mr Edward Eranosian is declared ineligible for a period of four years, commencing on 2 April 2009.
3.) The appeal filed by the World Anti-Doping Agency against the decision issued on 24 April 2009 by the Judicial Committee of the Cyprus Football Association concerning Mr Carlos Marques and Mr Leonel Medeiros is dismissed.
4.) The decision issued on 24 April 2009 by the Judicial Committee of the Cyprus Football Association concerning Mr Carlos Marques and Mr Leonel Medeiros is confirmed.
5.) The appeal filed by the World Anti-Doping Agency against Mr Angelos Efthymiou, Mr Yiannis Sfakianakis, Mr Dmytro Mykhailenko, Mr Samir Bengeloun and Mr Bernardo Vasconcelos is dismissed.
6.) This 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 Agency and the Fédération Internationale de Football Association, to be retained by the CAS.
7.) Mr Edward Eranosian is ordered to pay CHF 10,000 (ten thousand Swiss Francs) to the World Anti-Doping Agency as a contribution towards the legal and other costs incurred in connection with these arbitration proceedings.
8.) The World Anti-Doping Agency is ordered to pay CHF 1,000 (one thousand Swiss Francs) to each of the Cyprus Football Association, Mr Carlos Marques, Mr Leonel Medeiros, Mr Angelos Efthymiou, Mr Yiannis Sfakianakis, Mr Dmytro Mykhailenko, Mr Samir Bengeloun and Mr Bernardo Vasconcelos as a contribution towards the legal and other costs incurred in connection with these arbitration proceedings.
9.) The Fédération Internationale de Football Association shall bear its own legal and other costs.
10.) All other motions or prayers for relief are dismissed.

CAS 2008/A/1668 World Anti-Doping Agency (WADA) v. National Olympic Committee & Sports Confederation of Denmark & Dansk Boldspil-Union (DBU) & Jesper Münsberg

• Football
• Doping (salbutamol)
• Presumption of an Adverse Analytical Finding
• Athlete’s standard of proof
• Definition of “therapeutic use”
• Absence of proof of “therapeutic use”
• Conditions of reduction of a sanction
• Determination of the athlete’s degree of fault

1. Although with slightly different wording, the definitions of class S3 Prohibited Substances in the successive versions of the WADA Prohibited List all institute a presumption that the presence of salbutamol in urine in excess of 1000 ng/mL is not the result of a therapeutic use of inhaled salbutamol and will be deemed an Adverse Analytical Finding unless the athlete manages to prove the contrary.

2. Under the applicable FIFA Anti-Doping Regulations (DCR), the standard of proof for an athlete to rebut a presumption that an anti-doping violation has occurred is a balance of probability.

3. Only intake of salbutamol by inhalation, as opposed to for example the use of tablets (systemic intake), may qualify as therapeutic under an Abbreviated Therapeutic Use Exemption (ATUE) and the class S3 Rules. With respect to what represents a therapeutic use/dose of inhaled salbutamol, the rationale of the Class S3 Rules and of the procedure for granting an ATUE imply that it is the therapeutic use as defined in the text of the ATUE itself – together with the corresponding use then defined in the athlete’s medical prescriptions – that must be deemed the starting point and yardstick for the definition of a given athlete’s therapeutic use of inhaled salbutamol.

4. When it is more likely than not that a player inhaled the total dose of salbutamol in excess of 1000 ng/mL, not because taking such dose was “necessary” for therapeutic reasons to respond to an asthma attack or as a reasonable precaution before exercising, but rather because he was very anxious to be able to play a game, the concentration of salbutamol cannot be deemed as resulting from the use of a therapeutic dose of inhaled salbutamol. Thus the concentration of salbutamol in excess of 1000 ng/mL found in the player’s sample must be deemed an adverse analytical finding that constitutes an anti-doping violation under the applicable FIFA DCR.

5. To benefit from the elimination or reduction of the standard sanction, a player must fulfil two cumulative conditions, i.e. establish how the specified substance entered his body on a balance of probabilities and establish the absence of intent to enhance his sporting performance to the comfortable satisfaction of the hearing panel. In this respect, the sincerity of a player, the absence of obvious inconsistencies between his statements, the fact that he is not a professional, the relative lack of incentive he has to dope himself given his age/competition level and the uncertainties which remain regarding the degree of effect of certain factors (his condition of health, the adverse weather conditions, his apparently unusual resistance to the side effects of large doses of inhaled salbutamol, etc.) on the test results, are factors to be taken into consideration.

6. In determining a player’s degree of fault in inhaling an exaggerated dose of Ventolin the day of an in-competition test, one shall examines both the factors that tend to demonstrate negligence and those that alleviate the player’s fault. While a player has demonstrated a serious lack of diligence (negligence) by not fulfilling his duty to inform himself regarding anti-doping regulations, duty which weighs on an athlete even if the latter benefits from an ATUE, the lack of precision of the words “as needed” in a player’s ATUE and in particular the corresponding lack of precision of the words “as required” in his doctor’s prescription is a mitigating factor, especially if the doctor does not appear to have been much clearer in his explanations to the player.

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In February 2008 Anti Doping Denmark has reported an anti-doping rule violation against the Player Jesper Münsberg after his A and B samples tested positive for the prohibited substances Salbutamol and Salmeterol in a concentration above the WADA threshold.

The Danish football player suffered from asthma since his childhood and stated that he developed a cold during the days before the football match and therefore used the Ventolin inhaler more often than usual due to feeling unwell. The Player argued, supported by his team doctor including scientific articles, that the concentration of salbutamol found in his sample could vary significantly.
The Doping Commission of the Danish NOC accepted the Player's explanation and decided on 16 May 2008 to give him the benefit of the doubt and not pursue the case before the Danish Doping Tribunal.

After deliberations with the Danish NOC WADA filled an appeal with the Court of Arbitration for Sport (CAS) against the decision of the Danish NOC of 18 September 2008 not to take any further action in this case.
WADA requested the Panel to annul the decision of the Danish NOC of 18 September 2008 and to impose a 2 year period of ineligibility on the Player.

The Panel finds it is more likely than not that the Player inhaled the total dose of salbutamol leading to a concentration of 2400 ng/mL in his urine sample (whether it be as a result of 12 puffs or more), not because taking such dose was "necessary" for therapeutic reasons to respond to an asthma attack or as a reasonable precaution before exercising, but rather because he was very anxious to be able to play the game in question and got carried away with the use of his Ventolin inhaler and perhaps even lost track of (or subsequently forgot) how many puffs he had taken.

The Panel holds that on a balance of probability the concentration of salbutamol in the Player's in-competition urine sample did not result from the use of a therapeutic dose of inhaled salbutamol, he has not managed to rebut the presumption set out in the class S3 definition of the 2008 WADA Prohibited List. Therefore the high concentration of salbutamol found in his in-competition urine sample must be deemed an Adverse Analytical Finding that constitutes an anti-doping violation under the FIFA Rules.

Given the importance of informing an athlete in an unambiguous manner regarding any maximum tolerated dose and given the ambiguity of wording such as "as needed" or "as required" that has led WADA to a change of regulation for 2010 - and hearing in mind that an athlete will naturally tend to pay more attention to his/her ATUE and to corresponding medical prescriptions than to generic use instructions supplied with Ventolin - the Panel finds that the Player's negligence was real but that mitigating circumstances exist

The Panel considers it fair to apply a sanction that is more than a reprimand but less than a one-year penalty; and has decided therefore to apply a six (6) month period of ineligibility that shall begin to run on 16 November 2009.

Therefore on 16 November 2009 the Court of Arbitration for Sport decides:

1.) The appealed decision of 16 September 2008 of the National Olympic Committee & Sports Confederation of Denmark Is set aside.
2.) Mr Jens Münsberg is declared Ineligible for competition for 6 months commencing on 16 November 2009.
3. Declares that the award is pronounced without costs, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) already paid by the Appellant and to be retained by the CAS.
4.) Orders the Respondents to pay WADA an amount of CHF 2000 (two thousand Swiss Francs) as a contribution toward its costs.
5.) Dismiss all other and contrary prayers for relief

CAS 2008/A/1644 Adrian Mutu v/ Chelsea Football Club Limited

CAS 2008/A/1644 M. v. Chelsea Football Club Ltd.

Related cases:

• CAS 2005_A_876 Adrian Mutu vs Chelsea Football Club
  December 15, 2005
• CAS 2006_A_1192 Chelsea vs Adrian Mutu (anon)
  May 21, 2007
• Swiss Federal Court 4A_458_2009 Adrian Mutu vs Chelsea Football Club
  June 10, 2010
  
  

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• Football
• Breach of a contract of employment without just cause
• CAS Panels and the principle of ne ultra petita
• Previous CAS Awards passed between the parties and res iudicata
• Compensation on the basis of the unamortised acquisition costs
• Remoteness of the damage suffered by a Club
• Causation and mitigation of damages
• Effect of EC law to the application of the FIFA Regulations
  Specificity of sport

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1.) A CAS Panel is bound to observe the limits of the parties’ motions. Even though the Panel has full power to review the facts and the law of the case, the arbitral nature of CAS proceedings obliges the Panel to decide all claims submitted, but at the same time prevents the Panel from granting more than what the parties are actually asking for.

2.) The decisions passed between the parties through previous CAS Awards have a res iudicata status and the CAS Panel cannot review them, because they are finally settled.

3.) The award of compensation on the basis of the unamortised acquisition costs is not only explicitly provided in the FIFA Regulations, but also consistently upheld in the CAS jurisprudence. Such criterion is equally consistent with English law, which allows compensation for the costs incurred by the innocent party in reliance on the promised performance, but wasted because of the other party’s breach of contract.

4.) For a damage not to be too remote, the parties need to have contemplated the “head” of damage, and not the “extent” of that loss: it is a standard practice that transfer fees are paid. So long as the Player does not deny the fact that the Club paid the Former Club a substantial amount of money for his transfer, the fact that the Player was not party to the Transfer Contract and had therefore not determined the amount of the transfer fee, or the other expenses incurred by the Club in connection with the acquisition of the Player (on which compensation is calculated), is entirely irrelevant.

5.) The duty to mitigate damages only arises after the decision to terminate the contract is made. When the Club terminates the Employment Contract because of the Player’s breach without just cause, it still keeps the right to compensation for the costs incurred relying on the Player’s promised performance. The Club is not required to try to transfer (for a fee) the Player before exercising its right to terminate the Employment Contract, since such attempt could be construed as an implied affirmation of the Employment Contract, thereby depriving the Club of the option to terminate it.

6.) The effect of an award finding the FIFA Regulations to be contrary to EC law can only lead to the conclusion that damages cannot be assessed on the basis of such Regulations, and this leaves the question open for the determination of the damages on the basis of a national law only. In other words, should the FIFA dispute resolution system be found contrary to EC rules, the obligation of the Player to pay damages, as determined in the proper forum, would remain unaffected.

7.) The CAS Panel has to take into consideration the specific nature and needs of sport when assessing the circumstances of the dispute at stake, so to arrive to a solution which takes into account not only the interest of players and clubs, but, more broadly, those of the whole football community.

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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.

Between november 2004 and May 2008 a number of proceedings and appeals followed in the dispute between the Chelsea Football Club and Adrian Muti about the Player's breach of contract and Chelsea's claim for compensation filed by both parties with FIFA and CAS.

On 7 May 2008 the FIFA Dispute Resolution Chamber (DRC) decided that:

1.) The claim of Chelsea Football Club is partially accepted.

2.) The player, has to pay the amount of EUR 17,173,990 to Chelsea Football Club within 30 days of notification of the present decision.

3.) If this amount is not paid within the aforementioned time limit, a 5% interest rate per annum as of the expiry of the said time limit will apply and the matter will be submitted to the FIFA Disciplinary Committee for its consideration and decision.

4.) Any further request filed by Chelsea Football Club is rejected.

5.) Any counterclaim filed by the Player is rejected.

6.) (...)

Hereafter in September 20087 the Player appealed this DRC decision with CAS.

The CAS Panel finds that the appeal brought by the Player Adrian Muti is to be dismissed and the measure of damages, including interest thereupon (starting 30 days after the notification of the Decision), as awarded by the DRC, is to be confirmed. All other prayers for relief submitted by the parties are to be dismissed.

Therefore the Court of Arbitration for Sport decides on 31 July 2009:

1.) The appeal filed by the Player Adrian Muti against the decision issued on 7 May 2008 by the Dispute Resolution Chamber of the FIFA Players’ Status Committee is dismissed.

2.) The Player is ordered to pay to Chelsea Football Club Limited the amount of EUR 17,173,990, plus interest of 5% p.a. starting on 12 September 2008 until the effective date of payment.

3.) (…).

4.) (…).

5.) All other prayers for relief are dismissed.

CAS 2008/A/1588 FIFA v/ Malta Football Association & Claude Mattocks

CAS 2008/A/1629 WADA v/ Malta Football Association & Claude Mattocks

CAS 2008/A/1588 Fédération Internationale de Football Association (FIFA) v. Malta Football Association (MFA) & C. and CAS 2008/A/1629 World Anti-Doping Agency (WADA) v. MFA & C.

• Football
• Doping (norandrosterone)
• Scope of application of FIFA anti-doping regulations and of national anti-doping regulations
• Application of FIFA anti-doping regulations by reference?
• Mitigating circumstances
• Limitation of reference to CAS jurisprudence by the content of the applicable regulations

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1. In line with CAS jurisprudence, the system put in place under the FIFA Disciplinary Code (FDC) shows that FIFA has exclusive competences at international level whereas national federations have exclusive competences at national level. Therefore, the FDC is not directly applicable when it comes to sanctions imposed against players on national matches and competitions. In order to ensure the harmonization of doping sanctions at national level FIFA cannot claim the direct applicability of the FDC antidoping regulations but must use its disciplinary prerogatives provided under article 152 FDC in order to have national antidoping regulations amended accordingly. Once the national antidoping regulations have been harmonized, it is then FIFA’s and WADA’s duty to ensure that those national regulations are correctly applied by the national judicial bodies, using their right of appeal if necessary.

2. Although the FDC antidoping regulations can apply at national level per reference through national civil law or through the Statutes and antidoping regulations of the relevant national association, as a general rule the FDC antidoping regulations don’t prevail on national antidoping regulations. If the decision appealed against and the ’parties’ submissions deal with the sanction of a player at national level, the national association antidoping regulations should be applied independently and without any reference to the FDC antidoping regulations which are therefore not applicable.

3. According to CAS jurisprudence, by not exercising the required caution when he purchased and ingested the nutritional supplements which he argues to have caused the positive test, a player commits a gross negligence which does not justify that the period of suspension be reduced.

4. The fact that a case is governed by the national association antidoping rules and not by the FIFA Regulations does not prevent a CAS panel from applying similar principles as to the question of the existence or not of mitigating circumstances. However WADA and FIFA should not deduct from this that this would systematically lead in other cases to the application of CAS jurisprudence or even of the provisions of the WADC or the FIFA antidoping regulations on the issue of reduction of the period of suspension. Any reference to CAS jurisprudence is limited in each case by the content of the applicable regulations. CAS jurisprudence is thus not applicable if it conflicts with regulations which are validly applicable.

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In January 2008 the Malta Football Association (MFA) reported an anti-doping rule violation against the football player Claude Mattocksh after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

The Athlete denied the intentional use of the substance. Yet, he acknowledged the use of supplements provided by pharmacies en health shops. Consequently the MFA Control and Disciplinary Board decided on 21 May 2008 to impose a sanction of 4 months on the Athlete.

Hereafter in June 2008 FIFA and in August 2008 WADA appealed the MFA decision with the Court of Arbitration for Sport (CAS). They requested the Panel to set aside the Appealed Decision and to impose a sanction of 2 years.

The Panel finds that the presence of a prohibited substance has been established in the Athlete's samples and accordingly that he committed an anti-doping rule violation. The Panel concludes that the Athlete had acted negligently with his supplements.

Further the Panel deems that the MFA was wrong in reducting the period of ineligibility from 1 year to 4 months. There were no particular circumstances which could justify the imposition of a reduced sanction or an extended sanction.

Therefore the Court of Arbitration for Sport decides on 9 February 2009:

1.) The FIFA’s and World Anti-Doping Agency’s appeals against the decision dated May 21, 2008 of the MFA Control and Disciplinary Board are partly upheld.

2.) The decision issued by the MFA Appeals Board is set aside.

3.) The Player, C., is declared ineligible from the 19 February 2008 until 19 June 2008 and for an additional period of eight months starting on the date of notification of the present award to the parties.

4.) All other motions or prayers for relief are dismissed.

5.) (…).

CAS 2008/A/1576 FIFA v/ Malta Football Association & Ryan Grech

CAS 2008/A/1628 WADA v/ Malta Football Association & Ryan Grech

CAS 2008/A/1576 Fédération Internationale de Football Association (FIFA) v. Malta Football Association (MFA) & R. and CAS 2008/A/1628 World Anti-Doping Agency (WADA) v. MFA & R.

• Football
• Doping (cocaine)
• Scope of application of FIFA anti-doping regulations and of national anti-doping regulations
• Application of FIFA anti-doping regulations by reference?
  Sanction

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1. In line with CAS jurisprudence, the system put in place under the FIFA Disciplinary Code (FDC) shows that FIFA has exclusive competences at international level whereas national federations have exclusive competences at national level. Therefore, the FDC is not directly applicable when it comes to sanctions imposed against players on national matches and competitions. In order to ensure the harmonization of doping sanctions at national level FIFA cannot claim the direct applicability of the FDC antidoping regulations but must use its disciplinary prerogatives provided under article 152 FDC in order to have national antidoping regulations amended accordingly. Once the national antidoping regulations have been harmonized, it is then FIFA’s and WADA’s duty to ensure that those national regulations are correctly applied by the national judicial bodies, using their right of appeal if necessary.

2. Although the FDC antidoping regulations can apply at national level per reference through national civil law or through the Statutes and antidoping regulations of the relevant national association, as a general rule the FDC antidoping regulations don’t prevail on national antidoping regulations. If the decision appealed against and the ’parties’ submissions deal with the sanction of a player at national level, the national association antidoping regulations should be applied independently and without any reference to the FDC antidoping regulations which are therefore not applicable.

3. Pursuant to the applicable national association antidoping rules the presence of metabolite of cocaine and cocaine in a ’player’s bodily sample constitutes an anti-doping rule violation or a doping offence which should be sanctioned by a twelve months suspension in case of a first doping offence. The national regulations being applicable, there is no particular circumstances which could justify the extension of the period of suspension.

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In January 2008 the Malta Football Association (MFA) reported an anti-doping rule violation against the football player Ryan Grech after his sample tested positive for the prohibited substance Cocaïne. The Athlete explained that one of his friends had spiked his drink at a new year's party he had attended.

Consequently the MFA Control and Disciplinary Board decided on 25 March 2008 to impose a sanction of 1 year. Thereupon the MFA Appeals Board decided on 17 April 2008 decided to impose a reduced 9 month period of ineligibility on the Athlete.

Hereafter in June 2008 FIFA and in August 2008 WADA appealed the MFA decision with the Court of Arbitration for Sport (CAS). They requested the Panel to set aside the Appealed Decision and to impose a sanction of 2 years.

The Panel established that the MFA had not imposed a standard sanction of 1 year on the Athlete for his anti-doping rule violation. In view of the MFA Doping Charter the Panel deems that there were no particular circumstances which could justify the imposition of a reduced sanction or an extended sanction.

Therefore the Court of Arbitration for Sport decides on 9 February 2009:

1.) The FIFA’s and World Anti-Doping Agency’s appeals against the decision dated April 17, 2008 of the MFA Appeals Board are partly upheld.

2.) The decision issued by the MFA Appeals Board is set aside.

3.) The Player, R., is declared ineligible from the 19 February 2008 until the 19 November 2008 and for an additional period of three months starting on the date of notification of the present award to the Parties.

4.) All other motions or prayers for relief are dismissed.

5.) (…)