Advisary Opinion CAS 2005/C/841 CONI

Police investigations revealed that the team’s doctor of an Italian professional football club 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 Italian criminal court, 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.

On 26 November 2004 the Tribunale di Torino, issued a judgment sentencing the team’s doctor to a term of imprisonment (whose execution was however suspended), for the crime of fraud in sports competition.

Hereafter in March 2005 the Italian National Olympic Committee (CONI) requested the Court of Aribitration for Sport (CAS) for an advisory opinion.

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”.

Following assessment the Court of Arbitration for Sport gives on 26 April 2005 the following advisory opinion:

Question 1.- :

The use of pharmaceutical substances which are not expressly prohibited by sports law, and which cannot be considered as substances similar or related to those expressly prohibited, is not to be sanctioned by disciplinary measures. However, regardless of the existence or not of any judgement rendered by a State court, sports authorities are under the obligation to prosecute the use of pharmaceutical substances which are prohibited by sports law or any other anti-doping rule violation in order to adopt disciplinary measures. In such event, any disciplinary action shall take into account: the substantive norms and rules applicable at the time of the alleged violation, the “lex mitior” principle, the jurisdiction of the organisation or body taking such disciplinary action, as well as the statute of limitations as prescribed by the applicable rules.

Question 2.- :

The use by athletes of pharmaceutical substances which are not included in the prohibited list, and which cannot be considered as substances similar or related to those expressly prohibited, is to be investigated by sports authorities only in order to inform WADA of possible new forms of doping. With regard to the use of pharmaceutical substances included in the prohibited list or any other anti-doping rule violation, sports authorities must resort to all available methods of investigation and must open without delay a disciplinary proceeding whenever they happen to know of possible violations from whatever source of information, leaving it up to the adjudicating bodies to determine whether there is sufficient evidence, in accordance with the applicable standards of proof, to inflict disciplinary sanctions.

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 International Football Federation (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 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.

On 4 November 2004 the Disciplinary Commission of the Football Association (FA) decided to impose a fine and a period of ineligibility on the Romanian football player Adrian Mutu after he tested positive for the prohibited substance Cocaine.

The Athlete had admitted the violation and consequently the Football Associaton Premier League Appeals Committee (FAPLAC) deemed that the Chelsea Football Club was entitled to terminate the Player Contract. The Club also seeked compensation and for the imposition of further sport sanctions.

Hereafter the Athlete appealed the FAPLAC decision with the Court of Arbitration for Sport (CAS).

The Player acknowledged that his use of Cocaine was gross misconduct under his contract with the Club and amounted to a unilateral breach without just cause or sporting just cause for purposes of the FIFA Regulations.

The Club contends that any breach of contract which is serious enough to destabilize the contractual relationship can give rise to a claim for compensation under the Regulations.

The only issue for this Panel to decide is whether in the Player Contract the words “unilateral breach without just cause or sporting just cause” in Article 21 of the FIFA Regulations cover

• only cases in which a player “terminates” or “renounces” his contract, e.g. by walking out, as the Player contends, or
• also apply to other serious misconduct by the player as is argued by the Club.

Following assessment the Panel dismissed the Athlete's reasoning regarding the Breach and the distinction between different types of Breach.

Therefore 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 v. Hellenic Football Federation (HFF)

Related cases:

• CAS 2009/A/1918 Jakub Wawrzyniak vs Helenic Football Federation - Partial Award
  August 13, 2009
• CAS 2009/A/1918 Jakub Wawrzyniak vs Hellenic Football Federation - Final Award
  January 21, 2010
  
  

• Football
• Doping (Methylhexaneamine)
• Applicable law: principle of non-retroactivity and of lex mitior
• Presence of a substance similar to a prohibited substance
  Identification of a second violation
• Additional sanction

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.

Case #1

In April 2009 the Hellenic National Council for Combating Doping (ESKAN) reported an anti-doping rule violation against the football player Jakub Wawrzyniak after his A and B samples - collected in April 2009 - tested positive for the prohibited substance 4-Methylhexan-2-amine (methylhexaneamine, 1,3-dimethylamylamine, 1,3 DMAA).

Following a number of proceedings the Court of Arbitration for Sport (CAS) decided ultimately on 21 January 2010 to impose a 3 month period of ineligibility on the Athlete.

Case #2

Previously in February and in March 2009 the Athlete was also tested and thereupon in June 2009 ESKAN reported a new anti-doping rule violation against the Athlete for the presence of the substance Methylhexaneamine. Consequently new disciplinary proceedings were started against the Athlete.

On 23 July 2009 the Disciplinary Committee of the Hellenic Football Federation (HFF) decided to impose a 2 year period of ineligibility on the Athlete for his second anti-doping rule violation.

The Athlete filed an appeal in July 2009 and on 7 October 2009 the HFF Appeals Committee decided to set aside the decision of 23 July 2009 and to impose a reduced 1 year period of ineligibility on the Athlete.

Hereafter in December 2009 the Athlete appealed the decision of the HFF Appeals Committee with CAS for new proceedings. Because of case #1 he asserted that the had already been judged and sanctioned and he invoked the principle of ne bis in idem.

The Athlete admitted the violation and denied the intentional use of the substance. He argued that he acted with no fault or negligence and that there were no aggravating circumstances.

The Panel assessed and addressed the issues raised by the Athlete and determines:

• Methylhexaneamine must be considered as a prohibited substance similar to the Tuaminoheptane, a specified prohibited stimulant specifically mentioned in the 2008 Prohibited List.
• The presence of Methylhexaneamine in the Athlete’s bodily samples collected at the Prior Controls (case #2) constitutes an anti-doping rule violation.
• The violations have to be treated as one single first violation under Article 52.5 of the 2009 FIFA ADR.
• In case #2 the Athlete committed the violation (based on the Prior Controls) before any notification of the violation based on the April Controls (case #1) had occurred.
• The Decision in case #2 did not properly apply the relevant rules and must therefore be reversed.
• The Athlete already gave a timely admission of the anti-doping rule violation in case #1.
• No sanction, additional to the ineligibility applied in case #1 has to be imposed on the Athlete.

Therefore the Court of Arbitration for Sport decides on 21 May 2010:

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 upheld.

2.) The decision adopted by the Appeals Committee of the Hellenic Football Federation on 7 October 2009 is set aside.

(...)

CAS 2009/A/1918 Jakub Wawrzyniak v. Hellenic Football Federation (HFF)

Related cases:

• CAS 2009_A_1918 Jakub Wawrzyniak vs Helenic Football Federation - Partial Award
  August 13, 2009
• CAS 2009/A/2019 Jakub Wawrzyniak vs Hellenic Football Federation
  May 21, 2010
  
  

• Football
• Doping (Methylhexaneamine)
• 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 football player Jakub Wawrzyniak after his A and B samples tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).

In June 2009 the Athlete 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 Athlete 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 Athlete’s body through the ingestion of TightXtreme and that he has not used this substance in order to enhance his sporting performance.

As a result, the Athlete's “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.

(…).

CAS 2009/A/1918 Jakub Wawrzyniak v Hellenic Football Federation (HFF)

Related cases:

• CAS 2009/A/1918 Jakub Wawrzyniak vs Hellenic Football Federation - Final Award
  January 21, 2010
• CAS 2009/A/2019 Jakub Wawrzyniak vs Hellenic Football Federation
  May 21, 2010
  
  

• Football
• Provisional measures
• Request for a stay of the decision

In April 2009 the Hellenic National Council for Combating Doping (ESKAN) has reported an anti-doping rule violation against the football player Jakub Wawrzyniak after his A and B samples tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).

In June 2009 the Athlete filed an appeal with the HFF Appeal Committee after the Disciplinary Committee of the First Instance of the Super League in Greece sanctioned him 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 Athlete appealed the Decision of 1 July 2009 of the HFF Appeal Committee with the Court of Arbitration for Sport (CAS).

The Deputy President of the CAS Appeals Arbitration Division finds in this case that the Athlete has not demonstrated that the stay of the decision rendered by the HFF Appeal Committee would protect him against any irreparable harm.

Due to the Athlete having failed to meet the first test (existence of an irreparable harm resulting from the execution of the challenged decision), the Deputy President deems that there is no need to evaluate whether the other conditions are fulfilled and that the request for a stay of the challenged decision shall be dismissed.

Therefore on 13 August 2009 in view of Articles R37 and R52 of the Code of Sports-related Arbitration, the Deputy President of the CAS Appeals Arbitration Division decides:

1.) The request for a stay filed by Mr. Jakub Wawrzniak is dismissed.
(…).

CAS 2010/A/2229 WADA v. FIVB & Gregory Berrios

CAS 2010/A/2229 World Anti-Doping Agency (WADA) v. Fédération Internationale de Volleyball (FIVB) & Gregory Berrios

• Volleyball
• Doping (sibutramine)
• Elimination or reduction of the period of ineligibility for specified substances
• Criteria for the determination of the correct and proportionate sanction by CAS panels
• Athletes’ responsibility with regard to the intaking of dietary weight loss products or food supplements
  
  

1. Article 4.2.2 of the WADA Code seeks to introduce some flexibility when determining a sanction for an athlete that has ingested a Specified Substance; nevertheless, for the elimination or reduction of the period of ineligibility an athlete must establish:

a) how a Specified Substance entered his or her body or came into his or her possession; and

b) that such Specified Substance was not intended to enhance the athlete’s sport performance or mask the use of a performance-enhancing substance.

With respect to the second condition, a panel must be comfortably satisfied by the objective circumstances of the case that the athlete in taking or possessing a Prohibited Substance did not intend to enhance his or her sport performance. An athlete only needs to prove that he/she did not take the specified substance with an intent to enhance sport performance. The athlete does not need to prove that he/she did not take the product with the intent to enhance sport performance. The second condition is thus met when an athlete can produce corroborating evidence in addition to his or her word which establishes to the comfortable satisfaction of a panel that he or she ingested a specified substance unknowingly, e.g. by means of ingesting a contaminated product.

2. In determining, as an international appellate body, the correct and proportionate sanction, CAS panels must also seek to preserve some coherence between the decisions of the different federations in comparable cases in order to preserve the principle of equal treatment of athletes in different sports. In that connection the introduction to the WADA Code expressly states that two of its purposes are to promote equality for athletes worldwide and to ensure harmonization of anti-doping programs. A sanction must further comply with WADA’s objective of proportionate and consistent sanctions for doping offences based on an athlete’s level of fault under the totality of circumstances.

3. In the context of contaminated supplements, CAS panels have highlighted the large number of public warnings and internationally published cases on the risks of mislabeling and/or contamination of nutritional supplements. Since these risks now are generally known or at least foreseeable, all athletes must exercise reasonable care to ensure a nutrition supplement does not contain a banned substance. Although dietary weight loss products may not in the strict sense of the term be deemed a “food supplement”, in essence their use requires the same degree of circumspection and care on the part of an athlete as the use of food supplements. In many sports losing weight can in various manners enhance performance and doing so very fast using natural products is not necessarily easy to achieve, while at the same time it is known that certain substances characterized as stimulants also act as appetite suppressants, meaning that there is a risk that such substances be found in medicaments or health products aimed at accelerated slimming/fast diets. Accordingly, within their responsibilities to take great care to avoid the use of any doping products, athletes in general must be on their guard when considering the ingestion of any weight-losing product, whether in the form of a medicament or a so-called natural dietary product.

In July 2010 the International Volleyball Federation (FIVB) has reported an anti-dopng rule violation against the Athlete Gregory Berrios after his sample tested positive for the prohibited substance Sibutramine. Thereupon the FIVB decided on 4 August 2010 to sanction the Athlete for 3 months because his violation was not intentional.

Hereafter in September 2010 the World Anti-Doping Agency (WADA) appealed the FIVB decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a sanction of 1 year.

The Athlete gave a prompt admission and denied the intentional use of the substance. He asserted that analysis of the product Fatlose Slimming Beauty in the NMS Labs had confirmed that it was tainted with Sibutramine.

The Panel assessed and addressed the evidence in this case and determines that:

• The presence of a prohibited substance has been established in the Athlete's sample and accordingly he committed an anti-doping rule violation.
• There is corroborating evidence that the contaminants Sibutramine and Phenophthalein were identified in the Fatlose Slimming Beauty product the Athlete had ingested.
• The Athlete had demonstrated that the violation was not intentional and how the substance had entered his system.
• Considering the Athlete's degree of negligence the sanction can only be reduced by more than one half of the maximum sanction of 2 years.

Therefore the Court of Arbitration for Sport decides on 28 April 2011:

1.) The appeal filed by the World Anti-Doping Agency on September 15, 2010 is partially upheld.

2.) The decision of the Fédération Internationale de Volleyball of August 4, 2010 is set aside.

3.) Mr. G. Berrios is declared ineligible for a period of one year, commencing on May 27, 2010.

4.) (…).

5.) (…).

6.) All other requests for relief are rejected.

CAS A4/2007 ASADA v/ Andrew Wyper

In November 2005 the Athlete Andrew Wyper was charged with the criminal offence of importing prohibited products following quantities of human growth hormone and (hGH) and Erythropoietin (EPO) were seized in Sydney by the Department of Customs on their arrival into Australia. In November 2006 the Athlete entered a plea of guilty and was fined $2,000.

Thereupon the Australian Sports Anti-Doping Authority (ASADA) reported anti-doping rule violations against the Athlete for constructive possession of a prohibited substances, and attempted use of a prohibited substances.

Whilst The Athlete had admitted to the facts which are necessary to support the ingredients of the criminal offence of importing prohibited imports, he disputed that the admitted matters established the two violations alleged by ASADA.

In essence the Athlete asserted that the elements in the criminal offence of importing EPO and hGH differed from the elements of the two violations of the terms of the Anti-Doping Policy which were alleged by ASADA.

In view of the evidence the Sole Arbitrator determines that the allegation of possession of prohibited substances does not stand because the prohibited substances were intercepted by the Australian Department of Customs.

The Sole Arbitrator deems that the Athlete had committed an anti-doping rule violation for use of the prohibited substances. The Arbitrator finds that there was sufficient evidence that the Athlete had investigated the use of prohibited substances and had ordered specific quantities of both hGH and EPO.

Therefore the Court of Arbitration for Sport rules on 21 August 2008:

1.) On or about 18 October 2005 Mr Wyper committed an Anti-Doping Rule Violation of attempting to use hGH and EPO which were prohibited substances under the Cycling Australia Anti-Doping Policy.

2.) Mr Wyper is ineligible to compete in cycling races for a period of two years starting from 7 February 2008.

3.) All competitive results obtained by Mr Wyper from 18 October 2005 shall be invalidated with all resulting consequences including forfeiture of any medals, points and prizes.

4.) Cycling Australia shall bear the costs of the Court of Arbitration for Sport in these proceedings.

5.) This Award be made public.