TAS - CAS 5315, 5316 de 2017 ( Colombiana)

Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitrations CAS 2017/A/5315 World Anti-Doping Agency (WADA) v. Federación Colombiana de Fútbol (FCF) and Yobani Jose Ricardo Garcia & CAS 2017/A/5316 World Anti-Doping Agency (WADA) v. Federación Colombiana de Fútbol (FCF) and Daniel Londono Castaneda, award of 16 May 2018

Panel: Mr Romano Subiotto QC (United Kingdom), President; Prof. Massimo Coccia (Italy); Mr

Michele Bernasconi (Switzerland) Football Doping (boldenone) WADA’s direct right of appeal Departures from the ISL regarding laboratory staff members and DCO Mishandling and hot temperatures during transportation Contaminated meat Compatibility of the sanction with the ECHR

1. Article 74(3) of the FIFA Anti-Doping Regulations (ADR) expressly exempts WADA from following any internal remedies in “FIFA’s process”, and therefore allows WADA to appeal directly to CAS without exhausting internal remedies in FIFA’s process. Such reference to the “FIFA’s process”, put in proper context, must be interpreted so as to include any antidoping process within the so-called FIFA pyramidal system. There is no reason that the drafters of the FIFA ADR intended to distinguish between “FIFA’s process” stricto sensu and the national processes for the purposes of exempting WADA from exhausting internal remedies. Moreover, Article 74(3) of the FIFA ADR implements Article 13.1.3 of the WADA Code, which exempts WADA from exhausting any and all internal remedies without distinction. Article 13.1.3 is among the provisions that Signatories, including FIFA, are required to implement “without substantive change”.

2. The laboratory’s omission of members of the staff from the list of personnel who handled the athletes’ samples, while not in compliance with WADA Technical

Document no. TD2009LDOC, paragraph 2, and therefore the International Standard for Laboratories (ISL), cannot in and of itself cause boldenone and its metabolite to materialize in an athlete’s samples. Likewise, Article 5.4.2.1 of the ISL specifically contemplates that laboratory staff includes both employees and those “under contract to” the laboratory. Therefore, there is no departure from ISL if some members of the laboratory staff are independent contractors, even if national law provides that independent contractors are not authorized staff. Indeed, the ISL are international standards intended to achieve harmonization across WADA-accredited laboratories, and interpreting them based on national law would defeat this purpose. The same is true regarding allegations that a doping control officer (DCO) lacks the proper authorization under national law. In absence of any credible evidence that the actions CAS 2017/A/5315 2 WADA v. FCF and Yobani Jose Ricardo Garcia

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3. Allegations that mishandling and/or very hot temperatures during the three-hour transportation of the samples could have caused the Adverse Analytical Findings, without evidence supporting these assertions, such as scientific articles or expert testimony (such as doctors or laboratory scientists or professors), are not sufficient to explain how hot temperatures or mishandling can cause boldenone to appear in the samples.

4. Submitting a copy of a menu, a letter of a cattle farmers’ association regarding regular use of boldenone in cattle farming in the region and the reference to a previous case are by far insufficient evidence to be satisfied, under balance of probabilities, that some meat consumed by the athletes is the cause of the presence of boldenone and of

metabolites of boldenone in the athletes’ samples. Even under financial constraints, evidence should at the minimum seek confirmation from the hotel restaurant where the athletes ate that it regularly purchased beef from local growers or testimony from local cattle farmers that they, in fact, treated their cattle with boldenone. Pharmacokinetic evidence is also useful, such as an analysis of the amount of boldenone that would need to be present in meat in order to yield the concentrations of boldenone in the athletes’ samples, whether any such amount is in the range of boldenone that local cattle farmers regularly give to their cattle and the processes by which and the amount of time that the body metabolizes boldenone.

5. The duration of a four-year suspension has been reviewed by human rights experts, who have confirmed that it is in line with the European Convention on Human Rights.

I. THE PARTIES

1. The Appellant is the World Anti-Doping Agency (“WADA”), an international independent organization created in 1999 to promote, coordinate and monitor the fight against doping. Its seat is in Lausanne, Switzerland, and its headquarters are in Montreal, Canada.

2. The First Respondent is the Federación Colombiana de Fútbol (“FCF”), the Colombian Football Association. Its seat is in Bogota, Colombia.

3. The Second Respondents are Yobani Jose Ricardo Garcia and Daniel Londono Castaneda, players in the Colombian Football Association (“Athletes”).

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II. FACTUAL BACKGROUND

4. Below is a summary of the relevant facts and allegations based on the parties’ written submissions, pleadings and evidence adduced at the hearing. Additional facts and allegations found in the parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Panel has considered

all of the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, it refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning.

5. The Athletes underwent a doping control test under the testing authority of the national anti-doping organization of Colombia, COLDEPORTES, on 13 July 2016.

6. The analysis of the Athletes’ A Samples revealed the presence of boldenone and a metabolite of boldenone. Boldenone is prohibited under S1.1a of the 2016 Prohibited List (Exogenous

Anabolic Androgenic Steroids).

7. The analysis of the Athletes’ B Samples confirmed their A Sample results.

8. On 2 February 2017, the Disciplinary Commission of the Division Mayor del Futbol

Colombiana (“DC DIMAYOR”) found that the Athletes committed intentional anti-doping rule violations and accordingly imposed four-year ineligibility periods on each of the Athletes.

9. The Athletes appealed the decisions issued by the DC DIMAYOR.

10. In its 19 July 2017 decisions, the Disciplinary Commission of the Federación Colombiana de

Fútbol (“DC FCF”) revoked the four-year ineligibility periods imposed upon the Athletes and overturned the DC DIMAYOR’s decisions. The DC FCF found numerous errors and inconsistencies in the Laboratory Documentation Packages for which neither the laboratory nor COLDEPORTES could account, and as such the DC FCF was uncomfortable accepting the Adverse Analytical Findings based upon such information.

11. This present arbitration is an appeal by WADA against the decisions rendered by the DC

FCF.

12. Based on each of the parties’ submissions in the present arbitration, it is clear that the doping control was far from best practice.

13. First, there were a number of irregularities and inconsistencies in the Laboratory Documentation Packages, including but not limited to: omitting three individuals, Ms. Angela Barragan, Ms. Lucia Toscano and Ms. Viviana Gonzalez, who handled the Samples, from the

List of Personnel; providing inconsistent information concerning when they handled the Samples; and offering contradictory information on the specific tasks performed by laboratory personnel.

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14. Second, the records of the Colombian WADA-accredited laboratory regarding the qualifications and authorizations of Ms. Barragan, Ms. Toscano and Ms. Gonzalez are disorganized. However, curriculum vitae and training records demonstrate that they were qualified scientists trained to receive and manipulate Samples.

15. Third, the external chain of custody of the Athletes’ A and B Samples raises questions as to the conditions in which the Samples were transported from Neiva, Huila, until they were dropped off with the courier company in Ibague, Tolima, for transfer to the laboratory.

16. The parties disagree as to the role that these factors played in causing the Athletes’ Adverse

Analytical Findings.

17. The Athletes also submitted that if the above factors did not cause their Adverse Analytical Findings, then the presence of boldenone and its metabolite in their Samples were the result of inadvertent consumption of boldenone in contaminated meat and/or endogenous production. The Athletes offered evidence from the Executive Director of the Cattle Farmers Association that boldenone is regularly used by cattle farmers in Huila and the menu from the hotel restaurant where the Athletes ate in Huila both the days before and of their doping control. The Athletes also drew on WADA technical documents in order to show that boldenone is produced naturally.

III. PROCEEDINGS BEFORE CAS

18. WADA submitted its Statements of Appeal on 8 September 2017.

19. WADA requested a 45-day extension to file its Appeal Briefs (i.e., on or before 2 November

2017), which the CAS Court partially granted on 28 September 2017, after having duly consulted the Respondents.

20. WADA submitted its Appeal Briefs on 20 October 2017.

21. Further to a request filed by the Respondents and with the Appellant’s agreement, the CAS Court Office confirmed on 10 November 2017 that the Respondents were invited to submit their Answers by 27 November 2017.

22. On 21 November 2017, the CAS Court confirmed the constitution of the Panel:

President: Mr. Romano F. Subiotto QC, Attorney-at-law in Brussels, Belgium

Arbitrators: Mr. Massimo Coccia, Professor, Attorney-at-law in Rome, Italy

Mr. Michele A.R. Bernasconi, Attorney-at-law in Zurich, Switzerland.

23. The FCF submitted its Answers on 24 November 2017, together with an objection of inadmissibility.

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24. The Athletes submitted their Answers on 27 November 2017, together with an objection of lack of jurisdiction.

25. WADA submitted Observations to the Respondents’ jurisdictional objections on 7 December

2017.

26. On 1 February 2018, the CAS Court Office issued Orders of Procedure, to which all of the parties subsequently agreed and duly signed. The Orders of Procedure provided for the holding of a single hearing for both procedures CAS 2017/A/5315 and CAS 2017/A/5316.

Subsequently, all parties also agreed with the issuance of a single “written, reasoned award” for both cases.

27. On 20 February 2018, a hearing was held at the CAS Court Office in Lausanne, Switzerland.

The Panel heard from counsel for WADA, FCF and each of the Athletes. The parties offered

no witness testimony.

28. At the end of the hearing, the parties confirmed that their rights to a fair hearing had been respected.

IV. JURISDICTION

29. The applicable procedure in this case is set out under Article R47 et seq. of the Code of Sportsrelated Arbitration (“CAS Code”), which provides in relevant part: “An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body”.

30. The parties agree that the applicable statutes or regulations are the Fédération Internationale de Football Association (“FIFA”) Anti-Doping Regulations (“ADR”). However, the parties disagree as to whether CAS has jurisdiction to hear WADA’s appeal under the FIFA ADR.

A. Submissions by the FCF

31. The FCF accepts that CAS has jurisdiction to hear the present appeal.

B. Submissions by the Athletes

32. The Athletes assert that they are national-level players, not international-level players, tested during a national game, and as such appeals are governed by Article 75(2) of the FIFA ADR, which provides: CAS 2017/A/5315 6

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expense; and a timely, written, reasoned decision. If the National Anti-Doping Organisation has not established such a body, the decision may be appealed to CAS in accordance with the provisions applicable before such court”.

33. The Athletes assert that the competent national-level body to hear appeals from the DC FCF is the Colombian General Disciplinary Commission (“GDC”). The GDC is an independent and impartial appeal body designated by COLDEPORTES. The Athletes also note that the GDC is established by law under Article 42 of the Colombian Anti-Doping Act, Law 845 of 2003, as an appellate body for anti-doping appeals.

34. The Athletes acknowledged that the FIFA ADR exempt WADA from exhausting internal remedies under Article 74(3) of the FIFA ADR (“WADA not required to exhaust internal remedies”), which states: “Where WADA has a right to appeal under arts 74 to 80 and no other party has appealed a final decision within FIFA’s process, WADA may appeal such decision directly to CAS without having to exhaust other remedies in FIFA’s process”.

35. However, the Athletes submitted that this exemption is limited to those remedies in “FIFA’s process” and does not extend to the national anti-doping organization’s processes. Accordingly,

for national-level players, WADA must exhaust internal remedies within the national antidoping organization’s process – i.e., WADA must appeal the decision of the DC FCF to the GDC before making any appeal to CAS.

36. In short, the Athletes assert that they are entitled to three hearings before any appeal to CAS:

DIMAYOR, DC FCF and GDC. It is only after each of these three hearings that a decision may be appealed to CAS.

37. Accordingly, it is the Athletes’ submission that the GDC, not CAS, has jurisdiction over the present appeal.

C. Submissions by WADA

38. WADA asserts that CAS has jurisdiction over the present appeal.

39. The DC DIMAYOR rendered the decision in the first instance, which the Players appealed

and which the DC FCF, a national-level appeal body, overturned on appeal. WADA therefore has a right of appeal to CAS pursuant to Article 75(3) of the FIFA ADR, which provides that “[f]or cases under art. 75 par. 2 (Appeals involving other Players or other Persons), WADA […] shall also have the right to appeal to CAS with respect to the decision of the national-level appeal body”.

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40. WADA asserts that, even assuming that, for whatever reason, the decision of the DC FCF could have been appealed to the GDC, WADA is not required to exhaust internal remedies.

It has an absolute right to appeal any national-level appeal to CAS, provided that no appeal was filed by another party within the internal process of the organization under Article 74(3) of the FIFA ADR. Because neither the Athletes nor the FCF lodged an appeal with the GDC, WADA’s appeal is also proper under Article 74(3) of the FIFA ADR.

41. WADA also opposes the Athletes’ interpretation of Article 74(3) of the FIFA ADR, which they claim only exempts WADA from exhausting internal remedies “in FIFA’s process”.

WADA encouraged the Panel to interpret this provision in accordance with the spirit and purpose of Articles 74-80, which spirit and purpose is to create a workable process for appeals by WADA and exempt WADA from having to exhaust any internal remedies, whether in FIFA’s process or the national anti-doping organization’s process.

42. In support of this claim, WADA asserted that references to “FIFA’s process” as used in Article 74(3) must include processes set out by national anti-doping organizations; otherwise appeals

by WADA would be highly impractical. For example, WADA would be required to appear before one or more national-level appeal bodies in proceedings that are often not conducted in English before reaching CAS. This would be highly inefficient, particularly where WADA is the only party lodging an appeal, and contradictory to the swift procedures set forth in the FIFA ADR that are intended to allow WADA to appeal “directly” to CAS.

43. WADA also noted that the FIFA ADR are based on and intended to implement the WADA Code, which exempts WADA from exhausting any internal remedies without distinction.

Specifically, Article 13.1.3 of the WADA Code provides that: “Where WADA has a right to appeal under Article 13 and no other party has appealed a final decision within the Anti-Doping Organization’s process, WADA may appeal such decision directly to CAS without having to exhaust other remedies in the Anti-Doping Organization’s process”.

44. Accordingly, the most reasonable interpretation of Article 74(3) exempts WADA from having to resort to national-level appeal bodies, such as the GDC, before appealing to CAS, where no other party has lodged an appeal.

45. Accordingly, WADA contends that CAS has jurisdiction over the present appeal pursuant to Articles 74(3) and 75(3) of the FIFA ADR.

D. The Panel’s Decision

46. The applicable statutes or regulations, the FIFA ADR, provide: “Article 74 Decisions subject to appeal Decisions made under these Regulations may be appealed as set forth below in arts 75 to 80 or as otherwise provided in these Regulations, the Code or International Standards. Such decisions shall remain in effect while CAS 2017/A/5315 8

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award of 16 May 2018 under appeal unless the appellate body orders otherwise. Before an appeal is commenced, any post-decision review provided in the Anti-Doping Organisation’s rules must be exhausted, provided that such review respects the principles set forth in art. 75 par. 2 (Appeals involving other Players or other Persons) (except as provided in art. 74 par. 3 (WADA not required to exhaust internal remedies). […]

3. WADA not required to exhaust internal remedies Where WADA has a right to appeal under arts 74 to 80 and no other party has appealed a final decision within FIFA’s process, WADA may appeal such decision directly to CAS without having to exhaust other remedies in FIFA’s process.

Article 75 Appeals against decisions regarding anti-doping rule violations, consequences, Provisional Suspensions, recognition of decisions and jurisdiction A decision that an anti-doping rule violation was committed, a decision imposing consequences or not imposing consequences for an anti-doping rule violation, or a decision that no anti-doping rule violation was committed; a decision that an anti-doping rule violation proceeding cannot go forward for procedural reasons (including, for example, prescription); a decision by WADA not to grant an exception to the six months’ notice requirement for a retired Player to return to Competition under art. 58 (Retired Player returning to Competition); a decision by WADA assigning results management under art. 7.1 of the WADA Anti-Doping Code 2015; a decision by FIFA not to bring forward an Adverse Analytical Finding or an Atypical Finding as an anti-doping rule violation, or a decision not to go forward with an anti-doping rule violation after an investigation under these Regulations; a decision to impose a Provisional Suspension as a result of a Provisional Hearing; FIFA’s failure to comply with chapter VII; a decision that FIFA lacks jurisdiction to rule on an alleged anti-doping rule violation or its consequences; a decision to suspend, or not suspend, a period of Ineligibility or to reinstate,

or not reinstate, a suspended period of Ineligibility under art. 23 par, 1 (Substantial assistance in discovering or establishing anti-doping rule violations); a decision under art, 29 par. 3 (Violation of the prohibition of participation during Ineligibility); and a decision by FIFA not to recognise another Anti-Doping Organisation’s decision under art. 72 (Application and recognition of decisions), may be appealed exclusively as provided in arts 75 to 80.

1. Appeals involving International-Level Players or International Competitions In cases arising from participation in an International Competition or in cases involving International-Level Players, a final decision within FIFA’s, the Confederation’s or the Association’s process may be appealed exclusively to CAS.

2. Appeals involving other Players or other Persons In cases where art. 75 par, 1 (Appeals involving International-Level Players or International Competitions) is not applicable, the decision may be appealed to a national-level appeal body, being an independent and impartial body established in accordance with rules adopted by the National Anti-Doping Organisation having CAS 2017/A/5315 9

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3. Persons entitled to appeal In cases under art. 75 par. 1 (Appeals involving International-Level Players or International Competitions), the following parties shall have the right to appeal to CAS: (a) the Player or other Person who is the subject of

the decision being appealed; (b) the other party to the case in which the decision was rendered; (c) FIFA; (d) the National Anti-Doping Organisation of the Person’s country of residence or countries where the Person is a national or licence holder; (e) the International Olympic Committee or International Paralympic Committee, as applicable, where the decision may have an effect in relation to the Olympic Games or Paralympic Games, including decisions affecting eligibility for the Olympic Games or Paralympic Games; and (f) WADA. In cases under art. 75 par. 2 (Appeals involving other Players or other Persons), the parties having the right to appeal to the national-level appeal body shall be as provided in the National Anti-Doping Organisation’s rules but, at a minimum, shall include the following parties: (a) the Player or other Person who is the subject of the decision being appealed; (b) the other party to the case in which the decision was rendered; (c) FIFA; (d) the National Anti-Doping Organisation of the Person ‘s country of residence; (e) the International Olympic Committee or International Paralympic Committee, as applicable, where the decision may have an effect in relation to the Olympic Games or Paralympic Games, including decisions affecting eligibility for the Olympic Games or Paralympic Games; and (f) WADA. For cases under art. 75 par. 2 (Appeals involving other Players or other Persons), WADA, the International Olympic Committee, the International Paralympic Committee, and FIFA shall also have the right to appeal to CAS with respect to the decision of the nationallevel appeal body. Any party filing an appeal shall be entitled to assistance from CAS to obtain all relevant information from the Anti-Doping Organisation whose decision is being appealed and the information shall be provided if CAS so directs. Notwithstanding any other provision herein, the only Person who may appeal from a Provisional Suspension is the Player or other Person upon whom the Provisional Suspension is imposed”.

47. As an initial matter, it is undisputed that the Athletes are national-level players, and as such

Article 75(2) (“Appeals Involving other Players or other Persons”) and Article 75(3) (“Persons entitled to appeal”) are relevant to determining the applicable appeals process.

48. Article 75(2) specifies that “the decision may be appealed to a national-level appeal body”, and Article 75(3) provides that WADA has “the right to appeal to CAS with respect to the decision of the nationallevel appeal body”. There is nothing in these articles that requires WADA to appeal to a nationallevel appeal body, nor will this Panel import any such requirement.

49. The DC DIMAYOR issued the first-instance decision on 2 February 2017, which the Athletes

appealed to the DC FCF. The DC FCF overturned the DC DIMAYOR’s decision on 19 July CAS 2017/A/5315 10 WADA v. FCF and Yobani Jose Ricardo Garcia

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2017. The DC FCF is a national-level appeal body, notwithstanding that the GDC may also

be empowered to review decisions by the DC FCF. Accordingly, WADA has the right to appeal the decision of the DC FCF to CAS under Articles 75(2) and 75(3) of the FIFA ADR.

50. There is disagreement among the parties as to whether Article 74(3) also exempts WADA from exhausting internal remedies within the national anti-doping organization’s process.

51. Article 74(3) states that “[w]here WADA has a right to appeal under arts 74 to 80 and no other party has appealed a final decision within FIFA’s process, WADA may appeal such decision directly to CAS without having to exhaust other remedies in FIFA’s process”. This provision expressly exempts WADA from following any internal remedies in “FIFA’s process”, and therefore allows WADA to appeal directly to CAS without exhausting internal remedies in FIFA’s process.

52. The Panel believes that such reference to the “FIFA’s process”, put in proper context, must be interpreted so as to include any antidoping process within the so-called FIFA pyramidal system. The Panel has no reason to believe that the drafters of the FIFA ADR intended to distinguish between “FIFA’s process” stricto sensu and the national processes for the purposes of exempting WADA from exhausting internal remedies. Logically, the exemption from the burden of exhausting all internal remedies appears to be particularly appropriate for national processes, considering that WADA’s mandatory participation in all instances at the national level would render unmanageable and cumbersome (and would thus undermine) its worldwide task of fighting doping in football. This logical and teleological reading of Article 74(3) of the FIFA ADR is confirmed by a contextual interpretation.

53. Indeed, Article 74(3) of the FIFA ADR implements Article 13.1.3 of the WADA Code, which exempts WADA from exhausting any and all internal remedies without distinction. Article 13.1.3 is among the provisions, as set forth in Article 23.2.2 of the WADA Code, that Signatories, including FIFA, are required to implement “without substantive change”. This Panel will not adopt an interpretation of Article 74(3) of the FIFA ADR that requires WADA to exhaust internal remedies within the national anti-doping organization’s process and, therefore, introduces a substantive change in the FIFA ADR. The Panel has no reason to believe that the FIFA ADR intended to impose any such requirement contrary to its obligations under the Code.

54. The Panel observes that the FIFA ADR refer to “FIFA’s process” in Article 74(3) but elsewhere refer to “FIFA’s, the Confederation’s or the Association’s process” (i.e., Article 75(1), “Appeals involving International-Level Players or International Competitors”) but, under a contextual and purposive approach, believes that the distinction was not intentional but was

the result of inadvertent drafting. The Panel agrees with WADA that the spirit and purpose of Article 74(3) is to streamline the legal fight against doping and create a workable appeals process that exempts WADA from exhausting internal remedies within FIFA’s process and the national anti-doping organization’s process.

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55. Accordingly, WADA is not required to appeal the DC FCF’s decision to the GDC because it is expressly exempt from exhausting internal remedies under Article 74(3) of the FIFA ADR

where, as here, neither the Athletes nor the FCF challenged the decision of the DC FCF before the GDC.

56. Thus, WADA’s appeal against the DC FCF’s decision to CAS is proper, and this Panel has jurisdiction over WADA’s appeal.

57. The Panel is also comforted that the parties unanimously agreed that they preferred this Panel to decide the present appeal (rather than any national appellate body); unanimously agreed that they fully pleaded all of their claims and defenses before CAS; and unanimously agreed that they suffered no prejudice by not having another opportunity for appellate review at the national level b