29th November 2018

Swiss Federal Tribunal rules FIFA appeal in Guerrero case is inadmissible

The Swiss Federal Tribunal has ruled that an appeal (case 4A_560/2018) lodged by FIFA against the Court of Arbitration for Sport (CAS) decision to partially uphold an appeal from the World Anti-Doping Agency (WADA) is inadmissible, which means the suspension applicable to Paolo Guerrero remains at 14 months. In other words, as the sanction is against the player, only Guerrero has standing to appeal. A separate appeal, filed by the Peruvian international on 25 May (case 4A_318 / 2018), is still pending.

Guerrero tested positive for benzoylecgonine, a metabolite of cocaine, following a doping control after Peru’s 0-0 draw with Argentina in a Russia 2018 qualifying match on 5 October 2017. He was initially sanctioned with a one year ban by FIFA in December 2017, however the FIFA Appeals Committee later reduced this to six months. 

On 13 April, Guerrero and WADA filed appeals against the sanction, which Guerrero sought to have reduced so he could compete in the World Cup, and WADA sought to increase. On 14 May, the CAS increased Guerrero’s suspension to 14 months, finding that although it agreed with the FIFA Appeals Committee’s finding that his positive test was caused by ingestion of tea containing the prohibited substance, he was responsible for some degree of fault or negligence. 

It is understood that Guerrero’s lawyers turned to a Brazilian biochemist, L.C. Cameron from the Federal University of the State of Rio de Janeiro, who convinced CAS that the concentration of benzoylecgonine in Guerrero’s urine was consistent with somebody who had drunk coca leaf tea, rather than somebody who had taken cocaine. Charles Stanish, an American archaeologist from the Institute for Advanced Studies, University of South Florida and an expert in Inca culture, explained that the hair of frozen mummified Inca children found at the top of Volcan Llullaillaco in 1999 had tested positive for benzoylecgonine. Lawyers used this finding to show how it was possible to test positive for benzoylecgonine without ingesting cocaine, as the substance was not produced until after it was isolated by German and Italian scientists Albert Niemann and Paolo Mantegazza in 1859.

On 31 May, the Swiss Federal Tribunal temporarily suspended the CAS decision to increase his ban to 14 months, allowing Guerrero to compete in the 2018 FIFA World Cup Russia. ‘The President of the Civil Law Department has taken particular account of the various disadvantages which the 34 year old footballer would suffer should he not attend an event which would crown his football career’, read a statement. ‘It should be noted that he did not act deliberately or through gross negligence, as is clear from the press release of the CAS on this case. In addition, FIFA and WADA have both come to the conclusion that they are not categorically opposed to the complainant’s participation in the World Cup.’

In August, following the completion of the 2018 FIFA World Cup Russia, the temporary suspension ended, and Guerrero’s 14 month ban was re-imposed. The Swiss Federal Tribunal refused a request that the 14-month ban should be temporarily lifted allowing Guerrero to play for Internactional, which signed the Peruvian captain in August. 

The Tribunal’s decision outlines that under arbitration law and jurisprudence, a party to a proceedings is entitled to lodge an appeal in civil matters if they were deprived of the possibility of taking part in arbitration procedures, if affected by that decision. It outlines that it considers FIFA’s reasons for lodging the appeal are due to a question regarding the proportionality of the CAS decision, which is a separate question not covered by this aspect of arbitration law.

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