The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
The Swiss Federal Tribunal today published its reasoning behind its 4 March decision to reject an appeal from Paolo Guerrero against a 14 month suspension imposed by the international federation of football associations (FIFA) and upheld at the Court of Arbitration for Sport (CAS). Both the Swiss Federal Tribunal and the CAS accepted that the Peruvian international’s adverse analytical finding (AAF) for benzoylecgonine, a metabolite of cocaine, was caused by ingesting coca tea at the Swisshotel in Lima.
Guerrero tested positive for benzoylecgonine 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 2018, 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.
On 31 May 2018, 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 2018, 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 2018.
The CAS (PDF of ruling below) had already rejected that tea served to him on 5 October 2017 in the national team’s private dining room (T1) was the source of the AAF, as ‘strict protocols’ were in place and the anis tea was recommended to Guerrero under the supervision of a team nutritionist to ease a bloated stomach. It held that the AAF was caused by the ingestion of coca tea in the Visitors Room of the Swisshotel on the same day (T2), and Guerrero was at fault for some degree of negligence for not inquiring whether such tea was covered by the same strict protocols applicable in the team’s private dining room.
‘The Panel is on balance satisfied that Mr Guerrero has established to a standard of not less than 51% or, to use the vernacular, a standard just over the line, that the source of the prohibited substance was coca tea, i.e. T2 (and it follows that to the extent that there is any scope for an athlete to disprove intention without proof of source, the facts of this case do not engage it)’, ruled the CAS Panel (PDF of decision below). ‘Moreover, as explained below, the Panel doubts Mr Guerrero’s claim that he made clear to the waiter that he wanted Anis tea. It considers it more likely that the waiter was asked for tea, and, hence without any mistake on his part, served Mr Guerrero a coca tea.
‘After being pressed in November 2017 to assist Mr Guerrero’s case by identification of the waiter who served him and any other information relevant to T2, the hotel was uncooperative (see an email from its executive sub manager of 27 November 2017) but in December 2017 ceased to serve coca tea (see the certified declaration of a Public |Notary of 13 December 2017 about his discussion with the Director of Food and Beverages at the hotel) although it was still available in November 2017 (see Certified Declaration of the Public Notary of 6 November 2017 about his visit to the hotel). The inference that the Panel draws is that the hotel’s management was concerned that it might itself, rightly or wrongly, be liable to criticism or even a claim for compensation for putting Mr Guerrero’s career in jeopardy by being held responsible for serving him a drink, which contained a prohibited substance, and was doing its best to conceal any tracks which might have led to such outcome’.
The CAS Panel held that Guerrero had failed to inquire about T2, and therefore agreed with FIFA that his ban could not be reduced under the ‘No Fault or Negligence’ provision of the World Anti-Doping Code, since there were checks that he could have carried out. However it held that his degree of fault was light, because of his belief, ‘borne of long experience of the artificially cocooned life of an international footballer, that the team officials would, as had been the case in the past, ensured the safety of any food or drink served to the players’, which is said was ‘far from unreasonable’.
The Swiss Federal Tribunal decision reveals that Guerreo attempted to argue that the CAS Panel had disregarded evidence which suggested that the Swisshotel was attempting to cover its back by arguing that coca tea was only offered to customers on express request. The Swiss Federal Tribunal held that this argument could have been presented to the CAS, and Guerrero had not shown how its failure to consider this argument could have affected the outcome of the dispute. It also held that, as described above, the CAS had considered evidence given by the Swisshotel with caution.
‘In any event, the complainant is actually seeking once again to question the assessment of the evidence, as undertaken at the CAS, which is not admissible’, ruled the Swiss Federal Tribunal. ‘The Swiss Federal Tribunal can only rule on whether the CAS applied the correct procedures and interpreted rules correctly – it cannot reconsider evidence’.
Guerrero also argued that the Panel considered that it was bound by the Rules and the principle of proportionality not to allow a suspension lower than one year. His legal team had argued that this assumption was unpredictable and a ‘surprise’ which it had not considered. The Tribunal ruled that it could only rule on a legal consideration that had not been raised during the proceedings and could not have been calculated by the parties.
‘By invoking the element of surprise, the Appellant, who is actually complaining of defects affecting the reasoning of the award, seeks to provoke in this way an examination of the application of substantive law, which is not permissible’, it ruled. ‘Moreover, the Appellant is not credible when he pleads the surprise effect, whereas one of the elements of the dispute was precisely to determine whether the pronouncement of a sanction lower than the minimum duration provided for in the Rules under the principle of proportionality was possible in the present case’.
Guerrero also argued that by mechanically applying the Rules without considering the principle of proportionality, his sanction was disproportionate, violating his rights to legitimately pursue his career. He also argued that the interest in punishing him is not compatible with the goals of the fight against doping.
‘The attacks on the personality complained of by the appellant must be seriously tempered in the light of the evidence on the file’, ruled the Federal Tribunal. ‘It is clear from Exhibit 21 produced by the Appellant that he was transferred on 15 August 2018 from one Brazilian First Division football club (Flamengo) to another (SC Internacional Porto Alegre) with which he signed a three-year contract valid until 14 August 2021. It is thus not established that the Appellant is currently without resources or that his or her retirement is imminent. On the contrary.
‘Then, as regards duration, i.e. fourteen months, the suspension does not appear to be contrary to public policy. It should be noted that the Appellant does not deny having committed an anti-doping rule violation. Nor does he question at the Federal Court the Appellant’s assessment that he acted improperly, thereby rendering s.21 of the Rules according to which the sanction is lifted when the player establishes the absence of fault or negligence on his part. The very principle of suspension is thus not disputed.’
The Swiss Federal Tribunal decision also reveals that WADA appealed for immediate revocation of the 31 May Swiss Federal Tribunal suspensive order that allowed Guerrero to compete at the 2018 FIFA World Cup Russia, despite his ban. WADA’s appeal was rejected by the Tribunal. It also dismissed Guerrero’s appeal against the CAS decision to uphold his 14 month sanction, and ordered that he pay CHF7,000 (€6,200) costs and CHF8,000 (€7,100) to WADA.
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