SPECIAL REPORT

Integrity in Football

Doping

The Guerrero Doping Saga: Proportionality Questioned

By Antonio Rigozzi & Brianna Quinn Lawyers, Lévy Kaufmann-Kohler Geneva - Switzerland

➔➔ Doping – Disciplinary litigation – FIFA Regulations – World Anti-Doping Code – Sporting sanctions – Proportionality – FIFA Disciplinary Committee – FIFA Appeal Committee – Court of Arbitration for Sport (CAS)

“Seldom has the law been as The decision sparked both legal the main legal issues raised by big an ass as in the case of Peru and public appeals, with even Mr Guerrero’s defence, some of centre forward Paolo Guerrero”1 Mr Guerrero’s rivals campaigning which are of particular interest for him to be able to take part in the from an anti-doping perspective.3 World Cup.2 The legal proceedings that followed saw Mr Guerrero Introduction obtain an injunction from the Swiss Federal Supreme Court, which Factual and Procedural The above quote - from “The Sun” in provisionally suspended the CAS Background the UK - was no doubt sensationalist, ban to allow him to play in the and typical of a tabloid newspaper. World Cup. However, the Supreme However, the sentiment behind it Court reinstated the ban after the The Adverse Analytical was largely echoed by the sporting end of the World Cup, pending the Finding and the Provisional world when, in 2017, the Court resolution of Mr Guerrero’s request Suspension of Arbitration for Sport (CAS) to set aside the CAS award. confirmed that Paolo Guerrero had On 5 October 2017, as part of the been declared ineligible to play Since a lot has been said about this 2018 FIFA World Cup qualifiers, football (for 14 months) following case, in particular on social media, Mr Guerrero played for the an inadvertent anti-doping rule this contribution is an attempt to Peruvian national team in a match violation (ADRV). Indeed, not only explain, in as summary form as against Argentina in Buenos Aires. did it appear that Mr Guerrero’s possible, the legal particularities Following the match, he was ADRV had stemmed from the of Mr Guerrero’s case at all levels selected for an in-competition unintentional consumption of coca - from the FIFA internal bodies, anti-doping control. tea, the CAS decision meant that to the CAS, and all the way to the the Peruvian star (and captain of Swiss Federal Supreme Court. To the National Team) would not be do so we set out in the following 3 The author must disclose that he is currently permitted to play for Peru in its first sections: the factual and procedural representing FIFA in the proceedings pending in the Swiss Federal Supreme Court appearance in the FIFA World Cup background; Mr Guerrero’s and will thus not discuss the specifics of Finals since 1982. explanation for the ADRV; and these proceedings on the merits. As far as the CAS proceedings are concerned, the present contribution is exclusively based on the information arising out of the published 1 www.thesun.co.uk 2 https://fifpro.org award.

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On 25 October 2017, the WADA- proceedings consisted of both appeal. On 19 February 2018,6 accredited Cologne laboratory a written and an oral phase, WADA filed its appeal against (Laboratory) confirmed the with a hearing held in Zurich the decision (CAS 2018/A/5571), presence of the cocaine metabolite on 30 November 2017. On requesting that Mr Guerrero’s benzoylecgonine in Mr Guerrero’s 7 December 2017, the FIFA DC period of ineligibility be increased urine A Sample. This substance rendered its decision, imposing to 22 months. On 6 March 2018, is a so-called non-Specified a period of ineligibility of one CAS consolidated the two appeals, Substance, included on the WADA year on Mr Guerrero (see below meaning that the case would be 2017 Prohibited List under Section for the reasons behind the FIFA heard - and the decision issued - S6 “Stimulants”. It is prohibited DC decision). This meant that, by the same Panel of arbitrators: only in competition (more on unless Mr Guerrero succeeded the Honourable Michael J Beloff this classification below).4 The with an appeal to the FIFA Appeal (President), Prof. Massimo Coccia, concentration of benzoylecgonine Committee (FIFA AC), he would and Mr Jeffrey G. Benz. in Mr Guerrero’s A Sample was not be eligible to play in the FIFA 77ng/mL. World Cup in July 2018. A hearing was held in Lausanne, Switzerland, on 3 May 2018. On 2 November 2017, the FIFA Anti- Mr Guerrero immediately filed On 14 May 2018, the CAS Panel Doping Unit informed Mr Guerrero an appeal with the FIFA AC. On issued the operative part of its of the Adverse Analytical Finding 20 December 2017, following award, increasing the length of (AAF) and, on 3 November review of Mr Guerrero’s reasons Mr Guerrero’s ban (from 6 months) 2017, the Chairman of the FIFA for appeal, the FIFA AC partially to 14 months and thus precluding Disciplinary Committee (FIFA DC) upheld Mr Guerrero’s appeal and his participation in the World Cup.7 passed a decision provisionally reduced the period of ineligibility The same day, the CAS Court Office suspending Mr Guerrero from imposed on him to six months published a press release in which participating in football matches (see below for the reasons behind it explained the main rationale of for a period of 30 days. the FIFA AC decision). The FIFA the Panel’s award, namely, that AC decision was notified to the “CAS Panel […] accepted that On 10 November 2017, the the Parties on 26 January 2018. [Mr Guerrero] did not attempt Laboratory informed FIFA that Importantly, as Mr Guerrero’s to enhance his performance the analysis of Mr Guerrero’s period of ineligibility would run by ingesting the prohibited B Sample had confirmed from 20 December 2017, and the substance” but a 14 month ban was the presence of the cocaine provisional suspension served by more appropriate “[c]onsidering metabolite benzoylecgonine. The Mr Guerrero (since 3 November that, in case of no significant fault concentration of benzoylecgonine 2017) would be taken into account, or negligence, the sanction should, in Mr Guerrero’s B Sample was this meant that Mr Guerrero would, in accordance with the applicable 42ng/mL. after all, be eligible to take part in FIFA rules, be in the range of 1 to the 2018 FIFA World Cup. 2 years.”8

The FIFA proceedings The CAS proceedings The FIFA DC proceedings began with the opening of a file against On 29 January 2018, Mr Guerrero Mr Guerrero in early November filed an appeal against the FIFA 2017. On the merits,5 the FIFA DC AC decision with the CAS (CAS 2018/A/5546), requesting that 6 With respect to the timing of WADA’s Statement of Appeal, according to 4 www.wada-ama.org the FIFA AC decision be annulled Article 80(1.2) of the FIFA Anti-Doping 5 Procedurally, as an initial step in the FIFA and no period of ineligibility be Rules, WADA benefits from a later deadline proceedings, Mr Guerrero appealed the than either the player or FIFA. Specifically, provisional suspension that had been imposed on him. the filing deadline for WADA “shall be the imposed on him. This appeal was rejected later of: a) Twenty-one days after the last by both the FIFA DC (on 9 November 2017) day on which any other party in the case and the FIFA Appeals Committee (FIFA AC) WADA requested to intervene in could have appealed; or b) Twenty-one days (on 14 November 2017) respectively. As no these proceedings on 1 February after WADA’s receipt of the complete file decision had yet been taken on the merits relating to the decision”. of Mr Guerrero’s case, on 3 December 2017, 2018, but noted that it would, 7 The reasoned award was issued on 30 July Mr Guerrero’s provisional suspension was in any event, be filing its own 2018 and is available here: www.tas-cas.org extended for another 20 days. 8 Available at www.tas-cas.org

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The Swiss Federal Supreme On 6 September 2018, Mr Guerrero Mr Guerrero’s Explanation Court proceedings filed a new request for a stay, which was rejected on 27 September Prior to considering the respective On 25 May 2018, Mr Guerrero 2018 on the ground that “it was FIFA and CAS decisions, and filed an action to set aside the not clear on a prima facie analysis giving an indication of the stakes CAS award in the Swiss Federal that his action to set aside the in the Swiss Federal Supreme Supreme Court, requesting also CAS award was very likely to be Court, it is worth setting out the that the CAS award be stayed until successful”.11 crux of Mr Guerrero’s defence. a decision was taken on the merits In short, Mr Guerrero submitted of his action (this would have On 17 October 2018,12 Mr Guerrero that the most probable source allowed him to participate in the and FIFA both filed an action to set of the cocaine metabolite in his World Cup pending the resolution aside the CAS Award.13 urine sample was his ingestion of his case). Interestingly, the of tea containing coca leaves on action to set aside was filed On 19 November 2018, the Swiss 5 October 2017 in the Swissotel without knowing the grounds Federal Supreme Court dismissed in Lima, Peru, where the Peruvian of the CAS award as this is FIFA’s action on the ground that, National Team was staying before permitted under Swiss Law.9 On since the ban imposed by the CAS travelling to Buenos Aires for the 30 May 2018, the President of the was against Mr Guerrero, FIFA did match in question. In support of competent division of the Swiss not have a personal interest to sue the likelihood of this explanation, Federal Supreme Court issued an (despite having been a party in the Mr Guerrero submitted that:15 ex parte order granting the stay CAS proceedings and despite the of the CAS award. The order took fact that the CAS award annulled ➥➥ He was aware of the relevant into account “the damage that the decision of the FIFA AC and anti-doping regulations and the Mr. Guerrero, who was 34 years rejected FIFA’s prayers for relief in list of Prohibited Substances. He old, would suffer if he would be the CAS proceedings).14 had always been very cautious barred from participating in the not to ingest any prohibited competition that will constitute The Supreme Court is expected to substances and had always the pinnacle of his career, while issue its decision on the merits of been against doping. the CAS press release indicates Mr Guerrero’s action to set aside that the did not act intentionally, the CAS award in the first half of ➥➥ He had an unblemished anti- nor with significant negligence.”10 2019. doping record throughout his career, and was an ambassador After the World Cup, WADA for drug free sport. 11 This time, the Swiss Federal Supreme Court filed a request for the lifting of did not issue a press release and this quote the stay, enclosing a copy of the is a free translation of the French original of ➥➥ The very low concentration of the unpublished order. CAS reasoned award, which had 12 The 30-day time limit to file an action to set the single cocaine metabolite been published in the meantime. aside an arbitral award in the Swiss Federal benzoylecgonine in his urine was Supreme Court starts on the day after the On 6 August 2018, the Supreme notification of the original of the reasoned compatible with an inadvertent Court forwarded WADA’s request award. In the present case, the original and unintentional use of a reasoned award (communicated by fax on to the parties “for information” 13 July 2018) was notified on 17 September contaminated product (as but without inviting any comment 2018. opposed to the use of cocaine). 13 Mr Guerrero’s brief was an expanded version or fixing any time limit to answer. of the original application of 25 May 2018, Two weeks later, in what is an which was filed against the unreasoned ➥➥ During his stay at the Swissotel award. unprecedented order, the Court 14 This decision appears difficult to reconcile in Lima, he had ingested two issued a second order lifting the with the test normally applied by the Swiss different teas: Federal Supreme Court (including when the stay granted on 30 May 2018 on action to set aside is brought by WADA) that the ground that Mr Guerrero’s “La recourante, qui a pris part à la procédure devant le TAS, est particulièrement touchée 15 According to the CAS Panel, there were counsels did not react to WADA’s par la décision attaquée, car celle-ci entraîne additional “theoretical possibilities” request. le refus de ce tribunal arbitral de donner suite submitted by Mr Guerrero (such as water à son appel. Elle a ainsi un intérêt personnel, contamination), however, these had “no actuel et digne de protection à ce que cette evidential substratum whatsoever and the 9 Kaufmann-Kohler/Rigozzi, International décision n'ait pas été rendue en violation Panel therefore discount[ed] them right Arbitration - Law and Practice in Switzerland, des garanties invoquées par elle, ce qui lui away” (see par. 67 of the CAS decision). 2015, no. 8.98. confère la qualité pour recourir (art. 76 al. 1 Based on the Award it is not possible to 10 Free translation of the French original LTF) ” (Decision 4A_692/2016 of 20 April determine on which exact grounds these available at www.bger.ch 2017, at par 2.4.). additional possibilities were disregarded.

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• The first tea was - as far as negligence by consuming any of relevant provisions of the World he understood - an anise the teas in question.17 Anti-Doping Code (WADA Code) tea, recommended by the and were applicable at the time of Peruvian team’s nutritionist to the AAF.19 treat a stomach ache (the First Tea). Mr Guerrero consumed Legal Issues Article 6 of the FIFA ADR this tea under the supervision (corresponding to Article 2.1 of of the nutritionist and in the It is no secret that it was difficult the WADA Code) provides that national team’s private dining for many - in particular those the “Presence of a Prohibited room - in which strict food and unfamiliar with the anti-doping Substance or its Metabolites or beverage protocols had been system - to understand the decision Markers in a Player’s Sample” put in place. to suspend Mr Guerrero for even constitutes an ADRV. The six months, considering that the Prohibited Substances are set out • The second tea was drunk in source of his ADRV appeared to be in the Prohibited List published by the national team’s visitors the inadvertent ingestion of coca WADA on an annual basis. room (the Second Tea). tea. Thus, we set out below the key Mr Guerrero recalled asking elements of both the sanctioning As noted above, cocaine is a so- for an anise tea, however regime for cocaine and the called “non-Specified Substance”, submitted that he may have respective decisions (in brief) to prohibited “In-Competition” only, been given a coca tea instead, attempt to explain the sanction(s) and included on the WADA 2017 or a tea contaminated with imposed on Mr Guerrero and the Prohibited List under Section S6 coca leaves, in particular restrictive nature of anti-doping “Stimulants”.20 considering: (i) the culture of regulations when it comes to coca tea ingestion in Peru; and cocaine. Rather than consider the According to the WADA Code, (ii) the fact that the Swissotel decisions individually, we address a “Specified Substance” is not had coca tea available to below the key principles and “considered less important or customers at the time that he the way that each legal instance less dangerous than other doping was there. addressed them. substances [it is simply] more likely to have been consumed by ➥➥ Finally, during his stay at an Athlete for a purpose other the Hotel Intercontinental in The Sanctioning Regime for than the enhancement of sport Buenos Aires, he ingested a the Prohibited Substance performance.”21 Thus, in the case third tea - a black tea from a - Cocaine of cocaine the inverse is true - sealed bag which was prepared cocaine is considered more likely by the same nutritionist (the than other (specified) substances Third Tea).16 Presence of a non-Specified to have been used to enhance Substance prohibited only sport performance. Considering the above, “In-Competition” Mr Guerrero submitted that: (i) the In addition, cocaine is prohibited most likely source of the substance Mr Guerrero’s case was governed “In-Competition” only. However, in his urine was one of the above by the 2015 version of the this does not mean that only teas (in particular the Second Tea); FIFA Anti-Doping Regulations the “use” of cocaine during a and (ii) in the circumstances, and (FIFA ADR),18 which reflect the competition period will be a in particular considering that he violation. Rather, the “presence” believed the food and beverage of cocaine (or even a metabolite of 17 Interestingly, it appears from the FIFA protocol was in place also in the AC decision and the CAS award that cocaine) in a sample collected in- visitor’s room of the Swissotel in Mr Guerrero also initially raised a defence in competition will also be considered relation to: (i) alleged departures from the Peru, he should not be considered WADA International Standards; and (ii) the an ADRV, even if the substance to have committed any fault or concentration of the cocaine metabolite in was ingested out-of-competition. his urine sample (suggesting that there was not, in fact, an AAF under the relevant rules). As these elements were not discussed in the 16 According to the FIFA AC decision, this tea CAS award, it appears that any such defence 19 See par. 60 of the CAS award. was tested by an independent laboratory in was abandoned at some stage during the 20 www.wada-ama.org the United States, which confirmed it was proceedings. 21 Comment to Article 4.2.2 of the WADA negative for cocaine and coca leaves. 18 Available at https://no-doping.fifa.com Code.

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Thus, while an athlete can use (or Elimination of the (default) ineligibility (and the maximum ingest) cocaine (or indeed coca suspension sanction two years) depending leaves) out-of-competition, if the on the athlete’s degree of fault. substance or its metabolite(s) If the player can establish, based However, if an athlete proves remains in the athlete’s system on the source of the substance, only “No Significant Fault or during competition he or she will that he or she bears “No Fault Negligence” the reduced period be sanctioned under the anti- or Negligence” the (default) of ineligibility may be not less than doping rules. suspension will be eliminated. “No the period of ineligibility otherwise Fault or Negligence” is defined as applicable - i.e. in the case of This classification of cocaine has the Player establishing “that he did cocaine the minimum sanction for a direct impact on the applicable not know or suspect, and could a first offence is one year. sanctioning regime (as set out in not reasonably have known or both the FIFA ADR and the WADA suspected even with the exercise In summary, for Mr Guerrero to Code) as follows: of utmost caution, that he had avoid a period of ineligibility used or been administered the altogether, he would have needed Prohibited Substance”. to prove that: (i) his violation The default suspension was not intentional; and (ii) he either committed No Fault or As a non-Specified Substance, Reduction of the (default) Negligence, or was the victim of the default period of ineligibility suspension a Contaminated Product. To the is four years, unless the player contrary, if Mr Guerrero was only can establish that the ADRV was If the player cannot prove “No Fault able to establish No Significant not intentional.22 Cocaine being or Negligence”, the sanction can Fault or Negligence, the minimum a substance prohibited only in- only be reduced26 (i.e. it cannot be sanction available under the anti- competition, the player can completely eliminated) and only if doping regulations would be a establish that the ADRV was not the player establishes: (i) that the period of ineligibility of one year.27 intentional by proving that it “was AAF arose as a result of either a used Used Out-of-Competition “Contaminated Product” (defined Prior to considering the application in a context unrelated to sport as “a product that contains a of this sanctioning regime to performance”.23 If the player can Prohibited Substance that is not Mr Guerrero’s case, it is worth establish that the ADRV was not disclosed on the product label briefly mentioning here that, as intentional, the default period of or in information available in a discussed previously in the context ineligibility is two years.24 reasonable internet search”); of the CAS decision on the Therese or (ii) “No Significant Fault or Johaug matter,28 if cocaine had been Negligence” applies to the case classified by WADA as a Specified The paramount role of the “source (defined as the player establishing Substance, the minimum sanction of the substance” that “his Fault or negligence, applicable in the case would have when viewed in the totality of the been a reprimand (i.e. the same This two-year suspension can only circumstances and taking into as for a Contaminated Product).29 be eliminated or further reduced account the criteria for No Fault However, as a non-Specified if the athlete can establish the or negligence, was not significant Substance (i.e. a substance source of the substance, i.e. how in relationship to the anti-doping considered more likely to be it entered into his or her system.25 rule violation”). used to enhance performance),

If the athlete proves that 27 It is worth briefly mentioning here that, had cocaine been classified by WADA as a 22 Article 19(1) of the FIFA Anti-Doping the substance came from a Specified Substance, the minimum sanction Regulations, Article 10.2.1.1 of the WADA Code. “Contaminated Product”, the applicable would have been a reprimand (i.e. 23 Article 19(3) of the FIFA Anti-Doping the same as for No Fault or Negligence or No Regulations, Article 10.2.3 of the WADA Code. minimum sanction shall be a Significant Fault or Negligence). 24 Article 19(2) of the FIFA Anti-Doping reprimand and no period of 28 CAS 2017/A/5015 International Ski Federation Regulations, Article 10.2.2 of the WADA Code. (FIS) v. Therese Johaug & the Norwegian 25 This requirement is contained in Article 22(1) Olympic and Paralympic Committee and (b) of the FIFA ADR and 10.5.1.2 WADA 26 We note that there are additional, non-fault Confederation of Sports and CAS 2017/A/5110 Code for Contaminated Products, and in the related, reductions that an athlete may Therese Johaug v. The Norwegian Olympic and definitions of No Fault or Negligence and No also rely on, but these were not a factor Paralympic Committee and Confederation of Significant Fault or Negligence in the FIFA in Mr Guerrero’s case and thus are not Sports, available at: www.tas-cas.org ADR and WADA Code. discussed in the present article. 29 http://wadc-commentary.com

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it was not possible to reduce the contained the Second Tea that he and (iii) Mr Guerrero was a sanction below twelve months. ingested in the Swissotel in Lima, “poster boy” for drug free sport Considering that an athlete who is Peru. The findings on this point and the Panel considered the able to prove No Significant Fault were most developed by the CAS “unlikelihood of him running or Negligence has also proven Panel, which held that it was “on such a risk” of damaging his a lack of intention (i.e. that the balance satisfied that Mr Guerrero reputation. product was not consumed for the has established to a standard of purpose of the enhancement of not less than 51% or, to use the ➥➥ Moreover, there was positive sport performance), it is unclear vernacular, a standard just over evidence on the file in support why this distinction remains in the line, that the source of the of the Second Tea being the WADA Code (and other anti- prohibited substance was coca the source of the substance, doping regulations). Ultimately, tea.”31 namely: (i) it was accepted however, this is a question for by all parties that drinking the drafters of the WADA Code In coming to its conclusion, the coca tea was part of Peruvian - and as it was not addressed in CAS Panel took into account the culture - thus more likely to the Guerrero decision(s) it is not following elements: occur (whether deliberately or discussed further here. inadvertently) whilst in Peru; ➥➥ The First and Third Teas were (ii) the Swissotel had coca tea unlikely to be the source available for its guests at the Application of the considering that: (i) the First material time; (iii) the Panel Sanctioning Regime to Tea was drunk in an area accepted that Mr Guerrero drank Mr Guerrero’s case with strict food and beverage the Second Tea in the visitor’s controls and under the area - i.e. where the food and supervision of the nutritionist; beverage protocols were not in Source of Mr Guerrero’s cocaine AAF and (ii) the Third Tea was drunk place; and (iv) the subsequent in a country which lacks a “coca conduct of the Swisshotel Considering the sanctioning culture” and the concentration (being uncooperative in the regime, the first thing for of the metabolite was too proceedings and eventually Mr Guerrero to do was to prove the low to be consistent with ceasing to serve coca tea) source of the substance and that consumption on the date in indicated that the hotel was his ADRV was not intentional.30 question. concerned it might be held As per Article 66(2) of the FIFA responsible for Mr Guerrero’s ADR (replicating Article 3.1 of the ➥➥ The Second Tea was more positive test and was WADA Code), Mr Guerrero had likely to be the source of concealing any tracks that to prove this on the “balance of the AAF than drug use for might have indicated it served probabilities”. the following reasons: whilst him a drink containing a either scenario (coca tea prohibited substance. With respect to the source of the two days before the test, or substance, it was accepted by cocaine use 4-7 days before On that basis, the Panel rejected the FIFA DC, the FIFA AC and the the test) was possible, the use WADA’s contention that this was a CAS that the cocaine metabolite of cocaine was unlikely given case “where a Player simply denies in Mr Guerrero’s urine sample that: (i) a hair test conducted use of a prohibited substance was most likely to have been on Mr Guerrero eliminated and asks, without more, to infer the possibility that he was a an innocent explanation for its 30 It is important to note that, as per CAS habitual user of cocaine; (ii) it presence in his system.” To the jurisprudence, it is now generally accepted that an athlete need not prove the source would be “unwise, albeit not contrary, the Panel considered of the substance in order to prove a lack unheard of” for a footballer that there was a “coherent [and] of intention, however, while “there could be cases, although extremely rare ones, to use cocaine so close to an sufficiently convincing evidence- in which a Panel may be willing to accept important match - particularly based case” that the Second Tea that an ADRV was not intentional although 32 the source of the substance had not been considering cocaine is so was the source of the ADRV. established […]as a general matter, proof easily capable of detection; of source must be considered an important and even critical first step in any exculpation of intent (CAS 2016/A/4534, par. 37)”; see CAS 2016/A/828 par. 136. 31 See par. 68 of the CAS award. 32 See par. 69-70 of the CAS award

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Conclusion on the (un)intentional The reasoning contained in the relevant athlete had unknowingly nature of Mr Guerrero’s ADRV FIFA and CAS decisions is set out kissed someone who had been below to attempt to explain the using cocaine.33 The FIFA AC With respect to “intention”, each divergence in approach between stated that: “the reasonable legal instance (at FIFA and CAS) the respective panels. expectation to ingest a prohibited accepted that Mr Guerrero’s substance is completely different ADRV was not intentional. In fact, for an athlete that has intimate at the CAS level it was agreed No Fault or Negligence contact with another person than by all parties, including WADA, from the one of the Player that that whether or not the source of The one thing that each Panel fully drank a tea already prepared by Mr Guerrero’s ADRV was cocaine agreed on, is that Mr Guerrero an unknown person in a country or coca tea, his ingestion of the failed to establish No Fault or where the consumption of coca Prohibited Substance occurred Negligence or that the source of leaf tea is spread and common.” out-of-competition in a context the substance was a Contaminated unrelated to sport performance Product. As for the CAS Panel, it held as (within the meaning of Article 19(3) follows: of the FIFA ADR and Article 10.2.3 As to “No Fault or Negligence”, the of the WADA Code). FIFA AC compared Mr Guerrero’s There were a number of behaviour when drinking the First ways in which Mr Guerrero However, as noted above, Tea (in an area subject to strict could, instead of relying on “unintentional” with the meaning protocols) and the Second Tea assumptions, have discharged of anti-doping regulations does (in an area without such protocols his primary personal duty as not mean that a player’s sanction and without verifying precisely an athlete to ensure that no is or will be eliminated (or even what tea had been given to him) prohibited substance entered further reduced), it only means and held that: his body. He could have that the default sanction applicable inquired as to what protocols to the case is a two-year period of “The Player’s lack of caution operated and where in the ineligibility. Thus, having accepted cannot be shifted neither to hotel. He could have asked that the source of the ADRV was the Association for not having specifically what teabags had the Second Tea, the Panel next implemented in the visitor’s been put in the jug or jugs in considered Mr Guerrero’s degree room the same protocols T2. He could have insisted on of fault in consuming same. regarding food and beverage having the bags brought to him that had been set up in the so that he could scrutinize the dining room, nor to the waiter label (as he claimed to have Mr Guerrero’s Degree of Fault that served the Second Tea done with T1) and himself carry to him. The Regulations are out or at least supervise the Having convinced three tribunals absolutely clear in this sense infusion of the tea. The Panel that the ADRV was likely to have and establish that the Player finds unassailable the decision stemmed from the inadvertent is the ultimate responsible of the FIFA Disciplinary ingestion of coca tea, the obvious for any Prohibited Substance Committee (endorsed by the question remains - why did the that entered his system. An FIFA Appeal Committee) that respective panels come to such opposite interpretation, as it is not possible to describe different conclusions (FIFA DC - suggested by the Appellant, Mr Guerrero as being guilty 12 months; FIFA AC - 6 months; would lead to a considerable of NFN, especially since the and CAS - 14 months)? The threat to the fight against comment on the relevant short answer is that each Panel doping.” WADA Article 10.4, on which had a different opinion on: (i) the FIFA ADR are based, refers Mr Guerrero’s degree of fault; In dismissing the Rider’s defence, to the availability of this plea as and (ii) whether the principle of the FIFA AC also distinguished proportionality could be applied two cases in which No Fault or 33 See CAS 2009/A/1926 International Tennis to his case. Negligence had, in the past, been Federation (ITF) v. Richard Gasquet and CAS 2009/A/1930 World Anti-Doping accepted for cocaine - specifically Agency (WADA) v. ITF & Richard Gasquet in circumstances where the and the SDRCC decision DT 16-0249 CCES v. Shawn Barber: www.crdsc-sdrcc.ca.

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to sanction “only in exceptional The FIFA AC endorsed this where the same protocol of circumstances”, an approach approach, and went on to apply other areas had been put in confirmed in CAS 2017/A/5015 the principles developed in the place, and that the tea that & CAS 2017/A/5110: “a finding Cilic CAS award34 and Stewart he requested complied with of No Fault applies only in CAS award35 by considering both the strict rules on food and truly exceptional cases. In the “objective” and “subjective” beverage implemented by the order to have acted with No levels of fault of Mr Guerrero.36 The Association. This opinion is Fault, [the Athlete] must have FIFA AC applied these principles reinforced by the fact that a exercised the ‘utmost caution’ as follows: previous tea had been provided in avoiding doping. As noted to him immediately after lunch in CAS 2011/A/2518, the “With regard to the objective (i.e. the First Tea) and consisted Athlete’s fault is ‘measured element, it must be noted of an anise tea as he diligently against the fundamental duty that while the Player could be verified. which he or she owes under reasonably expected to read the Programme and the WADC the label of the beverage he As a consequence, the to do everything in his or her was about to ingest or at least Committee concurs with the power to avoid ingesting any ascertain the ingredients – FIFA Disciplinary Committee Prohibited Substance’” (par. as he did with the First Tea – and concludes that the Player 185). (especially knowing that coca bears No Significant Fault or leaf tea is a common beverage Negligence, and that his degree As far as a Contaminated Product in Peru), the Committee recalls of fault can be classified in the was concerned, both the FIFA that the Substance is prohibited lowest range within the light DC and the FIFA AC held that in competition only and it degree of fault. Mr Guerrero had not established - was taken out-of-competition even on the balance of probabilities (the Player testing positive in In this respect, the Committee - that the source of the substance competition). Thus, a lighter notes that the FIFA Disciplinary was a contaminated product. From standard of care should apply Committee took note of all the the content of the CAS award it as the illicit behaviour lies in the circumstances surrounding appears that this defence was not fact that the Player “returned the facts of the case and raised again by Mr Guerrero during to competition too early, or decided, based on the strict the CAS proceedings. at least earlier than when the application of art. 22 par. 2 of substance he had taken out- the Regulations, to impose a of-competition had cleared one-year period of ineligibility.” No Significant Fault or Negligence his system for doping testing purposes in competition”. […] Whilst the FIFA AC went on to As far as No Significant Fault or further reduce this period on the Negligence was concerned, and In this particular case, the grounds of proportionality (see while each tribunal accepted that Committee has no reason to below), it is clear that it applied the this defence was established by disbelieve that the Player, FIFA ADR (and the Cilic guidelines) Mr Guerrero, the panels diverged even though he was aware of in precisely the same way as the in their application of this principle the common and frequent use FIFA DC, holding that Mr Guerrero to the facts of Mr Guerrero’s case. of coca leaf tea throughout was entitled to the maximum his country, thought being in possible reduction under the FIFA The FIFA DC held that while a protected area of the hotel, ADR and WADA Code. Mr Guerrero bore a certain degree of fault or negligence in 34 CAS 2013/A/3327 Marin Cilic v. International To the contrary, and whilst the and CAS 2013/A/3335 ingesting the relevant tea, given Tennis Federation CAS Panel also applied the Cilic International Tennis Federation v. Marin Cilic the particular circumstances of 35 CAS 2015/A/3876 James Stewart Jr. v. guidelines to the case, and also the case he should be entitled to Federation Internationale de Motocyclisme concluded that Mr Guerrero bore a 36 As per the Cilic award “the objective the maximum reduction available element describes the standard of care “light” degree of fault, it considered under the express terms of the that could have been expected from a that a 14-month sanction was more reasonable person in the athlete’s situation; FIFA ADR, i.e. a one-year sanction. the subjective element describes what could appropriate. have been expected from that particular athlete, in light of his personal capacities.”

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The CAS Panel based its decision In this respect, and while there is Proportionality and the on the following: no doubt that a panel may depart Panel’s scope of review from a sanction rendered by a “(i) The Prohibited substance prior instance, or disagree with Interestingly, and coming to the was in tea, not in a medicine the precise sanction that results final point on sanctioning, the key or supplement where the risk from the application of a legal point of departure between the of it being contaminated with test, it certainly would have been FIFA AC decision (the shortest such substance is inherently beneficial to users of the CAS if the sanction) and the CAS decision (the more likely to occur than in a Panel had explained the reasons longest sanction) also indirectly common or garden drink, even for the additional two months it concerned the Panel’s power or taking account of the Peruvian imposed on the athlete. This is scope of review. Specifically, there context; particularly so considering the oft- was a marked difference in how quoted CAS jurisprudence that: the FIFA AC and CAS approached (ii) Mr Guerrero’s belief, borne the application of the principle of of long experience of the “…[a Panel’s] powers to review proportionality. artificially cocooned life of an the facts and the law of the international footballer, that case are neither excluded nor the team officials would, as limited. However, the Panel is In general had been the case in the past, mindful of the jurisprudence ensured the safety of any food according to which a CAS As an initial observation, it is worth or drink served to the Players panel “would not easily ‘tinker’ noting that in the recent CAS in designated areas, separate with a well-reasoned sanction, 2018/A/5808 AC Milan v. UEFA from the main body of the hotel, i.e. to substitute a sanction of award at (par. 135) the Panel noted was far from unreasonable. 17 or 19 months’ suspension for that: A reasonable belief that an one of 18. It would naturally […] athlete was not risking the entry pay respect to a fully reasoned “[…] according to Swiss law, no into his body of a Prohibited and well-evidenced decision of limited review applies from the substance-a subjective factor such a Tribunal in pursuit of a very outset to questions of law. in the Cilic taxonomy (para 73) legitimate and explicit policy. Whether and to what extent is not a defence to an ADRV nor However, the fact that it might a federation is bound by the does it establish that there has not lightly interfere with such a principle of proportionality or been NFN; but it certainly bears Tribunal’s decision, would not the principle of equal treatment weightily on the evaluation mean that there is in principle when exercising its disciplinary degree of fault. any inhibition on its power to powers is, however, a question do so” (cf. CAS 2010/A/2283 of law (cf. CAS 2013/A/3139, Therefore, the Panel, subject para. 14.36; CAS 2011/A/2518 para. 86) and not an issue only to considerations of para. 15; CAS 2011/A/2645 within the free discretion of a proportionality which will be para. 44).I”37 federation.”38 next addressed, cannot reduce 38 The Panel was referring here to the following the period of ineligibility to Thus, while there is clearly no extract from CAS 2013/A/3139: “As a less than one year, but would impediment to a Panel’s scope starting point, the Panel observes that UEFA is a legal entity domiciled in Switzerland, reduce it to near that limit, or power of review in CAS and as such subject to Swiss Law. Under i.e. 1 year and 2 months.” proceedings, it may be desirable in Swiss Law – as under most legal systems – sporting associations have a wide margin of the future to have minor alterations autonomy to regulate their own affairs (see Whilst the CAS Panel went on to a sanction be accompanied CAS 2005/C/976&986, par. 123 and 142 with reference to Swiss Law; CAS 2007/A/1217, to consider the application of with detailed reasoning as to why par. 11.1) and possess the power (i) to adopt proportionality (see further a Panel has departed from the rules of conduct to be followed by their direct and indirect members and (ii) to apply below) it did not, unfortunately, sanction imposed by the prior disciplinary sanctions to members who violate provide an explanation as to why instance. those rules, on condition that their own rules and certain general principles of law – such it considered 14 months to be a as the right to be heard and proportionality more appropriate sanction than – be respected (CAS 2011/A/2426, par. 62; cf. M. Baddeley, L’association sportive 12 months. face au droit, Bale, 1994, pp. 107 ff., 218 ff.; 37 Most recently expressed in CAS M. BELOFF, T. KERR, M. DEMETRIOU, Sports 2018/A/5808 AC Milan v. UEFA at par. 134. Law, Oxford, 1999, pp. 171 ff.)”.

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The principle of proportionality search of the justifiable aim association which cannot (directly has been expressed as a “widely (CAS 2005/C/976 & 986 or indirectly) replace fundamental accepted general principle of FIFA & WADA, paras. 138- and general legal principles like sports law that the severity of a 139, footnotes and italics the doctrine of proportionality a penalty must be in proportion omitted).”40 priori for every thinkable case" with the seriousness of the (CAS 2005/A/830. Squizzato v. infringement”.39 In this respect, and Despite this, the FIFA AC and the FINA, par. 10.24).” whilst the WADA Code suggests CAS Panel took markedly different that it has been “drafted giving approaches to the application of In assessing whether the application consideration to the principles of this principle, as follows: of this principle ought to be applied proportionality and human rights”, to reduce Mr Guerrero’s sanction, it has also been noted that: the FIFA AC first accepted the The approach of the FIFA AC “longstanding notion reflected in “Even after the entry into force CAS case law that the principle of the WADC, the CAS has The FIFA AC considered not only of proportionality demands recognized that any antidoping that it was entitled to apply the a reduction of an otherwise sanction inflicted by a sports principle of proportionality to applicable sanction only in truly federation – that is, a private the case, but that Mr Guerrero’s exceptional circumstances (see, association – must in any event sanction must be further reduced for example, CAS 2016/A/4534 be consistent with the principle upon doing so. Villanueva v. FINA, par. 51)”. of proportionality: However, it then went on to explain The FIFA AC first noted that why, in its opinion, Mr Guerrero’s The sanction must also proportionality had been case demonstrated precisely such comply with the principle of understood in CAS case law exceptional circumstances: proportionality, in the sense to mean that: “there must be that there must be a reasonable a reasonable balance between ➥➥ The legitimate aims of anti- balance between the kind of the the kind of misconduct and the doping are to “protect the spirit misconduct and the sanction. In sanction” (CAS 2005/C/976 FIFA of sport”, “promote health” and administrative law, the principle & WADA, par. 138}, or stated “help ensure a level playing field of proportionality requires otherwise "[t]o be proportionate, in sport”. that (i) the individual sanction the sanction must not exceed must be capable of achieving what is reasonably required in ➥➥ The circumstances of Mr the envisaged goal, (ii) the the search of a justifiable aim" Guerrero’s ADRV demonstrated individual sanction is necessary (CAS 2005/C/976 FIFA & WADA, that his conduct did not fall to reach the envisaged goal par. 139).” within the main target conduct and (iii) the constraints which of anti-doping regulation, and the affected person will suffer The FIFA AC then suggested therefore the justifiable interest as a consequence of the that even if the WADA Code of imposing a significant sanction are justified by the has been repeatedly found to sanction was diminished. overall interest in achieving the be proportional in its approach envisaged goal. to sanctions,41 the FIFA AC ➥➥ A 12-month ban (as opposed “nevertheless [held] a duty to to a six-month ban) would A long series of CAS decisions address whether a sanction is not render the sanction “more have developed the principle proportionate. To reference an effective” nor be capable of of proportionality in sport obiter dictum from a seminal greater deterrence by, for cases. This principle provides CAS case, "the mere fact that example, encouraging greater that the severity of a sanction regulations of a sport federation diligence. must be proportionate to the derive from the World Anti- offense committed. To be Doping Code does not change the ➥➥ Finally, reducing the ban to proportionate, the sanction nature of these rules. They are still six months would be within must not exceed that which - like before - regulations of an the spirit, if not the wording, is reasonably required in the of the FIFA ADR’s sanctioning 40 See CAS 2010/A/2268 I v. FIA at par. 133. regime for inadvertent 39 CAS 1999/A/246 Ward v. FEI. 41 See CAS 2017/A/5015 FIS v. Johaug, par. 227.

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violations (in particular the WADA appealed this element 1 to 2 years the period of 2015 Code provisions dealing of the decision in the CAS ineligibility should be fixed; with Contaminated Products, proceedings, and, as we now cannabinoids, and Specified know, was successful. 2. To allow proportionality Substances). further to lower the period to below one year would Thus, in conclusion, the FIFA AC The approach of the CAS Panel make a nonsense of the held that: prescribed minimum; As already noted - and in any event “Such particular circumstances clear from the significant difference 3. Even though the as set forth above - when in the sanction ultimately imposed classification of cocaine as analysed altogether - are - the CAS Panel did not share the a non-specified substance, considered by the Committee approach of the FIFA AC as to in contrast to other to be a "perfect storm" of factors whether proportionality could plant-based prohibited that are sufficiently exceptional further reduce Mr Guerrero’s substances which are and unique so as to depart sanction. To the contrary, and classified as specified from the strict application of somewhat surprisingly, the Panel substances, is open to the Regulations and justify the appears to have taken the position question, it must be imposition of a lower sanction that it was “constrained” by the recognized that the criteria against the Player, even though provisions of the FIFA ADR to for including substances they are not analogous to the extent that it could not even on the WADA Prohibited previous cases in which such apply the test of proportionality List (and, implicitly, their principle has been deemed to be to the particular circumstances of classification within it) are applicable (CAS 2005/A/830, Mr Guerrero’s case. the result of the application TAS 2007/A/1252 or of rational criteria (see CAS 2010/A/2268). Specifically, the Panel first noted Art. 4.3.1 WADC 2015) that if it had been empowered and a challenge to either As already stated, taking to determine the period of is expressly proscribed into consideration all the ineligibility “ex aequo et bono”, (Art. 4.3.3). The different aforementioned unique and it “could entertain with some classification designedly specific circumstances and sympathy” FIFA’s position that - carries with it different factors, and in particular that in the circumstances of the case - consequences, which the the Committee considers that Mr Guerrero’s sanction should not Panel is not free to ignore; a period of ineligibility of one exceed six months. However, the year would correspond to an Panel considered that it was: 4. The definition of Fault excessively severe sanction, itself for the purposes of disproportionate to the “[…] indeed constrained by the the WADC 2015 expressly negligent behaviour penalised FIFA ADR read together with excludes as a factor to and contrary to the purpose of the WADC 2015, and there are be taken into account in the Regulations. three main features of those assessing the degree of instruments which leave no fault, inter alia, “the timing In sum, this sanction constitutes scope for the deployment of of the sporting calendar” as a suitable measure in view of the concept of proportionality well as the athlete’s loss “of the specific circumstances of over and above that inherent in opportunity to earn large the case; while respecting the the instrument itself: sums of money during the principle of proportionality, it period of ineligibility.” effectively sanctions the anti- 1. Where, as here, a player is doping rule violation committed guilty only with NSFN a CAS Additionally, the CAS by the Player and fulfils the Panel as any other body jurisprudence since the discouraging and deterrent vested with responsibility is coming into effect of WADC effect that disciplinary entitled to take account of 2015 is clearly hostile to the measures entail - namely in proportionality in deciding introduction of proportionality what concerns doping.” where in the range of as a means of reducing yet

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further the period of ineligibility framework which balances the anticipate any and all situations provided for by the WADC interest of those athletes who that can occur in practice, one fails (and there is only one example commit ADRVs with that of to understand on what basis the of its being applied under those who do not. minimum sanctions provided for by the previous version of the the WADA Code would be immune WADC). In CAS 2016/A/4534, The Panel is conscious of the from judicial scrutiny (and thus limit when addressing the issue much-quoted legal adage “Hard the athlete’s access to justice). of proportionality, the Panel cases make bad law”, and the stated: Panel cannot be tempted to This is particularly so given that breach the boundaries of the the WADA Code itself stresses “The WADC 2015 was the WADC (or FIFA ADR) because that anti-doping rules “are product of wide consultation and their application in a particular intended to be applied in a manner represented the best consensus case may bear harshly on a which respects the principles of of sporting authorities as to particular individual. Legal proportionality and human rights” what was needed to achieve certainty is an important (emphasis added).42 The FIFA as far as possible the desired principle to depart from the AC’s position appears to be more end. It sought itself to fashion WADC would be destructive of in line with this approach than in a detailed and sophisticated it and involve endless debate as the CAS Panel’s. With specific way a proportionate response to when in future such departure respect to human rights, the CAS in pursuit of a legitimate aim” would be warranted. A trickle Panel referred to the legal opinion (par. 51). could thus become a torrent; provided by a previous President and the exceptional mutate into of the European Court of Human In CAS 2017/A/5015 & the norm. Rights (the Costa Opinion).43 CAS 2017/A/5110, the CAS According to the CAS Panel, the Panel, with a further reference It is in the Panel’s view better, Costa Opinion validated the view to CAS 2016/A/4643, confirmed indeed necessary, for it to that the principle of proportionality the well-established perception adhere to the WADC. If change is was “built into” in the sanctioning that the WADC “has been found required, that is for a legislative regime of the WADA Code and repeatedly to be proportional body in the iterative process that the Panel should, therefore, in its approach to sanctions, of review of the WADC, not an “adhere to the WADC”.44 This part and the question of fault adjudicative body which has to of the CAS Award is far from being has already been built into apply the lex lata, and not some convincing taking into account the its assessment of length of version of the lex ferenda." specificities of Mr Guerrero’s case. sanction” (emphasis added), Indeed, the Costa Opinion does (par. 227) as was vouched for not discuss the proportionality by an opinion of a previous Final remarks implications of the fact that under President of the European Court the WADA Code an athlete in the of Human Rights there referred At the end of the day, therefore, same situation as Mr Guerrero - to see www.wadaama.org. the difference in the treatment i.e. bearing the same level of fault of Mr Guerrero’s case arose - could have benefitted from a Contrary to FIFA’s argument, from divergent positions on the complete reduction of the sanction the WADC 2015 does provide relevance and application of to a reprimand if the substance for the way to deal with a proportionality in anti-doping contained in the tea happened case such as Mr Guerrero’s proceedings. In this respect, and to be a Specified Substance like from the perspective of the whilst one can certainly understand marijuana (instead of cocaine). Code; the present case is no the CAS Panel’s desire to maintain casus omissus. The WADC legal certainty, the above limitation Moreover, the CAS Panel’s 2015 was designed not only to of the Panel’s scope or power of argument that allowing the punish cheating, but to protect review in anti-doping proceedings application of the principle of athletes’ health and, above is both surprising and, in a sense, proportionality would de facto all, to ensure fair competition undesirable. Indeed, unless one is and the level playing field, prepared to accept that WADA is 42 See the Introduction to the WADA Code. and has thus set up a detailed an unfaultable regulator that can 43 Available at www.wada-ama.org 44 See par. 87-90 of the CAS award.

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destroy the system is equally A more balanced unconvincing as it assumes that approach would the hearing panels, including surely be to conduct at the CAS, are not capable of the test for proportionality distinguishing between: (i) the in every case in which it vast majority of the situations in is raised, and determine which the sanction provided for by whether the the WADA Code is proportionate; sanction truly is and (ii) the rare cases where it proportionate is established that it is not.45 As suggested by Ms Emily Wisnosky,46 While this is a notoriously very a more balanced approach would narrow standard, it is worth noting surely be to conduct the test for that the only time an award was set proportionality in every case in aside on this basis was precisely which it is raised, and determine when a CAS Panel “blindly” whether the sanction truly is applied the sanctions provided proportionate. Indeed, not only is for by the applicable regulation, there a built-in failsafe to possible without considering whether “torrents” resulting from the such sanction was proportionate application of proportionality or not.47 The upcoming decision (i.e. the clear position that of the Swiss Federal Supreme proportionality only applies in Court will certainly make for an “truly exceptional circumstances”), interesting reading. What matters if the WADA Code truly has been at this stage is to emphasise that drafted with proportionality in even in the (statistically likely) mind, its sanctioning regime ought case that Mr Guerrero’s sanction to - in all but the most exceptional will be considered consistent with cases - be able to pass the public policy, this should not be proportionality test. If not, then the interpreted as the Swiss Federal drafters undertaking the “iterative Supreme Court vouching for the process of review of the WADC” CAS Award, precisely because of will have clear and convincing the extremely narrow standard indications of which provisions applied by the Supreme Court. need reconsideration. Rather, and irrespective of the final outcome, Mr Guerrero’s Whether Mr Guerrero will prevail case provides an opportunity for with his proportionality argument the drafters of the next version in front of the Supreme Court of the WADA Code to consider remains to be seen. Under Swiss whether the sanctioning regime arbitration law an award can be in a case such as Mr Guerrero’s is set aside on the merits only if it is truly proportionate, or whether inconsistent with public policy. serious amendments should be considered in order to focus on the true objective of anti-doping regulations. 45 See par. 89 of the CAS award. The “flood gate” argument appears to be further contradicted by the Panel’s own observation that, until today, in only one case under the previous version of the WADA Code has a CAS Panel held that the circumstances of the case were truly exceptional to a point that the minimum sanction provided for by the Code had to be disregarded (see par. 86 of the CAS award). 46 During the proceedings of the 2018 UEFA Anti-Doping Symposium (22-23 November 47 See SFT 4A_558/2011, Judgment of 2018), publication forthcoming. 27 March 2012 (Matuzalem).

106 Football Legal The international journal dedicated to football law

# 10 - December 2018