«AWARD rendered by THE COURT OF ARBITRATION FOR SPORT Decided by the Panel comprising: President: Mr Jan Paulsson (Paris) Arbitrators: Peter Leaver ...»
CAS 2006/A/1149 and 2007/A/1211 World Anti-Doping Agency (WADA) vs Federación
Mexicana de Fútbol (FMF) and Mr José Salvador Carmona Alvarez
THE COURT OF ARBITRATION FOR SPORT
Decided by the Panel comprising:
President: Mr Jan Paulsson (Paris)
Arbitrators: Peter Leaver Q.C. (London)
Prof Massimo Coccia (Rome)
Ad hoc secretary: Mr Nicolas Cottier (Lausanne) In consolidated arbitrations between The World Anti-Doping Agency (WADA), Montreal, Canada Represented by Messrs François Kaiser and Claude Ramoni, Attorneys-at-law in Lausanne, Switzerland.
versus The Federación Mexicana de Fútbol (FMF), Mexico D.F., Mexico.
Represented by its General Secretary, Mr Decio de Maria Serrano, and by Mr Victor Garza Valenzuela, in-house counsel.
Mr José Salvador Carmona Alvarez, Mexico D.F., Mexico.
Represented by Messrs Víctor Manuel Garcés Rojo, David Cohen Sacal, and Gonzalo Bernardo Zubillaga Ochoa, Attorneys-at-law in Mexico D.F., Mexico;
and Gorka Villar Bollain, Attorney-at-law in Madrid, Spain.
CAS 2006/A/1149 and 2007/A/1211 WADA vs FMF & Carmona - page 2
1. WADA asserts that Mr José Salvador Carmona Alvarez (“the Player”) is guilty of repeated drug offences and should therefore be declared ineligible for life under the FIFA Disciplinary Code, and that this ban should be imposed by the Court of Arbitration for Sport due to the failure on the part of Mexican sport authorities to pronounce appropriate sanctions.
2. A test carried out on 31 January 2006 at the premises of the Player’s club in Mexico City revealed the presence in his urine of Stanozolol, an exogenous anabolic steroid which appears on the WADA 2006 Prohibited List (Appendix A to the FIFA Doping Control Regulations 2006) under class 51 (“anabolic agents”). The analysis was carried out by the UCLA Olympic Analytical Laboratory, which is accredited by WADA.
3. The samples were received by the UCLA Laboratory on 1 February 2006. The Laboratory sent its positive finding to the FMF on 21 February 2006. The next day the FMF communicated this result to the Player’s team, Club Cruz Azul, and noted that pursuant to Article 8 of the FIFA Doping Control Rules the Player had 48 hours to request an analysis of the “B” sample, failing which he would be deemed to have accepted the analysis of the “A” sample. As a matter of routine, the finding was forwarded by the Laboratory to FIFA, which on 9 March 2006 asked the FMF to be informed of the name of the Player and his club, as well as the disciplinary measure taken by the FMF.
4. As he later testified when he appeared before the FMF Disciplinary Commission, the President of Club Cruz Azul considered that his club was not required to notify the Player of the result of the analysis of this “A” sample by the UCLA Laboratory because it was up to the FMF itself to do so. In any event, according to the written declaration of the FMF’s Secretary General of 15 February 2007, Club Cruz Azul never answered the FMF’s communication of 22 February.
5. The Player had been suspended for one year by the FMF on 4 July 2005 following a positive test for the same prohibited substance. On 31 August 2005 and pursuant to CAS 2006/A/1149 and 2007/A/1211 WADA vs FMF & Carmona - page 3 Art. 140 of the Disciplinary Code, FIFA’s Disciplinary Committee extended this ban to worldwide effect.
6. Article 62(2) of the applicable FIFA Disciplinary Code (namely the version that entered into effect on 15 September 2005) provides that “a lifetime ban shall be imposed for a repeated offence.”
7. In light of the new positive test, the FMF commenced disciplinary proceedings against the Player. But by a decision dated 20 July 2006, the FMF’s own Disciplinary Committee dismissed the indictment. It based its decision on the single ground that a failure of notification had deprived the Player of the possibility of requesting an analysis of the “B” sample within 48 hours; this, the Commission said, “nullifies the entire sample analysis procedure”. This conclusion was, however, reached on the basis of the unfounded premise that the “B” sample had been destroyed and that therefore it was “no longer possible to rectify the procedural error”. The UCLA Laboratory expressly confirmed by letter to CAS that as late as 18 April 2007: “The B sample is still secured, stored frozen and with intact chain of custody.”
8. On 27 July 2006, FIFA wrote to WADA, referring to the Player’s case and concluding
According to the file in our possession, we believe that the player should have received a (lifetime) ban for the second offence.
Consequently, we kindly ask you to lodge an appeal against the decision pronounced by the Mexican Football Association with the Court of Arbitration for Sport in Lausanne, as it is foreseen in art. 60, par. 5 FIFA statutes.
9. WADA thereupon commenced CAS proceedings on 17 August 2006 against the Player and the FMF, seeking the nullification of the 20 July decision. This case was given the CAS docket number CAS 2006/A/1149.
10. Almost simultaneously, the President of the FMF wrote to the President of its Disciplinary Commission on 18 August 2006 requesting that it reconsider the decision of 20 July 2006 on the grounds that notification to the Player’s club was sufficient under applicable rules. The President of the Disciplinary Commission answered quickly, on 21 August 2006, writing that his Commission was “very disconcerted and CAS 2006/A/1149 and 2007/A/1211 WADA vs FMF & Carmona - page 4 bothered” (“muy desconcertada y molesta”) by the FMF letter, and rejected the request for reconsideration on the grounds expressed by the Commission in its previous decision.
11. The FMF quickly made it known to FIFA, which passed along the information to WADA by letter dated 23 August 2006, that the FMF was appealing the 20 July 2006 decision before the so-called Comisión de Apelación y Arbitrage del Deporte (hereinafter “CAAD”), an organ of the Mexican Ministry of Public Education created pursuant to the General Law of Physical Culture and Sports.
12. On 6 September 2006, the President of the CAS Appeals Arbitration Division, at the request of WADA and with the assent of both the Player and the FMF, ordered a suspension of the CAS proceedings “until the CAAD issues a final decision on the internal appeal proceedings.”
13. On 4 December 2006, CAAD dismissed the FMF’s appeal, in effect confirming the 20 July 2006 decision. It is unclear why CAAD did not react to information given to it, as is clear from its 4 December 2006 decision, by the FMF to the effect that the UCLA Laboratory still had the “B” sample and was in a position to analyse it; FMF indeed requested such an analysis, according to a letter to CAS dated 15 February 2007 from the Secretary General of the FMF.
14. On 12 July 2006, WADA instituted a separate arbitration against the CAAD decision, naming as respondents not only FMF and the Player, but also CAAD itself. This case was given the CAS docket number CAS 2007/A/1211. The Panel named for that case is identical to the one appointed for case CAS 2006/A/1149.
15. On 19 March 2007, the Panel in case CAS 2007/A/1211 informed the parties that it did not consider that it had jurisdiction over CAAD, and that if WADA wished to pursue the case against the two other respondents it should so inform CAS, in which case CAS 2007/A/1211 would be treated as consolidated with case CAS 2006/A/1149.
16. On 2 April 2007, WADA confirmed its intention to pursue case CAS 2007/A/1211 on this basis.
CAS 2006/A/1149 and 2007/A/1211 WADA vs FMF & Carmona - page 5
17. As a result, these proceedings consist of two cases involving identical parties. The difference is that case CAS 2006/A/1149 seeks to set aside the 20 July 2006 decision of the FMF’s Disciplinary Commission, while case CAS 2006/A/1121 seeks a declaration of the irrelevancy of the 4 December 2006 CAAD decision for the purposes of the FIFA rules. In each case, WADA also asks the Panel to impose lifetime ineligibility on the Player pursuant to the FIFA Disciplinary Code (see Paragraph 6 above).
18. After a full exchange of written pleadings and evidence, the hearing was conducted in Lausanne on 21 April 2007 and attended by Messrs François Kaiser, Thierry Boghosian and Claude Ramoni representing WADA; Messrs David Cohen Sacal, Gorka Villar Bollain, Jorge Vaquero and Gonzalo Zubillaga Ochoa representing the Player; and Mr Víctor Garza Valenzuela representing the FMF. The Player himself did not appear. Each party presented oral arguments, and was questioned by the arbitrators.
19. WADA proceeds against the two Respondents on the basis of Article 60 of the applicable version of the FIFA Statutes (as amended with effect as of 1 December 2005). This Article contemplates that WADA may appeal to CAS in certain cases of doping decisions. Article 60 contains a number of provisions which, if their wording or application were a matter of debate, might require interpretation. Among the materials attached to its written submissions, WADA included a legal opinion concerning the application of Article 60. And it is relevant in this connection to note that by his letter dated 28 August 2006, wherein he acceded to WADA’s request for a suspension, the Player explicitly referred to FMF’s appeal to CAAD as an “internal appeal proceedings” (“una apelación interna”). In the event that the terms of Art. 60 had been debated, this characterisation would doubtless have been significant as a matter of exhaustion of internal remedies. At any rate, it does not appear from the documents provided to the CAS that the Player was a party to the proceedings before CAAD, where the opposing parties were the FMF, on the one hand, and the Disciplinary Commission of the FMF, on the other.
CAS 2006/A/1149 and 2007/A/1211 WADA vs FMF & Carmona - page 6
20. CAS jurisdiction over the three parties in this case, however, does not require the arbitrators to endorse the analysis put forward by WADA for the simple reason that the two Respondents have not questioned CAS jurisdiction rationae personae. (The Player’s arguments in relation to jurisdiction ratione materiae with respect to the CAAD decision will be dealt with in due course). Accordingly, the Panel does no more than to observe that (i) the case has been initiated on a plausible jurisdictional foundation, (ii) no timely jurisdictional objection has been raised by the two Respondents, and (iii) no inferences are to be drawn from this award as to the proper interpretation of Article 60 of the FIFA Statutes.
21. At the outset of the oral hearings, counsel for Mr Carmona raised certain jurisdictional objections which did not concern Article 60 of the FIFA Statutes, but rather the proposition that all relevant parties, including WADA, had foreclosed CAS jurisdiction by accepting the authority of another arbitral body, i.e. CAAD.
22. In principle, this objection was inadmissible due to its tardiness. On the other hand, the ground of the objection relates to a factual development which had not occurred at the time case CAS 2006/A/1149 was filed. Moreover, WADA did not protest. The Panel accordingly has considered the substance of this objection, and decides as follows.
23. The dominant theme of the Player’s case, as presented at the hearings, was that the CAAD decision should be deemed a binding arbitral resolution because the relevant parties had consented to it, and that WADA, in particular, implicitly accepted that the outcome before CAAD would be authoritative and definitive when it sought, and obtained, a stay of the CAS proceedings pending the CAAD decision.
24. This assertion depends on a proper understanding of the letter, dated 23 August 2006, by which WADA requested the suspension of case CAS 2006/A/1149. WADA rejects the notion that the letter constituted an implicit acceptance that the CAAD decision would be authoritative and definitive. WADA’s position is plainly right. If WADA had had the intention of conferring upon CAAD the authority to make a final and binding determination as to the consequences of the analyses of the samples taken CAS 2006/A/1149 and 2007/A/1211 WADA vs FMF & Carmona - page 7 from Mr Carmona on 31 January 2006, WADA would simply have withdrawn its case before CAS. The very notion of suspension implies the possibility of resumption.
25. The Player’s argument also seemed to suggest that it would for some reason be impermissible for a party to ask for the suspension of a case it has initiated on the basis that if it is satisfied it will desist, but if not it will pursue. There is no substance in this argument. It is an everyday occurrence that claimants in the most ordinary disputes agree to suspend their legal activities pending the outcome of some event – such as negotiations – which may give them satisfaction. If it did, they would then but only then withdraw their action; if it did not, they may resume their legal action. Not only is this acceptable, but it is desirable inasmuch as it reduces litigation and promotes efficiency in the administration of justice.
26. In the alternative, the Player’s counsel sought to argue that in any event the jurisdiction of CAAD was obligatory as a matter of Mexican law, and would therefore make it impossible for CAS to exercise authority in this case. True enough, the Mexican Law on Physical Culture and Sport contemplates that CAAD may decide disputes in relation to cases of alleged doping. But the coexistence of national and international authority to deal with doping cases is a familiar feature, and it is well established that the national regime does not neutralise the international regime.