CAS 2017/A/5315, World Anti-Doping Agency (WADA) v. Federacion Colombiana de Futbol (FCF) and Yobani Jose Ricardo Garcia
CAS 2017/A/5316, World Anti-Doping Agency (WADA) v. Federacion Colombiana de Futbol (FCF) and Daniel Londono Castaneda
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 of the DCO caused the presence of boldenone in the athletes’ samples, such allegations are not sufficient to cast doubt on the integrity of the athletes’ samples.
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.
On 2 February 2017 the Disciplinary Commission of the Division Mayor del Futbol Colombiana decided to impose a 4 year period of ineligibility on the two football players Yobani Jose Ricardo Garcia and Daniel Londono Castaneda after their A and B samples tested positive for the prohibited substance Boldenone.
The Athletes appealed and on 19 July 2017 the Disciplinary Commission of the FCF annulled the imposed sanction. Here the Disciplinary Commission ruled that there were numerous errors and inconsistencies in the Laboratory Documentation Packages provided by the Bogota Lab.
Hereafter in September 2017 the World Anti-Doping Agency (WADA) appealed the FCF decision with the Court of Arbitration for Sport (CAS). WADA requested to set aside the FCF decision of 19 July 2017 and to impose a 4 year period of ineligibility on the Athletes.
WADA asserted that the Athletes committed anti-doping rule violations because each of their A and B Samples confirmed the presence of boldenone. WADA accepted that there were irregularities in the Laboratory Documentation Packages, but alleged that they are insufficient to establish a departure from the ISL, much less "could have reasonably caused the Adverse Analytical Finding". As such, according to WADA the presumption that the Colombian then-WADA-accredited laboratory acted in accordance with the ISL.
WADA also accepted that the Laboratory Documentation Packages did not list three individuals in the List of Personnel involved in the analysis of the Samples. However, WADA maintains that this deviation from the requirements of Technical Document for Laboratory Documentation Packages, TD2009LDOC, does not give rise to a departure from the ISL. WADA introduced evidence of the service contracts of these three individuals; their respective curriculum vitae; and their respective training records by Colombia's then-WADA-accredited laboratory.
The Athletes contended that there are 3 possible explanations for their positive test results: laboratory error and mishandling by the doping control officer; contaminated meat; and endogenous production of Boldenone. The Athletes asserted that if the Panel does not find that any one of the above factors was sufficient to cause the presence of Boldenone in their Samples, then the sum total of these factors account for it.
The Panel considers the possible explantations and agrees that there were some inconsistencies in the Laboratory Documentation Packages regarding the chain of custody. However the Panel finds that the Athletes and the FCF have not established a departure from the ISL that could reasonably have caused the Adverse Analytical Findings. Accordingly, the Panel accepts the Adverse Analytical Findings and finds that the Athletes committed anti-doping rule violations. Neither established the Athletes, on the balance of probabilities, that the Boldenone in their samples was the result of the consumption of contaminated meat.
The Panel holds that the Boldenone in their samples exceeded the threshold for naturally occurring Boldenone and that the they have not demonstrated that the Boldenone in their samples was naturally-occurring. The Panel concludes that the presence of Boldenone in their Samples was the result of intentional doping.
Therefore on 16 May 2018 the Court of Arbitration for Sport decides that:
In the case CAS 2017/A/5315, World Anti-Doping Agency (WADA) v. Federación Colombiana de Futbol (FCF) and Yobani Jose Ricardo Garcia
1.) The CAS has jurisdiction to hear the appeal of the World Anti-Doping Agency filed on 8 September 2017 and the appeal is admissible;
2.) The appeal of the World Anti-Doping Agency is upheld and the decision of the Disciplinary Commission of the Federación Colombiana de Futbol of 19 July 2017 is overruled;
3.) Mr Yobani Jose Ricardo Garcia committed an anti-doping rule violation and is suspended for a period of four years beginning from the date of this award onward, with any period of suspension already suffered to be credited against the period of ineligibility;
4.) All competitive results for Mr Y obani Jose Ricardo Garcia from and including 13 July 2016 until 19 July 2017 are disqualified;
5.) The Federación Colombiana de Futbol (50%) and Mr Yobani Jose Ricardo Garcia (50%) shall jointly bear the costs of the arbitration procedure CAS 2017/A/5315, World Anti-Doping Agency (WADA) v. Federación Colombiana de Futbol (FCF) and Yobani Jose Ricardo Garcia;
6.) Each party shall bear its own legal costs;
7.) Any other request for relief is dismissed.
In the case CAS 2017/A/5316, World Anti-Doping Agency (WADA) v. Federación Colombiana de Futbol (FCF) and Daniel Londono Castaneda
1.) The CAS has jurisdiction to hear the appeal of the World Anti-Doping Agency filed on 8 September 2017 and the appeal is admissible;
2.) The appeal of the World Anti-Doping Agency is upheld and the decision of the Disciplinary Commission of the Federación Colombiana de Futbol of 19 July 2017 is overruled;
3.) Mr Daniel Londono Castaneda committed an anti-doping rule violation and is suspended for a period of four years beginning from the date of this award onward, with any period of suspension already suffered to be credited against the period of ineligibility;
4.) All competitive results for Mr Daniel Londono Castaneda from and including 13 July 2016 and 19 July 2017 are disqualified;
5.) The Federación Colombiana de Futbol (50%) and Mr Daniel Londono Castaneda (50%) shall jointly bear the costs of the arbitration procedure CAS 2017/A/5316, World Anti-Doping Agency (WADA) v. Federación Colombiana de Futbol (FCF) and Daniel Londono Castaneda;
6.) Each party shall bear its own legal costs;
7.) Any other request for relief is dismissed.
