CAS 2022/A/9334 Jakub Świerczok v. Asian Football Confederation (AFC)
- Football
- Doping (trimetazidine)
- Consent award
- Consent award and necessity of WADA’s approval
1. Under Swiss law an arbitration tribunal sitting in Switzerland has authority to issue an award embodying the terms of the parties’ settlement, if the consenting parties do agree to such a termination of their dispute. The CAS panel’s ratification of the Parties’ agreement and its incorporation into a consent award serves the purpose of vesting the agreement with a res judicata effect and of enabling the enforcement of their said agreement. Article R56 para. 2 of the CAS Code provides that “[…] Any settlement may be embodied in an arbitral award rendered by consent of the parties”.
2. Following article 10.3 lit. c of the WADA International Standard for Results Management, no settlement embodied in an arbitral award rendered by consent of the parties as per Article R56 of the CAS Code shall be entered into by an Anti-Doping Organization without WADA’s written approval.
In December 2021 the Asian Football Confederation (AFC) reported an anti-doping rule violation against the Polish football player Jakub Świerczok after his A and B samples tested positive for the prohibited substance Trimetazidine.
Consequently the AFC Disciplinary and Ethics Committee decided on 26 October 2022 to impose a 4 year period of ineligibility on the Athlete.
Hereafter in December 2022 the Athlete appealed the AFC Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to annul the imposed sanction.
The Athlete admitted the violation and denied the intentional use of the substance. He filed new evidence that demonstrated that a contaminated product he had used was the source of the positive test results.
In March 2023 the Parties went into a Settlement Agreement with approval of the World Anti-Doping Agency. The Settlement Agreement stipulated that:
- The Appealed Decision of the AFC is set aside and the sanction lifted.
- The presence of a prohibited substance has been established in the Athlete's sample.
- The Athlete admitted he committed an anti-doping rule violation.
- He demonstrated that the source of the prohibited substance was a contaminated product.
- The Athlete acted not intentional and with No Significant Fault or Negligence.
- The Athlete accepted a sanction of 6 months, starting on the date of the provisional suspension, i.e. on 8 December 2021.
- The Athlete has already served the sanction and is eligible to participate in football immediately.
Thereupon the Parties requested the CAS Panel to ratify the Settlement Agreement and to render a Consent Award. The Panel determines that the Settlement Agreement was valid and had approval of WADA.
Therefore the the Court of Arbitration for Sport decides on 27 March 2023 that:
1.) The Parties’ Settlement Agreement dated 22 February 2023 is hereby ratified with the consent of the parties, and its terms are incorporated into this arbitral Consent Award.
2.) The arbitral procedure CAS 2022/A/9334 Jakub Świerczok v. Asian Football Confederation is terminated and deleted from the CAS roll.
3.) (…).
4.) (…).
5.) Each Party is hereby ordered to perform the obligations and duties as per their Settlement Agreement.
6.) All other motions or prayers for relief are dismissed.
