Dictamen con el que la FIFA suspendio a Carmona de por vida (texto completo en ingles)

18 05 2007

Agrego en este post todo el caso con el que FIFA vino a sancionar al jugador Carmona del Cruz Azul. Vean como una Federacion, en lugar de aceptar el problema del jugador, intento ocultarlo a la luz publica. Esto es una exclusiva que un amigo me proporciono.

Leanlo, lamentablemente esta en ingles:

Page 1

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

AWARD

rendered by

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.


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2

OVERVIEW

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


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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

as follows:

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


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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.


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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.

JURISDICTION

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.


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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


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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.

27. National associations have vested disciplinary authority in international federations

precisely in order to eliminate unfair competition, and in particular to remove the

temptation to assist national competitors by over-indulgence. The objective is to

subject all athletes to a regime of equal treatment, which means that national

federations must be overruled if they look the other way when their athletes breach

international rules. Thus, in a case involving doping in the sport of swimming, a CAS

tribunal recognised the imperative need for international federations to be able to

review decisions resolved by national federations, lest international competition be

distorted by reason of laxness on the part of national bodies (CAS 96/156, award

rendered on 10 November 1997, F. v. FINA).

28. Subsequently, in B. v. International Judo Federation (CAS 98/214, published in

D

IGEST OF

CAS A

WARDS

II 1998-2000, pp. 291 ff.), CAS extended this approach to


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8

sanctions decided by national public authorities. That case involved a doping

violation which led to a suspension decided by the French Minister of Sports, who

under a French law of 1989 had the power to substitute his decision for that of national

sports federations. The French judo federation had handed down a suspension of two

years, of which one was with remission (sursis); the ministerial decree reduced this

sanction to a simple one-year suspension. The ministerial decision was not in

conformity with the rules of the International Judo Federation, which brought the case

to CAS and obtained a modification of the suspension to 15 months. The arbitrators

reasoned notably as follows:

The panel is of the view that the latitude which this precedent

[the FINA case referred to in Paragraph 27 above] accorded to

international federations should be extended to cases where the

control and sanction of doping is carried out not by a national

federation acting pursuant to sports rules, but by a public

authority acting either pursuant to a national law, as in this case,

or on the basis of an international convention.

The subordination of national decisions in the realm of doping to

international control, irrespective of the authority which renders

them, is justified not only by the objective of avoiding that certain

federations or governmental organs engage in a wholly

unhealthy form of unfair competition, by declining to sanction

their own athletes with the same degree of rigour and severity as

other federations and/or their international federations, but also

by the goal which each international federation should have of

ensuring the equal and consistent treatment of all participants in

a sport. [Translated from French.]

29. In the case of UCI v. Muñoz and Federación Colombiana de Ciclismo (CAS

2005/A/872), the arbitrators concluded as follows:

The panel is prepared to accept that as a matter of Colombian

Law it was possible for Mr Muñoz to appeal to the General

Disciplinary Committee of the Colombian National Olympic

Committee. However, to do so was a breach of his contract with

the UCI. At best, the decision of the General Disciplinary

Committee could only have an effect within Colombia. It would

not entitle Mr Munoz to participate in cycle races organized

under the auspices of the UCI, or to avoid the UCI’s disciplinary

code.


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9

30. The just-mentioned awards were cited with approval in the two cases rendered in

December 2006 by CAS arbitrators faced with a Spanish law which, according to the

argument of two cyclists having tested positive for doping, forbade recourse to

arbitration in the context of alleged doping infractions. The arbitrators rejected the

objection to their jurisdiction, reasoning as follows:

States and international sports federations are not rivals for

authority; on the contrary, their roles are complementary. States

are concerned only with the conduct of those who fall within the

reach of their laws, while international federations administer

competitions within the scope of their activity.

The same

behaviour may be subject to criminal sanctions in a particular

territory without the cyclist necessarily being sanctioned on the

international level. Similarly, it may well be that behaviour

which gives rise to no criminal sanctions may nevertheless lead

to exclusion from sports events because it offends fair play.

The complementary functions of state and international

authorities may be observed in a particular guise whenever a

public authority substitutes itself for a national federation in

order to pronounce sanctions – as in the International Judo

Federation case referred to above, or in the present case.

National sovereignty, as expressed in a sports disciplinary

measure decided by a national authority, is in principle and by

its nature limited to national territorial application. A national

decision may, however, be replaced by a decision of the

international authority – CAS – in order to ensure the required

uniform application of law. True, it is theoretically conceivable

that a state would impose its national decisions with respect to

international events taking place on its territory even in

disregard of the international authority. Such an attitude would,

however, contradict the effort to fight doping on the international

level, and could lead to the exclusion of the concerned state from

the organisation of international competitions. It would be

surprising for a state to wish to adopt such a posture, and

nothing in the texts invoked in this case suggests that such is the

position taken by Spain. To the contrary, the preamble of Royal

Decree 255/1996 makes it clear that Spain wishes to ensure the

coherence of its norms with international ones:

“In application of Article 76.1(d) of the Law of

Sport and in conformity with the criteria

established by international sports norms, the

present Royal Decree defines the actions that

constitute violations of the rules concerning


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10

doping and establish the sanctions relating

thereto.”

(UCI v. Landaluce and Real Federación Española de Ciclismo,

TAS 2006/A/1119, paras. 49-50, translated from French. A

three-member panel comprising two of the same arbitrators,

sitting in UCI v. González and Real Federación Española de

Ciclismo, TAS 2006/A/1120, at para. 48 explicitly adopted the

reasoning in the Landaluce award.)

31. It is noteworthy that the Spanish cycling federation in the Landaluce and González

cases agreed with this conception of the coexistence of national and international

authority. The same posture is adopted by the FMF in the present case.

32. The Panel does not presume to be empowered to repeal the CAAD decision.

Moreover, WADA expressly confirmed at the outset of the hearing in Lausanne that it

had abandoned its initial request that the CAAD decision be set aside; its position is

rather that whatever the status of that decision may be for other purposes it should be

held to have no effect in the context of the FIFA regime. It may be difficult to

understand, soit dit en passant, why the Mexican authorities would wish to uphold a

disciplinary decision which had been based on the erroneous premise that the “B”

sample had been destroyed. This is all the more curious since CAAD was made aware

by the FMF that the “B” sample sent to the UCLA Laboratory had remained available

all along; its failure in these circumstances to exercise its plenary appellate jurisdiction

and to rule that the Player had not been prejudiced by the alleged failure of

notification reflects an exaltation of form over substance which stands in stark contrast

with the pronouncements of CAS in a long line of cases from USA Shooting &

Quigley v. UIT (CAS 94/129, published in D

IGEST OF

CAS A

WARDS

I 1986-1998,

pp. 187 ff.) to Annus v. IOC (CAS 2004/A/718). WADA’s position is legitimate.

33. The CAAD decision is thus given no effect for the purposes of the international

regulation of the sport; the FMF and the Player are obliged to respect the international

regime irrespective of the CAAD decision and whatever the latter’s effects may be

outside the domain covered by the FIFA rules. It would be a mistake to consider this

conclusion to be contrary to Mexican interests. In the first place, the exclusion of

recidivist doping violators is in the interest of all Mexican clubs and players who


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11

respect the doping Rules. Secondly, all Mexican associations, clubs and players

obviously benefit from the coherent and effective regime which FIFA has sought to

establish. For example, in Club Atlético Mineiro v. Club Sinergia Deportiva (Tigres),

Enilton Menezes de Miranda & FIFA (CAS 2004/A/565 & 566, award rendered on

2 May 2005), the Mexican club Tigres was able, with the support of FIFA, to obtain a

ruling that the Brazilian Club Atlético Mineiro was liable to pay Tigres USD 750,000

on account of the failure of a player to respect his contractual obligations to Tigres.

Moreover, that award was made even though a Brazilian labour court had ruled that

the player was entitled to pursue his football career notwithstanding that he had

breached his contract with Tigres and therefore been provisionally suspended by FIFA

from “any football activities worldwide.” The Brazilian court decision may have

freed the player to sign a new contract with Atlético Mineiro; but even if the Brazilian

player was thus enabled to execute a Brazilian contract with a Brazilian employer, this

did not, consistently with the decisions described above, prevent the autonomous

generation of international responsibility of both the player and his new team for

having disregarded an existing, internationally recognised contract.

34. The Panel observes that the Player’s belated arguments concerning the CAAD

decision focussed on WADA’s alleged consent to CAAD’s authority rather than on a

contention that this is a case which fell to be decided by “an independent and duly

constituted arbitration tribunal recognised under the Rules of an Association or

Confederation” which therefore could not be appealed to CAS under Article 60(3)(c)

of the FIFA Statutes. Such an argument would have been inconsistent with the

Player’s characterisation of the CAAD case as “internal appeal proceedings,” (see

paragraph 19 above). The present Panel sees no reason to go outside “the general rule

that the arbitrator verifies his jurisdiction only if it has been challenged by the

respondent or respondents in good time, that is to say before the defence on the

merits,” J.-F. Poudret and S. Besson, D

ROIT COMPARE DE L

ARBITRAGE

INTERNATIONAL

419 (2002); accord G. Kaufmann-Kohler & Antonio Rigozzi,

A

RBITRAGE INTERNATIONAL

: D

ROIT ET PRATIQUE A LA LUMIERE DE LA

LDIP para. 424

(2006). Indeed, to do so in this case would be to enter into a factual inquiry as to the

“independence,” “due constitution,” and “recognition” of CAAD which could not be


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satisfied on the record of this case. In light of the foregoing, CAS has jurisdiction to

hear WADA’s appeal against the two Respondents.

THE NOTIFICATION OF THE ADVERSE FINDING

35. The Player insists that under Mexican law it is impermissible to achieve the serious

effect of depriving someone of his livelihood without formal personal notification at

his residence. But no probative evidence of such provision of Mexican law was

submitted, nor any demonstration of its applicability to the present case. At any rate,

it would be utterly inimical to the establishment and maintenance of a uniform

international regime in the fight against doping if athletes could invoke more or less

identifiable rules for giving formal notice which are peculiar to their home countries.

Worse, it would open the door to clubs wishing to maintain the infringing athlete in

active service to do themselves – and him – an illicit favour by neglecting to forward

the notification properly.

36. Pursuant to Article 46 of the Reglamento de Sanciones of the FMF, notifications to

players are made through their club, or “à través de su Club” as the President of the

FMF wrote to his Disciplinary Commission on 18 August 2006, asking it to reconsider

its decision of 20 July 2006. He noted that Article 46 was consistent with the FIFA

Disciplinary Code, and asserted that this meant that a personal notification to the

Player was not necessary. At the hearings, the representative of the FMF explicitly

confirmed the position that his Federation considered that the Player had been

properly notified.

37. WADA observes that at any rate the Player lodged a defence before the FMF’s

Disciplinary Commission, thereby plainly demonstrating that he had actually received

notice of the adverse analytical finding, and that he was thus not deprived of any

procedural – let alone substantive – rights as a result of any delays in notification.

There is force in this argument. In the absence of a showing of prejudice, it is difficult

to see why athletes guilty of doping offences should go free on the basis of this type of

(alleged) formal defect, with the result of prejudicing other athletes who are left to

compete with someone who as a matter of principle should be excluded.


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38. But the most important feature in this respect is that pursuant to a very familiar

provision of its Rules, namely Article R57 of the Code of Sports-Related Arbitration

(“the Code”), CAS is entitled to conduct a full review of the facts underlying an

appeal. It is a matter of settled case-law, as noted in Paragraph 32 above, that

procedural flaws of a previous disciplinary decision may be cured at a level of CAS,

since its arbitrators are free to review decisions appealed to them. In this case, that

would obviously mean that past procedural impediments to the Player’s exercise of his

right to demand analysis of the “B” sample could be neutralised in the context of the

proceedings before CAS.

39. Evidently conscious of the fact that this principle might lead to a focus on the “B”

sample which he did not welcome, the Player argued, in a written submission of

11 April 2007, that such a step would violate Article R44 [recte Articles R48 and R51]

of the CAS Code which requires appeal briefs to specify prayers for relief. He argued

that WADA had not asked for an analysis of his “B” sample, and that the matter was

closed. This is a feeble argument indeed, since the issue is not whether WADA had

demanded such an analysis. In point of fact, the FMF expressly requested, at para. 16

of its Answer, that the “B” sample be analysed; and WADA’s Appeal Brief explicitly

reserved the possibility of making such a request. The only issue in this respect is

whether the Player – who is the party primarily entitled to make such a request in his

own interest – had been prevented from doing so.

40. An even more unattractive argument raised in the Player’s written submissions is

based upon Art. 8.5 of the FIFA Doping Control Regulations and Art. 5.2.4.3.2.1 of

the International Standard for Laboratories. Art. 8.5 is in the following terms:

If no request for a second test is made, the laboratory shall

dispose of sample “B” as provided for in the International

Laboratory Standards.

The Player submitted that as he had not requested testing of the “B” sample, it should

have been destroyed after 30 days and must now be disregarded for all purposes. The

implication of this submission seems to be that if an athlete can postpone, by whatever

means, the date upon which he receives notice of the adverse analytical finding of the

“A” sample, he can say that he was not put in a position to request the analysis of the


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14

“B” sample, and was therefore deprived of the opportunity to have the “B” sample

analysed because it no longer exists.

41. This submission fundamentally misapprehends the structure and intent of the FIFA

Doping Control Regulations and the International Standard for Laboratories.

42. Art. 5.2.4.3.2 of the International Standard for Laboratories is concerned with “ ‘B’

Sample Confirmation”. It provides that if confirmation of an adverse analytical

finding in the “A” sample is requested by analysis of the “B” sample, the analysis

should “occur as soon as possible and should be completed within 30 days” of the

notification of result of the analysis of the “A” sample. As stated above, the Player

did not request the analysis of the “B” sample at the time, and persisted in his

unwillingness to have it analysed up to the conclusion of the hearing. In these

circumstances, Art. 5.2.4.3.2 is inapplicable and thus provides no support for the

Player’s argument. In any event, that Article simply states a best standard to be

applied if the analysis of the “B” sample is requested: it does not suggest that if the

analysis takes place more than 30 days after the notification of the result of the “A”

sample analysis, the result of the “B” sample analysis must be disregarded.

43. The applicable provision, when the analysis of the “A” sample shows an adverse

analytical finding and the analysis of the “B” sample has not (yet) been requested, is

Art. 5.2.2.6, which provides for the retention of the samples for “a minimum of 3

(three) months after the Testing Authority receives the final analytical “A and B

Sample) report”. As the three month retention requirement is a “minimum”, no rule is

violated if a sample is kept longer, as long as it is “retained frozen under appropriate

conditions.”

44. When the analysis of a sample is “challenged or disputed”, and the laboratory is

informed of the challenge or dispute, Art. 5.2.2.7 calls for the sample to be retained

frozen, and all records of the testing to be stored, until the challenge has been

resolved. As the dispute about the accuracy of the CONADE analysis was known

from an early stage, it is doubtful whether CONADE should have destroyed the “A”

and “B” samples as it did. However, that is not a matter upon which the Panel is

required to express a concluded view.


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45. Art. 8.5 of the FIFA Doping Control Regulations simply requires the laboratory to

dispose of the “B” sample in the manner provided for in the International Standard for

Laboratories. But if there is a dispute or challenge as to the analysis of a sample, be it

“A” or “B”, the International Standard for Laboratories requires that the sample is

retained frozen until the challenge has been resolved. The Panel understands the

definition of “sample” – i.e. any biological material collected for the purpose of

doping control – to include what is referred to as both the “A” sample and the “B”

sample. Thus, all samples should have been retained frozen until the final resolution

of the challenge. The policy is self-evident: it should be possible to test (or even re-

test) controversial samples at a later stage. The Player’s curious argument of a right to

the destruction of evidence has no basis in the applicable rules.

46. Finally, the Panel refers to Art. 8.2 of the FIFA Doping Control Regulations. That

Article provides, inter alia, that if the Player does not request the analysis of the “B”

sample, he “accepts the sample ‘A’ test results”. The Player did not request the

analysis of the “B” sample.

47. The Panel can only conclude that neither the FIFA Doping Control Regulations nor

the International Standard for Laboratories provide any support for the Player’s

submission.

THE CONADE TEST

48. A central element of the Player’s defence is the fact that urine samples taken from him

on 31 January 2006 were sent not only to the UCLA Laboratory, but also to a Mexican

laboratory operating under the authorisation of the so-called Comisión Nacional de

Cultura Física y del Deporte (“CONADE”). That laboratory did not have WADA

accreditation. The “A” sample analysed there yielded a negative result.

49. WADA has suggested that “it is highly probable that the LC/MS/MS screening

procedure used by the UCLA Laboratory picked up the signal while the GC/MS

screening procedure (used by the Mexican laboratory) would not and could not.” It

also notes that the chemistry of Stanzolol is complex, and stretches the GC/MS

procedure to its limits, with risk for “variability in final results” and inability to detect


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the metabolites in the event the instrument is not properly maintained. Moreover,

WADA considers that ambiguities in CONADE’s records of the chain of custody are

such that “there is no way to determine with certainty which of the two samples

belongs to Mr Carmona;” in other words, the negative “A” sample may have been that

of another person. Happily, none of these suppositions or doubts needs to be resolved

by this Panel given the sole relevance of the accredited Laboratory; they would

otherwise lead to endless debate. This confirms the soundness of a system which

gives decisive effect to the findings of a single accredited laboratory as long as it has

followed applicable protocols, rather than to leave open the door to insistence upon the

lowest common denominator of a number of laboratories. What is relevant is that the

UCLA Laboratory is internationally accredited, whereas CONADE is not.

50. The Player insists that given the two discrepant results, it should be considered that

there is a doubt, and that this doubt should be resolved in his favour by an acquittal.

But there is no such thing as entitlement to “the most favourable laboratory”.

Otherwise there would be no end to the multiplication of testing, as long as there

remains a laboratory to be consulted. Athletes are entitled to the assurance that their

specimens are analysed in an accredited laboratory in accordance with a rigorous

protocol; and that if the outcome is adverse to them they are entitled to ask for the

examination of a second (“B”) sample, once more in accordance with a rigorous

protocol. According to footnotes in the factual summary recorded by the FMF’s

Discliplinary Commisssion, the samples were sent to UCLA because (“por ser”) it

was a WADA-accredited laboratory; and also to CONADE “as a precautionary

measure, taken on the basis of National Law” (translated from Spanish). It is not for

this CAS Panel to speculate about whether this was wise, given the evident

impossibility of guaranteeing that two laboratories would reach the same result (e.g. if

one has more powerful analytical tools than the other). Nor it is appropriate to

speculate what the purpose of a “precautionary measure” taken for purposes of

national law might be. It is enough to say that for the purposes of enforcing the FIFA

rules, to which both the FMF and the Player are subjected, what matters is only

whether the adverse analytical finding was made by a properly accredited laboratory

properly following protocol.


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51. The situation would not be different if the Player were able to demonstrate that

another WADA-accredited laboratory would have produced a favourable finding

because its equipment was less able to detect a particular substance than that of the

laboratory which discovered the positive. This point was dealt with in Ribero v.

UEFA (TAS 2005/A/958), where the arbitrators noted that laboratories are required to

be able to detect at least a defined quantity of a given substance. If they cannot do so,

they will not be accredited. But this does not mean that athletes may rely on such a

minimum requirement as a threshold; they should not go free if a first-class laboratory

detects the substance in even lesser concentrations. With respect to exogenous

anabolic androgenic steroids like Stanazolol, adverse analytical findings do not require

a threshold level of concentration, because there is no acceptable explanation for the

presence of a substance which cannot be produced by the human body. There may be

cases, so concluded the arbitrators, where a concentration of a given substance less

than the minimum required to demonstrate technical proficiency is detected by one

laboratory but not by another. This does not invalidate the adverse finding, in the

same way as with respect to traffic violations for speeding, where

… there may be a range of

tolerance depending on the

instruments and methods used.

A driver whose license is

suspended on the basis of a very precise stationary speed trap

can obviously derive no argument from the fact that more

tolerant standards applicable to mobile radars would have led to

a different result. (Para 72, translated from French.)

52. Put another way, it is the bad luck for an offender if his sample happens to be analysed

in a state-of-the-art laboratory – and of course, by the same token, the good luck of the

general mass of non-offenders who are thus protected from the distortion of

competition.

53. In a written submission dated 11 April 2007, the Player argued that the CONADE test

“should have the same value as the result issued by UCLA, considering that CONADE

is the highest doping-related authority in Mexico.” This argument is based on a

fundamentally flawed premise, namely that the anti-doping controls in football have

not achieved an internationally harmonised regime, but lurch haphazardly along

within a maze of territorially autonomous and inconsistent national zones. This


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conception is happily outdated, not only for football but for other major sports, as

explained above in the section on jurisdiction.

54. In sum, if the result declared by the UCLA Laboratory was the proper outcome of a

proper procedure, CONADE’s intervention is irrelevant to the FIFA regime, and

therefore also to CAS.

THE “B” SAMPLE

55. At the time of the hearings in this case, the “B” sample delivered to the UCLA

Laboratory was preserved and available for analysis there, as confirmed in writing to

CAS (see Paragraph 7 above). The tribunal expressed its preference that this analysis

be conducted, in the interest of the Player – if indeed he had not committed an

infraction. For its part, the FMF explicitly requested that such an analysis be carried

out “in order to clarify the situation”. Such an analysis would have been carried out in

the presence of whomever the Player might have chosen, in order to verify the

integrity of the sample, the laboratory’s compliance with protocol, and the methods

used and the readings recorded by the Laboratory. In this manner, any legitimate

procedural concerns could have been dealt with in such a way as to ensure perfect

compliance with his rights.

56. And yet the Player has emphatically objected to the analysis of his “B” sample. This

is a remarkable feature of this case, given the fact that the “B” sample is preserved for

his protection. Although in principle the time for the Player to request analysis of the

“B” sample had long since elapsed, the arbitrators were willing that the analysis be

conducted, in the Player’s interest and in order to dissipate any genuine concerns he

might have had with respect to any aspects of the analysis of the “A” sample.

57. The FMF, which had provided the samples for the UCLA Laboratory and was

therefore in a position to instruct the Laboratory to conduct an analysis of the “B”

sample, informed the Player in writing, by letter dated 8 April 2007, that it was giving

those instructions, and asked him to indicate (i) his preferred date and (ii) the number

of experts he might wish to send to observe the analysis.


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58. Yet the Player immediately responded on 9 April 2007 to the effect that he objected to

the opening and analysis of the “B” sample (“me opongo a la apertura y análysis de la

muestra B”) and therefore declined to give the information requested by the FMF.

59. The next day, the FMF asked the UCLA Laboratory to “suspend” analysis of the “B”

sample pending the decision of this Panel.

60. In a written submission dated 11 April 2007, the Player reiterated (underlined and in

bold-face) his “absolute objection to analysis of his “B” sample.” At the end of the

hearings, the president of the Panel asked the Player’s advocates “one last time” if he

persisted in objecting to the analysis.

61. The Player’s counsel not only confirmed the objection, but stated that it was important

for him to state the reasons behind this stance. First, he contended that the UCLA

laboratory should have destroyed its “B” sample as CONADE did; it would be

“unfair” to analyse the “B” sample in the possession of the laboratory which returned

an adverse analytical finding, and not of the other. This may be a unique case of an

athlete, in whose interest the “B” sample is retained, insisting on its destruction. At

any rate, this argument fails (i) because it is based on a misapprehension of the

relevant regulations (see Paragraphs 42-47 above) and (ii) by virtue of the irrelevance

of the CONADE test for the purpose of compliance with the FIFA rules. Secondly, he

asserted that an analysis of the retained “B” sample would contradict what he

considered to be an agreement that the CAAD decision would be final and binding.

But as seen, this Panel finds that there was no such agreement. Finally, it would be

unfair to allow a “new fact” (hecho nuevo) to intrude into the proceedings. This is,

however, a matter with respect to which the Player must assume the consequences of

his decisions; the hecho nuevo of a “B” sample analysis could only help the accused,

and if he rejects it now he cannot complain that he did not have the opportunity to ask

for it earlier.

62. These arguments are unconvincing not only for the reasons given above, but above all

because they are contrary to the logic that one would expect of an innocent athlete.

Each of these arguments assumes that all of the Player’s procedural arguments are

correct: with respect to (a) the alleged relevance of the CONADE analysis


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notwithstanding its lack of accreditation; (b) the alleged agreement that the CAAD

decision be final and binding; (c) the alleged irreparable imperfections of notification;

and (d) the alleged irreparable doubts as to the certainty of the positive finding. It

makes no sense to adopt this posture, because

– if these procedural defects existed and could not be repaired, as per the

Player’s thesis, he would have nothing to fear from the analysis of the “B”

sample because even if it were positive he could not be sanctioned; and

– if on the contrary the “B” sample were found to be negative, the Player would

go free even if all of his other arguments failed.

63. In light of his repeated and insistent refusal to avail himself of an opportunity which

exists only for the protection of the accused, the Panel accedes to his demand and will

not give instructions for the “B” sample analysis. Given that in principle he had

nothing more to fear and everything to gain if he had availed himself of this

opportunity, the Player’s posture lacks credible justification.

THE MERITS

64. Unlike the situation in many if not most doping cases, the Player here does not contest

the scientific accuracy of the analysis carried out by the UCLA Laboratory; his

complaint is rather focused on his allegations that notification to him was flawed; that

there was a conflicting result from CONADE which should entitle him to the benefit

of the doubt; and that the CAAD decision should be given full faith and credit.

65. The discussion of the bona fides of the analysis of the “A” sample may therefore be

brief. The Player signed his registro de muestra urinaria without objection on

31 January 2006, as did his “accompanying person.” He did not list any prescribed

medication. From that point on, as documented in the file provided by the UCLA

Laboratory, the sample was preserved, transported, received and analysed in

accordance with detailed procedures which have not been challenged by the Player.

Nor does the Player challenge the scientific conclusion as to the identification of

stanozolol metabolites (3’OH-stanozolol and 16 -OH-stanozolol) in the sample –


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except for his argument that somehow this outcome should be neutralised by virtue of

the fact that the unaccredited CONADE laboratory produced a negative reading.

66. As the FMF’s representative stated in the course of the hearing in Lausanne, players as

well as federations are affiliates of FIFA, and accept the applicability of the FIFA

rules. Indeed, Mr Garza referred to the Player’s own application to the FMF for

registration as a professional player (“solicitud de afiliación de jugador professional”)

produced before the arbitrators, which contained the following mention immediately

above his signature:

While attesting to the truth of my declaration, I confirm that the

personal documents necessary for my registration as delivered to

my club are authentic, and express my undertaking to respect the

Statutes and Regulations issued by FIFA of which I am fully

aware. [Translated from Spanish.]

67. The Player argues, in his written submissions, that the samples taken on 31 January

2006 “were not carried out during a competition or an event organised by FIFA and

therefore, it turns out to be irrelevant that said organisation does not recognise

CONADE as a Laboratory.” He adds that the 31 January 2006 test was not initiated

by FIFA in order “to verify my rehabilitation,” and therefore was not in conformity

with Art. 63 of the FIFA Disciplinary Code. But WADA observed correctly that

Art. 66 of the FIFA Disciplinary Code allows FIFA to “order any player sanctioned

for a doping offence to undergo further doping tests while serving a suspension”. It is

thus irrelevant that the test which revealed the Player’s repeated offence took place

while he was still under suspension as a result of his first one. The Player has not

attempted to make the physiologically implausible argument that the steroids detected

had remained in his body from the time of the initial test.

68. None of the possible exceptions to the lifetime ban imposed on repeat offenders are

applicable here. Under the FIFA Disciplinary Code, an athlete may seek the reduction

of the period of ineligibility imposed on him if he can prove that no significant fault or

negligence on his part contributed to the adverse finding. In the present case, the

Player has not even attempted to demonstrate any excuse or other extenuating

circumstance.


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69. The Player’s advocates have stressed that the stakes in this matter are extremely

serious for their client, since a lifetime suspension would deprive him of the

possibility to pursue his preferred profession. This may be so, but it should be clear

that its paramount implication is that those who seek to make their livelihood in

professional sports should not violate the anti-doping rules. Those rules exist not only

in the interest of an athlete’s own health, but also in the public interest of discouraging

doping among younger athletes, as well as of ensuring that all professionals compete

with an equality of arms, and that those for whom sports have an important meaning

are not disaffected by the degeneration of ethical standards. Professional athletes are

no different than others whose work is regulated – much as physicians or public

servants or accountants – who face disqualification if they violate the rules to which

they are held. It merits repeating that anti-doping rules are designed and intended to

protect athletes who compete fairly, and to punish those who do not. The latter must

be prepared to face the consequences when they transgress the rules.

70. (…)


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ON THESE GROUNDS

The Court of Arbitration for Sports rules that:

1)

The World Anti-Doping Agency’s appeals against the decision dated 20 July 2006 of

the FMF’s Disciplinary Commission and against the decision of the Comisión de

Apelación y Arbitrage del Deporte dated 4 December 2006 are upheld.

2)

The decision dated 20 July 2006 of the FMF’s Disciplinary Commission is set aside.

3)

The decision of the Comisión de Apelación y Arbitrage del Deporte dated 4 December

2006 has no effect on the system of sanctions established under the FIFA Statutes and

Regulations.

4)

The Player, Mr José Salvador Carmona Alvarez, is declared ineligible with immediate

and lifetime effect.

5)

(…)

Lausanne, 16 May 2007

The Court of Arbitration for Sport

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