Thursday, November 18, 2021
Andre Onana, the aboriginal aggregation goalkeeper for AFC Ajax (“Ajax”) and the Cameroon civic aggregation played his aboriginal aggressive match for over nine 9 months on 13 November 2021, back he started for Cameroon in a 4:0 achievement over Malawi in a FIFA World Cup Qatar 2022 African Qualifier.
Prior to this match, Onana had been accountable to a 9-month suspenion from all football-related action for actionable anti-doping regulations. Due to the attributes of the suspension, Onana was alone acceptable to acknowledgment to first-team training in September 2021 and in actuality alone resumed first-team training of any affectionate on 28 October 2021, back he abutting up with the Ajax chief side, afterward a abbreviate spell training with the Ajax U21s.
On 5 February 2021 AFC Ajax (“Ajax”) announced that the Union of European Football Associations’ (“UEFA”) Control, Ethics and Disciplinary Body (“CEDB”) had accustomed Andre Onana with a 12-month abeyance from all football-related action for actionable UEFA’s Anti-Doping Regulations 2018 (“UADR”) (since replaced with UEFA’s Anti-Doping Regulations 2021). Despite accounting affidavit actuality bounden for doping-related decisions (UEFA Disciplinary Regulations 2020, commodity 52.4), accounting affidavit for UEFA’s CEDB’s accommodation are yet to be released.
It is accepted admitting that Onana’s UADR abuse accompanying to an ‘Out of Competition’ sample provided by Onana to a UEFA Doping Control Officer on 5 October 2020 pursuant to Ajax’s accord in the UEFA Champions League at the accordant time (UADR, commodity 2.1). Onana’s sample activated absolute for the attendance of Furosemide, a diuretic, non-performance-enhancing biologic but which can be acclimated as a appearance abettor for performance-enhancing drugs. At the accordant time, Furosemide was a ‘Prohibited Substance’ at all times and additionally a ‘Specified Substance’ beneath the World Anti-Doping Agency’s (“WADA”) Prohibited List January 2020 (UADR, commodity 5). Accordingly, Furosemide was banned at all times, whether ‘In Competition’ or ‘Out of Competition’.
In the advertisement fabricated by Ajax on 5 February 2021, it was additionally appear that Onana was to address adjoin UEFA’s CEDB’s accommodation to the Court of Arbitration for Action (“CAS”) (UADR, commodity 20.2), gluttonous a abridgement to or abatement of the 12-month suspension. Onana’s position from the alpha and ultimate acumen for ambrosial to the CAS was declared as:
‘On the morning of October 30, Onana was action unwell. He capital to booty a bolus to affluence the discomfort. Unknowingly, however, he took [Furosemide], a biologic that his wife had ahead been prescribed. Onana’s abashing resulted in him afield demography his wife’s medicine, ultimately causing this admeasurement to be taken by UEFA adjoin the goalkeeper’.
Similarly, on 2 June 2021 Ajax fabricated a further announcement which stated:
‘Onana angry in a absolute doping analysis at the end of 2020 which was a aftereffect of him accidentally demography a bolus meant for his wife that he had anticipation was an aspirin. That bolus independent the banned substance, Furosemide’.
Onana was partially acknowledged in his address to the CAS. While accounting affidavit for the CAS’s accommodation are not yet available, the CAS and Ajax announced on 10 June 2021 that Onana’s 12-month abeyance from all football-related action had been bargain to a nine-month abeyance due to Onana demonstrating ‘no cogent fault´ in annual of his UADR violation.
This commodity will accede (i) the authoritative framework applicative to Onana’s UADR violation; and (ii) why the abridgement of Onana’s 12-month abeyance from all football-related action to nine months was appropriate.
Pursuant to UADR, commodity 3.1(a)(i)-(ii), the bald attendance of Furosemide in Onana’s sample amounted to a UADR violation. The attendance of Furosemide was a strict accountability offence. There was no charge for UEFA to prove Onana’s intent, fault, negligence, or alive use in demography Furosemide to authorize the UADR violation, nor whether the attendance of Furosemide added Onana’s performance.
The albatross aloft players for alive what amounts to a UADR abuse is additionally declared especially in UADR, commodity 3.2:
‘Players… are amenable for alive what constitutes an anti-doping aphorism abuse and the substances and methods which accept been included on the Banned List, and for familiarising themselves with these anti-doping regulations’.
Accordingly, admitting Onana’s annual for the attendance of Furosemide in his sample as acclaimed above, that annual was extraneous and was not a defence to his UADR violation. However, the UADR accustomed for the sanction to be imposed on Onana for his UADR abuse to be adapted based on specific criteria. The modification of sanctions as provided for in the UADR is the lynchpin of effective and fair anti-doping enforcement.
Considering that this was Onana’s aboriginal UADR violation, that Furosemide is a ‘Specified Substance’ and that Ajax’s advertisement fabricated on 5 February 2021 declared that UEFA’s CEDB advised Onana not to accept committed his UADR abuse with any ambition of cheating, the minimum sanction applicative to Onana’s UADR abuse was a two-year abeyance from all football-related action (UADR, commodity 13.1(b)).
Further, UADR, commodity 14.1 and 14.2(a)(i) accustomed for modification of that two-year minimum sanction if Onana could establish, on the antithesis of probabilities (UADR, commodity 4.1), that:
He bears ‘no accountability or negligence’, in which case the two-year abeyance is lifted. ‘No accountability or negligence’ is authentic in the UADR as:
‘If the player… establishes that he did not apperceive or suspect, and could not analytic accept accepted or suspected, alike with the exercise of absolute caution, that he had used… a banned substance… or contrarily abandoned an anti-doping rule… for any abuse of branch 3.01a, the amateur charge additionally authorize how the banned actuality entered his system.
He bears ‘no cogent accountability or negligence’, in which case the sanction to be imposed can ambit from a minimum of a admonishment and no aeon of abeyance to a best of a two-year suspension. ‘No cogent accountability or negligence’ is authentic in the UADR as:
‘If the player… establishes that his accountability or negligence, back beheld in the accumulation of the affairs and demography into annual the no accountability or apathy criteria, was not cogent in affiliation to the anti-doping aphorism violation… for any abuse of branch 3.01a, the amateur charge additionally authorize how the banned actuality entered his system’.
Considering that UEFA’s CEDB accustomed Onana with a 12-month suspension, and in the absence of any accounting reasons, it is affected that Onana was clumsy to authorize ‘no accountability or negligence’ – absolutely it is actual difficult to do so – but was able to authorize ‘no significant fault or negligence’. The 12-month abeyance avalanche absolutely in the average of the ambit of sanctions accessible pursuant to UADR, commodity 14.2(a)(i). In Ajax’s advertisement fabricated on the 5 February 2021, Edwin van der Sar, managing administrator of Ajax, is quoted as advertence that Onana and Ajax had hoped for a ‘much beneath suspension’, advertence at atomic one arena aloft which an address adjoin UEFA’s CEDB’s accommodation was fabricated to the CAS pursuant to UADR, commodity 20.2.
When because Onana’s appeal, the CAS was not apprenticed or belted by UEFA’s CEDB’s accommodation (UADR, commodity 20.1(a)-(b); cf Code of Sports-related Arbitration (“the Code”), commodity R57) but would accept activated the aforementioned authoritative framework activated by the UEFA CEDB (the Code, commodity R58).
The alone affirmation it is accepted Onana would accept relied aloft afore the CAS is his annual for how the Furosemide came to be present in his sample. Further, it is additionally acclaimed from Ajax’s announcement on 2 June 2021 that UEFA approved to advance the 12-month abeyance imposed by UEFA’s CEDB.
As declared above, there are additionally no accounting affidavit accessible for the CAS’s accommodation but a columnist absolution identifies that Onana was acknowledged in establishing ‘no cogent fault’ due to ‘[ingesting] medication destined for addition being in error’.
While antecedent decisions of the CAS are not bounden they accommodate accessible advice (Sharapova v ITF (CAS/2016/A/4643), para. 82). In particular, such antecedent decisions accommodate an acumen as to why the CAS bargain Onana’s 12-month abeyance from all football-related action to nine months:
Marin Cilic v International Tennis Federation (“ITF”) (CAS 2013/A/3327 and 3335): Marin Cilic, a Croatian able tennis player, provided an in-competition sample that showed the attendance of N-ethylnicotinamide, a metabolite of nikethamide, which was a actuality banned in antagonism only, and a defined substance.
The affairs surrounding Cilic’s use of nikethamide were that whilst in France he realised he was active low on glucose crumb and asked his mother to acquirement some for him from a pharmacy. His mother purchased a packet of Coramine glucose tablets from a bounded pharmacy, the characterization of which had listed several ingredients, including ‘nicethamide” (French for nikethamide). His mother told Cilic that the pharmacist had said that the tablets were safe for able tennis players to take. Cilic looked at the characterization and saw the chat ‘nicethamide’, which looked accustomed and he affected was French for “nikotinamid”, an additive in his accepted glucose crumb and not a banned substance. He accordingly did not do any added checks on ‘nicethamide’ and took the glucose tablets for three canicule afore abiding to his accepted glucose powder. It was accustomed that Cilic’s use of the glucose tablets was out of antagonism and that it was not acclimated to advance his sports performance.
The accordant sanction for this anti-doping aphorism abuse was ‘at a minimum, a admonishment and no aeon of ineligibility, and at a maximum, a aeon of ineligibility of two (2) years’. Cilic’s akin of accountability was accordant for free area aural that ambit the sanction should fall.
The ITF’s Anti-Doping Tribunal imposed a nine-month abeyance on Cilic. Cilic appealed to the CAS.
In a acumen that is now consistently relied upon, the CAS articular three levels of fault:
(i) cogent amount of or ample fault, which would aftereffect in a abeyance of amid 16 to 24 months with a “standard” cogent accountability consistent in a abeyance of 20 months;
(ii) a accustomed amount of fault, which would aftereffect in a abeyance of amid 8 to 16 months with a “standard” accustomed amount of accountability consistent in a abeyance of 12 months; and
(iii) ablaze amount of accountability which would aftereffect in a abeyance of amid 0 to 8 months with a “standard” ablaze amount of accountability consistent in a abeyance of 4 months.
To actuate which akin of accountability applies, the CAS recommended that the cold akin (the accepted of affliction accepted from a reasonable being in the participant’s situation) and the abstract akin (what could accept been accepted from the actor anxious in ablaze of their claimed capacities) of the participant’s accountability should be considered. The CAS additionally recommended that the cold akin of the participant’s accountability should be accustomed greater weight back because which class of accountability applies, and, generally, the abstract akin of the participant’s accountability should be advised to move a actor up or bottomward the calibration aural the adapted category.
Applying these attempt to Cilic’s case, the CAS acclaimed that as the banned actuality was banned in-competition alone afresh this case could not abatement in the class of cogent amount of or ample fault. The CAS additionally acclaimed that Cilic did booty some precautions to abstain the anti-doping aphorism violation, such as allurement his mother to acquirement the glucose from a pharmacy, account the label, and alone demography the glucose tablets for a bound aeon of time. The CAS advised that Cilic’s amount of cold accountability was a ablaze amount of fault.
Further, back because Cilic’s abstract akin of fault, the CAS noted, inter alia, that Cilic batten some French but not abundant and anticipation that ‘nicethamide’ was French for nikotinamid rather than nikethamide, and that Cilic knew nikotinamid to be a controllable substance. The CAS advised this to be a absent-minded yet believable error. Applying this abstract aspect of the analysis to Cilic’s ablaze amount of fault, the CAS advised that the adapted aeon of abeyance was four months – bristles months beneath than that imposed by the ITF’s Anti-Doping Tribunal.
Levi Cadogan v Civic Anti-Doping Commission of Barbados (CAS 2018/A/5739): Levi Cadogan, a Barbadian dart athlete, provided an out-of-competition sample that showed the attendance of Furosemide, which afresh was a actuality banned in antagonism and out of competition, and a defined substance.
The affairs surrounding Cadogan’s use of Furosemide were appreciably agnate to those apparent in Onana’s case. On the day Cadogan provided his sample he had awoken with a cephalalgia and had taken a Lasix tablets by aberration from a abscess backpack in a bassinet in his kitchen area he kept all his medication. Cadogan believed he had taken paracetamol, not Lasix. Cadogan after realised that paracetamol and Lasix attending similar. Cadogan explained that Lasix was present in his abode because his housemate at the time was a jockey who acclimated Lasix to abetment with weight loss, and that he had not taken Lasix to advance his sports performance. Cadogan did not apperceive that Lasix independent Furosemide. Cadogan explained that his charwoman had afield put his housemate’s Lasix in the bassinet area Cadogan keeps his medication.
The accordant sanction for this anti-doping aphorism abuse was a two-year suspension, save where, inter alia, the actor accustomed ‘no cogent accountability or negligence’ afresh the accordant sanction will be at a minimum a admonishment and at a best a two-year suspension. As in Cilic, Cadogan’s akin of accountability was accordant for free area aural that ambit the sanction should fall.
The Barbados Anti-Doping Disciplinary Panel imposed a two-year abeyance on Cadogan. Cadogan appealed to the CAS.
Applying the framework of Cilic, the CAS firstly acclaimed that as Cadogan’s anti-doping abuse anxious a actuality banned in competition and out of antagonism afresh this case could fall in the class of cogent amount of or ample fault. Secondly, because Cadogan’s cold akin of fault, the CAS acclaimed that there was little base for Cadogan to not be in the class of cogent amount of or ample fault. In particular, it was acclaimed that Cadogan had not arrested the abscess backpack the Lasix book came from and about he did annihilation to analysis whether he was demography paracetamol as intended. Thirdly, because Cadogan’s abstract akin of fault, the CAS acclaimed that paracetamol and Lasix attending agnate and that he took Lasix artlessly by a absent-minded mistake. Applying this abstract aspect of the analysis to Cadogan’s cogent amount of or ample fault, the CAS advised that an adapted aeon of abeyance was 20 months – four months beneath than that imposed by the Barbados Anti-Doping Disciplinary Panel.
Considering the minimum sanction applicative to Onana’s UADR violation, the modification to that minimum sanction accessible pursuant to UADR, commodity 14.2(a)(i), and the commensurable cases above, it is this author’s assessment that the sanction imposed aloft Onana is absolutely adapted and proportionate. Indeed, considering Cadogan, Onana can be advised advantageous for alone accepting a nine-month suspension.
The action affidavit for arty such suspensions are both bright and understandable. Anti-doping regulations comedy an important role in preventing athletes from doping in adjustment to access their affairs of success and in attention the candor of able sport. At the affection of this is the basal account that able action should be fair and that athletes should be beat from gluttonous to accretion any arbitrary advantage. Accordingly, in this author’s opinion, criticism such as that from the Vereniging Van Contractspelers (the Dutch Association of Able Footballers) in annual of the 9-month abeyance is unfounded. The CAS’s accommodation in Onana’s case artlessly demonstrates a actual appliance of the UADR and serves as an important admonition to football players of their obligations beneath the anti-doping regulations they are accountable to and which they accept a absolute assignment to be acquainted of.
Luke Carney additionally contributed to this article.
© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 322
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