Fédération Internationale de Football Association (FIFA) v. Confederação Brasileira de Futebol (CBF), Cristiano Lopes

V. JURISDICTION

60. The Panel observes that Article R47 of the CAS Code provides as follows:

“An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body”.

61. Article 58(5) of the FIFA Statutes (2016 edition) determines the following:

“FIFA is entitled to appeal to CAS against any internally final and binding doping-related decision passed in particular by the confederations, member associations or leagues in accordance with the provisions set out in the FIFA Anti-Doping Regulations”.

62. The Player is a “national-level player” pursuant to the definition contained in the FIFA ADR.

63. Article 75(3)6 of the FIFA ADR (2015 edition) determines as follows:

“[…] For cases under art. 75 par. 2 (Appeals involving other Players or other Persons), WADA, the International Olympic Committee, the International Paralympic Committee, and FIFA shall also have the right to appeal to CAS with respect to the decision of the national-level appeal body. Any party filing an appeal shall be entitled to assistance from CAS to obtain all relevant information from the Anti- Doping Organisation whose decision is being appealed and the information shall be provided if CAS so directs”.

64. The jurisdiction of CAS, which remained undisputed, is further confirmed by the Order of Procedure duly signed by the parties.

65. It follows that CAS has jurisdiction to decide on the present dispute.

VI. ADMISSIBILITY

66. Article R49 of the CAS Code determines the following:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sportsrelated body concerned, or of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against”.

67. Article 80(1.1) of the FIFA ADR determines as follows:

“The time to file an appeal to CAS shall be 21 days from the date of receipt of the motivated decision in an official FIFA language by the appealing party. The above notwithstanding, the following shall apply in connection with appeals filed by a party entitled to appeal but which was not a party to the proceedings that led to the decision being appealed:

a) Within 15 days from notice of the decision, such party/ies shall have the right to request a copy of the case file translated in an official FIFA language from the body that issued the decision;

b) If such request is made within the 15-day period, the party making such request shall have 21 days from receipt of the file to file an appeal to CAS”.

6 FIFA’s reference to Article 75(1) of the FIFA ADR (2015 edition) is considered to be an obvious typographic mistake.

68. The Panel notes that FIFA received the Appealed Decision on 13 December 2016 from the CBF.

69. On 22 December 2017, and thus within the deadline of 15 days set out in article 80(1.1)(a) of the FIFA ADR, FIFA requested the CBF to send the case file in Portuguese and English.

70. On 13 February 2017, FIFA received the translated case file from the CBF.

71. On 6 March 2017, and thus within the deadline of 21 days set out in article 80(1.1)(b) of the FIFA ADR, FIFA filed its Statement of Appeal with CAS.

72. The appeal complied with all other requirements of Article R48 of the CAS Code, including the payment of the CAS Court Office fee.

73. It follows that the appeal is admissible.

VII. APPLICABLE LAW

74. Article R58 of the CAS Code provides the following:

“The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

75. Article 57(2) of the FIFA Statutes determines as follows:

“The provisions of the CAS Code of Sports-related Arbitration shall apply to the proceedings. CAS shall primarily apply the various regulations of FIFA and, additionally, Swiss law”.

76. Article 80(3) FIFA ADR determines the following:

“Where FIFA appeals against a decision of in particular an Association, Anti-Doping Organisation or Confederation to CAS under this chapter, the applicable law for the proceeding shall be the FIFA regulations, in particular the FIFA Statutes, the FIFA Anti-Doping Regulations and the FIFA Disciplinary Code”.

77. Given the foregoing provisions, the Panel is satisfied that the present appeal arbitration proceedings shall be primarily adjudicated and decided on the basis of the various regulations of FIFA, in particular the FIFA ADR, and subsidiarily, on the basis of Swiss law, should the need arise to fill a possible gap in the various regulations of FIFA.

VIII. MERITS — A. The Main Issues

78. The main issues to be resolved by the Panel are the following:

i. Does the CBF have standing to be sued?

ii. Did the Player commit an anti-doping rule violation?

iii. If so, should the sanction imposed on the Player in the Appealed Decision be upheld or be set aside and replaced by a different sanction?

iv. When shall the period of ineligibility start?

i. Does the CBF have standing to be sued?

79. The Panel observes that the issue of the CBF’s standing to be sued, an analysis that also deals with the independence of the STJD vis-à-vis the CBF, was already dealt with by other CAS panels.

80. The Panel finds that the correct approach is reflected by the Sole Arbitrator in CAS 2014/A/3842, citing previous CAS awards:

“The Sole Arbitrator notes that a similar situation to this particular one was solved in cases CAS 2010/A/1370 & 1376 and CAS 2010/A/2307. As the Panels in such cases noted: “the Panel is of the view that (at least) for international purposes the decisions of the STJD, although independently reached, must be considered to be the decisions of the CBF. In other words, the CBF is to be considered responsible vis-à-vis FIFA (or other international sports bodies) for the decisions adopted by the STJD. This is exactly the same legal situation as we have in public international law, where States are internationally liable for judgments rendered by their courts, even if under their constitutional law the judiciary is wholly independent of the executive branch”.

In this regard, there is no doubt that the event where the doping control was carried out was organized by the CBF, and moreover, that the CBF controlled and directed the doping control. Indeed, even though the STJD may be “autonomous” from the CBF, the CBF entrusts its disciplinary powers to the STJD and the STJD is an integral part of the organizational structure of the CBF as set forth in CAS 2010/A/1370 & 1376. Nothing in the facts of this case or jurisprudence as a whole justifies the modification of such CAS precedent on this exact point. As such, the Sole Arbitrator determines that the CBF has standing to be sued” (CAS 2014/A/3842, para. 48-49 of the abstract published on the CAS website).

81. Insofar as the CBF argues that it is not personally obliged by the disputed right at stake and that nothing is sought against it, the Panel finds that this argument must be dismissed, because, inter alia, and with reference to Article 83(2) of FIFA’s ADR, FIFA submits that its entire costs

(in particular the legal fees of its external counsel, travel and accommodation expenses) are to be borne by the CBF.

82. As will be examined in more detail below, the Panel finds that FIFA’s costs shall indeed be partially reimbursed by the CBF. Since this would not have been possible had FIFA failed to call the CBF as a respondent, the Panel finds that this is an additional reason to conclude that the CBF has standing to be sued in the matter at hand.

83. Consequently, the Panel finds that the CBF has standing to be sued.

ii. Did the Player commit an anti-doping rule violation?

84. The Panel observes that Article 6(1) and (2) of the FIFA ADR determine the following:

“It is each Player’s personal duty to ensure that no Prohibited Substance enters his body. Players are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, Fault, negligence or knowing Use on the Player’s part be demonstrated in order to establish an anti-doping rule violation under art. 6.

Sufficient proof of an anti-doping rule violation under art. 6 is established by any of the following: presence of a Prohibited Substance or its Metabolites or Markers in the Player’s “A” Sample where the Player waives analysis of the “B” Sample and the “B” Sample is not analysed; or where the Player’s “B” Sample is analysed and the analysis of the Player’s “B” Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the Player’s “A” Sample; or where the Player’s “B” Sample is split into two bottles and the analysis of the second bottle confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the first bottle”.

85. Since the Player did not contest the sample collection procedure nor the analysis of the sample performed by the UCLA Olympic Analytical Laboratory in Los Angeles, United States of America, because the analysis of the A-sample revealed the presence of metabolites of prohibited substances, which adverse analytical finding was subsequently confirmed by the analysis of the B-sample, the Panel has no doubt that the Player violated article 6 FIFA ADR.

86. It remained undisputed between the parties that the mere fact that metabolites of prohibited substances were found in the Player’s sample is sufficient to conclude that an anti-doping rule violation was committed.

87. Consequently, the Panel finds that the Player committed an anti-doping rule violation by infringing article 6 FIFA ADR.

iii. If so, should the sanction imposed on the Player in the Appealed Decision be upheld or be set aside and replaced by a different sanction?

88. The Panel observes that the Full Court of the STJD decided to dismiss the appeals filed by the Player and the ABCD against the decision of the Full Disciplinary Commission of the STJD São Paulo to impose a two-year period of ineligibility on the Player.

89. Commencing with its own independent analysis of the case, the Panel observes that Article 19 FIFA ADR determines the following:

“The period of Ineligibility for a violation of arts 6 (Presence of a Prohibited Substance or its Metabolites or Markers in a Player’s Sample) […] shall be as follows, subject to potential elimination, reduction or suspension pursuant to arts 21 (Elimination of the Period of Ineligibility where there is No Fault or Negligence), 22 (Reduction of the period of Ineligibility based on No Significant Fault or Negligence) or 23 (Elimination, reduction, or suspension of period of Ineligibility or other consequences for reasons other than Fault):

1. The period of Ineligibility shall be four years where:

a) the anti-doping rule violation does not involve a Specified Substance, unless the Player or other Person can establish that the anti-doping rule violation was not intentional;

b) the anti-doping rule violation involves a Specified Substance and FIFA can establish that the anti-doping rule violation was intentional.

2. If art 19 par. 1 does not apply, the period of Ineligibility shall be two years.

[…]”.

90. The Panel notes that the metabolites of two prohibited substances were found in the Player’s sample: nandrolone and stanozolol. Although FIFA maintained during the hearing that the two relevant prohibited substances were stanozolol and norandrosterone, the Panel observes that 19-norandrosterone and 19-noretiocholanolone are metabolites of nandrolone and specifically listed in the Prohibited List.

91. Indeed the fact that 19-norandrosterone and 19-noretiocholanolone are metabolites of nandrolone is dealt with by scholars in a publicly available scientific article:

“Nandrolone (19‐nortestosterone, 17β‐hydroxyestr‐4‐en‐3‐one) was first synthesised in the 1950s.

[…]

The principal urinary metabolites formed following the administration of 19‐nortestosterone (19‐NT), were rapidly identified as 19‐norandrosterone (19‐NA; 3α‐hydroxy‐5α‐androstan‐17‐one), 19‐ noretiocholanolone (19‐NE; 3α‐hydroxy‐5β‐androstan‐17‐one) and 19‐norepiandrosterone (19‐ NEA; 3β‐hydroxy‐5α‐androstan‐17‐one)” (AYOTTE, Significance of 19‐norandrosterone in athletes’ urine samples, Br J Sports Med. 2006 Jul; 40 (Suppl 1): i25–i29).

92. Both nandrolone and stanozolol are no “Specified Substances” in the context of article 19(1)(a) and (b) FIFA ADR. As such, the period of ineligibility to be imposed on the Player is in principle four years, unless he can establish that the anti-doping rule violation was not intentional.

93. The burden of proof in establishing that the anti-doping rule violation was not committed intentionally thus lies with the Player. Should the Player fail to prove his lack of intent on a balance of probability, the period of ineligibility is given.

94. Article 19.3 FIFA ADR defines the term “intent” as used in Article 19.1 FIFA ADR as follows:

“As used in arts 19 (Ineligibility for presence, Use or attempted Use, or Possession of a Prohibited Substance or Prohibited Method) and 20 (Ineligibility for other anti-doping rule violations), the term “intentional” is meant to identify those Players who cheat. The term therefore requires that the Player or other Person engaged in conduct which he knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk. […]”.

95. The Panel finds that this definition of “intent” incorporates so-called “indirect intent” or “dolus eventualis” and feels comforted in this respect by the reasoning of another CAS panel:

“This Panel holds that the term “intent” should be interpreted in a broad sense. Intent is established – of course – if the athlete knowingly ingests a prohibited substance. However, it suffices to qualify the athlete’s behaviour as intentional, if the latter acts with indirect intent only, i.e. if the athlete’s behaviour is primarily focused on one result, but in case a collateral result materializes, the latter would equally be accepted by the athlete. If – figuratively speaking – an athlete runs into a “minefield” ignoring all stop signs along his way, he may well have the primary intention of getting through the “minefield” unharmed. However, an athlete acting in such (reckless) manner somehow accepts that a certain result (i.e. adverse analytical finding) may materialize and therefore acts with (indirect) intent” (CAS 2012/A/2822, para. 8.14 of the abstract published on the CAS website).

96. Following the definition of “intent” given in Article 19.3 FIFA ADR it follows that in order for the anti-doping rule violation to be committed intentionally, the Player i) must have known that there was a significant risk that his conduct might constitute or result in an anti-doping rule violation; and ii) manifestly disregarded that risk.

97. Before turning to these prerequisites, the Panel observes that it has been debated in CAS jurisprudence whether an athlete is required to prove how the prohibited substance entered his body in order to prove the absence of intent. The Panel notes that such requirement is not contemplated for in Article 19.3 FIFA ADR, contrary to for example the definitions of “No Fault or Negligence” or “No Significant Fault or Negligence” in the FIFA ADR. Notwithstanding the conclusion that establishing how the substance entered his system is no formal prerequisite, the Panel deems that although theoretically, looking at the full spectrum of possibilities and circumstances, an athlete may establish the lack of intent without proving how the substance entered his body, practically it is highly unlikely that an athlete would be able to meet the burden to prove the absence of intent without establishing how the substance entered his body.

98. In the matter at hand, two theories of how the prohibited substances entered the Player’s body have been advanced: i) in the proceedings before the domestic committees in Brazil the Player

argued that he had used the supplement “Lipo 6 Black”; and ii) in the present proceedings before CAS the Player decided to admit that he had ingested stanozolol once by way of an injection. Both the Player and his wife testified that the Player’s wife had suggested to inject stanozolol after she had used it herself. The Player’s wife testified that she administered the stanozolol to her husband by way of injection.

99. Oddly enough, despite the Player’s testimony that he had ingested stanozolol by way of injection – which prima facie appears to exclude any argument of unintentional use from the side of the Player – FIFA objected to the admissibility of such argument on the very strict procedural ground that, since the Appeal Brief and Answer had already been filed, no new arguments and evidence could be advanced pursuant to Article R56 CAS Code.

100. Commencing with the Player’s initial explanation for the presence of metabolites of nandrolone and stanozolol in his system, the Panel observes that during the proceedings before the 3rd Disciplinary Commission of the STJD São Paulo leading to the First Instance Decision, the Player handed in an open bottle of “Lipo 6 Black”, containing 35 capsules.

101. On 17 June 2016, during the proceedings before the Full Court of the STJD leading to the Third Instance Decision, the UCLA Olympic Analytical Laboratory in Los Angeles, United States of America, reported the results of the analysis of the “Lipo 6 Black” capsules that were provided by the Player, concluding that “[t]he sample is negative for nandrolone, 19-norandrost-4-ene- 3,17-dione, 19-norandrost-5-ene-3,17-dione, 19-norandrost-4-ene-3ss,17ss-diol, 19-norandrost-5-ene- 3ss,17ss-diol and their esters”. It remains unclear to the Panel whether the analysis was also negative for metabolites of stanozolol. In any event, there is no proof on file that the results of the analysis were positive for stanozolol.

102. It remained undisputed between the parties that the “Lipo 6 Black” capsules handed in by the Player were negative for the metabolites of nandrolone found in the Player’s sample dated 30 January 2016.

103. In the absence of such potentially corroborating evidence, the Panel notes that the Player’s theory was only supported by his own words. However, the “Lipo 6 Black”’-theory was actually contradicted by the testimonies of the Player and his wife before the Panel, as both he and his wife stated freely and by their own will that the Player’s wife had injected a shot of stanozolol to the Player and that this was the reason for the presence of metabolites of stanozolol in his bodily specimen.

104. Contrary to the view of FIFA, the Panel finds that such crucial statement made by the Player and corroborated by the testimony of his wife cannot be ignored and indeed constitutes an exceptional circumstance in the sense of Article R56 of the CAS Code. The Player’s “injection”-theory is therefore admitted into evidence and FIFA was granted the opportunity to respond.

105. Having dismissed the “Lipo 6 Black”-theory, the Panel turns its attention to the Player’s “injection”-theory.

106. The Panel considers the Player’s testimony to be credible, not in the least because it was corroborated by the testimony of his wife and because it appeared a truthful explanation of how the prohibited substance entered his system.

107. Consequently, although the Panel is satisfied to accept that the metabolites of stanozolol entered the Player’s system by means of an injection of stanozolol, this however leaves unexplained how the metabolites of nandrolone entered the Player’s system.

108. Turning its attention to assessing whether the ingestion of stanozolol by injection occurred unintentionally, the Panel finds that this is clearly not the case and that, based on the testimony of the Player and his wife, a more detailed analysis is not required in order to reach a conclusion in respect of the intention of the Player.

109. Nevertheless, the Panel will refer also to the Player’s argument that he used the stanozolol in order to lose weight and not in order to enhance his sporting performance. The Panel finds that this argument must be dismissed. Losing weight in an artificial way by injecting a prohibited substance, in principle clearly benefits also the Player’s sporting performance, which indeed amounts to the collateral result referred to in CAS 2012/A/2822 (“it suffices to qualify the athlete’s behaviour as intentional, if the latter acts with indirect intent only, i.e. if the athlete’s behaviour is primarily focused on one result, but in case a collateral result materializes, the latter would equally be accepted by the athlete”).

110. The Panel finds that the proverbial “running into a minefield while ignoring all stop signs” as referred to in CAS 2012/A/2822 (“If – figuratively speaking – an athlete runs into a “minefield” ignoring all stop signs along his way, he may well have the primary intention of getting through the “minefield” unharmed. However, an athlete acting in such (reckless) manner somehow accepts that a certain result (i.e. adverse analytical finding) may materialize and therefore acts with (indirect) intent”) quite tellingly portrays the Player’s behaviour in the matter at hand. The Panel therefore finds that the Player’s reckless behaviour amounts, at the very least, to “indirect intent”.

111. Moreover, in the absence of any evidence or argument being provided by the Player as to how the metabolites of nandrolone entered his system or that he did not commit the anti-doping rule violation unintentionally, the Panel finds that the Player failed to meet his burden to prove his lack of intent in respect of the metabolites of nandrolone.

112. The Panel therefore concludes that the Player failed to prove that the anti-doping rule violation was not intentional. As a consequence, the standard period of ineligibility to be imposed on the Player is four years, subject to a possible deduction on the basis of Article 21 (No Fault or Negligence), 22 (No Significant Fault or Negligence) or 23 (non-fault related deductions) of the FIFA ADR.

113. Since it is already concluded above that the Player failed to establish that the anti-doping rule violation was committed unintentionally, the Panel does not deem it necessary to assess whether the Player may have had “No Fault or Negligence” or “No Significant Fault or Negligence” in committing the anti-doping rule violation, as the threshold of establishing that an anti-doping rule violation was not committed intentionally is lower than proving that an

athlete had “No (Significant) Fault or Negligence” in committing an anti-doping rule violation. This for example follows from the fact that proof as to how the prohibited substance entered the Player’s system is a mandatory prerequisite in order to benefit from the fault-related deductions contemplated in Article 21 and 22 FIFA ADR, but is not strictly required in order to prove the absence of intent. Indeed, the Panel finds that the conclusion that a violation was committed intentionally excludes the possibility to eliminate the period of ineligibility based on fault-related grounds.

114. The Panel feels comforted in this conclusion by the following legal doctrine:

“A basic assumption in this article is that the 2015 Code treats intentional and non-intentional as mutually exclusive categories of anti-doping rule violations. This premise, in and of itself, should not be overly controversial. However, we also suggest that violations committed with No (Significant) Fault or Negligence are categorically considered as non-intentional. Simply put, if a violation is intentional as understood in the 2015 Code, it should not also be considered as committed with No (Significant) Fault or Negligence, and vice versa” (RIGOZZI/HAAS/WISNOSKY/VIRET, Breaking Down the process for determining a basic sanction under the 2015 World Anti-Doping Code, Int Sports Law J (2015), p. 10).

115. In any event, the Player failed to establish how the metabolites of nandrolone entered his system, which is a mandatory requirement for establishing “No Fault or Negligence” or “No Significant Fault or Negligence”.

116. Finally, as to possible non-fault related reductions, the Panel observes that the Player does not argue that the application of Article 23 FIFA ADR should lead to a reduction or suspension of the period of ineligibility, nor does there appear to have been any “substantial assistance” from the side of the Player.

117. Article 23.2 and 23.3 FIFA ADR determine the following:

2. Admission of an anti-doping rule violation in the absence of other evidence

Where a Player or other Person voluntarily admits to the FIFA Disciplinary Committee that he has committed an anti-doping rule violation before having received notice of a Sample collection which could establish an anti-doping rule violation (or, in the case of an anti-doping rule violation other than art. 6 (Presence of a Prohibited Substance or its Metabolites or Markers in a Player’s Sample), before receiving first notice of the admitted violation pursuant to section 3 of chapter IX (Results management)) and that admission is the only reliable evidence of the violation at the time of admission, the period of Ineligibility may be reduced, but not below one half of the period of Ineligibility otherwise applicable.

3. Prompt admission of an anti-doping rule violation after being confronted with a violation sanctionable under art. 19 par. 1 (Ineligibility for presence, Use or attempted Use, or Possession of a Prohibited Substance or Prohibited Method) or art. 20 par. 1 (Ineligibility for other anti-doping rule violations).

A Player or other Person potentially subject to a four-year sanction under art. 19 par. 1 or 20 par. 1 (for evading or refusing Sample collection or Tampering with Sample collection), by promptly admitting the asserted anti-doping rule violation after being confronted by FIFA, and also upon the approval and at the discretion of both WADA and FIFA, may receive a reduction in the period of Ineligibility down to a minimum of two years, depending on the seriousness of the violation and the Player or other Person’s degree of Fault.

118. Although the Player argues that he admitted the anti-doping rule violation, the Panel finds that such argument cannot lead to a reduction of the standard period of ineligibility of four years.

119. As provided for by Article 23.2 and 23.3 FIFA ADR, in case a player admits an anti-doping rule violation before having received notice of a sample collection this may lead to reduction of the period of ineligibility. However, in case a player admits an anti-doping rule violation upon being confronted with the anti-doping rule violation, as is the case here, this may only lead to a reduction of the period of ineligibility “upon the approval and at the discretion of both WADA and FIFA”.

120. In the absence of any approval from FIFA and WADA in this respect, the Panel finds that it is not authorised to reduce the period of ineligibility on this basis.

121. In any event, the Panel notes that the Player’s initial confession dated 18 April 2016 by which he maintained that the prohibited substances entered his system by means of “Lipo 6 Black” capsules, turned out to be incorrect. The Player furthermore omitted to inform the authorities of the fact that he administered stanozolol by means of an injection at the relevant time. The Panel does not consider the Player’s explanation credible insofar as he argued that he simply forgot about the injection of stanozolol.

122. Under the above circumstances, the Panel finds that the Player should not benefit from any non-fault related deductions.

123. Consequently, the Panel finds that the Player did not have no (significant) fault or negligence in committing the anti-doping rule violation, nor shall the standard period of ineligibility of four years otherwise be reduced or suspended. As a consequence, the Panel finds that the Appealed Decision is to be set aside and that a four-year period of ineligibility is to be imposed on the Player.

iv. When shall the period of ineligibility start?

124. Article 28 FIFA ADR determines as follows:

“Except as provided below, the period of Ineligibility shall start as soon as the decision providing for Ineligibility is communicated to the Player or other Person concerned.

1. Delays not attributable to the Player or other Person

Where there have been substantial delays in the hearing process or other aspects of Doping Control not attributable to the Player or other Person, the FIFA Disciplinary Committee may decide that the period of Ineligibility shall start at an earlier date, commencing as early as the date of Sample collection or the date on which another anti-doping rule violation last occurred. All competitive results achieved during the period of Ineligibility, including retroactive Ineligibility, shall be disqualified.

2. Timely admission

Where the Player or other Person promptly (which, in all events, for a Player means before the Player competes again) admits the anti-doping rule violation after being confronted with the anti-doping rule violation by FIFA, the period of Ineligibility may start as early as the date of Sample collection or the date on which another anti-doping rule violation last occurred. In each case, however, where this article is applied, the Player or other Person shall serve at least one half of the period of Ineligibility going forward from the date the Player or other Person accepted the imposition of a sanction, the date of a hearing decision imposing a sanction, the date of the communication of the decision imposing a sanction, or the date the sanction is otherwise imposed. This article shall not apply where the period of Ineligibility has already been reduced under art. 23 par. 3 (Elimination, reduction, or suspension of period of Ineligibility or other consequences for reasons other than Fault).

3. Credit for Provisional Suspension or period of Ineligibility served

a) If a Provisional Suspension is imposed and respected by the Player or other Person, the Player or other Person shall receive a credit for such period of Provisional Suspension against any period of Ineligibility which may ultimately be imposed. If a period of Ineligibility is served pursuant to a decision that is subsequently appealed, the Player or other Person shall receive a credit for such period of Ineligibility served against any period of Ineligibility which may ultimately be imposed on appeal.

b) If a Player or other Person voluntarily accepts a Provisional Suspension in writing from FIFA and thereafter respects the Provisional Suspension, the Player or other Person shall receive a credit for such period of voluntary Provisional Suspension against any period of Ineligibility which may ultimately be imposed. A copy of the Player or other Person’s voluntary acceptance of a Provisional Suspension shall be provided promptly to each party entitled to receive notice of an asserted anti-doping rule violation as provided in these Regulations (article 68: Information concerning potential anti-doping rule violations).

c) No credit against a period of Ineligibility shall be given for any time period before the effective date of the Provisional Suspension or voluntary Provisional Suspension regardless of whether the Player elected not to compete or was suspended by his club or Association”.

125. The Panel finds that there were no substantial delays in the hearing process. The three Brazilian instances rendered internally final and binding decisions by 11 November 2016, which is a mere seven months after the Player was notified of the adverse analytical finding on 5 April 2016.

126. The Panel also finds that there was no timely admission from the Player, as was already set out above. This goes also for the term “admission” as used by Article 28.2 FIFA ADR. The Player only during the hearing before CAS and, thus, at a moment only exceptionally acceptable by the Panel from a procedural point of view disclosed that he injected stanozolol and, thus, partly admitted an anti-doping rule violation. This cannot be understood as “promptly”. The Player, thus, should not benefit from any back-dating of the starting date of the period of ineligibility in circumstances where his admission was incomplete and partially incorrect.

127. As contemplated in Article 28.3(a) FIFA ADR, any provisional suspension served shall in principle be credited against the period of ineligibility finally imposed.

128. A provisional suspension is defined as follows in the FIFA ADR:

“Provisional Suspension: a Player or other Person is suspended temporarily from participating in any Competition prior to the final decision at a hearing conducted under the provisions set forth in these Regulations and in the FIFA Disciplinary Code”.

129. In accordance with the heading of Article 28 in conjunction with the definition of “provisional suspension” in the FIFA ADR, the period of ineligibility shall thus start with the final decision providing for ineligibility, i.e. with the communication of the present arbitral award.

130. The Panel observes that FIFA submits in its requests for relief in the Appeal Brief that “any period of ineligibility already served by the Player shall be credited against the total period of ineligibility imposed”. FIFA however specifies what period of ineligibility is to be credited in the reasoning of its Appeal Brief (para. 90) by stating that “the period of ineligibility imposed on the Player shall start with the communication of the award of the present procedure with a credit given of 30 days of the provisional suspension already served”. Therefore, the Panel understands that FIFA does not want any provisional suspension to be credited beyond the 30 days mentioned above.

131. The Panel observes that it thus remained undisputed that a provisional suspension of 30 days was imposed on the Player on 5 April 2016 and that this period is to be credited.

132. In addition, the Panel notes that the Player also served a period of Ineligibility since 13 June 2016, i.e. when the 3rd Disciplinary Commission of the STJD São Paulo issued the First Instance Decision, until the date of the present CAS award. Following the First Instance Decision, the Player remained ineligible throughout the proceedings leading to the Second Instance Decision (increasing the period of ineligibility to two years) and the Third Instance Decision (maintaining the two-year period of ineligibility) and during the proceedings before CAS (increasing the period of ineligibility to four years). Pursuant the last sentence in Article 28.3(a) FIFA ADR and since the Player was ineligible prior to the final decision (i.e. prior to the present CAS award), also this period shall be credited. The Panel notes that FIFA’s reasoning in the Appeal Brief and at the hearing and in its Prayers for Relief are partially contradictory by mixing suspension and ineligibility.

133. Consequently, the Panel finds that the four-year period of ineligibility to be served by the Player formally starts on the date of notification of the present CAS award. Nevertheless, the Player is entitled to be credited for the periods of (i) the provisional suspension (30 days) commenced on the day of 5 April 2016, and ii) the period of Ineligibility he served since the notification of the First Instance Decision, i.e. 13 June 2016, up until the notification of the present CAS award. In order to avoid any possible misunderstanding in the calculation of the period of ineligibility, the Panel observes that this effectively means that the four-year period of ineligibility imposed on the Player should be calculated from 13 June 2016, with a period of 30 days to be credited against the period of ineligibility imposed.

B. Conclusion

134. Based on the foregoing, and after having taken into due consideration both the regulations applicable and all the evidence produced and all arguments submitted, the Panel finds that:

i. The CBF has standing to be sued.

ii. The Player committed an anti-doping rule violation by violating article 6 FIFA ADR.

iii. The Player did not have No (significant) fault or negligence in committing the antidoping rule violation, nor shall the standard period of ineligibility of four years otherwise be reduced or suspended.

iv. The Appealed Decision is to be set aside and a four-year period of ineligibility is to be imposed on the Player.

v. The four-year period of ineligibility imposed on the Player should be calculated from 13 June 2016, with a period of 30 days to be credited against the period of ineligibility imposed.

135. All other and further motions or prayers for relief are dismissed.