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Publication of CAS awards.

(per March 2007)

The International Council of Arbitration (ICAS) has given its consent to the publication of summaries of major and non-confidential Court of Arbitration for Sport (CAS) awards in specialised journals like The International Sports Law Journal (ISLJ), while CAS will keep on publishing its awards in its official Digest. (eds)

Arbitration CAS 2004/O/645 United States Anti-Doping Agency (USADA) v/Tim Montgomery & International Association of Athletics Federation (IAAF), award of 13 December 2005 Panel: L. Yves Fortier (Canada), President; Christopher L. Campbell (United States) ; Peter Leaver (United Kingdom)

The Court of Arbitration for Sport (CAS) has upheld the requests for arbitration filed by the United States Anti-Doping Agency (USADA) in July 2004 concerning the case of Tim Montgomery. As a consequence, the athlete has been declared ineligible for a period of two years starting on 6 June 2005. Furthermore, all results and awards obtained by Tim Montgomery since 31 March 2001 will be cancelled.

The Appellant, USADA, is the independent Anti-Doping Agency for Olympic sports in the United States and is responsible for managing the testing and adjudication process for doping control in that country.

The Respondent, Tim Montgomery ("Mr. Montgomery" or the "Athlete"), is an elite and highly successful American track and field athlete.

On 7 June 2004, USADA informed Respondent that it had received evidence which indicated that Mr. Montgomery was a participant in a doping conspiracy involving various elite athletes and coaches as well as the Bay Area Laboratory Cooperative ("BALCO"). On the same date, USADA submitted the matter to its Anti-Doping Review Board (the "Review Board") pursuant to paragraph 9 (a) (i) of the USADA Protocol. In accordance with the provisions of that paragraph, the Athlete also submitted a lengthy and detailed submission on the matter to the Review Board.

By letter dated 22 June 2004 (the so-called "Charging Letter"), the Respondent was charged with violations of the IAAF Anti-Doping Rules. (...) the participation in the BALCO conspiracy, the purpose of which was to trade in doping substances and techniques that were either undetectable or difficult to detect in routine testing, involved the Respondent's violations of the IAAF Rules that strictly forbid doping: Rule 55.2, Rule 56.3, Rule 56.4, Rule 60.1.

USADA and the athlete had agreed to submit their disputes directly to the Court of Arbitration for Sport, acting as sole instance in these matters. USADA requested that a four-year suspension be imposed on Tim Montgomery for his participation in what was described as a wide-ranging doping conspiracy involving BALCO.

The case was initially scheduled to be heard in November 2004. At the request of the parties, a revised timetable was established which provided for three preliminary hearings to deal with the numerous jurisdictional and evidentiary issues raised by the athletes. The hearing on the merits took place from 6 to 10 June 2005.

In its written decision, the Court of Arbitration for Sport (CAS) has decided that:

* It makes little, if indeed any difference, whether a 'beyond reasonable doubt' or 'comfortable satisfaction' standard is applied to determine the claims against the [Respondent] ... Either way, USADA bears the burden of proving, by strong evidence commensurate with the serious claims it makes that the [Respondent] committed the doping offences in question.

* UDADA has met this standard. This case did not involve positive doping tests (known as "analytical positives"). The charges against the athlete were substantiated by other types of evidence. Among that evidence was the testimony of Ms. Kelli White, an elite track athlete who had previously admitted to doping with the assistance of BALCO and accepted a sanction as a result. Ms. White testified that, on separate occasions, Montgomery admitted to her their use of a prohibited substance provided by BALCO. The Panel unanimously found that Ms White's testimony was both credible and sufficient to establish that the athlete had indeed admitted to have used prohibited substances in violation of applicable anti-doping rules. The athlete himself decided not to testify at the hearings before CAS, and Ms White's testimony in this regard remained uncontroverted. On this basis, the Tribunal finds Respondent guilty of a doping offence. In particular, the Panel finds Mr. Montgomery guilty of the offence of admitting having used a prohibited substance under IAAF Rules 55.2(iii) and 60.1(iii).

* The Panel finds that Mr. Montgomery's admission of his use of prohibited substances merits a period of ineligibility under IAAF Rules of two years. This period of ineligibility shall commence to run as of 6 June 2005, being the first day of Mr. Montgomery's hearing. The Panel is of the view that this date of commencement of the sanction is fair and appropriate in the particular circumstances of this case in view of the numerous delays in the hearing process unattributable to the Athlete. In addition, the Panel orders the retroactive cancellation of all of Mr. Montgomery's results, rankings, awards and winnings as of the date of admission of the use of prohibited substances (31 March 2001).

Arbitration CAS 2004/A/757 Finish Ice Hockey Association v/ International Ice Hockey Federation (IIHF), award of 25 October 2005

Panel: Mr Francois Carrard (Switzerland), Sole Arbitrator

The Court of Arbitration for Sport (CAS) has decided to dismiss the appeal filed by the Finish Ice Hockey Association against the decision issued by the IIHF Council on 22 September 2004 whereby the latter confirmed a previous decision taken by the IIHF legal committee, regarding the calculation and payment of the applicable fees to the Jokerit Club in the case of the player Sean Bergenheim. The decision denied the allocation of an amount of USD 103,687 claimed by the Finish Ice Hockey Association from IIHF.

The player Sean Bergenheim played with the Finnish team of Jokerit Helsinki during the seasons 2001/2002 (twenty-eight games) and 2002/2003 (forty games). He was a first draft of the NHL Team New York Islanders at the 2002 NHL entry drafts. On 15 July 2003, he executed with the New York Islanders a NHL player's contract under which the New York Islanders agreed in particular to employ the player for a term of three years commencing on 1 October 2003.

An addendum "A" to the NHL player's contract, also executed on 15 July 2003 between the player and the New York Islanders, included a clause entitled "European Assignment", specifying the conditions under which, "subject to the terms of any agreement between the IIHF and NHL", the New York Islanders agreed "to loan the player to a European Hockey Club...".

While under contract with his NHL club, Sean Bergenheim played for the AHL club of Bridgeport. He then went back to Finland in mid-December 2003, where he played with the Finnish National Team during the 'World under 20 Championships'. Before 15 January 2004, he went back to his previous Finnish team, Jokerit, with which he played twenty-three games during the remainder of the 2003-2004 season which he completed with Jokerit before going back to New York in March 2004.

For each of the transfers, the standard printed "NHL Player Transfer to/from minors form" was filled in. Such form includes a printed section entitled "loaned to minor league club", providing for the characterization of the transfer as "regular transfer", or "termination of emergency conditions", or "emergency conditions not terminated, loaned", or "conditioning purposes", or "reassignment (minor to minor)" or "other (details)". The transfer of the player from the New York Islanders to Bridgeport was characterized, under the section "Loan to a minor League Club" as "regular transfer". On the other hand, the transfer of the player from the New York Islanders to Jokerit was characterized, under the same section (Loan to a minor League club) as "other (details)" with the following characterization "Reassigned after World JR to Jokerit (Finnish League)".

Through a network of intertwined agreements, the IIHF, the NHL and a number of national associations, including Finland, have established, beginning in 1994, a system under which, in short, the NHL Clubs have the right to hire players from IIHF Clubs by paying, through the NHL, a lump sum by way of a relief fee to be annually paid to the IIHF, which lump sum is to be distributed in accordance with agreements entered into between the IIHF and the National Associations.

The contractual network concerned currently in force consists of a Memorandum of Agreement entered into on 9 June 2001 between the NHL and the IIHF ("the IIHF/NHL Agreement") and a series of Memoranda of agreement between IIHF and the IIHF National Associations regarding transfers of players to/from the National Hockey League (including the Memorandum concerning Finland "the Memorandum" -) entered into in September and October 2001 between the IIHF and the National Associations, such Memoranda being practically all identical.

In November 2003, the Finish Ice Hockey Association, for the benefit of Jokerit, was awarded by the IIHF a payment in the amount of USD 103,687, corresponding to one half of the payment due by the IIHF to the Finish Ice Hockey Association pursuant to the distribution model and payments schedule provided in article 3 of the Memorandum, more particularly in article 3.1.2, which states the following:

"If the player returns to his previous IIHF Team between 2 October and January 15 of the player's first season under which he was under a player's contract to a NHL Team the IIHF Team/Teams shall immediately reimburse 50% of the IIHF payment attributable to the respective IIHF Team/Teams. The repayment should be distributed according to the distribution model in article 3.2 and be paid out as an extra payment in March as specified in article 3.4 ..." (emphasis added).

The Finish Ice Hockey Association requested from the IIHF payment of the remaining half, i.e. an additional amount of USD 103,687, submitting that the player never "returned" to Jokerit. According to the Finish Ice Hockey Association, the word "return" had to be interpreted taking into account the legal contractual status of the player who was under the "jurisdiction" of the New York Islanders.

The IIHF refused to pay the remaining half, submitting that the word "return" meant "go back" or "revert" which was exactly what had happened since the player had gone back to Jokerit before 15 January 2004. The facts being clear, Jokerit and the Finish Ice Hockey Association had no right to claim the payment of the remaining 50%.

The jurisdiction of CAS in casu is based on art. 6.1 of the Memorandum and has been recognised by both parties. In its written decision, the Panel considered that:

--While there is no dispute as to the fact that the player's contract between the New York Islanders and the player was at all times valid, it should be noted that the said contract actually provides for the possibility for a player to be loaned to a European team. It should also be noted that the contract language regarding the status of the player with the New York Islanders refers to concepts such as transfer, recall, loan, assignment or reassignment, which might all imply some form of legal characterization which is not the case with the word of "return" which covers a more generic situation of fact rather than a legal concept. The juridical "neutrality" of the word "return" is an indication that the contents of article 3.1.2 of the Memorandum emphasises more the actual situation of fact than the possible legal status of the players.

--The IIHF interpretation of the word "return" in the sense of article 3.1.2 of the Memorandum makes of such word a concept of fact and not a concept of legal status or "jurisdiction". The Panel considers that, contrary to the submission of the Finish Ice Hockey Association, such an interpretation is not inconsistent with the general intent of all the interested parties, NHL, IIHF and National Associations to "maintain good order within the sport". The Panel further considers that the interpretation given by the IIHF does not violate the contents of the Memorandum, nor does it violate the contents of the contractual netawork instituted by the IIHF with the NHL and the National Associations. By considering that the player had actually "returned" to Finland between 2 October 2003 and 15 January 2004, the IIHF complied with the system instituted for the allocation of payments originating from the NHL. The player was available for Jokerit from early January 2004 on; he played twenty-three games with the team and completed the Finnish season. Thus, he contributed substantially to the club Jokerit for the remainder of the season 2003/2004. The Panel considers that these facts constitute a "return" in the sense of article 3.1.2 of the Memorandum. The IIHF interpretation is justified. Therefore, the remaining 50% of the IIHF payment concerned shall not be paid by the IIHF to the Finish Ice Hockey Association.

Arbitration CAS 2005/A/811 Galatasaray SK v/ MSV Duisburg GmbH & Co. KgaA, award of 19 December 2005 Panel: Mr. Lars Halgreen (Denmark), President; Mr. Jean-Jacques Bertrand (France); Mr. Michele Bernasconi (Switzerland)

The Court of Arbitration for Sport has decided to dismiss the appeal filed by Galatasaray SK (hereinafter "the Appellant") a football club with its registered office in Istanbul, Turkey against the decision issued by the FIFA Dispute Resolution Chamber on November 9, 2004 according to which the Appellant had to pay the amount of EUR 210'000 to MSV Duisburg GmbH & Co. KGaA (hereinafter "the Respondent"), a football club with its registered office in Duisburg, Germany as training compensation.

The player, G.(hereinafter "the player"), was born on March 3, 1982 and has been registered with the Respondent for three years from the sporting season 1999-2000 until the season 2001-2002 as an amateur player. He was 17 years old as he started playing for MSV Duisburg and 20 years old when he left the first team squad.

On June 21, 2002, the Appellant issued a document in German translated by the Appellant stating: "We hereby confirm that the contract of Mr. G. expires on 30.06.02 and there are no further claims with respect to his transfer." And the Respondent: "We hereby confirm that Mr G's contract expires as of 30 June 2002 and no transfer claims exist anymore."

The document was signed by Mr. L., employed in the Respondent's accountant department, and issued on the request of the player's attorney, i.e. Dr. H. and transmitted to him.

On August 13, 2002, the player entered into a contract as professional player with the Appellant.

On June 11, 2003, the Respondent asked the Appellant for a training compensation to be paid. The total amount claimed was of 234' 900.-

July 3, 2003, the Appellant answered by sending the document dated June 21, 2002 stating that transfer of the player had been concluded "under definite condition of no transfer related fees". Therefore, no training compensation should be paid.

As the parties could not reach an agreement, on November 9, 2004, the FIFA DRC rendered its decision according to which the Respondent, Galatasaray SK had to pay the amount of EUR 210'000 to the Claimant MSV Duisburg.

The Appellant submits that the translation of the document dated June, 21, 2002 was inaccurate and led to an unjust decision by the DRC. According to the Appellant, the Respondent waived its right to training compensation. The Appellant asks the Panel to reverse the decision of the DRC issued on November 9, 2004.

The Respondent submits that the appeal against the DRC decision was lodged after the 10 days time limit set by art. 60 of the FIFA Statutes and therefore the CAS shall refuse to hear the appeal filed by the Appellant. The Respondent also claims that the document issued on June 21, 2002 cannot be considered as a waiver and according to the applicable FIFA regulations, training compensations are due for young players until the player's training ends and the wording itself of the statement includes only transfer payment and not training compensation. The Respondent requests the Panel to reject the appeal and confirm the DRC decision.

In its written decision the Court of Arbitration for Sport has decided that:

--Under due consideration of all the evidence submitted to the Panel, it has not been proven that the fax number used by FIFA to send the DRC decision was the right and appropriate fax number of the Appellant. In particular, the fax number used by FIFA does not match the fax numbers found on the official website of the Appellant and the Appellant's fax number set on its letterhead. It does match the one set on UEFA's website under the Club's page and the one found in UEFA's directory, though. Therefore, the decision should not be considered as served on the Appellant on December 17, 2004. The Appellant nevertheless recognises to have received the DRC decision on December 20, 2004 by mail. The Appellant's appeal was filed on December 30, 2004, therefore within the 10 days time limit set by art. 60 of the FIFA Statutes.

--All circumstances surrounding the transfer of the player are leading to the findings that a training compensation was due. All these circumstances were known by the Appellant as it received the document dated June 21, 2002. Nevertheless, on the basis of this latter document and ignoring the other circumstances, the Appellant concluded that the Respondent waived its right to a training compensation without further investing or regarding additional information from the Respondent. This reaction appears to the Panel as not appropriate.

--According to the applicable principe de la confiance which stems from art. 2 al. 1 of the Swiss Civil Code. (Gauch, Schluep, Tercier, Partie Generale du Droit des Obligations, Zurich, 1982, T. I, p. 38), and taking in due consideration all the evidence produced by the parties during the proceedings with CAS, the Appellant should have understood the statement in the sense that no transfer fees were due, but a training compensation could still be claimed. Or at least, the Appellant should have checked this latter point with the Respondent as the question, in fact, remained undecided and contradictory to all the circumstances. For these reasons, the Panel does no consider the document dated June 21, 2002 as a "full" waiver. Accordingly, the Respondent can validly claim a training compensation for the three seasons spent by the player in its squad.

Arbitration CAS 2005/A/835 PSV N.V. v/ FIFA & Federacao Portuguesa de Futebol & CAS 2005/A/942 PSV N.V. v/ Leandro do Bomfim & FIFA, award of 3 February 2006

Panel: Mr Luigi Fumagalli (Italy), President; Mr Manfred Peter Nan (The Netherlands); Mr Jose Miguel Nobre Ferreira (Portugal)

The Court of Arbitration for Sport (CAS) has decided to dismiss the appeals filed by PSV Eindhoven (the "Appellant") against the decisions issued on 24 Feb. 2005 by the Single Judge of the FIFA Players' Status Committee (CAS 2005/A/835), respectively on 29 May 2005 by the Bureau of the FIFA Players' Status Committee (CAS 2005/A/942), which both considered that the employment contract between PSV and the player B. (the "Player") had to be limited to a duration of 3 years due to latter's status of minor of age at the time of the contract's signature. Therefore, the Player has been considered as free to register with another club as from 1 January 2005.

On 21 July 2001, the Player signed with PSV an employment contract starting on 1 January 2002 and ending on 30 June 2006.

By letter dated 20 January 2005, the Player requested FIFA to allow him to move to a new club of his choice, maintaining that at the time of the signature of his contract, he was still minor of age, and therefore, according to art. 36 of the Regulations for the Status and Transfer of Players 1997 (the "FIFA Players' Regulations"), he could not sign an employment contract for a period exceeding 3 years. On the same day, the Player signed an employment contract with FC Porto.

On 31 January 2005 the Portuguese Football Federation (FPF) requested the Dutch Football Federation (KNVB) to issue the International Registration Transfer Certificate of the Player. On the same day the KNVB informed the FPF that it was "not able to issue the international transfer certificate", because "PSV has informed us that the player ... is still under contract with PSV".

By letter dated 11 February 2002 the FPF formally referred the matter to FIFA, transmitting a letter of 10 February 2005, whereby Porto requested the issuance of a provisional certificate so to allow the Player to play for his new club.

On 24 February 2005, the Single Judge of the FIFA Players' Status Committee (the "Single Judge") issued a decision in which he held that the duration of the employment contract had to be limited to 3 years, i.e. until January 2005. Therefore, the FPF was authorised to provisionally register the player with the FC Porto, with immediate effect. On 7 March 2005 PSV filed an appeal with CAS against such decision.

On 6 April 2005, FIFA informed the parties that the dispute between the Player and PSV, having "a labour nature", had been referred for adjudication to the FIFA Dispute Resolution Chamber (the "DRC"). On 13 May 2005, the DRC issued a decision acknowledging that the employment contract had been signed before the entry into force of the FIFA Players Regulation 2001, and was therefore subject to the FIFA Players Regulation 1997, pursuant to which contractual disputes between clubs and players had to be dealt with by the FIFA Players' Status Committee (the "PSC").

On 29 May 2005, the Bureau of the PSC reached the conclusion that the duration of the employment contract had to be limited to 3 years and consequently had ended on 1 January 2005. Therefore, the PSC decided to accept the claim filed by the Player, i.e. to declare as terminated his working relationship with PSV as of 1 January 2005 and to confirm his provisional registration for Porto. On 4 August 2004, PSV filed a statement of appeal with the CAS to challenge the decision of the PSC.

In its written decision, the Panel considered that:

--In the CAS system, for a statement of appeal against a given respondent to be admissible, it is necessary not only that it names that respondent, but also that it contains an actual claim against it. The Panel, in the present case, finds that not only has the Appellant indicated FIFA as a respondent in both appeals, but also that it has actually indicated specific claims against FIFA. Indeed FIFA has not acted, through its PSC, as a first tier adjudicative body in a dispute between PSV and the Player; FIFA has issued a decision, authorizing, first provisionally, then finally, the registration of the Player with the new club of his choice, in the exercise of its "administrative" responsibilities pursuant to Article 7 of the FIFA Players' Regulations 1997. The exercise of such function goes well beyond the mere adjudication on the contractual claims of the parties. And the Appellant criticizes the exercise of that power. In the light of the foregoing, therefore, the Panel concludes that FIFA is to be treated as a respondent in these arbitration proceedings.

--Art. 36 of the FIFA Players' Regulations 1997 could be invoked, as it was, by the Player so to obtain a decision from FIFA allowing him to register for a new club. Pursuant to para. 2 of the Preamble to the FIFA Players' Regulations 1997 "the principles outlined in under Art. ... 36 ... of these regulations are also binding at national level". As a result, domestic provisions inconsistent with Art. 36 cannot be invoked "at national level" to seek and obtain a remedy, enforcing a contract having a duration of more than 3 years, expressly prohibited by the FIFA rules. In the same way, it cannot be maintained that the regulations of the KNVB impose a duty not to register the Player with Porto--on FIFA and the FPF, which are obviously not subject to such rules.

--Correctly, the PSC considered that the claim of the Player was not time barred pursuant to Article 3 of the PSC Procedural Rules, which provides that "the FIFA Players' Status Committee does not hear any dispute if more than two years have elapsed since the facts leading to the dispute arose". The facts leading to the dispute occurred when the Appellant denied the Player's request to consider the employment contract as terminated upon expiration of the three year term indicated in Article 36: only in that moment could the Player exercise his right to seek the registration for a club of his choice. In addition, the Player does not seem to have acted in bad faith vis-a-vis the Appellant. On one side, the Appellant does not offer any evidence of that bad faith. On the other side, the documents on file clearly show that the Player made known his position to PSV before turning to FIFA.

--Article 36 of the FIFA Players' Regulations 1997, as invoked by the Player, was correctly applied by the FIFA bodies. In this framework, the fact that the registration of the Player with the KNVB was made only on 19 January 2002, when he had reached the age of 18 years, is irrelevant. At the moment in which the Player contractually expressed his consent to be bound to play for PSV, he was minor of age. And Article 36 of the FIFA Players' Regulations 1997 makes a clear and reasonable reference to the time of signature as the moment relevant to determine the age of the player. In the same way, the Panel fully agrees with the PSC as to the interpretation of the Declaration of 2002, and confirms that it cannot be construed as having the meaning of a confirmation by the Player, no longer minor of age, of the duration of his employment contract. In fact, by means of said declaration the Player stated that he would unconditionally respect the labour and image rights agreement he had signed with PSV Eindhoven on 21 July 2001, in order to be authorized to leave for Brazil for a certain period, without being paid and covering all his medical expenses: the employment contract was left unchanged, so that the parties thereto had all the rights, duties and claims with respect to the same contract, as they had before. Also after the signature of the Declaration of 2002 the Player was therefore entitled to seek a remedy under Article 36 of the FIFA Players' Regulations 1997.

--n principle a person should not be compelled to remain in the employment of a particular employer, as the Appellant so requests. An employee who breaches an employment contract by wrongful and premature withdrawal from it may be liable in damages or even be imposed a sanction (Article 23 of the FIFA Players' Regulations 2001), but not to an injunction to remain with his employer. This is the position under Swiss law (Article 337(d) CO) and under the CAS jurisprudence.

Arbitration CAS 2005/A/840 P. v/ Shangai Shenhua SVA SMEG FC, award of 21 December 2005

Panel: Mr Dirk-Reiner Martens (Germany), President; Mr Jose Juan Pinto (Spain); Mr Michele Bernasconi (Switzerland)

The Court of Arbitration for Sport (CAS) has decided to allow the appeal filed by Mr P.("the Appellant") against the decision issued on 4 February 2005 by the FIFA Players' Status Committee rejecting the player's claim for compensation in the amount of USD 2,2 million due to him under the employment contract with the Chinese club of Shangai Shenhua SVA SMEG FC ("the Respondent") for the 2004 and 2005 seasons. The latter was therefore ordered to pay the amount of USD 1,049,068 to P..

On 8 March 2003, the Player and the Club signed a three year employment contract (the "Player Contract"), until 28 February 2006. Art. 8 of the contract stated that if "the starting appearance [was] less than 70 % out of the whole CFA League A games (only starting appearance or total appearance time per game no less than 45 minutes can be counted) by his own will, [the Club] [had] the right to terminate this agreement, and transfer [the Player] to other football club, except for injuries which should be confirmed by the doctors or hospital appointed by [the Club]". Art. 12 stated that the "contract [came] into effect contingent upon [the Player] meeting the 3 requirements listed below (...) : 1. [The Player] must acquire international clearance from his registered association (...)".

After the Parties had signed the Player Contract, the FIFA Players' Status Office suspended P. for having unilaterally terminated his previous employment contract with Vasco da Gama which was to have continued until 21 June 2003. Vasco da Gama and the Club eventually reached an agreement on the release of the Player. Therefore, FIFA issued a letter of clearance for the Player on 20 June 2003, but as a consequence of the FIFA suspension, the Player had missed five games of the Club in the 2003 season. He played his first game on 2 July 2003 and received no salary for the period from March to June 2003.

On 1 March 2004 the Club sent a notice of termination to the Player. According to a statistics sheet prepared by the Club, a total of 28 games were played by the Club in the 2003 season. Out of these 28 games, the Player had missed the first five due to the FIFA suspension. In addition, according to the statistics of the Club, five more games were not "counted" because the Player had played less than 45 minutes or not at all in these games. Therefore the Player had only played 18 out of 28 games, i.e. 64 % of all games during the 2003 season.

For the 2003 season, i.e. from July 2003 trough February 2004, the Player received all payments due to him under the Player Contract.

On 5 March 2004 the Player filed a complaint to FIFA against the termination of his Player Contract and requested a compensation in the amount of USD 2.2 million, the amount due to him under the Player Contract for the 2004 and 2005 seasons. After leaving the Chinese club in March 2004, the Player played for Vasco da Gama (May 2004--Dec. 2004), Al Ittihad (Jan. 2005--Aug. 2005) and is currently playing for Fluminense (since Aug. 2005).

On 4 February 2005 the FIFA Dispute Resolution Chamber issued a decision (the "Decision") whereby it rejected the Player's claim. According to the DRC, the termination clause in Article 8.1 of the Player Contract had to be applied separately with respect to each individual season for which the Player is under contract with the Club. In addition, the words "by his own will" in the second sentence of Article 8.1 had to be interpreted as referring to the "will" of the Club, i.e. primarily the decision of the coach. According to FIFA, the clause would have been senseless if it was construed to refer to the "will" of the Player because the club would have been entitled to take disciplinary sanctions against the Player if he were to miss games by "his own will". As a consequence of these considerations, FIFA concluded that the player only played 18 out of the 28 2003 season games of the Club and thus only had a 64% starting appearance. This is not expressly stated in the Decision but derives from FIFA's reasons in the 4 February 2005 decision.

On 4 March 2005 the Player filed an appeal to CAS against the FIFA Decision. In its written decision, the Panel considered that:

--The words "out of the whole CFA League A games" has to be interpreted as referring individually to each of the three seasons for which the Player was under contract with the Club and not the entire three-year duration of the Player Contract. The former is the natural interpretation of this clause and there is no evidence or other indication that exceptionally a reference to a three-year period was intended.

--As a result of Art. 12 of the Player Contract, the latter did not take effect until 20 June 2003, the date on which FIFA issued the letter of clearance. The parties seem to have been in full agreement with this construction of Art. 12 in that the Player took no issue with the payment of salaries commencing only after that date. The Club played a total of 23 games during the period from the effective date of the Player Contract, namely 20 June 2003, until the end of the season 2003. Even if one were to disregard the five games which the Player missed during that period because of a decision by the coach, the Player played 18 games for purposes of the calculation of the Player's appearance rate. This resultants in an appearance rate of 78%, a ratio which does not justify a termination pursuant to Art. 8.1.

--Under the CAS jurisprudence, as a matter of principle, and in accordance with Article 337c of the Swiss Code of Obligations (CO), a party to a fixed-term employment contract which is unduly and prematurely terminated by the other party is entitled by way of compensation of his damages to payment of the salary that he would have earned until the scheduled end of the contract, if such contract had not been terminated, with the proviso that he has a duty to mitigate the damages incurred by him (cf. CAS 2004/A/741; CAS 2003/O/535; CAS 2003/O/540 & 541). Pursuant to Art. 22 of the FIFA Regulations for the Status and Transfer of Players (2001 version) and to Art. 337c CO and in accordance with the CAS jurisprudence, the Player is entitled to a compensation in the amount of USD 2.2 million less the amount of the salary he earned during the period until the scheduled end of the Player Contract and less such amounts, if any, which he intentionally failed to earn. The calculation of the Player's claim against the Club is thus as follows: the compensation claim (USD 2,2 million) minus the amounts which the Player actually collected after leaving China (USD 187,600 from Vasco da Gama, USD 833,332 from Al Ittihad) and those he will make until the scheduled end of his Chinese Player Contract (USD 130,000 from Fluminense, until 28 Feb. 2006). As a result, the Player is entitled to a compensation in the amount of USD 1,049,068.

Arbitration CAS 2005/A/866 FC Hapoel Kia Beer-Sheva v/ S., award of 30 March 2006

Panel: Mr Luigi Fumagalli (Italy), President; Mr Jose Juan Pinto (Spain); Mr Michele Bernasconi (Switzerland)

The Court of Arbitration for Sport (CAS) has decided to dismiss the appeal filed by FC Hapoel Kia Beer-Sheva (the "Appellant" or the "Club") against the decision issued on 11 March 2005 by the FIFA Dispute Resolution Chamber (the "DRC"), ordering the Club to pay the amount of USD 58,200 to the Brazilian player S. (the "Player") for the breach of the employment contract between the two parties.

On 1 July 2003, the Player signed an employment contract (the "Contract") with Hapoel ending on 1 July 2006, with an option for its extension for two additional seasons. The contract provided for a "signing fee", to be paid as for USD 50,000 on 25 July 2003, as for USD 10,000 in July 2004 and as for USD 10,000 in July 2005, for a net "salary" of USD 4,000 per month, subject to increase by 5% per season, and bonuses relating to the results achieved by the Hapoel team, as well as other benefits.

On 21 July 2004, Hapoel contacted FIFA claiming that the Player had unilaterally breached the Contract by failing to report on time and disappearing since 17 July 2004 with no just cause, as stated on Art. 21 para. 1(a) of the FIFA Regulations for the Status and Transfer of Players in force since 1 September 2001 (the "FIFA Players Regulations 2001"). The Club acknowledged that it still owed USD 25,000 to the Player for the 2003/4 season.

The Player, on his side, claimed with FIFA that Hapoel had breached the Contract and requested that the Club be ordered to pay the amount claimed to be owed in July 2004 for the 2003/4 season (totalling USD 38,200) and a compensation for the breach of the Contract corresponding to the remaining value of the Contract for the seasons 2004/5 and 2005/6 (totalling USD 123,320).

On 11 March 2005, the FIFA Dispute Resolution Chamber (the "DRC") issued a decision that partially upheld the Player's claim and rejected in its entirety the Club's claim. Hapoel was therefore ordered to pay USD 58,200 to the Player, being USD 38,200, as the outstanding salaries and bonuses due to him in July 2004, and USD 20,000 as an appropriate compensation for the breach of the Contract. In support of its decision, the DRC noted that prior to leaving on holiday after his first season with the Club had ended, the Player had requested the payment of the outstanding amount due to him, which he had calculated as being USD 38,200. The DRC then remarked that despite not having received the amount due to him, the Player had showed his willingness to honour his part of the Contract, by writing to the club on 5th July 2004, requesting that the outstanding salaries be paid within 2 days of his return to Israel and by returning to Israel on 12 July 2004 despite the fact that the amount had not been paid. The Decision of the DRC was notified to the parties on 6 April 2005.

On 14 April 2005, Hapoel filed a statement of appeal with the CAS to challenge the DRC Decision.

In its written decision, the Panel considered that:

--The mere failure of the Player to immediately claim the payments due to him by Hapoel in accordance with the Contract cannot constitute a waiver of the obligation of Hapoel to make--and of the player to claim--such payments. It is actually a principle common to several jurisdictions, and well known also in Swiss law (Art. 341 CO), that an employee, pending the employment relationship, cannot surrender his rights, at least as established by mandatory rules. In addition, the Panel remarks that the Player requested Hapoel to make the outstanding payments "within 48 hours" of his return to Israel, and that Hapoel accepted such proposal: the Player returned to Israel, but received no payment. In other words, contrary to the Appellant's submissions, the Player did not waive or accept to postpone the payment, but actually requested it, as a condition of his return to Israel. As the party in breach of the Contract without just cause, the Appellant is therefore liable to pay to the Player the amounts already accrued at the time of the termination of the Contract, as well as financial compensation. With respect to the quantification of the sums accrued at the time of the termination of the Contract, the Panel notes that the request of the Player has not been challenged. Pursuant to Art. 339 CO, all claims arising from the employment relationship shall become due upon its termination. As a result, the Panel concludes that at the time of the termination of the Contract, Hapoel owed the Player an amount of USD 38,200 for accrued salaries, bonuses and signing-on fee.

--With respect to the quantification of the compensation for damages following the breach of contract, as provided by Art. 21 para. 1 of the FIFA Players Regulations 2001, the criteria to be followed are indicated in Art. 22 of the FIFA Players Regulations 2001 and in Art. 337c CO. In the light of the foregoing rules, the Panel notes that in principle the injured party should be restored in the position in which the same party would have been if the contract had been properly fulfilled. As a result, the Player should be entitled to claim payment of the entire amount he could have expected, and compensation for the damages he would have avoided, if the Contract had been implemented up to its natural expiration. Nevertheless, pursuant to Art. 337c para. 2 CO, the employee must permit a set-off against this amount for what he saved because of the termination of the employment relationship, or what he earned from another work, or what he has intentionally failed to earn. The Panel notes that the Player, at the time of the termination of the Contract, had an expectation to receive, if the Contract had been properly implement up to its natural expiration, a net payment of USD 123,320 for expected salaries and sign-on fee. At the same time, the Panel remarks that the Player, after the termination of the employment relation with the Appellant, entered into a contract with a new club. However, the details of such new contract have not been disclosed and no request in that respect has been filed by the Appellant, which had the burden to do so. The Panel, therefore, is not in a position to apply any mitigating factor in the assessment of damages for salaries lost by the Player in the seasons 2004/2005 and 2005/2006. As a result, the Panel finds that the Player would be entitled to the payment of the full amount of USD 123,320. This amount exceeds the amount granted by the DRC. However, in deciding upon the compensation claimed by the parties, the Panel is limited by the prayers for relief, as it cannot rule extra or ultra petita. The Panel confirms therefore to be bound by the limits set by the Decision of the DRC, which has been challenged by the Appellant only, and cannot therefore be modified against the Appellant, who explicitly has not claimed for any higher amount.

Arbitration CAS 2005/A/876 Adrian Mutu v/Chelsea Football Club, award on 15 December 2005

Panel: Mr Dirk-Reiner Martens (Germany); President; Mr Michele Bernasconi (Switzerland); Mr Raj Parker (Great Britain)

The Court of Arbitration for Sport (CAS) has dismissed the appeal filed by the Romanian football player, Adrian Mutu, on 29 April 2005 against a decision issued by the Football Association Premier League Appeal Committee (FAPLAC). As a consequence, the FAPLAC Decision is confirmed. Such decision determines that:

--the Player's misconduct is to be deemed a unilateral breach of contract without just cause or sporting just cause,

--as a consequence of the Player's conduct, the Club was entitled to treat the Player Contract as at an end,

--the Club was entitled to bring a claim before the FIFA Dispute Resolution Chamber for the imposition of sporting sanctions and/or for an award of damages to compensate the Club for its added loss.

In 2003 Adrian Mutu (the "Appellant" or the "Player"), a Romanian national and a professional football player and Chelsea Football Club (the "Respondent" or the "Club"), a member of the English Premier League, entered into a player contract which was scheduled to run until 2008. For the release of the Player the Club paid a compensation in the amount of EUR 22,500,000 to the Player's previous club.

On 11 October 2004 the Player was informed that the A-sample of a drug test taken from him was positive. The test had been carried out by the English Football Association (the "FA") on 1 October 2004. In a letter to the English FA dated 17 October 2004 the Player admitted to having taken cocaine and waived his right to have his B-sample analysed.

By a letter dated 28 October 2004 the Club informed the Player that the Player Contract was terminated for gross misconduct pursuant to clause 10.1.1. On 4 November 2004 the FA Disciplinary Commission confirmed the positive result of the Player's drug test and suspended him until 18 May 2005. Further, the FA Disciplinary Commission imposed a GBP 20,000 fine on the Player. The decision was communicated to the Player on 4 November 2004. On 12 November 2004 FIFA confirmed the FA Disciplinary Commission's decision mentioned at paragraph 11 above and adopted the Player's suspension to apply world-wide.

According to Article 42 section 1(b)(i) of the FIFA Regulations for the Status and Transfer of Players which entered into force on 1 September 2001 (the "FIFA Regulations") , on 26 January 2005 the Club and the Player agreed that the FAPLAC would determine the dispute regarding "the triggering elements" under the FIFA Regulations.

The FAPLAC determined that the admitted ingestion of cocaine by the Player constituted gross misconduct pursuant to the player contract and entitled the Club to treat the contract as at an end. The FAPLAC further decided that the Club was therefore entitled to proceed to seek compensation and sporting sanctions from the FIFA Dispute Resolution Chamber ("DRC").

In the proceedings before the CAS the Player mainly contends that Articles 21 seq. of the FIFA Regulations "are designed to regulate moves of players between clubs and to distinguish those moves that are effected consensually between the club from which the player moves and the player himself ".

The Player further argues that

"in the case of an alleged unilateral breach of contract by a player, on their true constructions, articles 21 to 23 inclusive of the FIFA Regulations are intended only to be applicable to a situation in which the player undermines the stability of his contract of employment with the club by unilaterally terminating such contract without just cause or sporting just cause (by, for example, leaving his club during the currency of that contract in order to play for a new club)."

According to the Player, a "unilateral breach" pursuant to Article 21 of the FIFA Regulations has to be equated with an "unlawful termination" of the Contract, and it was the Club, not the Player, that terminated the Player's Contract. Therefore, it is said, the Player did not commit a unilateral breach of contract of the kind contemplated by, and falling within the relevant articles of the FIFA Regulations.

The Club argues that there is no basis in the wording of the FIFA Regulations, in the intent behind the Regulations, or in principle to seek to draw a distinction between different types of conduct by the Player which under the applicable law, namely English law in this case, have the same legal consequence of entitling the innocent party to treat the contract as discharged. In both instances, it is the Player who "renounces" the contract, and the Player's conduct constitutes the "unilateral breach" required for the application for the FIFA Regulations.

The Club further contends that there is no CAS decision which would support an interpretation of the applicable FIFA Regulations to the effect that only a walk-out by the Player under his contract would fall under these Regulations.

In its written decision, the CAS has decided that:

--The FIFA Regulations do not make any distinction between a player unlawfully walking out under a contract and another player who breaches his contract through other serious misconduct, like the player's taking cocaine or committing a serious on or off the pitch offence which goes to the roots of his contract with his employer. The Player's admitted use of cocaine constitutes the "unilateral breach without just cause" provided by the FIFA Regulations and triggers the consequences deriving thereof, no matter whether this breach causes the Club to give notice of termination or whether the Club continues to hold on to and insist upon performance of the contract despite the Player's breach.

--Consequently, the Club was entitled to bring a claim before the FIFA Dispute Resolution Chamber for the imposition of sporting sanctions and/or for an award of damages to compensate the Club for its added loss.

Arbitration CAS 2005/A/878 Club Guarani v/ G. & Club FC St. Gallen AG, award of 20 March 2006

Panel: Mr Massimo Coccia (Italy), President; Mr Peter Leaver QC (Great Britain); Mr Jean-Jacques Bertrand (France)

The Court of Arbitration for Sport (CAS) has decided to dismiss the appeal submitted by the Paraguayan football club Guarani from the decision issued on 12 April 2005 by the FIFA Dispute Resolution Chamber (DRC), whereby the latter authorized the Paraguayan football player G. to register with the Swiss football club FC St. Gallen and ordered the Paraguayan Football Association (APF) to issue the international registration transfer certificate for the Paraguayan player in favour of the Swiss Football Association (SFV) . The CAS has also ordered FC St. Gallen to pay to Club Guarani the amount of EUR 90,000 as training compensation.

G. (the "Player" and, together with St. Gallen, the "Respondents"), born on 28 January 1987, registered as an amateur player on 29 January 2002 with Club Guarani (the "Appellant"). On 26 April 2004, when the Player was 17 years old, the Appellant and the Player's parents signed an agreement (the "Agreement of 26 April 2004"). Article 4 and Article 5 of the Agreement provided respectively as follows: (i) in case of any offer made by a third party wishing to hire the Player while he was still a minor, the Player's parents and the Appellant had to negotiate jointly with such other party; (ii) upon the Player coming of age, the parties had to formalize a valid professional contract in accordance with Paraguayan law.

In early January 2005, when the Player was still a minor, the Appellant and the Player signed an employment contract under Law no. 88/91, the Paraguayan statute specifically governing professional football contracts, effective as from 29 January 2005 up to 29 January 2009 (the "Employment Contract"). The Employment Contract was not signed by the Player's parents and its date of signature was left blank.

On 21 January 2005, relying on the APF's certification that the Player was not registered as a professional player, but only as an amateur with the Appellant, the Player and his parents entered into an employment contract with FC St. Gallen, effective as from 1 February 2005 up to 30 June 2009.

On 24 January 2005, the SFV requested that the APF issue an international transfer certificate (ITC). On 28 January 2005, the APF informed the SFV that the Appellant had objected to the issuance of an ITC, due to the fact that the Player was allegedly bound by a valid Employment Contract signed with Guarani. The SFV thus petitioned FIFA to be authorized to register the Player with St. Gallen.

On 12 April 2005, the DRC instructed the APF to issue the ITC authorizing the Swiss Federation to register the Player with St. Gallen with immediate effect. The DRC held that the Employment Contract between the Appellant and the Player could not be considered as valid according to Paraguayan legislation and to the regulations of the APF, as the Player had signed it while he was still a minor. The Appellant was aware that on the date of the signature the contract was not legally binding, since it had deliberately chosen not to fill out the contract with the true date of signature. On the other side, St. Gallen had acted in good faith because it had entered into a contract with the Player once it had received confirmation that no employment contract between the Player and the Appellant had been filed with the APF. The DRC concluded that neither compensation for breach of contract nor sporting sanctions would be applicable to the present case and that the Appellant would only be entitled to training compensation from St. Gallen. The decision was notified to the parties on 22 April 2005.

On 2 May 2005, the Appellant lodged an appeal with the CAS against the decision of the DRC.

In its written decision, the Panel considered that:

--The dispute had to be decided according to FIFA regulations and, on a subsidiary basis, according to Swiss law, with the exception of any legal issues related to the Paraguayan Contracts signed by and between the Player (and/or his parents) and the Appellant, which had to be decided in accordance with Paraguayan law, as they had no connection whatsoever with Switzerland.

--Under the general rules of the Paraguayan Labour Code, a minor is allowed to be a party to an employment relationship, subject to certain conditions. Furthermore, the Labour Code allows a de facto relationship to produce some legal effects. However, according to Law no. 88/91, a minor cannot be qualified as a professional football player. In addition, any professional football contract must be done in writing, must conform to the approved standard forms and must be registered with the Paraguayan League. No exceptions are allowed as a consequence of a de facto employment relationship. This apparent conflict of laws must be reconciled in accordance with the principle "lex specialis derogat generali"; thus, the provisions of Law no. 88/91 must prevail. Accordingly, as the Player signed his Employment Contract with Guarani when he was still a minor, his consent was not validly expressed. As a consequence, the Employment Contract is void and has no binding effect on the Player. In conclusion, the Player was still playing as an amateur when he signed the contract with St. Gallen.

--The Appellant certainly held the "registration rights" over the Player, insofar as the Player was registered for the Appellant with the APF. Given the Player's amateur status, such "registration rights" could have prevented the transfer of the Player without the Appellant's consent only if the Player had maintained his amateur status also in his new club/employer. However, under FIFA rules, the Player was fully free, being an amateur, to sign an employment contract with any club of his choice with the aim of becoming a professional football player.

--There is no evidence that St. Gallen was or could have been aware of the existence of Art. 4 and 5 of the Agreement of 26 April 2004. The Appellant failed to prove that St. Gallen induced the Player and his parents to disregard this Agreement. Therefore, St. Gallen may not be held responsible for the Player's and his parents' conduct. As the Appellant only requested compensation for damages towards St. Gallen, the Panel is precluded from ruling on the issue of whether the Player could be held liable for damages towards the Appellant.

--Under FIFA rules, a training compensation is owed by St. Gallen to Guarani, given the fact that the Appellant trained the Player for three years and St. Gallen signed the Player's first professional contract. As the Appellant declared that, should a compensation for damages not be awarded, it would accept the amount of EUR 90,000 already offered by St. Gallen, without need to send the related subject matter back to FIFA, there is no need to rule on the appropriateness of such amount.

Arbitration CAS 2005/A/896 Fulham FC (1987) Ltd. v/ FC Metz, award of 16 January 2006

Panel: Mr Kaj Hober (Sweden), President; Mr Alan E. Harris (United States); Mr Olivier Carrard (Switzerland)

The Court of Arbitration for Sport (CAS) has decided to dismiss the appeal filed by Fulham FC (1987) Ltd against the decision issued on 13 April 2005 by the Single Judge of the FIFA Players' Status Committee whereby the latter ordered Fulham FC to pay to FC Metz the amount of EUR 2,013,273 plus interest as a "one-off " payment of 15% of any net transfer fee received for a subsequent transfer of S. from Fulham FC over and above the monies already paid to FC Metz for the transfer of the said player to Fulham FC.

On 5 June 2000, Fulham FC ("the Appellant") and FC Metz ("the Respondent") signed an agreement whereby they agreed that the registration of S. be transferred from FC Metz to Fulham FC for a transfer fee of FRF 20,100,000 (EUR 3,201,430). Pursuant to a clause defined in the transfer agreement (the "sell-on clause"), FC Metz was entitled to receive a sum equivalent to 15% of any net fee received by Fulham FC over and above the sum of FRF 20,100,000 should S. be subsequently transferred from Fulham FC to another club. This clause was to be valid for the first subsequent transfer only.

S. successfully passed the required medical examination and entered into a first employment contract with the Appellant on 26 June 2000. The contract was meant to remain in force until 30 June 2004 "unless it shall have previously been terminated by substitution of a revised agreement or as hereinafter provided" (hereinafter "the first employment contract"). On 2 May 2001, S. signed another employment agreement with the Appellant (hereinafter "the second employment contract"), under which the term of S's employment with the Appellant was extended and his wages, bonuses and accommodation allowance were significantly increased.

On 23 January 2004, the Appellant transferred S. to Manchester United Football Club Limited. It received a transfer fee amounting to GBP 11,500,000 (EUR 16,623,250). On 8 March 2004, the Respondent informed the Appellant of its intention to claim the payment pursuant to the sell-on clause as defined in the transfer agreement dated 5 June 2000. On 1 April 2004, the Respondent sent to the Appellant an invoice inviting the latter to pay the amount of EUR 2,013,273 (EUR 13,421,820 as increment value realized by Fulham FC x 15%) before 15 April 2004. On 12 August 2004, the Appellant confirmed to the Respondent that it did not intend to pay the claimed sale-on fee before a certain number of issues were addressed and clarified.

On 21 October 2004, upon complaint from the Federation Francaise de Football acting on behalf of the Respondent, FIFA invited the English Football Association to inform the Appellant that it had until 1 November 2004 either to pay the requested amount of EUR 2,013,273 or to provide FIFA with the reasons for not doing so. On 1 November 2004, the Appellant confirmed that it did not agree to make any payment to the Respondent as long as the issues raised in its letter dated 12 August 2004 remained unanswered and unresolved.

The dispute was presented to the Single Judge of the Players' Status Committee. On 13 April 2005, he decided that the contract signed between the parties on June 2000 was valid and that Fulham FC therefore had to pay the amount of EUR 2,013,273, plus 5% interest p.a. starting on 1 April 2004, to FC Metz.

On 27 May 2005, the Appellant filed a statement of appeal with the CAS against the Decision of the Single Judge.

In its written decision, the Panel considered that:

--The parties have neither explicitly nor implicitly agreed upon a specific law to be applicable in case of a dispute arising out of their agreement of 5 June 2000, namely international conflict of law principles as submitted by the Appellant. On the contrary, the Respondent contested the application of such principles, respectively, should those rules have been considered applicable, submitted that French law was to be taken into consideration instead of English law as argued by the Appellant. The leading Swiss legal doctrine is of the view that, in the absence of such an agreement, the applicable law of arbitration can also be chosen by referring to specific arbitration rules which themselves contain rules on the applicable law. In the case at hand, such specific rules are provided by the FIFA Statutes, which expressly prescribe that the rules and regulations of FIFA apply primarily and Swiss law subsidiarily.

--In the absence of agreement of the parties on the meaning of the sell-on clause and in order to determine their intent or the intent which a reasonable person would have had in the same circumstances, it is necessary to look first to the words actually used or the conduct engaged in. However, even if the words or the conduct appear to give a clear answer to the question, due consideration is to be given to all relevant circumstances of the case in order to go beyond the apparent meaning of the words or the conduct of the parties. This include the negotiations and any subsequent conduct of the parties. It appears from the negotiations that the parties had expressly agreed to divide the player's transfer fee in two parts, a fixed amount of FRF 20,100,000 and an "additional amount". They also had reached an agreement on the method of calculation of this additional amount. No limit in time was either mentioned in relation with the sell-on fee. Therefore, the parties had agreed on all the essential terms of the transfer contract. As far as the subsequent conduct of the parties is concerned, the Appellant did not, until the proceedings before the CAS, challenge nor contest the principle of the payment due to the Respondent on the basis of the sell-on clause. The Panel was therefore of the opinion that the Appellant knew from the beginning that it had a contractual obligation to pay the sell-on fee to the Respondent.

--The words "net fee" found in the sell-on clause could only refer to the net transfer fee paid by Manchester United FC for the acquisition of S. after deduction of the costs in direct connection with the transfer of the player, namely the agents' costs. Event though, in his submission to FIFA, the Respondent admitted to be entitled to 15% of the net profit realized by the Appellant from S' transfer, the wording he used was inadequate and not consistent with its actions and calculations. In no case could all the costs and expenses associated with the employment of the player--namely agent fees, the player's wages, bonuses, insurance and the fixed amount paid by the Appellant to the Respondent pursuant to the transfer agreement--be taken into consideration to ascertain the "net fee", as the Appellant claims.

--There is no reason to adjust the sell-on fee as determined under the transfer agreement. Even though, on the one hand, the Panel accepted the idea that if S. had not entered into a second employment contract with the Appellant, the sell-on fee would have been lower since the player's value was determined in part by the length of time the second employment contract still had to run, it found, on the other hand, that it was not possible to know in how big a need Manchester United was for a player such as S. and what it was willing to pay for his acquisition. Therefore, it considered it too speculative to determine how the transfer was influenced by the length of the remaining time of the second employment contract.

CAS 2005/A/899 FC Aris Thessaloniki v/ FIFA & New Panionios N.F.C., award of 15 July 2005

Panel: Mr Beat Hodler (Switzerland), President; Mr Jean-Philippe Rochat (Switzerland); Mr Michele Bernasconi (Switzerland)

The Court of Arbitration for Sport (CAS) has dismissed the appeal filed by the Greek football club FC Aris Thessaloniki in relation to a dispute involving another Greek football club New Panionios NFC and the FIFA.

The facts related to this matter extend back to November 2004 when the FIFA Dispute Resolution Chamber upheld a monetary claim filed by two Players against Panionios. Considering that Panionios did not pay the requested amounts to the Players, the FIFA Disciplinary Committee decided on 14 February 2005 to grant Panionios a final period of grace of thirty days for the payment of the outstanding amounts and also ruled that if such payments were not made within this time limit, 12 points (6 for each case) would be deducted from the points obtained by Panionios in the A Division of the Greek Football League. Panionios paid the amounts due to the Players but only after the expiration of the time limit fixed by the FIFA Disciplinary Committee. However, no points were deducted from Panionios' first team. Thereafter, the FC Aris, another Greek football club which was ranked 14th in the Greek Championship with 25 points and was relegated in second division while Panionios finished 11th with 35 points, filed a complaint with FIFA. According to FC Aris, these violations seriously affected its own situation, since if the decisions had been complied with, FC Aris would have remained in first division and Panionios would have been relegated to the second division. On this basis, FC Aris made the following formal requests:

--that, within 10 days, the decisions of 14 February 2005 be enforced;

--that the Disciplinary Committee open new disciplinary proceedings against Panionios;

--that sanctions be imposed on the HFF for voluntarily distorting the first division championship.

On 6 June 2005, the FIFA administration replied that the execution of a decision taken by a FIFA body fell under the competence of the relevant member association, namely the Hellenic Football Federation.

FC Aris filed an appeal with CAS on 8 June 2005 requesting in particular an order against FIFA to execute the decisions of its Disciplinary Committee by instructing the Hellenic Football Federation and the Hellenic Football League to deduct 12 points from the club Panionios.

The Appellant submitted that FIFA's letters of 6 and 7 June 2005 constitute decisions issued by FIFA, which can be appealed to CAS. As its argumentation on this point, the Appellant quotes the Award issued by CAS on 17 March 2004 (CAS 2004/A/659) in another matter, where CAS ruled that a certain letter written by FIFA constituted a decision under Article R47 of the Code. The Appellant also explains that the form of the decision, a letter, is irrelevant, as the decisive criteria are related to the content of the decision, not its form, and decisions could be issued in the form of letters.

Concerning the merits of the dispute, the Appellant argued that FIFA cannot ignore the non-execution of its decisions by the HFF against Panionios and has an obligation to make sure that its decisions are promptly and fully enforced, especially where the non-execution affects the sporting and financial rights/interests of an indirect member, such as the Appellant.

The Respondent submitted that its letter of 6 June 2005 did not contain any decision against which an appeal could be lodged. On the contrary, this letter was only meant to inform the Appellant of the situation. As a consequence, according to the Respondent, there is no "valid subject" for an appeal to CAS.

Panionios stated that it eventually paid its football players and, therefore, there is no legal reason for it to be punished.

In its written decision, the CAS has considered that:

--The form of the communication has no relevance to determine whether there exists a decision or not. In particular, the fact that the communication is made in the form of a letter does not rule out the possibility that it constitute a decision subject to appeal. What is decisive is whether there is a ruling--or, in the case of a denial of justice, an absence of ruling where there should have been a ruling--in the communication. The Panel considers that letter at stake contains no ruling that affects the legal situation of the Appellant.

--The purpose of the letter at stake was only to inform the Appellant of the applicable FIFA rules and to the fact that the FIFA Disciplinary Committee was competent to address disciplinary issues and to pronounce sanctions. The CAS Panel noted that the FIFA administration had immediately transmitted the case to the FIFA Disciplinary Committee and thus did not commit a denial of justice. Considering that FC Aris has not exhausted all legal remedies internal to FIFA before the appeal to CAS, the Panel concluded that it had no jurisdiction to hear this case in the absence of a final decision of FIFA.

Arbitration CAS 2005/A/908 WADA v/ Wium, award of 15 November 2005

Panel: Mr Michael Geistlinger (Austria), President; Mr Hans Nater (Switzerland); Mr Conny Jorneklint (Sweden)

The Court of Arbitration for Sport (CAS) has decided to uphold the appeal filed by the World Anti-Doping Agency (WADA; the "Appellant") against the decision issued by the International Paralympic Committee's (IPC) Management Committee on 2 May 2005 whereby the latter infirmed a previous decision imposing a two years ineligibility period on a South African paralympic powerlifter, Coetzee Wium (the "Respondent"), and a disqualification of all competitive results obtained by the Respondent from 13 December 2004, including forfeiture of any medals, points and prizes. Therefore, the CAS ruled that the previous sanctions (ineligibility period and disqualification) were to be confirmed.

On 13 December 2004, the Respondent underwent a WADA out-of-competition doping control at his place of work. He was notified of the test at 9.39; the test was concluded at 9.54. On his way back, the Doping Control Officer (the "DCO") realized that he had forgotten the samples. He called the Respondent immediately, drove back to the Respondent's place of work and received the samples from the latter. In his view, the time that could have elapsed between the conclusion of the test and getting back to the Respondent was 45 minutes. Throughout this period, the samples were sealed in a tamper proof "Berlinger Test Kit".

The date of the sample collection by DHL as indicated in the documentation package for the samples of the Respondent was 14 December 2004, whereas the waybill showed 15 December 2004. The DCO explained this difference by stating that he had scheduled a pick-up via the Internet on 14 December 2004 but since no collection of the samples had taken place on this day, he had to take himself the bag into the DHL depot on the next day. There, the clerk who accepted the bag altered the date on the waybill to 15 December 2004, but the chain of custody still showed 14 December 2004.

The IPC Management Committee was presented with an Adverse Analytical Finding of the urine provided by the Respondent for testosterone or testosterone prohormones by the South African Doping Control Laboratory on 5 January 2005 and confirmed by IRMS analysis of the Doping Control Laboratory of the Deutsche Sporthochschule Koln on 27 January 2005 and reported to WADA and IPC on 3 February 2005. The T/E ratio was 43.2 for screen, well above the WADA threshold of 4.

On 14 March 2005, the IPC Management Committee decided to impose a two (2) years ineligibility period on the Respondent, based on art. 12.2 IPC Anti-Doping Code. In addition and based on art. 12.7 IPC Anti-Doping Code, all competitive results obtained by the Respondent from 13 December 2004 were disqualified including forfeiture of any medals, points and prizes. The IPC Management Committee considered the facts and held that there was a minor departure from the WADA International Standard for Testing. But there was no evidence that the sample had been tampered with in any way and the seal on the sample was wholly intact. Therefore, the Committee found that this departure did not invalidate the result.

On 16 and 23 March 2005, the General Manager of the Disability Sport South Africa (DISSA) filed two Notices of Appeal on behalf of the Respondent under art. 9.9 IPC Anti-Doping Code. She drew the conclusion that the forgetting of the samples as well as the change of the date on the waybill effectively caused a break in the chain of custody, which should render the decision of 14 March 2005 invalid. With regard to the issue of whether the sanction applied was the correct one, she argued that art 12.5.2 of the IPC Anti-Doping Code "no significant fault or negligence"--should be taken into consideration for defining the sanction if it was found that no significant deviation from the International Standard occurred. As a consequence, she requested a reduction of the 2 years' suspension.

On 2 May 2005, the IPC Management Committee decided to uphold the appeal and to immediately reinstate the Respondent to sport. The Committee found that a significant departure from the International Standard had occurred, as the samples were left unattended for 45 minutes and there was no clear record of exactly what had happened to them during this period, clearly breaking the chain of custody. In addition, it stated that the IPC Anti-Doping Subcommittee had not established, on the balance of probabilities, that this departure had not caused the adverse analytical finding. In light of this finding, it did not consider the second question of whether the sanction applied by the IPC Anti-Doping Subcommittee was the correct one.

In its Statement of Appeal, dated 21 June 2005, WADA asked the CAS to amend the IPC decision of 2 May 2005 in order to impose a 2 years ineligibility period on Coetzee Wium.

In its written decision, the Panel considered that:

--In a case where it is established that departures from the WADC International Standard for Testing and/or the WADA Technical Documents for Laboratory Analysis occurred during transportation, collection and/or testing, the question the Panel has to answer is : "Do these deviations cast sufficient doubt on the reliability of the test results to an extent that the finding of a Prohibited Substance in the athlete's urine was not sufficient to establish a doping offence to the comfortable satisfaction of the Panel" ? If an athlete demonstrates such departures, then the IPC (or applicable ADO) shall have the burden to establish that they did not cause the Adverse Analytical Finding. The standard of proof required by CAS in all such cases is greater than mere balance of probability but less than proof beyond a reasonable doubt.

--WADA had established to its comfortable satisfaction that the deviation from the testing standard by having the samples left unattended for 45 minutes had not cast any doubt on the reliability of the test results. The practical impossibility to destroy a Berlinger bottle and the fact that the seal was intact at the samples' arrival at the laboratory excluded any act of sabotage with a possible impact on the result of the laboratory analysis as well as any probability that a negligent mishandling of the samples by the cleaning lady might have occurred involving any impact on the Adverse Analytical Finding. Also, irrespective of whether there was or was not a departure from the International Standard with regard to the non-correspondence of the date in the documentation package and on the waybill, the Panel found the explanation given by the DCO to be fully satisfactory. Given the finding of another CAS Panel in the CAS case 2001/A/337, Bray v/FINA, p. 24, that even a delay of two weeks could not influence an Adverse Analytical Finding, it could exclude any probability that the delay of one day could have cast any doubt on the reliability of the test results under the given circumstances.

--Although prepared to assume in favour of the Respondent that there was a departure from WADA Technical Documents for Laboratory Analysis, it nevertheless felt comfortably satisfied that the Appellant had established that such assumed departure had not risen any doubt regarding the reliability of the test results. Given the exogenous origin of the Prohibited Substance, it found that the statement regarding anabolic androgenic steroids, including testosterone, on page 3 of the WADA 2004 Prohibited List had to be applied. Since the Respondent had not risen any doubts regarding IMRS being such a reliable method, it did not find that the athlete could rebut the presumption that a WADA-accredited laboratory had conducted Sample Analysis and custodial procedures in accordance with the WADC International Standard for Laboratories. No departure from the International Standard, which would have undermined the validity of the Adverse Analytical Finding, had been established, once the exogenous origin of the Prohibited Substance had become clear.

--As a result of the forgoing deliberations, an Adverse Analytical Finding for testosterone or testosterone prohormones in the Respondent's samples had been established and that the Respondent had therefore committed an anti-doping rule violation. The Panel felt bound by art. 12.2 IPC Anti-Doping Code to impose a two years ineligibility period on the Respondent, who had not offered any arguments to make use of art. 12.5 IPC AntiDoping Code regarding the elimination or the reduction of an ineligibility period based on exceptional circumstances.

Arbitration CAS 2005/A/909-910-911-912 M. and O. v/ Tianjin Teda F.C., Tianjin Teda F.C. v/ M. and O., Award of 9 March 2006

Panel: Jean-Philippe Rochat (Switzerland), President; Ruggiero Stincardini (Italy); Michele Bernasconi (Switzerland)

The Panel has upheld the appeal and partially reforms the Single Judge's Decision in the sense that the Club has immediately terminated the agreement by its conclusive behaviour after 10 November 2003 or has in any case breached the agreement and thereby forced the Coaches by its attitude to early terminate their employment agreements. The Club has therefore to pay the Coaches the contractual indemnities foreseen at article 10.3 of the employment agreements.

Giuseppe M. and Giancarlo O. (hereafter the "Coaches") are Italian citizens. Tianjin Teda F.C. (hereafter the "Club") is a Chinese football club.

M. and the Club entered into an employment agreement. This contract was entered into for a fixed period of time from 15 December 2002 until 14 December 2005. M. was hired as head coach of the club's first division team.

The Club later decided to hire O. as assistant coach of M.. His employment contract was signed on 1 January 2003 for a fixed period ending on 31 December 2005.

Both employment agreements contained specific clauses relating to the reduction of the annual salary depending on the ranking of the team and to the amounts due to the coaches in the event of the termination of the contract by the club.

The Coaches performed their obligations from the end of December 2002 to November 2003 apparently without any problems. In September 2003, the Club appointed a new general manager.

On 10 November 2003, M. was called for a meeting by the President of the Club. He was informed that the administrative board of the Club had decided to relieve him with immediate effect from the training and coaching activities of the first team for the remaining four matches left in the 2003 season, whereby Chinese coaches would replace them. He was therefore withdrawn all power of direction and decision. M. asked for a written confirmation of this decision, which was done in both Chinese and Italian languages. From that point on, the Coaches were deprived of their Chinese interpreter and could therefore not communicate with the players anymore.

The Club called a press conference to inform Chinese media of its decision and a Chinese football website published an article.

Considering the Club's attitude since 10 November 2003 and the article published in the press, M. wrote on 18 November 2003 to the President of the Club asking confirmation that the letter dated 10 November 2003 was to be interpreted as a dismissal letter. M. did not receive any answer.

In a second letter dated 20 November 2003, M. indicated that he considered the lack of answer of the Club as a confirmation of its interpretation. From his point of view, the Club's decision to remove and dismiss him from the key and most important tasks de facto equalled an unjustified unilateral breach and termination of such contract. Again, the Club did not reply to this letter.

On 8 December 2003, M.'s counsel claimed the payment of USD 1,300,000 in application of article 10.3 of his employment contract.

The Coaches were not paid their salaries in December 2003. They did not receive any letter convening them for the start of the 2004 season. On the other hand, the Club publicly announced the appointment of a new coach for the 2004 season, W.. The Coaches finally left China with their family and all their private belongings on 4 December 2003.

On 2 February 2004, the Coaches referred the matter to FIFA.

The Single Judge further considered that the Club had terminated the contracts at the end of the 2003 season. Owing to the fact that the Club's team was ranked below the 9th position, he considered that the financial consequences stipulated in article 10.4 of the agreements had to be applied.

By letters dated 17 June 2005, the Coaches both lodged appeals against the Single Judge's decisions with the CAS (CAS/A/909 and 910). The Club also appealed against these decisions by statement of appeal submitted to the CAS on 20 June 2005 (CAS/A/911 and 912). The parties have not objected to the joinder of the appeal procedures.

In its written decision, the Panel has decided that:

--As evidenced by the facts, even if the Coaches were in theory requested to attend and participate in the training, they could not communicate with the players anymore because they had no longer an interpreter. They have therefore been in fact excluded from any activity. This has been confirmed by the article published in the press, where it was clearly stated that the coach and its team would not coach the team or have any say in tactics, but will sit on the bench for the final four matches of the season. The coaches have factually been relegated to a mere onlooker role. The fact that the Club did not convene the Coaches for the 2004 season and that it announced the nomination of a new head coach for this season confirms that the Club's intention was to part with the Coaches. Further, the Club's absence of answer to the letters sent by the coach, which is also contrary to the Administrative Regulations of Coach of the CFA (art. 8), shows that the Club's intention was to definitely deprive the Coaches from their activity.

--As a result of these considerations, the Panel considers that the conclusive behaviour of the Club can be interpreted as an early termination of the employment agreements. The Coaches could understand from all the circumstances that their exclusion was definitive and that their employment agreements had come to an end.

--The parties have contractually agreed upon the consequences of an immediate unjustified termination of the employment agreements by the Club at article 10.3 of the contracts. As a result thereof, the Club has to pay the indemnities provided by art. 10.3 of the contracts.

CAS 2005/A/915 Spyropoulos v/ Hellenic Football Federation (HFF), award of 28 October 2005

Panel: Mr Ulrich Haas (Germany), President; Mr Michele A. R. Bernasconi (Switzerland); Mr Chris Georghiades (Cyprus)

The Court of Arbitration for Sport (CAS) has decided to partially allow the appeal and therefore to amend the decision by the Appeal Committee of the Hellenic Football Federation dated 18 May 2005 concerning the period of ineligibility.

On 5 February 2005 in the context of a football match between the clubs New Panionios and Olympiakos, Mr. Nokolaos Spyropoulos (the Appellant), was randomly selected for a doping test. The urine sample collected from him was brought to and analysed in the WADA-accredited doping control laboratory OAKA in Athens (hereinafter the "Athens Laboratory") and revealed the presence of testosterone of an exogenous origin. The testosterone to epitestosterone ratio in the sample was detected to be greater than fifty (50). This finding was confirmed by the analysis of the B-sample a few days later.

The Appellant was sanctioned by the Hellenic Football Federation (HFF) (the Respondent) by a period of ineligibility of two (2) years.

The Player filed an appeal against this decision on 28 March 2005, which was heard before the Respondent's Appeal Committee (hereinafter "HFFAC"). In its decision dated 18 May 2005 the HFFAC rejected the player's Appeal.

By letter dated 28 June 2005 the Appellant filed both a statement of appeal and an appeal brief with the CAS, appealing against the decision by the Respondent dated 18 May 2005.

By letter dated 27 July 2005 the Respondent filed an answer whereby he was seeking the dismissal of the appeal. In the oral hearing the Respondent moved away from the legal relief it was originally seeking. It was now applying for the period of ineligibility to be reduced to an extent that would be reasonable in the light of the FIFA Regulations.

In its written decision, the CAS has decided that:

--the Player is not guilty of having committed a doping offence intentionally: the adverse analytical finding in the case of the Player was due to a contaminated nutritional supplement. The Player did not take the supplement at his own instigation, rather the supplement was prescribed by a doctor. The list of contents stated on the supplement's packaging did not mention any substance that is prohibited in sport. Neither the prescribing doctor nor the Player knew of any supposed contamination of the product.

--Art. 61(1) FIFA DC shows that an athlete cannot "blindly" rely on the advice of a third party (even that of a doctor). He has a duty to take all reasonable efforts to rule out the possibility of a doping offence as the Player is responsible for whether and what substances he ingests. To conduct himself properly the Player ought to have asked the doctor whether the nutritional supplement prescribed for him contained a prohibited substance. Before taking the preparation he could and ought also to have made sure by asking an expert third party. This particularly suggested itself because of the nature of the prescribed product. For quite a while now the risks associated with contaminated (nutritional) supplements have been strongly pointed out to athletes.

--the sanction for a doping offence provided in Art. 62 FIFA DC ranges from a minimum of 6 months to a maximum of two years. In view of the Player's gross fault the Panel considers a period of ineligibility of one year to be an appropriate sanction.

Arbitration CAS 2005/A/917 Basketball Federation of Hosova v/ International Basketball Federation, award of 15 November 2005

Panel: Mr Peter Leaver QC (England), President; Ms Maidie E. Oliveau (United States); Mr Richard H. Kreindler (Germany)

The CAS decided it had no jurisdiction to hear the appeal filed on 3 June 2005 by the Basketball Federation of Kosovo (the "Appellant") against the decision issued on 20 May 2005 ("the Decision") by the Central Board of the International Basketball Federation (FIBA) on the Appellant's application for membership of FIBA.

The Decision provided as follows :

"I acknowledge receipt of your renewed request for membership to FIBA addressed to the FIBA Central Board and received by our office on May 13, 2005.

The FIBA Central Board met on May 18 and 19 and reviewed your application and heard the opinion of FIBA Europe.

The Central Board decided unanimously that your request can not be considered as the situation has not changed since it debated your first application for membership one year ago."

In its statement of appeal, the Appellant requested that the Decision of the Central Board was changed and that its claim for membership of FIBA was approved since it fulfilled all the conditions foreseen by the FIBA Statutes.

On 20 July 2005, FIBA filed a preliminary answer, in which it raised a defence of lack of jurisdiction. It argued that the Appellant should have appealed against the Decision with the FIBA Appeals Commission, in accordance with article 12.1 and 12.9 of the FIBA Internal Regulations Governing Appeals (the "FIBA Internal Regulations"). FIBA further contended that the Appellant had not exhausted all the legal remedies available to it prior to the appeal to CAS and that, as a consequence, CAS could not entertain the appeal.

In its written decision, the Panel considered that:

--Both Art. 35 of the FIBA General Statutes and Art. 12.1 of the FIBA Internal Regulations clearly state that the FIBA Appeals Commission has jurisdiction to hear and decide on any appeal filed by affected persons against decisions rendered by FIBA, including its organs and disciplinary bodies, including the FIBA Central Board, unless such appeal is expressly excluded by the FIBA General Statutes or by the Internal Regulations. As an affected person, the Appellant was entitled to appeal, and should have appealed, against the Decision to the Appeals Commission, which it did not.

--Pursuant to Art. 12.9 of the FIBA Internal Regulations, CAS jurisdiction is only given against decisions issued by the FIBA Appeals Commission. Further, Art. R47 of the Code of Sports-related Arbitration states that in order for an appeal to be admissible, a potential Appellant to CAS must have exhausted all the legal remedies available to it prior to the appeal to CAS, in accordance with the Statutes or Regulations of the body which has issued the challenged decision. Therefore, CAS did not have jurisdiction to hear this appeal, given the remedy of appeal available to the Appellant and provided by Article 35 of the FIBA General Statutes and Article 12.1 of the FIBA Internal Regulations.

--It was right to point out that the challenged decision did not indicate that such a legal remedy was available to the Appellant. The Appellant could quite reasonably have considered that the Decision was final, and subject only to appeal to CAS. While such misunderstanding might not have cured the Appellant's failure to appeal to the FIBA Appeals Commission, the Panel noted that the appeal to CAS was lodged within the deadline of 14 days provided by Art. 12.5 of the FIBA Internal Regulations. In other words, had the Appellant sent its appeal to the FIBA Appeals Commission instead of sending it to CAS, the Appeals Commission would have been seized of the appeal, and could have decided the Appellant's application for membership. The Appeals Commission would undoubtedly have rendered a reasoned decision, both as to the facts as well as to the legal grounds, in contrast to the curt rejection of the Appellant's application that is to be found in the Decision by the FIBA Central Board.

--Notwithstanding the concerns about the procedure followed by FIBA and as to the basis upon which the Appellant's application was rejected, CAS had no jurisdiction to hear the Appellant's appeal.

Arbitration CAS 2005/A/918 Kowalczyk v/ FIS, award of 8 December 2005

Panel: Mr John A Faylor (Germany), President; Mrs Maria Zuchowicz (Poland); Mr Olivier Carrard (Switzerland)

The Court of Arbitration for Sport (CAS) has decided to replace by a de novo decision on the merits the decision rendered by the FIS Doping Panel on 13 June 2005 and amended by its announcement of 13 July 2005, by which it disqualified Justyna Kowalczyk, a Polish cross-country skier, from all individual results obtained in the U23 OPA Intercontinental Cup Competition held on 23 January 2005 and imposed upon her a period of ineligibility of one year. The Panel has held that a reduced period of ineligibility ending on the date of the award provided the fair and proportionate measure of sanction.

Justyna Kowalczyk (the "Appellant") submitted to a doping control immediately following the Competition. Following an analysis of the Appellant's A-Sample, the Doping Control Laboratory in Cologne reported an Adverse Analytical Finding to the FIS on 15 February 2005, stating that the sample contained the substance Dexamethason, a Prohibited Substance listed as a glucocorticosteroid in Group S9 on the 2005 Prohibited List (International Standard) of the World Anti-Doping Code (the "WADC").

In accordance with Article 7.1.2 of the FIS Anti-Doping Rules 2004/2005 (the "FIS-Rules", which are identical to those of the WADC), inquiries were made by FIS to determine whether the Appellant's use of the substance was covered by a Therapeutic Use Exemption ("TUE"). The Appellant and her doctor had already completed an Abbreviated Therapeutic Use Exemption ("ATUE") form on 23 December 2004 which she alleges to have submitted to the Polish Ski Association, but neglected to show to the testing authorities at the time of the doping control on 23 January 2005.

Following the Adverse Analytical Finding, the Appellant submitted on 21/22 February 2005 a request for approval of the use of Dexamethason to the Therapeutic Use Exemption Committee (the "TUEC"). This request was denied by the TUEC on 1March 2005 on the grounds that "the TUE had been submitted too late after the treatment and that no retroactive approval was possible in this case".

On 13 June 2005, the FIS Doping Panel disqualified the Appellant from the individual result in the FIS U23 OPA Intercontinental Cup Competition and imposed a two year period of ineligibility from the date of 23 January 2005.
   The Doping Panel based its decision on Article 10.2 of the
   FIS-Rules (Imposition of Ineligibility for Prohibited Substances
   and Prohibited Methods), stating explicitly in paragraph 43 of the
   Decision that the lesser sanctions provided in Article 10.3 of the
   FIS-Rules (Specified Substances) were not applicable in this case
   as the Prohibited Substance, Dexamethason, was not a Specified
   Substance.


On 30 June 2005, the Appellant filed an Appeal to the CAS. She pointed out that FIS had erred in not recognizing the Prohibited Substance Dexamethason as a Specified Substance.

On 14 July 2005, the Secretary General of FIS sent a letter to the CAS stating that the FIS Doping Panel had issued a new decision acknowledging that the substance Dexamethason was a Specified Substance. The FIS Doping Panel had therefore decided to reduce the sanction from a two-year to a one year suspension.
   On 16 August 2005, the Appellant filed an amendment to her Appeal
   Brief which stated that the FIS had imposed the reduced sanction
   "automatically, without a word of justification". In her view, in
   order to justify the maximum sanction under Article 10.3, the FIS
   should have proved that she had committed the doping violation with
   "significant fault". The FIS had failed to do this and had imposed
   the maximum sanction as if it had been adjudicating the case within
   the framework of Article 10.2. The Appellant asserted that the
   proper sanction should have been a warning or reprimand without any
   period of ineligibility.


In its answer of 5 September 2005, the Respondent challenged the Appellant's plea that the FIS Doping Panel had erred in applying the maximum sanction without giving consideration to the circumstances. The Respondent concluded that the Appellant "[had] not established the circumstances justifying her use of the Prohibited Substance. The FIS Doping Panel had legitimately exercised its judicial discretion in applying Article 10.3 by referring to Article 10.5 (Elimination or Reduction of Period of Ineligibility based on Exceptional Circumstances).

In its written decision, the Panel considered that:

--In addition to the erroneous classification of Dexamethason, the FIS Doping Panel subsequently erred in its unilateral and procedurally incorrect attempt to remedy the error. In the view of the Panel, if an ineligibility sanction is to be considered in an Article 10.3, "first violation" case, the penalty reduction possibility set forth in Article 10.5 cannot supersede, exclude or otherwise diminish the right also granted to the athlete under Article 10.3 to plead against its imposition. The grounds stated in the FIS-Doping Panel's decision excluded any consideration of the Appellant's defence that she did not use the substance to enhance her sport performance. The Appellant was thus deprived of any consideration of the minimum sanction of "warning and reprimand".

--With regard to the issue of whether an athlete, parallel to his or her Article 10.3 defence of "no enhancement of sport performance" may also plead "no Fault or Negligence" and/or "no significant Fault or Negligence" under Articles 10.5.1 and 10.5.2, it would appear to the Panel that the Article 10.5.1 defence of "no Fault or Negligence" must always be available to the accused athlete, regardless of whether an Article 10.2 or an Article 10.3 sanction is applicable. With regard to the Article 10.5.2 defence of "no significant Fault or Negligence", however, it would, in the view of the Panel, contradict the ratio legis of the "no enhancement" defence under Article 10.3, if the reduction limit under Article 10.5.2 FIS-Rules ("not less than one half of the minimum period") were to apply in parallel to the minimum "warning and reprimand" penalty for the first violation involving a Specified Substance.

--The Appellant has disclosed and substantiated her defence that Dexamethason was not intended to enhance performance. She submitted corresponding medical certifications both to the TUEC and to the FIS Doping Panel as proof of use in alleviating an Achilles tendon condition. In the view of the Panel, upon the Appellant's prima facie showing that her use of the substance was for medical reasons, the burden of proof shifted to the Respondent to prove the contrary, namely that the Appellant used this substance as a doping agent. In order to provide this rebuttal, the FIS Doping Panel should have revoked its decision and called for a new hearing of the merits of the dispute on the basis of Article 10.3 FIS-Rules.

--The Appellant acted negligently in not inquiring whether Dexamethason fell within the category of "all glucocorticosteroids" either under Group S9 of the WADA Prohibited List or on the Specified Substance list. The Appellant obviously had knowledge that the use of certain medications could cause problems; otherwise she would not have obtained the ATUE on 23 December 2004. Her negligence lies in her failure to obtain the correct information on the requirements for exemption and the procedures to be followed. The duty of care resting upon any 22 year old athlete engaged in world-class competition requires, at the very least, that she provide her treating physician a copy of the 2005 Prohibited List and that she inquire with the doctor whether any of the medications and treatments which he/she prescribes contain substances contained on the list. The Appellant might well have done this, because the prescribing physician clearly declared "Dexamethason" as a "Prohibited Substance" on the ATUE form bearing a date of 23 December 2004. Had the Appellant and her doctor correctly read the "form of use" qualification regarding glucocorticosteroids under Group S9, they would have determined that an ATUE would not satisfy WADA and FIS anti-doping requirements, because the substance was ingested orally. The negligence of the Appellant is also apparent in her neglecting to show the ATUE to FIS officials during the U23 OPA Intercontinental Cup Competition on 23 January 2005. Her negligence derives not from any ignorance of the prohibited nature of the substance--she obtained an ATUE already on 23 December 2004; her negligence lies rather in her lack of knowledge and application of the proper TUE procedures for the Specified Substance in question. The measure of this negligence does not, in the view of the Panel, justify a one year term of ineligibility. The Panel holds that a period of ineligibility ending 8 December 2005 provides the fair and proportionate measure of sanction.

Arbitration CAS 2005/A/921 FINA v/ Tobias Kreuzmann & German Swimming Federation, award of 18 January 2006

Panel: Mr Michael Geistlinger (Austria), President; Mr Denis Oswald (Switzerland); Mr John A. Faylor (Germany)

The Court of Arbitration for Sport (CAS) has decided to upheld the appeal filed by FINA (the "Appellant") against the decision issued on 13 June 2005 by the Doping Control Officer (the "DCO") of the German Swimming Federation which lifted the provisional suspension of Tobias Kreuzmann (the "First Respondent"), a licensed water polo player of the German club ASC Duisburg and a member of the German national water polo team, imposed after a positive test for finasteride. Therefore, Mr. Kreuzmann was sanctioned with a period of ineligibility of one year.

On 5th January 2005, the First Respondent signed a declaration in which he acknowledged to submit to the FINA Doping Control Rules and the World Anti-Doping Code and also that he had been informed by the German Swimming Federation (Deutscher Schwimm-Verband e.V.--DSV; the "Second Respondent") that the current anti-doping regulations of the FINA and WADA were available at certain internet addresses specified in the declaration. On 18th March 2005, he was tested positively for finasteride by the German National Anti-Doping Agency at the occasion of an out-of-competition control during his training in Duisburg. Finasteride, a masking agent, was first put on the WADA/NADA List of Prohibited Substances 2005 (the "Prohibited List") in the updated version of the List which became effective as of 1st January 2005. By letter dated 24th April 2005, the DCO of the DSV imposed an immediate provisional suspension upon the First Respondent referring to the Anti-Doping Rules of the DSV.

By statement dated 29th April 2005, the First Respondent explained that since April 2004 he had been using the medication "propecia", containing finasteride, on prescription of his private physician Dr. med. Arno Kohler in order to fight progressing hair loss. The First Respondent had told his physician that he was a top level athlete and also had asked whether the medication was put on the List of Prohibited Substances. The First Respondent acknowledged the result of the test and admitted that he did not check whether the substance had been put on the Prohibited List 2005. These were the reasons why he did not disclose the medication on the doping control form. By letter dated 28th April 2005, his physician confirmed his statement. At the moment of writing the prescription (26 April 2004), finasteride was not included on the Prohibited List. By letter dated 25th April 2005, the pharmacist, Wolfgang Eisenpeter, confirmed that the First Respondent, when ordering the prescribed medication, had also asked for reassurance that the substance was not on the Prohibited List and that he had pointed to the fact that he was a top level athlete.

On 13th June 2005, the DCO lifted the provisional suspension of the First Respondent. He held that, since finasteride had not been part of the WADA/NADA Prohibited List 2004 at the time of first prescription, no warning notices could have been made. On the pharmacological side, the German "Rote Liste" used by pharmacists in order to identify prohibited substances was available only in the second half of February 2005. The WADA/NADA Prohibited List listed only finasteride, but not the medication "propecia". The DCO held that the First Respondent acted in a credible manner because a medical layman could hardly be expected to check all the substances contained in a particular medication. He therefore denied the presence of any culpability on the part of the First Respondent.

By letter dated 28th June 2005, FINA attempted to appeal this decision despite the fact that it had been informed by the Second Respondent that it had no right to appeal under the Anti-Doping Regulations of the DSV or the so-called "Rechtsordnung" (Legal Order) of the DSV. In order not to miss the deadline, FINA lodged an appeal to the CAS on 1st July 2005 arguing that, in the event the appeal filed on the national level were to be deemed inadmissible, the decision of the DCO would constitute the final decision. It requested the CAS to stay the proceedings until a final decision on the national level. On 12th August 2005, the appeals body of the DSV declared the FINA appeal inadmissible. FINA, it was held, was not a legal person having standing, i.e., holding party rights under [section] 11 DSV Rechtsordnung. By letter dated 17th August 2005, FINA consequently withdrew its request for decision to stay the procedure before the CAS.

In its written decision, the Panel considered that:

--FINA accepted the World Anti-Doping Code and also adopted its Anti-Doping Rules in full compliance with the Code as an independent and autonomous body of rules. The FINA Anti-Doping Rules apply to each participant in FINA activities or any of its Member Federations by virtue of the participant's membership, accreditation, or participation in FINA, its Member Federations, or their Competitions. Pursuant to art. 14.1 of the Doping Control Rules (the "FINA DC"), all FINA members must comply with these Anti-Doping Rules. It follows from art. FINA DC 13.2.1 and 13.2.3 when read in conjunction with art. FINA DC 13.1 and 13.2 that FINA is entitled to appeal to CAS, inter alia, regarding any decision in which it is held that no anti-doping rule violation was committed in a case involving international-level competitors, which is the case of the First Respondent. Due to the fact that art. FINA DC 13.2.1 refers to the CAS Code of Sports-related Arbitration which includes art. R47 and the obligation to exhaust the legal remedies available to FINA as Appellant prior to the filing of the appeal in the case at hand, the Panel feels bound to state that the Appellant is not obligated to apply the provisions of the Anti-Doping Regulations of the Second Respondent, including the relevant provisions of the DSV Rechtsordnung prior to appealing to the CAS. These provisions, as applied by the DSV, do not provide FINA with a legal remedy against a decision of the DCO. Thus, the decision of the DCO, which must follow the FINA DC because the FINA Rules find direct application for the DSV, must be deemed to be the final decision for FINA with regard to the DSV within the meaning of art. R47 of the Code.

--There is a clear breach of the FINA DC if, due to the publication of the German translation of the updated Prohibited List in the German Federal Gazette, a point in time other than the 1st January of each year is chosen by the DSV to be the date on which the updated List applies within its jurisdiction. A later date of validation in Germany based on the notion that the changes must be translated into German cannot be accepted. If publication in German is a pre-requisite for their validity and enforcement, as the DSV contends, then the Second Respondent must confer with WADA/FINA in such a timely manner as to ensure that the validity and enactment of the updated Prohibited List is simultaneous with the publication of the List in the German Federal Gazette. Until full implementation of the FINA DC in the rules and regulations of the DSV and its members is achieved, the FINA Rules must be applied directly and must prevail in case of conflict.

--According to art. FINA DC 2.1.1, it is each competitor's personal duty to ensure that no prohibited substance enters his or her body. The statement of the First Respondent dating from 29th April 2005 shows that he obviously did not check the List before signing the declaration dated 5th January 2005. Thus, the Panel cannot avoid establishing a certain degree of negligence in the behaviour of the First Respondent which excludes the application of art. FINA DC 10.5.1 (elimination of the otherwise applicable period of ineligibility when the competitor bears no fault or negligence for an anti-doping rule violation). The Panel fully recognizes and commends the First Respondent's diligent and conscientious actions in 2004 to obtain assurances both from his physician and his pharmacist that the medication which was prescribed for his hair loss did not contain a prohibited substance. When taking the medication for the first time, he applied the standard of care to be expected of a top-level athlete. But the First Respondent's duty of care did not end in 2004. He was apparently aware that the medication would be taken for a longer period and that the WADA/FINA Prohibited List would be updated on an annual basis. The Panel takes the view, however, that the level of the First Respondent's fault in not having perceived the continuing necessity to review the updated Prohibited Lists to ensure compliance with the anti-doping rules cannot be fixed at the same high level as an athlete who does not check the Prohibited List upon taking the substance for the first time. The First Respondent's negligence lies in the fact that he did not re-check the List or have it re-checked by his physician, pharmacist or club doctor. In view of the foregoing circumstances, the Panel holds that application of art. FINA DC 10.5.2 is appropriate in the case at hand (reduction of the otherwise applicable period of ineligibility when the competitor bears no significant fault or negligence for an anti-doping rule violation). The level of the First Respondent's fault cannot be viewed as being sufficiently significant to justify a two year period of eligibility. The Panel, therefore, reduces the period to the minimum limit permitted under art. FINA DC 10.5.2, i.e. one year.

Arbitration CAS 2005/A/946 IAAF v/ FIDAL & Marco Giungi, award of 2 March 2006 Panel: Mr Jean-Philippe Rochat (Switzerland), President; Mr David W. Rivkin (USA); Mr Massimo Coccia (Italy)

The Court of Arbitration for Sport (CAS) has decided to dismiss the appeal filed by the IAAF against the decision taken by the Federazione Italiana di Atletica Leggera (FIDAL) on 25 May 2005 whereby the latter closed the action opened against Andrea Giungi, an italian race walker, for an alleged anti-doping violation.

On 12 September 2004, Marco Giungi (the "Second Respondent") participated in a national 20km walk competition "CDS Marcia" in Prato, Italy. After the end of the competition, he underwent a doping control.

By letter of 6 October 2004 the Italian Olympic Committee ("CONI") notified Mr Giungi, FIDAL (the "First Respondent") and Marco Giungi's Club, that "traces of Norandrosterone were found at a concentration exceeding the WADA limits together with Noretiocholanolone." These results were confirmed by the analysis carried out on the "B" sample. Norandrosterone and noretiocholanolone are both metabolites of nandrolone, a prohibited substance under IAAF Rules. The IAAF was also informed about the results of the analysis.

On the basis of the adverse analytical findings, the CONI Anti-doping Prosecutor (the "Prosecutor") opened an investigation. On 2 December 2004 Mr Giungi appeared before the Prosecutor and acknowledged having used before and after the walk race of 12 September 2004 the nutritional supplements "Pre-gara Endurance" and "Recupero". Mr Giungi had already requested a private analysis of the said supplements. The results showed that both supplements contained norandrosterone and noretiocholanolone. The Prosecutor then summoned the producer of "Pre-gara Endurance" and "Recupero", Ditta Difass Company ("Difass"). Before the Prosecutor, Difass stated that after investigation, it had turned out that the consignment was contaminated by creatine pyruvate, a substance supplied to Difass by the company Giusto Favarelli S.p.A. Specific analysis over supplements belonging to the same batch that Difass had given the athlete confirmed that the products contained 19-norandrostenedione, a forerunner of 19-nortestosterone, whose ingestion causes the composition of norandrosterone and noretiocholanolone. The laboratory confirmed that the take of one or more doses of the product could theoretically be compatible with the urinary concentration of norandrosterone beyond the WADA limit. Concluding the above investigation, the Prosecutor decided on 7 March 2005 to ask the closing of the case, since the athlete had given "full and convincing proof of taking contaminated supplements without any responsibility".

On 4 April 2005 the National Judging Commission of FIDAL (the "FIDAL Commission"), after hearing Mr Giungi's submissions, held that, according to IAAF Rule 38.13, "the determination of exceptional circumstances in cases involving international level athletes [had to] be made by the [IAAF] Doping Review Board." Consequently, the evaluation of the Prosecutor's closing request was sent to the General Secretary of the Doping Review Board for final evaluation.

By letter dated 29 April 2005 the IAAF General Secretary informed FIDAL that Marco Giungi was not an International Level athlete as defined in IAAF Rules and that the competition at which he tested positive was not an International Competition.

On 25 May 2005, the FIDAL Commission rendered a new decision on Mr Giungi's matter, in which inter alia pointed out that "Since the authority of the superior body was denied, the closing request, at that time proposed [by] the Prosecutor, must be examined by this Commission. [...] Even if the procedural choice puzzles us, since the impossibility of the judicial commission of expressing its different opinion [...] makes useless the provision that the closing will be ordered by the "judge" and not directly by the prosecuting body [...] the closing of the action against Mr Andrea Giungi is to be ordered". Consequently, Mr Giungi's case was closed. On 18 June 2005, the IAAF received from FIDAL an English translation of the decision.

In an Appeal Brief dated 22 September 2005, the IAAF challenged with the CAS the decision rendered by FIDAL Commission on 25 May 2005. The Appellant submitted that Mr Giungi had committed an anti-doping violation and, because no exceptional circumstances existed, it requested that Mr Giungi be declared ineligible for a minimum of two years.

In its written decision, the Panel considered that:

--Given that IAAF Rules refer expressly to the "rules of the Member", IAAF incorporates its Members' rules in its own regulations, as far as appeals procedures before "national level review bodies" are concerned. Consequently, in the case at hand IAAF subjected itself to FIDAL rules regarding possible internal appeal(s).

--According to the relevant FIDAL Anti-doping Rules, the IAAF may appeal to the competent second degree Organ of Federal Justice (Commissione d'Appello Federale) in the cases concerning national level athletes; it can only appeal to CAS "once completed the above mentioned degrees of national sports justice". The same conclusion derives from the IAAF rules, as they provide that IAAF has a right to appeal to CAS only from a decision issued by a "national level review body" and that it may appeal a national level decision directly to CAS only when the Member's rules expressly permit it. In view of the fact that FIDAL Anti-doping Rules do not provide the right to such direct appeal, the IAAF could not in the present case file an appeal to CAS prior to challenging the same decision before the Federal Appeals Commission.

--If the Member's rules grant for IAAF a right to appeal a national level decision, the requisite of exhaustion of legal remedies is fulfilled only after IAAF exercises this right in fact. In the case at hand the IAAF had such right according to FIDAL Anti-doping Rules but it did not exert it, and it cannot benefit from the fact that the other parties chose not to appeal the decision before the Federal Appeals Commission.

--IAAF was unable to designate any legal basis, according to which FIDAL was obliged to accompany the notification of the FIDAL Commission's decision with a special indication regarding possible legal remedies. Once IAAF itself has chosen to incorporate some of its Members' rules in its own regulations, it is up to IAAF to know and understand what its rights are under its Members' rules.

Arbitration CAS 2005/A/952 Ashley Cole v/ FAPL, award of 24 January 2006

Panel: Mr Hans Nater (Switzerland), President; Mr Stuart McInnes (England); Mr Jan Paulsson (France)

The Court of Arbitration for Sport (CAS) has decided that the appeal filed by Ashley Cole against the decision of the FAPL Appeals Committee imposing a fine to the player was inadmissible. The CAS ruled that it had no jurisdiction in the dispute.

On 27 January 2005, a meeting took place at the Royal Park Hotel in London, between, amongst others, Mr Ashley Cole (the "Appellant"), a professional footballer who plays for Arsenal FC and the English national football team, and representatives of Chelsea Football Club.

Arising from that meeting, the Disciplinary Commission (the "DCFAPL") of the Football Association Premier League (the "FAPL", the "Respondent") rendered a decision on 1 June 2005, which adjudged the Appellant to have been in breach of FAPL Rule K5. This rule prevents a player who has entered into a written contact of employment with a club, from making an approach to another club with a view to negotiating a contract with such club, without having obtained the prior written consent of his club. The DCFAPL imposed a fine of GBP 100,000 on the Appellant.

The Appellant subsequently appealed the DCFAPL decision to the FAPL Appeals Committee (the "FAPLAC"). The hearing before the FAPLAC took place on 10 August 2005 and the decision was notified to the Appellant on 23 August 2005. The decision of the FAPLAC was to reduce the fine imposed upon the Appellant from GBP 100,000 to GBP 75,000.

On 31 August 2005, the Appellant filed an appeal with the Court of Arbitration for Sport (the "CAS") against the decision of the FAPLAC.

In its written decision, the Panel considered that:

--As art. R47 of the Code of Sports-related Arbitration states, the statutes or regulations of the sports-related body from whose decision the appeal is being made, must expressly recognize the CAS as an arbitral body of appeal, in order for the CAS to have jurisdiction to hear an appeal. In the present case, the statutes or regulations of the relevant body--the FAPL--do not contain any reference to a right of appeal to the CAS. In fact, FAPL Rule R63 states that the decision of an appeal board shall be final. The CAS therefore has no jurisdiction to hear an appeal from a decision of the FAPLAC, on the basis of the statutes or regulations of the FAPL.

--The FIFA Statutes do not contain any mandatory provision that obliges the Respondent to allow a right of appeal from its decisions. Articles 59-61 of the FIFA Statutes, the FIFA Circular 827 and the FIFA press releases of 12 December 2002 and 19 October 2003, cannot be interpreted as providing for such a mandatory right of appeal from FAPL decisions. Moreover, the CAS jurisprudence suggests that if the FIFA Statutes did compel the Respondent to provide for a right of appeal from its decisions, no right of appeal to the CAS would exist until the Respondent had made provision for this right in its statutes or regulations (cf. CAS 2004/A/676 Ismailia Sporting Club v/ CAF, paras 2.6 and 2.7). In any event, the possible adoption of an arbitration clause that confers jurisdiction on the CAS, by a National Federation or a League, is not solely dependent upon the will of such a body, as it is also subject to the law of the country where the National Federation or League in question has its seat.

--Although the FIFA Disciplinary Code was discussed in the Respondent's submissions, in the present case there was no question of any attempt by FIFA, successful or otherwise, to intervene in accordance with article 76.2 of the FIFA Disciplinary Code. Any possible right of appeal arising from such an intervention, is therefore irrelevant for the purposes of the present case.

Arbitration CAS 2005/A/957 Clube M. v/ Federation Internationale de Football Association (FIFA), award of 23 March 2006

Panel: Prof. Luigi Fumagalli (Italy), President; Mr Jan Paulsson (France); Mr Michele Bernasconi (Switzerland)

The Court of Arbitration for Sport (CAS) has decided to dismiss the appeal filed by Clube M. (hereinafter referred to as the "the Club") against the decision issued on 29 August 2005 by the FIFA Disciplinary Committee and to confirm the latter.

On 29 August 2005 the FIFA Disciplinary Committee (hereinafter referred to as the "DC"), acting pursuant to Article 57.3 of the FIFA Statutes, issued a decision (hereinafter referred to as the "DC Decision") whereby the player E. (hereinafter referred to as the "Player") and the Club were pronounced guilty of failing to comply with a decision of a FIFA body in accordance with art. 70 FDC and jointly responsible to pay a fine to the amount of CHF 30,000 within 30 days of notification of the decision. If payment was not made by this deadline, sporting sanction will be imposed upon the club.

The DC Decision was rendered pursuant to Article 70 of the FIFA Disciplinary Code adopted on 8 March 2005, in force since 1 May 2005 (hereinafter referred to as the "FDC"), providing for sanctions on "anyone who fails to pay another person (such as a player, a coach or a club) a sum of money in full, even though instructed to do so by a body of FIFA".

The DC found that the Club and the Player had failed to pay to Club T. of Mexico (hereinafter referred to as the "Mexican Club") an amount of money, payable by virtue of a decision rendered by the FIFA Dispute Resolution Chamber on 14 January 2004 (hereinafter referred to as the "DRC Decision") and of an award rendered on 2 May 2005 by the Court of Arbitration for Sport (hereinafter referred to as the "CAS Award").

In light of Article 70 FDC, the DC emphasised that the CAS Award had clearly stated that if the Player had failed to pay the financial compensation to the Mexican Club within 30 days from notification, the Club was to be deemed jointly responsible for such payment. The DC noted that the Player had not paid the amount due, and that one joint debtor cannot exempt the other debtor from the latter's duty to the creditor. Otherwise, the situation of the creditor would be compromised without his consent. Consequently, both the Player and the Club were deemed jointly responsible to pay the relevant amount, as it was decided in the CAS Award.

The DC emphasised that the case referred to by the Club in order to set off its debt towards the Mexican Club was a different case with different debtors and creditors, and that "an offsetting could not be decided by the Committee anyway".

The DC decided that a fine amounting to CHF 30,000 was appropriate, consistently "with the Committee's long standing established practice". The DC considered that Article 70 FDC provides a minimum fine in the amount of CHF 5,000 (and a maximum amount of CHF 1,000,000, pursuant to Article 16.2 FDC). The DC fixed the fine in the light of the circumstance that the amount of money due to the Mexican Club was substantial, and that its non-payment could cause considerable financial difficulty for the creditor club.

On 12 September 2005, the Club filed a statement of appeal with the CAS.

In its written decision, the Court of Arbitration for Sports (CAS) ha decided that:

--The object of this appeal cannot extend beyond the limits of a review of the disciplinary sanction imposed by the DC. The Panel cannot consider requests concerning the debt owed by the Appellant to the Mexican Club, the issues relating thereto having been decided by the final and binding CAS Award. As a result, only submissions relating to the fine imposed by the DC, such as its legal basis and quantum, can be heard.

--The principle of joint liability was imposed by the DRC Decision, and was confirmed by the CAS Award, in accordance with the applicable FIFA rules. Its application is therefore final and cannot be reviewed in these proceedings. At any rate, the Panel observes that the joint nature of the obligation to the Mexican Club could not be affected by the declaration of the Player, and cannot be considered as a reason justifying the non-payment by the Club of the debt to the Mexican Club. The imposition of a joint liability between debtors, e.g. by the FIFA Rules, is obviously intended to protect the creditor, to give it the possibility to obtain payment from any of the debtors without bearing the adverse effect of a possible failure and/or insolvency of one of them. The unilateral declaration of one of the joint debtors cannot affect the position of the creditor, depriving it of the possibility to seek payment from the "released" debtor. The declaration of the Player, therefore, has not cancelled the obligation of the Club towards the Mexican Club. And the DC rightly considered the Appellant in breach of its financial obligation to the Club, notwithstanding that declaration.

--In the same way, the Panel finds that the obligation of the Club to pay the Mexican Club the amount indicated by the CAS Award is not affected by the claim of the Club to offset it against a credit of the Appellant towards another club. The conditions for a set-off are clearly not satisfied. For a set-off to take place it is necessary that two subjects are at the same time debtor and creditor to each other. The Appellant thus cannot claim to offset against the debt to the Mexican Club a credit it alleges to have towards someone else. Nor can the Appellant's claim be treated as a request to have its debt to the Mexican Club satisfied by way of assignment of a credit, since such form of payment would in any case require the consent of the Mexican Club (Articles 164 CO). The DC, therefore, rightly considered the Appellant in breach of its financial obligation to the Club, unaffected by the mentioned request for a set-off.

--The Panel concludes that the conditions for a fine to be imposed on the Club, which breached its duty to make timely payment of the CAS Award, its debt to the Mexican Club, have been met. Moreover, the amount of the fine appears to be proportionate.

Arbitration CAS 2005/A/963 International Rugby Board (IRB) v/Worgan, award of 19 March 2006

Panel : Mr Alan John Sullivan (Australia), President; Professor Richard H. McLaren (Canada); Mr Mark Andrew Hovell (England)

The Court of Arbitration for Sport has decided to uphold the appeal filed by the IRB against the decision taken by the Welsh Rugby Union Appeal Committee on 16 August 2005 in connection with the reduced sanction imposed following the occurrence of a doping offence.

UK Sport notified the WRU on 29 March 2005 that the Respondent's urine sample was found to contain 2 substances, Methylenedioxymethamphetamine (MDMA, aka ecstasy) and Hydroxymethoxymethamphetamine (HMMA), at least one of which is classified as a stimulant on the WADA Prohibited List. It was also reported that the screening analysis of the Respondent's sample indicated the presence of benzoylecgonine (a metabolite of cocaine). However, UK Sport indicated that there was insufficient analyte present for unequivocal identification and the finding was therefore considered negative.

Following notification of a positive analytical result to the Welsh Rugby Union ("WRU"), the Welsh Rugby Union ("WRU") acted in accordance with its Anti-Doping Regulations for 2004-2005 and the cross-referenced IRB Regulation 21: 'Anti-Doping'. At the first instance hearing, held by the Regulatory Committee of the WRU (the "WRURC") on 21 April 2005, the Respondent, Gethin Owen Worgan (the "Player") admitted, through his solicitor, the "presence of the prohibited substances within his system". The WRURC found that a doping infraction had occurred and imposed a two-year period of ineligibility.

The Player appealed that decision to the WRUAC on the sole issue of the length of the period of ineligibility. The WRUAC determined that "they were satisfied that the substances taken were not for their performance enhancing qualities, but rather their recreational qualities, which was a different moral issue". The WRUAC then determined that "the specified substances were recognised as recreational drugs rather than performance enhancing and that in accordance with IRB Regulation 21.22.2, members of the Appeal panel had determined to amend the sanctions previously imposed by the Regulatory Committee on 21st April 2005 by issuing a warning and a reprimand to Mr Worgan and reducing the period of ineligibility to 1 year (not 2 years) to expire on 20th April 2006".

The sole issue appealed is the length of the sanction and the jurisdiction by the Appeal Committee to have so acted. The Appellant submits that this appeal should be determined by reference to the strict application of the IRB Regulations and the WADA Code.

The Respondent appealed against the decision of the WRURC to the WRUAC, in accordance with its regulations, on the grounds that the period of ineligibility was inappropriate and too lengthy, basing his appeal on interpretation of IRB Regulation 21.22.2. which provides that "... Where a Player can establish that the Use of such a specified substance was not intended to enhance sport performance, the period of Ineligibility found in Regulation 21.22.1 shall be replaced: First violation: At a minimum, a warning and reprimand and no period of Ineligibility from future events, and at a maximum, one (1) year's Ineligibility".

Further, the Respondent in his evidence, whilst unable to account for the presence of the illegal substances in his system, posited a suspicion that some drinks he had consumed a few nights before the anti-doping control had been "spiked" and that this could account for the adverse Test results and there might be a "defence" of "Exceptional Circumstances" under IRB Regulation 21.22.4 if he could demonstrate that he bore No Fault or Negligence or No Significant Fault or Negligence in the circumstances of the substances entering his system. The WRUAC, however, rejected this 'defence' on the basis that the Respondent had not discharged his onus of proof in respect of the issue.

The foregoing doping infraction record is not appealed. Therefore, this Panel accepts that a doping offence under IRB Regulation 21.22.1 has been admitted and found to have occurred.

In its written decision, the Panel has considered that:

--The drug MDMA is specifically mentioned in the Prohibited List as a stimulant prohibited in Competition, but the substance HMMA is not expressly mentioned. The fact remains that at least one substance contained in the Respondent's sample specimen was on the Prohibited List and that is sufficient to constitute the offence.

--The IRB Regulation 21.22.2 is only applicable when the analytical result involves a listed Specified Substance. Therefore, the Appeals Committee could not apply the Specified Substance Regulation 21.22.2, which extends discretion to reduce the sanction to one year or less, depending upon the facts of the case. The WRUAC classified the substances as "specified substances". However, MDMA and HMMA are not on the WADA List of Specified Substances. As such, the Panel must conclude that the WRUAC erred in its classification of the substances, and if that was so, then the WRUAC was not entitled to apply any discretion in reducing the period of ineligibility by reason of the Prohibited Substance being a specified one.

--The intent behind the taking of such drugs is irrelevant and the mere presence of the substances constitutes a doping offence, which carries a two-year suspension according to IRB Regulation 21.22.1.

--In addition, in the absence of any positive evidence submitted by the Respondent, any attempt to suggest elimination or reduction of the period of ineligibility based on the grounds of "Exceptional Circumstances" can be discounted and must fail.

CAS 2005/A/968 S. v/ MKE Ankaragucu Spor Kulubu, award of 30 March 2006

Panel: Prof. Luigi Fumagalli (Italy), Sole Arbitrator

The Court of Arbitration for Sport (CAS) has decided to reject the appeal filed by S., a Brazilian football player, against the decision issued on 28 July 2005 by the FIFA Dispute Resolution Chamber (DRC).

On 13 July 2004, S. (hereinafter referred to as the "Appellant" or the "Player") and MKE Ankaragucu Spor Kulubu (hereinafter referred to as the "Respondent" or the "Club"), a Turkish football club, signed an employment contract (hereinafter referred to as the "Contract"), valid until 12 July 2005. According to such Contract, the Player was entitled to receive, inter alia, USD 25,000 "at the signature of the contract", USD 25,000 on 25 October 2005 [sic], and USD 50,000 divided in 10 monthly instalments starting on 15 August 2004, as well as bonuses, up to the maximum amount of USD 75,000, linked to match participation. The Contract contained also a section concerning the "Official Registration".

On the same 13 July 2004, the Player and the Club signed an additional contract, dated 12 July 2005 [sic], to be valid until 31 May 2006 (hereinafter referred to as the "Second Contract"; the Contract and the Second Contract are hereinafter referred to as the "Contracts"). Pursuant to such Second Contract, the Player was entitled to receive, inter alia, USD 25,000 on 1 July 2005, USD 25,000 on 25 October 2005, and USD 100,000 divided in 10 monthly instalments starting on 15 August 2005, as well as bonuses, up to the maximum amount of USD 100,000, linked to match participation. In the same way as the Contract, a section referring to the "Official Registration" was also contemplated in the Second Contract.

On the basis of the Contracts, the Player moved to Turkey, together with his family, and started to train with the Club.

By letter dated 6 September 2004, the Player, through his lawyer, contacted the Club asking for clarification as to his position in the Club. In such letter the Player remarked that he had not been registered with the Turkish Football Federation within the deadline of 31 August 2004 established for that purpose, and that the Club was late in making the payments due to him under the Contract. The same request was reiterated by letter dated 10 September 2004. Having received no answer from the Club, on 11 September 2004 the Player left Turkey and returned to Brazil.

On 29 September 2004, the Player turned to FIFA claiming that the Club had breached the Contracts, by failing to register him with the Turkish Football Federation and to provide him with a work permit, and requesting that the Club be ordered to pay the sum of USD 403,000, as total amount of the payments the Player expected to receive under the Contracts up to 31 May 2006.

The Club, for its part, submitted that the Player had refused to sign the official professional football player contract mentioned in the "Official Registration" clause of the Contracts (hereinafter referred to as the "Official Contract"), necessary in order to finalize his registration with the Turkish Football Federation and to obtain a work permit. According to the Club, the Player had not wanted to sign the Official Contract, because he had realized that most of the payments he was entitled to receive were linked to match participation, and wanted therefore to renegotiate the conditions stipulated in the Contracts. At the same time, the Club alleged that it had paid to the Player an amount of USD 40,000, satisfactory of all requests submitted by the Player.

On 28 July 2005 the Dispute Resolution Chamber of FIFA (hereinafter referred to as the "DRC"), acting pursuant to Article 42 of the FIFA Regulations for the Status and Transfer of Players (September 2001 edition) (hereinafter referred to as the "FIFA Players Regulations 2001") decided to reject the claim.

The DRC underlined that "the registration of the player depended only on the signature of this official contract and that therefore, the clause named 'Official Registration', could only be interpreted in such a manner that the parties must sign such an official contract, before they consider themselves contractually engaged". Therefore, the DRC determined the Contract to be "subject to a condition and that therefore it must be considered a pre-contract".

On 26 September 2005, the Player filed a statement of appeal with the CAS.

In its written decision, the Sole arbitrator has decided that:

--One cannot accept Appellant's submission that he was satisfied with the signature of the employment contract and was not aware of the fact that also the Official Contract determined by the national federation had to be signed, so that he relied on the attitude of the Club. The Sole Arbitrator notes, first, that the Official Contract was specifically mentioned in the employment contract, and, second, that the Player, being a professional of experience, aged 29 at the time of the signature of the employment contract, could not ignore the common feature of all national football federations requiring the signature of a contract on a specific form. As the Appellant did not prove that he actually requested the Club to proceed to sign the Official Contract, and that the Club impeded the signature of the Official Contract, the Player may not now blame the Club for failing to sign.

--The finding that the Appellant has not proved that the employment contract could not be implemented because of the Respondent's fault implies the dismissal of the appeal, and of all ensuing remedies sought after by the Appellant, including the claim for damages.

Arbitration CAS 2005/A/997 ISU v/ Anzhelika Kotiuga & Skating Union of Belarus, award of 1 February 2006

Panel: Mr Michele Bernasconi (Switzerland), President; Mr Stephan Netzle (Switzerland); Mr Olivier Carrard (Switzerland)

The Court of Arbitration for Sport (CAS) has decided to upheld the appeal filed by the International Skating Union (ISU, the "Appellant") against the decision of the ISU Appeals Commission holding that the ISU had not met the burden of establishing that the Belarus speed skater Anzhelika Kotiuga had committed an anti-doping violation. Therefore, the athlete was found guilty of anti-doping violation and declared ineligible for two years.

On 12 February 2005, Ms Anzhelika Kotiuga (the "Respondent 1", the "athlete") was subject to in-competition testing. The results of the analysis were negative. The Respondent 1 participated in the World Cup Final in speed skating which took place on 18, 19 and 20 February 2005, at Heerenveen, the Netherlands. She finished fourth in the 1000 meters race, division A, and first in the 500 meters race. On 19 February 2005, Ms Anzhelika Kotiuga was subject to in-competition testing in accordance with Art. 5.1.1 of the ISU Anti-Doping Rules compiled in accordance with the World Anti-Doping Code (WADC).

On 29 March 2005, the ISU informed the Skating Union of Belarus (the "Respondent 2") of the fact that Ms Anzhelika Kotiuga's urine A-sample was found to contain norandrosterone at a concentration of more than 2ng/ml as well as "an abnormal concentration of human chorionic gonadotropin (hCG)". The analysis of the B-sample took place on 18 May 2005 and confirmed the application of testosterone or testosterone prohormones and nandrolone or nandrolone prohormones.

On 19 August 2005, the ISU Disciplinary Commission declared Anzhelika Kotiuga responsible for an Anti-Doping violation and ordered that the results she obtained during the 2005 World Cup Final as well as her medal, points and prizes be forfeited. In addition, the ISU Disciplinary Commission imposed a two-year ban on the athlete, beginning on August 19, 2005.

On 1 September 2005, Ms Anzhelika Kotiuga lodged an appeal before the Appeals Commission of the ISU. At the hearing, the athlete produced a document containing a list of 27 inconsistencies observed by experts who had investigated the complete documentation package related to the analysis procedure of the athlete's A and B-samples. On 28 November 2005, the Appeals Commission reverted the decision of the ISU Disciplinary Commission, thereby reinstating the eligibility of Anzhelika Kotiuga, as well as medals, points and prizes. The Appeals Commission held that the ISU had not met the burden of establishing that an Anti-Doping violation had occurred, as it was not capable of rebutting most of the 27 different indices of inconsistencies in the testing process. In addition, it concluded that the athlete had proven her pregnancy condition during urine testing on 19 February 2005 and that it was not clear whether the amount of norandrosterone had been influenced by the pregnancy and/or the taking of an exogenous substance.

On 15 December 2005, the Appellant filed a statement of appeal with the CAS to request the cancellation of the Appeals Commission's decision. ISU put forward that it had been established by IRMS measurement that the origin of norandrosterone was exogenous and that such scientifically reliable evidence of the exogenous origin created an Adverse Analytical Finding which could not be subject to a demonstration of physiological or pathological condition. It emphasized that the athlete's alleged pregnancy had not been satisfactorily proven. Therefore, ISU was led to believe that the level of hCG was more likely the sign of its administration in order to simulate pregnancy and mask the administration of nandrolone. Regarding the alleged 27 deficiencies in the doping test procedure, ISU submitted that it had learned about the existence of the document that listed them only at the hearing before the Appeals Commission and that none of them constituted serious departures in the sense that they could have put into question the positive findings.

In its written decision, the Panel considered that:

--According to the results of the analyses, the concentration of norandrosterone in the Athlete's samples were by far higher than the threshold of 2 ng/ml. As a result, the burden of adducing exculpatory circumstances was shifted to the Athlete, who had to demonstrate that the concentration was due to a physiological or pathological condition. At the hearing, two experts stated that a pregnancy could not explain the high level of norandrosterone found in the Athlete's urine samples. According to them, the fact that the Athlete was pregnant in February 2005 could not be excluded; nevertheless, the metabolites found in her body were from an exogenous source, when a pregnant woman only has endogenous values of norandrosterone.

--The allegations of Respondent 1 and Respondent 2 were not substantiated by anything concrete and did not suffice to put into question the quality of the IRMS test itself or to reverse the presumption implemented by Art. 3.2.1 of the WADA Code, according to which WADA-accredited laboratories are presumed to have conducted sample analysis in accordance with the international standards for laboratory analysis. Based on the foregoing and after careful analysis of the facts and evidence submitted to it by the parties, the Panel finds as beyond doubt that the source of norandrosterone was exogenous. In reaching this conclusion, the Panel had no difficulty to put aside the Respondents' explanations according to which the high concentration of norandrosterone in the Athlete's urine samples could be explained by an endogenous production, caused by pregnancy or by the absorption of authorized substances.

--The 27 inconsistencies put into evidence were not conclusive, did not cast a doubt on the results of the laboratory and were not likely to cause the Adverse Analytical Finding. The Panel accepted to its comfortable satisfaction that a "Supplementary Report" filed by the Appellant answered satisfactorily to all the questions left open by the documentation package related to the analysis procedure of the A and B-samples and that the experts' testimonies were reliable. Based on the totality of the evidence, it has been proven beyond reasonable doubt by the Appellant that the Athlete had committed a doping offence prohibited by the applicable ISU Anti-Doping Rules and had to take responsibility for it.

--The ISU Anti-Doping Rules provide that the period of ineligibility imposed for the presence of a Prohibited Substance or its Metabolites or Markers in an Athlete's bodily Specimen shall be of two years for a First Violation. The Respondents have not established any exceptional circumstances justifying the reduction of the period of ineligibility. In particular they have neither established that the Athlete bears no fault or negligence for the violation of the ISU Anti-Doping Rules nor how the prohibited substance entered Ms Kotiuga's system. The ISU Anti-Doping Rules also establish that an Anti-Doping Rule violation occurring during or in connection with an event shall lead to disqualification of all of the skater's results obtained in that Event with all Consequences, including forfeiture of all medals, points and prizes. Anzhelika Kotiuga shall therefore be declared ineligible for two years and must be disqualified for her results obtained in both races during the World Cup Finale at Heerenveen.

Arbitration CAS 2006/O/1059 Commonwealth Games Federation (CGF) v/ E., award of 24 April 2006

Panel : The Hon. Michael J Beloff QC (United Kingdom), President; Judge Hugh Fraser (Canada); Mr Henry Jolson QC (Australia)

In the matter concerning the Indian weightlifter referred to the Court of Arbitration for Sport by the Commonwealth Games Federation (CGF), the CAS Panel has decided that the Respondent has committed a doping offence contrary to Regulation 10 (2) (a) of the CGF Constitution.

The Respondent is an Indian weightlifter whose accreditation for the purpose of the Commonwealth Games ("the Games") was Number 109 389-01.

On 11 March 2006, prior to the commencement of the Games, but during the Games period a sample of urine was taken from the Respondent in an unannounced out-of-competition test in Melbourne.

On 18 March 2006 the "A" sample (number A244935) was analysed and showed that an anti-doping rule violation had occurred and that no irregularity was apparent in the processes that would have in any way affected the integrity of the test.

On 19 March 2006, the Federation Court the Medical Commission imposed a provisional suspension on the Respondent. The Chef de Mission of India Mr H.J. Dora ("Mr Dora") was invited into the Court and was duly informed of the Decision and of the Respondent's right:

1. right to promptly request an analysis of the "B" sample if the results of the test of the "A" sample were not accepted. (He was further advised that failing such a request that the "B" sample analysis may be deemed waived and the "A" sample finding used as evidence of the anti-doping violation.)

2. right to personally attend or have a nominated representative attend the "B" sample opening and analysis, if such is requested.

On 21 March 2006, pursuant to the Respondent's request, the "B" Sample was opened in the presence of Dr Trout (Deputy Director ASDTL), Mr S Cameron (Justice of the Peace), Dr B Singh (Athlete's authorised Representative) and Prof I Kono (WADA Independent Observer).

The Report stated that the doping violation was confirmed.

By letter dated 23rd March 2006, Michael Hooper, Chief Executive Officer of the CGF informed Mr Dora, that

"The Federation Court has now referred the case to the Ad-hoc Division of the Court of Arbitration for Sport for hearing as soon as possible to determine whether an anti-doping rule violation has been committed."

On 25March 2006 a hearing took place at the Ad hoc Division offices in the World Trade Centre in Melbourne. At the request of the Respondent, the Panel granted a 48 hours adjournment.

In its written decision, the CAS has decided that:

--Further to the decision of the Panel adjourning the hearing to a date beyond the Games Period, the present matter has been assigned to the CAS Ordinary Arbitration procedure and in accordance with art. R45 of the Code, the Panel has to decide the dispute "according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law. The parties may authorize the Panel to decide "ex aequo et bono".

--Stanozolol is a prohibited substance. It is included in the World Anti-Doping Authorities list of Prohibited substances effective as from 1 January 2006, as an Anabolic Agent (S1). If it was properly identified as present in the Respondent's bodily specimens, an anti-doping rule violation has been established irrespective of the Respondent's motive, intention, or knowledge. The issue then was as to the validity of the testing of the "B" sample.

--The Panel observed that established precedent suggested that none of the points raised by the Respondent, that is (1) a denial that he used a prohibited substance, (2) a reference to negative tests within his recent past carried out by both WADA and the Indian Authorities, (3) a suggestion that the prohibited substance whose metabolites were found that is to say satnozolol would have no performance enhancing effect could avail against the results of a properly conducted test which revealed the presence of a prohibited substance in an athlete's urine.

--Given that the analysis of the B specimen is impregnable, the conclusion that a doping offence has been committed is inevitable.

Arbitration CAS 2006/O/1060 The Commonwealth Games Federation (CGF) v/ S., award of 24 April 2004

Panel: The Hon. Michael J Beloff (United Kingdom), President; Judge Hugh Fraser (Canada); Mr Henry Jolson QC (Australia)

In the matter concerning the Indian weightlifter referred to the Court of Arbitration for Sport by the Commonwealth Games Federation (CGF), the CAS Panel has decided that the Respondent has committed a doping offence contrary to Regulation 10 (2) (a) of the CGF Constitution.

The Respondent is an Indian weightlifter whose accreditation for the purpose of the Commonwealth Games ("the Games") was Number 109 291-01.

On 10 March 2006, prior to the commencement of the Games, but during the Games period a sample of urine was taken from the Respondent in an unannounced out-of-competition test in Melbourne.

On 18 March 2006 the "A" sample was analysed and showed that an anti-doping rule violation had occurred and that no irregularity was apparent in the processes that would have in any way affected the integrity of the test.

On 19 March 2006, the Federation Court the Medical Commission imposed a provisional suspension on the Respondent. The Chef de Mission of India Mr H.J. Dora ("Mr Dora") was invited into the Court and was duly informed of the Decision and of the Respondent's right :

1. right to promptly request an analysis of the "B" sample if the results of the test of the "A" sample were not accepted. (He was further advised that failing such a request that the "B" sample analysis may be deemed waived and the "A" sample finding used as evidence of the anti-doping violation.)

2. right to personally attend or have a nominated representative attend the "B" sample opening and analysis, if such is requested.

On 22 March 2006, pursuant to the Respondent's request, the "B" Sample was opened in the presence of Dr Trout (Deputy Director ASDTL), Mr S Cameron (Justice of the Peace), Dr B S. (Athlete's authorised Representative) and Prof I Kono (WADA Independent Observer).

The Report stated that the doping violation was confirmed.

By letter dated 23rd March 2006, Michael Hooper, Chief Executive Officer of the CGF informed Mr Dora, that

"The Federation Court has now referred the case to the Ad-hoc Division of the Court of Arbitration for Sport for hearing as soon as possible to determine whether an anti-doping rule violation has been committed."

On 25 March 2006 a hearing took place at the Ad hoc Division offices in the World Trade Centre in Melbourne. At the request of the Respondent, the Panel granted a 48 hours adjournment.

In its written decision, the Court of Arbitration for Sport has decided that:

--Further to the decision of the Panel adjourning the hearing to a date beyond the Games Period, the present matter has been assigned to the CAS Ordinary Arbitration procedure and in accordance with art. R45 of the Code, the Panel has to decide the dispute "according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law. The parties may authorize the Panel to decide "ex aequo et bono".

--By signing the "Entry Form" each competitor including the Respondent also agreed to comply with the Constitution of the CGF and in particular with the Protocol 14 (Medical) and Regulation 10 (Prohibited Substances and Prohibited Methods) and the Standard.

--Stanozolol is a prohibited substance. It is included in the World Anti-Doping Authorities list of Prohibited substances effective as from 1 January 2006, as an Anabolic Agent (S1). If it was properly identified as present in the Respondent's bodily specimens, an anti-doping rule violation has been established irrespective of the Respondent's motive, intention, or knowledge. The issue then was as to the validity of the testing of the "B" sample.

--The Panel observed that established precedent suggested that none of the points raised by the Respondent, that is (1) a denial that he used a prohibited substance, (2) a reference to negative tests within his recent past carried out by both WADA and the Indian Authorities, (3) a suggestion that the prohibited substance whose metabolites were found that is to say satnozolol would have no performance enhancing effect could avail against the results of a properly conducted test which revealed the presence of a prohibited substance in an athlete's urine.

--Given that the analysis of the B specimen is impregnable, the conclusion that a doping offence has been committed is inevitable.

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Title Annotation:DOCUMENTS
Publication:The International Sports Law Journal
Date:Jan 1, 2008
Words:25409
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