Andre Onana and UEFA’s Anti-Doping Regulations – A Cautionary Tale

Introduction

Andre Onana, the first team goalkeeper for AFC Ajax (“Ajax”) and the Cameroon national team played his first competitive match for over nine 9 months on 13 November 2021, when he started for Cameroon in a 4:0 victory over Malawi in a FIFA World Cup Qatar 2022 African Qualifier.

Prior to this match, Onana had been subject to a 9-month suspenion from all football-related activity for violating anti-doping regulations. Due to the nature of the suspension, Onana was only permitted to return to first-team training in September 2021 and in fact only resumed first-team training of any kind on 28 October 2021, when he joined up with the Ajax senior side, following a short spell training with the Ajax U21s.

Background

On 5 February 2021 AFC Ajax (“Ajax”) announced that the Union of European Football Associations’ (“UEFA”) Control, Ethics and Disciplinary Body (“CEDB”) had sanctioned Andre Onana with a 12-month suspension from all football-related activity for violating UEFA’s Anti-Doping Regulations 2018 (“UADR”) (since replaced with UEFA’s Anti-Doping Regulations 2021). Despite written reasons being mandatory for doping-related decisions (UEFA Disciplinary Regulations 2020, article 52.4), written reasons for UEFA’s CEDB’s decision are yet to be released.

It is known though that Onana’s UADR violation related to an ‘Out of Competition’ sample provided by Onana to a UEFA Doping Control Officer on 5 October 2020 pursuant to Ajax’s participation in the UEFA Champions League at the relevant time (UADR, article 2.1). Onana’s sample tested positive for the presence of Furosemide, a diuretic, non-performance-enhancing drug but which can be used as a masking agent for performance-enhancing drugs. At the relevant time, Furosemide was a ‘Prohibited Substance’ at all times and also a ‘Specified Substance’ under the World Anti-Doping Agency’s (“WADA”) Prohibited List January 2020 (UADR, article 5). Accordingly, Furosemide was prohibited at all times, whether ‘In Competition’ or ‘Out of Competition’.

In the announcement made by Ajax on 5 February 2021, it was also announced that Onana was to appeal against UEFA’s CEDB’s decision to the Court of Arbitration for Sport (“CAS”) (UADR, article 20.2), seeking a reduction to or removal of the 12-month suspension. Onana’s position from the beginning and ultimate reason for appealing to the CAS was stated as:

‘On the morning of October 30, Onana was feeling unwell. He wanted to take a pill to ease the discomfort. Unknowingly, however, he took [Furosemide], a drug that his wife had previously been prescribed. Onana’s confusion resulted in him mistakenly taking his wife’s medicine, ultimately causing this measure to be taken by UEFA against the goalkeeper’.

Similarly, on 2 June 2021 Ajax made a further announcement which stated:

‘Onana turned in a positive doping test at the end of 2020 which was a result of him accidentally taking a pill meant for his wife that he had thought was an aspirin. That pill contained the banned substance, Furosemide’.

Onana was partially successful in his appeal to the CAS. While written reasons for the CAS’s decision are not yet available, the CAS and Ajax announced on 10 June 2021 that Onana’s 12-month suspension from all football-related activity had been reduced to a nine-month suspension due to Onana demonstrating ‘no significant fault´ in respect of his UADR violation.

This article will consider (i) the regulatory framework applicable to Onana’s UADR violation; and (ii) why the reduction of Onana’s 12-month suspension from all football-related activity to nine months was appropriate.

NHL Expansion Draft: An Opportunity for Rapid Competitiveness?

By Nicholas Zalany on August 10, 2021 Posted in Ice Hockey

On July 21, 2021, the Seattle Kraken, the newest franchise in the National Hockey League (NHL), stocked its roster through what is known as an expansion draft. The consensus seems to be that the Kraken used the draft to select a solid, if not star, roster whilst leaving flexibility to sign higher profile free agents before the start of the season. All eyes will now be on the Kraken’s debut against the Golden Knights in Las Vegas on October 12th.

In this article, we examine the background and rules to the expansion draft, as well as well as the rationale for these rules and their potential impact on the fortunes of new franchises.

Supreme Court Finds For NCAA Student-Athletes on Antitrust Issues

By Squire Patton Boggs on June 30, 2021 Posted in Amateur Sport, American Football

NCAA student athletes are entitled to education-related benefits, such as paid post-graduate internships, scholarships for graduate school, tutors, laptops, science equipment, musical instruments, and annual awards for academic achievement up to $5,980. Justice Neil Gorsuch wrote the opinion for the unanimous Supreme Court ruling, holding that the now-former NCAA prohibition for such things violated antitrust laws.

NCAA v. Alston began seven years ago as a class action against the NCAA brought by Shawn Alston and Justine Hartman as representatives for a class of former men’s and women’s college football and basketball players. They alleged that the NCAA’s limitation on the types and amounts of compensation student-athletes can receive violates Section 1 of the Sherman Antitrust Act which prohibits the unreasonable restriction on competition among the states. The District Court and Ninth Circuit both resolved that there was an antitrust violation when applying the applicable “rule of reason” test and the Supreme Court did not depart from those decisions.

Controversy in Horse Racing: A Race to Lift a Suspension

By Andrew King on June 22, 2021 Posted in Horse Racing

The crown jewels of American thoroughbred horseracing are the Kentucky Derby, Preakness Stakes, and the Belmont Stakes. Together, they are known as the “Triple Crown,” and winning all three in a single year—an immensely difficult feat—is the pinnacle of horseracing in the United States.

Robert Baffert, a seven-time Kentucky Derby winner, is one of only a few racehorse trainers who have won the Triple Crown, and one of only two trainers to have two horses win the Triple Crown. Recently, however, Mr. Baffert has made headlines not for the success of his thoroughbreds, but for controversy surrounding them.

European Parliament proposes new regime to combat piracy of live sports content

By Mike Llewellyn on June 17, 2021 Posted in Broadcasting, European Commission, European Union, Intellectual Property, Law, Media Rights, Piracy, Technology

Scale of the piracy problem

The threats posed to the funding of sport by media rights piracy is nothing new. However, as recognised by the European Parliament in its resolution published 19 May 2021, developments in digital technology and the proliferation of access to digital content (in particular through IPTV) have, in turn, increased the potential exposure of sports fans to pirated content.

In its report[1] prepared in December 2020, the European Parliamentary Research Service found that in 2019:

6 million subscriptions were made to illegal broadcasting platforms in the EU;
these subscriptions generated illicit subscription revenues of an estimated 522 million EUR; and
if the same number of subscriptions were made legally, authorised broadcasters’ revenues could increase by 3.4 billion EUR each year.

Furthermore, a report published this year by Synamedia and Ampere Analysis has found that sports rights holders and streaming services lost $28.3 billion globally as a result of piracy in 2020.

Given Out on Appeal – An Occupier’s Duty

By Jack Wood on June 3, 2021 Posted in Amateur Sport, Case review, Cricket, Litigation

Cricket bat and ball

As recreational sport returns to local parks and commons, a recent High Court ruling has served as a useful reminder to occupiers of their duty of care owed to visitors. The case considers, amongst other things, the requirement of reasonableness under the Occupiers Liability Act 1957 (the “OLA 1957”) as well as the concept of remoteness. It is also notable for revisiting points to be distilled from the seminal House of Lords decision in Bolton v Stone.^[1]

Facts of the Case

In August 2014, the claimant in Lewis v Wandsworth London Borough Council[2] was walking through Battersea Park, along a path that bounded a small cricket pitch. Upon hearing a shout, she turned her head and was immediately struck on the eye by a falling cricket ball, causing her serious injury.

The claimant brought a case against the local authority. She claimed that they should have put up signage that warned that a cricket match was being played with hard balls and/or prohibited the path from being used during matches. Had there been such signs, she claimed that she would have paid greater attention to the match and would have been able to dodge any stray cricket balls.

Does the buyout market reflect a competitive imbalance in the NBA?

By Jack Blakey on March 30, 2021 Posted in Basketball, Government, Player contracts, US Sport

Basketball Money and Finance Concept

Last Thursday marked the NBA trade deadline, meaning teams can no longer trade players on their rosters. However, after the deadline, there remain no restrictions on teams signing free agents. Coincidentally, after the trade deadline, some players and teams enter into buyouts whereby that player is bought out of his current contract and becomes a free agent. This happens where a team is usually unsuccessful in trading a player on a high salary or a player refuses to play for the team for the rest of the season.

The buyout market can make or break a team’s season. This year, the Brooklyn Nets fortified an already stacked roster by signing two all-star free agents whilst the reigning champions, the LA Lakers, signed the league’s leading rebounder. These signings come somewhat at the expense of small market franchises who lose a star player and get nothing in return. One general manager reportedly described the buyout market as “helping the rich get richer.”

Another COVID-19 By-Product: A Reduction in the NFL Salary Cap

By Nicholas Zalany on March 28, 2021 Posted in American Football, Governance, Player contracts, US Sport

Owing to a 92% drop in attendance during the COVID-19 pandemic, the National Football League (NFL) salary cap will be 8% lower this season, going from $198.2 million in 2020 to $182.5 million in 2021. The NFL has had a salary cap since 1994. The cap regulates the amount that teams can spend on players in a given year. This amount typically changes every year, and, in fact, cap limits had been going up every year since 2011 when the cap was at $120 million. The final number for 2021 was the result of negotiations between owners and the players union based on projected revenues and other factors. Continue Reading

The Future of Sports – Cryptocurrencies and Blockchain Technology

By Squire Patton Boggs on March 22, 2021 Posted in Blockchain, Football, Sponsorship, Technology, Technology in Sport, UK Sport, US Sport

Sports as an industry has realised the potential that cryptocurrencies and blockchain technologies can bring to further monetise fan engagement, attract sponsors and engage a global market in ways that were unimaginable decades ago. Passionate fans, each a citizen of digital technology, consume sports and related content beyond the actual duration of a match. Teams, clubs and sporting bodies are innovating to survive in the new digital age and meet fan expectations.

With the limitations brought upon the industry due to the COVID-19 pandemic, the sports industry has responded and devised new strategies to ensure clubs and fans remain connected in a socially distanced world. The industry has recognised that blockchain is capable of revolutionising revenue streams and the fan experience through increased crypto-sponsorships, fan tokens, non-fungible tokens (“NFTs”) or even by entrance of blockchain providers into the market.

Private Equity Investment in Sport

By Andrew Bennett on March 17, 2021 Posted in Governance, Rugby, Sponsorship, UK Sport

Rugby country flags

Private equity firm CVC Capital Partners has purchased a 14.3% stake in the Six Nations rugby tournament, putting pen to paper on a deal, which will see CVC pay approximately £365 million over five-years.

The deal, subject to regulatory approval, sees CVC target the tournament’s commercial rights. In return, the governing bodies of England, Scotland, Wales, Ireland, France and Italy are set to receive an important financial boost, which is hoped will ensure growth to the game for years to come.