Football

 

 

 

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.

Onana’s UADR violation – regulatory framework

Pursuant to UADR, article 3.1(a)(i)-(ii), the mere presence of Furosemide in Onana’s sample amounted to a UADR violation. The presence of Furosemide was a strict liability offence. There was no need for UEFA to prove Onana’s intent, fault, negligence, or knowing use in taking Furosemide to establish the UADR violation, nor whether the presence of Furosemide enhanced Onana’s performance.

The responsibility upon players for knowing what amounts to a UADR violation is also stated expressly in UADR, article 3.2:

Players… are responsible for knowing what constitutes an anti-doping rule violation and the substances and methods which have been included on the Prohibited List, and for familiarising themselves with these anti-doping regulations’.

Accordingly, notwithstanding Onana’s explanation for the presence of Furosemide in his sample as noted above, that explanation was irrelevant and was not a defence to his UADR violation. However, the UADR allowed for the sanction to be imposed on Onana for his UADR violation to be modified based on specific criteria. The modification of sanctions as provided for in the UADR is the lynchpin of effective and fair anti-doping enforcement.

Considering that this was Onana’s first UADR violation, that Furosemide is a ‘Specified Substance’ and that Ajax’s announcement made on 5 February 2021 stated that UEFA’s CEDB considered Onana not to have committed his UADR violation with any intention of cheating, the minimum sanction applicable to Onana’s UADR violation was a two-year suspension from all football-related activity (UADR, article 13.1(b)).

Further, UADR, article 14.1 and 14.2(a)(i) allowed for modification of that two-year minimum sanction if Onana could establish, on the balance of probabilities (UADR, article 4.1), that:

He bears ‘no fault or negligence’, in which case the two-year suspension is lifted. ‘No fault or negligence’ is defined in the UADR as:

If the player… establishes that he did not know or suspect, and could not reasonably have known or suspected, even with the exercise of utmost caution, that he had used… a prohibited substance… or otherwise violated an anti-doping rule… for any violation of paragraph 3.01a, the player must also establish how the prohibited substance entered his system.

OR

He bears ‘no significant fault or negligence’, in which case the sanction to be imposed can range from a minimum of a reprimand and no period of suspension to a maximum of a two-year suspension. ‘No significant fault or negligence’ is defined in the UADR as:

If the player… establishes that his fault or negligence, when viewed in the totality of the circumstances and taking into account the no fault or negligence criteria, was not significant in relation to the anti-doping rule violation… for any violation of paragraph 3.01a, the player must also establish how the prohibited substance entered his system’.

Considering that UEFA’s CEDB sanctioned Onana with a 12-month suspension, and in the absence of any written reasons, it is assumed that Onana was unable to establish ‘no fault or negligence’ – indeed it is very difficult to do so – but was able to establish ‘no significant fault or negligence’. The 12-month suspension falls exactly in the middle of the range of sanctions available pursuant to UADR, article 14.2(a)(i). In Ajax’s announcement made on the 5 February 2021, Edwin van der Sar, managing director of Ajax, is quoted as stating that Onana and Ajax had hoped for a ‘much shorter suspension’, indicating at least one ground upon which an appeal against UEFA’s CEDB’s decision was made to the CAS pursuant to UADR, article 20.2.

Appeal to the CAS – the appropriate sanction

When considering Onana’s appeal, the CAS was not bound or restricted by UEFA’s CEDB’s decision (UADR, article 20.1(a)-(b); cf Code of Sports-related Arbitration (“the Code”), article R57) but would have applied the same regulatory framework applied by the UEFA CEDB (the Code, article R58).

The only evidence it is known Onana would have relied upon before the CAS is his explanation for how the Furosemide came to be present in his sample. Further, it is also noted from Ajax’s announcement on 2 June 2021 that UEFA sought to maintain the 12-month suspension imposed by UEFA’s CEDB.

As stated above, there are also no written reasons available for the CAS’s decision but a press release identifies that Onana was successful in establishing ‘no significant fault’ due to ‘[ingesting] medication destined for another person in error’.

Guidance and insight from previous CAS decisions

While previous decisions of the CAS are not binding they provide helpful guidance (Sharapova v ITF (CAS/2016/A/4643), para. 82). In particular, such previous decisions provide an insight as to why the CAS reduced Onana’s 12-month suspension from all football-related activity to nine months:

Marin Cilic v International Tennis Federation (“ITF”) (CAS 2013/A/3327 and 3335): Marin Cilic, a Croatian professional tennis player, provided an in-competition sample that showed the presence of N-ethylnicotinamide, a metabolite of nikethamide, which was a substance prohibited in competition only, and a specified substance.

The circumstances surrounding Cilic’s use of nikethamide were that whilst in France he realised he was running low on glucose powder and asked his mother to purchase some for him from a pharmacy. His mother purchased a packet of Coramine glucose tablets from a local pharmacy, the label of which had listed several ingredients, including ‘nicethamide” (French for nikethamide). His mother told Cilic that the pharmacist had said that the tablets were safe for professional tennis players to take. Cilic looked at the label and saw the word ‘nicethamide’, which looked familiar and he assumed was French for “nikotinamid”, an ingredient in his usual glucose powder and not a prohibited substance. He therefore did not do any further checks on ‘nicethamide’ and took the glucose tablets for three days before returning to his usual glucose powder. It was established that Cilic’s use of the glucose tablets was out of competition and that it was not used to improve his sports performance.

The relevant sanction for this anti-doping rule violation was ‘at a minimum, a reprimand and no period of ineligibility, and at a maximum, a period of ineligibility of two (2) years’. Cilic’s level of fault was relevant for determining where within that range the sanction should fall.

The ITF’s Anti-Doping Tribunal imposed a nine-month suspension on Cilic. Cilic appealed to the CAS.

In a judgment that is now regularly relied upon, the CAS identified three levels of fault:

(i) significant degree of or considerable fault, which would result in a suspension of between 16 to 24 months with a “standard” significant fault resulting in a suspension of 20 months;

(ii) a normal degree of fault, which would result in a suspension of between 8 to 16 months with a “standard” normal degree of fault resulting in a suspension of 12 months; and

(iii) light degree of fault which would result in a suspension of between 0 to 8 months with a “standard” light degree of fault resulting in a suspension of 4 months.

To determine which level of fault applies, the CAS recommended that the objective level (the standard of care expected from a reasonable person in the participant’s situation) and the subjective level (what could have been expected from the participant concerned in light of their personal capacities) of the participant’s fault should be considered. The CAS also recommended that the objective level of the participant’s fault should be given greater weight when considering which category of fault applies, and, generally, the subjective level of the participant’s fault should be considered to move a participant up or down the scale within the appropriate category.

Applying these principles to Cilic’s case, the CAS noted that as the prohibited substance was banned in-competition only then this case could not fall in the category of significant degree of or considerable fault. The CAS also noted that Cilic did take some precautions to avoid the anti-doping rule violation, such as asking his mother to purchase the glucose from a pharmacy, reading the label, and only taking the glucose tablets for a limited period of time. The CAS considered that Cilic’s degree of objective fault was a light degree of fault.

Further, when considering Cilic’s subjective level of fault, the CAS noted, inter alia, that Cilic spoke some French but not enough and thought that ‘nicethamide’ was French for nikotinamid rather than nikethamide, and that Cilic knew nikotinamid to be a harmless substance. The CAS considered this to be a careless yet plausible error. Applying this subjective element of the test to Cilic’s light degree of fault, the CAS considered that the appropriate period of suspension was four months – five months fewer than that imposed by the ITF’s Anti-Doping Tribunal.

Levi Cadogan v National Anti-Doping Commission of Barbados (CAS 2018/A/5739): Levi Cadogan, a Barbadian sprint athlete, provided an out-of-competition sample that showed the presence of Furosemide, which again was a substance prohibited in competition and out of competition, and a specified substance.

The circumstances surrounding Cadogan’s use of Furosemide were remarkably similar to those seen in Onana’s case. On the day Cadogan provided his sample he had awoken with a headache and had taken a Lasix tablets by mistake from a blister pack in a basket in his kitchen where he kept all his medication. Cadogan believed he had taken paracetamol, not Lasix. Cadogan later realised that paracetamol and Lasix look similar. Cadogan explained that Lasix was present in his house because his housemate at the time was a jockey who used Lasix to assist with weight loss, and that he had not taken Lasix to improve his sports performance. Cadogan did not know that Lasix contained Furosemide. Cadogan explained that his housekeeper had mistakenly put his housemate’s Lasix in the basket where Cadogan keeps his medication.

The relevant sanction for this anti-doping rule violation was a two-year suspension, save where, inter alia, the participant established ‘no significant fault or negligence’ then the relevant sanction will be at a minimum a reprimand and at a maximum a two-year suspension. As in Cilic, Cadogan’s level of fault was relevant for determining where within that range the sanction should fall.

The Barbados Anti-Doping Disciplinary Panel imposed a two-year suspension on Cadogan. Cadogan appealed to the CAS.

Applying the framework of Cilic, the CAS firstly noted that as Cadogan’s anti-doping violation concerned a substance prohibited in competition and out of competition then this case could fall in the category of significant degree of or considerable fault. Secondly, considering Cadogan’s objective level of fault, the CAS noted that there was little basis for Cadogan to not be in the category of significant degree of or considerable fault. In particular, it was noted that Cadogan had not checked the blister pack the Lasix tablet came from and generally he did nothing to check whether he was taking paracetamol as intended. Thirdly, considering Cadogan’s subjective level of fault, the CAS noted that paracetamol and Lasix look similar and that he took Lasix simply by a careless mistake. Applying this subjective element of the test to Cadogan’s significant degree of or considerable fault, the CAS considered that an appropriate period of suspension was 20 months – four months fewer than that imposed by the Barbados Anti-Doping Disciplinary Panel.

Conclusion

Considering the minimum sanction applicable to Onana’s UADR violation, the modification to that minimum sanction available pursuant to UADR, article 14.2(a)(i), and the comparable cases above, it is this author’s opinion that the sanction imposed upon Onana is entirely appropriate and proportionate. Indeed, considering Cadogan, Onana can be considered fortunate for only receiving a nine-month suspension.

The policy reasons for imposing such suspensions are both clear and understandable. Anti-doping regulations play an important role in preventing athletes from doping in order to increase their chances of success and in protecting the integrity of professional sport. At the heart of this is the underlying rationale that professional sport should be fair and that athletes should be deterred from seeking to gain any unfair advantage. Accordingly, in this author’s opinion, criticism such as that from the Vereniging Van Contractspelers (the Dutch Association of Professional Footballers) in respect of the 9-month suspension is unfounded. The CAS’s decision in Onana’s case simply demonstrates a correct application of the UADR and serves as an important reminder to football players of their obligations under the anti-doping regulations they are subject to and which they have a positive duty to be aware of.