Maltese Doping Cases

Article excerpt

Background facts

At the end of 2007 and the beginning of 2008, three Maltese football players, Mattocks, Martin and Grech tested positive for prohibited substances.

Following a test performed on 26 December 2007, the player Mattocks tested positive for 19-norandrosterone. He explained that the source of this prohibited substance was a contaminated food supplement. The Malta Football Association (MFA) accepted his explanation and suspended him for a period of four months.

Several days later, on 2 January 2008, two other Maltese football players tested positive for prohibited substances, as a consequence of excessiveness on the occasion of New Year's Eve:

- Grech tested positive for cocaine. He did not challenge the adverse analytical findings reported by the laboratory and explained to the MFA that cocaine was purportedly put in one of his drinks by one of his friends on New Year's Eve. The MFA Control and Disciplinary Board did not believe this explanation and imposed a one-year suspension period on Grech. Grech appealed this decision with the MFA Appeals Board, which reduced the sanction down to nine months.

- Martin tested positive for both cocaine and amphetamines. He admitted having taken both substances during a New Year's Eve Party and was suspended by MFA for a period of one year.

Both WADA and FIFA appealed all three decisions rendered by MFA. It seemed quite obvious to FIFA and WADA that the sanctions imposed by the MFA were not in line with the provisions of the then applicable FIFA Disciplinary Code (the 2007 FDC) or of the World Anti-Doping Code (WADC). According to the WADC or the 2007 FDC, a reduction of the ordinary two-year suspension period sanctioning the presence of a prohibited substance in a player's bodily sample may occur in exceptional circumstances only, where the player is able to demonstrate that his fault is not significant. The minimum period of suspension, except if the player is able to demonstrate that he bears no fault at all, is one year. FIFA and WADA therefore were of the opinion that all three sanctions imposed by MFA were too lenient. Furthermore, the sanctions of four months imposed on Mattocks, as well as the sanction of nine months imposed on Grech were not compliant with the set of sanctions provided for by the 2007 FDC and the WADC for the substances detected in the players' samples.

Admissibility of the appeal

The 2002 edition of the MFA statutes (which were then applicable) contained a clause providing that:

  "in so far as the affiliation to FIFA is concerned, the Association
  recognizes the Court of Arbitration in Lausanne, Switzerland
  (CAS) as the supreme jurisdictional authority to which the
  Association, its Members and members thereof, its registered
  players and its licensed coaches, licensed referees and licensed
  players' agents may have recourse to in football matters as
  provided in the FIFA Statutes and regulations".

The CAS panel observed that the players were validly bound by the MFA Statutes. It therefore came to the conclusion that article 61 of the 2007 FIFA Statutes providing, inter alia, for WADA and FIFA's right of appeal to the CAS in doping matters was validly incorporated by reference in the MFA Statutes. It therefore held that the CAS had jurisdiction. This conclusion by the CAS panel is fully in line with a long standing jurisprudence by the CAS, confirmed by the Swiss Federal Tribunal, admitting the validity of an arbitration clause by reference (1).

Applicable Rules on the merit - FIFA or MFA regulations?

The key issue in all three cases was the one of the applicable regulations on the merits.

On the one hand, the MFA Statutes in force at that time provided that MFA was bound to "observe the rules, bye-laws, regulations, directives and decisions of the Federation International de Football Association (FIFA)". According to the 2007 FDC, which was adopted in compliance with the WADC, the duration of the period of ineligibility sanctioning the presence of a prohibited substance in a player's sample was two years. …