Rivista di Diritto ed Economia dello Sport - Rdes.it

CAS 2005/C/976 & 986, FIFA & WADA 223a certain violation of the athlete’s duty of care may be taken into account.This is not different under the WADC.87 To the extent that such specific circumstances have been accepted asvalid justifications for the athlete’s departure from the “utmost care”-standard,they must be appropriately reflected in the quantum of the individual sanction.Accordingly, within the framework set by art. 62.2 FIFA DC, the specificsanction must be proportionate to the degree of departure from the athlete’sduty of care. This is how the Panel understands the reference to the “generalprinciples of law” in art. 62.1 FIFA DC. Such approach to the determinationof the quantum of the specific sanction is not different from the principleswhich govern the determination of a sanction within the penalty frameworkof the WADC.c) Conclusions88 The Panel concludes that FIFA Anti-Doping Rules and the WADCare not substantially different with regard to the method to determine theindividual sanction for a specific anti-doping rule violation. Both requirethe sanctioning body to measure the conduct of the athlete against a duty ofutmost caution and to assess the ineligibility period within a given penaltyframework in proportion of the degree of fault.89 There are however three significant differences between the WADCand the FIFA Anti-Doping Rules:- The frameworks of the penalties for first offenses are different (i.e. 6months/2 years according to art. 62.1 FIFA DC and 1 year/2 yearsaccording to art. 10.5.2 WADC). 49- According to art. 10.1.1 WADC, the two years’ ineligibility is the standardsanction from which a departure is only possible in cases of no fault orno significant fault. According to art. 62.1 FIFA DC the 2-years’ineligibility period is the maximum penalty. The Panel would like to stressthe following: The arbitration process may still, through carefulapplication of the rules contained in the WADC and the FIFA DC andthe consequent analyzes, develop a jurisprudence that does not deviatesignificantly under either code save for the question of the minimumsanction.____________________48The effect which a specific sanction may have on an individual athlete (e.g. the fact that anineligibility of certain duration may prevent an athlete from participating in the Olympic Gamesor in a number of games in the Champions League) is not a “circumstance” in the meaning of art.10.5 WADC or art. 62.1 FIFA DC which must be taken into account to determine the degree offault or guilt. Whether such effects may effect the duration of an ineligibility shall be discussedin the context of the principle of proportionality.49This difference may be lessened if the FIFA sanctioning body makes use of the possibility tointerrupt the ineligibility period by rest season (Art. 34 FIFA DC).