CAS Case Digest · Verified against the full award text

CAS 2011/A/2605 — Fédération Internationale de Football Association (FIFA) v. Confederação Brasileira de Futebol (CBF), Superior Tribunal de Justiça Desportiva do Futebol (STJD) & Mr Vinicius Sarturi Hess

"Hess" · CAS imposed a two-year ban on a Brazilian footballer for fenproporex, rejecting plastic-bottle sabotage defence and setting suspension start at 1 October 2011.

What happened in Hess

Brazilian footballer Vinicius Sarturi Hess tested positive for fenproporex, a non-specified stimulant, following an in-competition doping control on 9 October 2010 during the Campeonato Brasileiro da Série C. The LADETEC laboratory in Rio de Janeiro reported the Adverse Analytical Finding on 27 October 2010. The CBF's Disciplinary Commission imposed a one-year suspension on 7 December 2010. On appeal, the STJD reduced the ban to six months on 7 April 2011. FIFA appealed to CAS, seeking the standard two-year ineligibility period under Article 45 of the FIFA Anti-Doping Regulations (ADR). The player's principal defence was that plastic sample bottles — which could be pierced by a needle — violated applicable standards and made sabotage possible, thereby undermining the Adverse Analytical Finding. CAS rejected this argument, holding that the ADR and the WADA International Standard for Testing did not mandate glass containers, and that mere theoretical possibility of sabotage without evidence of actual tampering was insufficient. The panel also addressed the STJD's lack of independent legal personality, the admissibility of an 'early' appeal filed before the full case file was received, and the appropriate start date of the suspension given an eleven-month procedural delay not attributable to the player. The case matters because it clarifies the interplay between plastic sample containers and IST compliance, the treatment of 'early' appeals, and the crediting of suspension periods served under subsequently set-aside decisions.

Procedural history of CAS 2011/A/2605

On 9 October 2010 the player provided a urine sample at a Campeonato Brasileiro da Série C match. The LADETEC laboratory reported fenproporex on 27 October 2010. On 7 December 2010 the CBF's 2nd Disciplinary Commission imposed a one-year suspension for violation of Articles 2.1 and 10.2 of the World Anti-Doping Code. Both the player and another athlete appealed to the STJD. On 7 April 2011 the STJD, by majority vote, reduced the suspension to six months. The STJD sent the complete case file to the CBF on 20 September 2011; the CBF forwarded the decision to FIFA on 2 October 2011. FIFA filed its statement of appeal with CAS on 18 October 2011, before receiving the full file, and lodged its appeal brief on 29 March 2012 after the complete file was eventually produced on 9 February 2012 following multiple CAS requests. The player filed his answer on 25 May 2012. A hearing was held in Lausanne on 3 July 2012. FIFA asked CAS to set aside the STJD decision and impose a two-year ban.

Key holdings in CAS 2011/A/2605

• The STJD has no autonomous legal personality and its decisions must be treated as decisions of the CBF; CAS has jurisdiction ratione materiae over those decisions but not jurisdiction ratione personae over the STJD itself.
• Filing a statement of appeal before receipt of the entire case file does not render the appeal inadmissible, provided the respondent's rights are not impaired and the respondent has the opportunity to respond after the full appeal brief is filed.
• Article 6 of Annex E to the FIFA ADR, read with Article 6.3.4 of the WADA International Standard for Testing, does not require glass containers for sample collection; plastic bottles therefore do not constitute a departure from applicable regulations.
• Mere theoretical possibility that a plastic bottle could be pierced by a needle, without evidence of actual sabotage, is insufficient to establish on a balance of probability that the use of plastic bottles could reasonably have caused the Adverse Analytical Finding.
• Article 53 para. 1 of the FIFA ADR requires credit not only for periods of provisional suspension but also for periods of suspension imposed and served under final disciplinary decisions subsequently set aside, to avoid a de facto total suspension exceeding two years.

How the CAS panel reasoned

The panel first resolved the STJD's jurisdictional objection by following the Dodô Award (CAS 2007/A/1370&1376), finding the STJD to be an integral part of the CBF's organisational structure with no independent legal personality. On admissibility, the panel noted that nothing in the FIFA system sanctions an 'early' appeal and that the player's rights were preserved because he could respond after the full appeal brief was filed. On the merits, the panel applied Article 6 of Annex E to the ADR and Article 6.3.4 of the IST, concluding that the IST's minimum criteria for sample collection equipment do not include a glass-container requirement, making the prior FIFA-specific glass-bottle rule inapplicable in 2010. The panel further held that the player's sabotage theory was purely speculative: the laboratory had confirmed intact seals and an unbroken chain of custody, and the panel itself observed at the hearing that piercing a bottle would cause liquid to spill. Since the player offered no evidence of how fenproporex entered his body and made no submissions under Articles 47 para. 2 or 3 ADR, no reduction of the standard two-year sanction was warranted. On the start date, the panel identified approximately eleven months of delay not attributable to the player — caused by STJD proceedings, late file transmission, and delayed production of the disciplinary file — and set the commencement of ineligibility at 1 October 2011 under Article 53 para. 2 ADR.

Why Hess matters in CAS jurisprudence

This award consolidates several strands of CAS anti-doping jurisprudence: it confirms that the STJD is not an autonomous CAS respondent (following Dodô), establishes that plastic sample containers satisfy the WADA IST and FIFA ADR, sets a high evidentiary bar for sabotage defences, and clarifies that credit must be given for suspension periods served under subsequently overturned decisions — preventing de facto sanctions exceeding the prescribed maximum.

Cases cited in this award

CAS 2007/A/1370&1376 (Dodô Award, 11 September 2008) CAS 2009/A/1903 (award of 6 May 2010)

Frequently asked questions about Hess

Did the Hess case establish that plastic doping sample bottles are permitted under FIFA rules?

Yes. The panel held that Article 6 of Annex E to the FIFA ADR requires only that collection equipment comply with the WADA International Standard for Testing, and Article 6.3.4 of the IST does not mandate glass containers. The CBF anti-doping officer therefore did not depart from applicable regulations by using plastic bottles in October 2010.

Can a player escape a doping ban by arguing that a plastic sample bottle could have been sabotaged with a needle?

No, according to the Hess award. The panel found that merely demonstrating a needle can pierce a plastic bottle — without any evidence of actual tampering — is insufficient to establish even on a balance of probability that sabotage caused the Adverse Analytical Finding. The laboratory had confirmed intact seals and an unbroken chain of custody, and the panel observed at the hearing that piercing the bottle would cause liquid to spill.

Does CAS have jurisdiction over the STJD (Superior Tribunal de Justiça Desportiva do Futebol) as a separate respondent?

No. Following the Dodô Award (CAS 2007/A/1370&1376), the panel held that the STJD is an integral part of the CBF's organisational structure with no independent legal personality. CAS therefore has jurisdiction ratione materiae over STJD decisions but not jurisdiction ratione personae over the STJD itself; its procedural position is subsumed within that of the CBF.

In the Hess case, how did CAS handle the start date of the two-year suspension given the lengthy delays in proceedings?

The panel identified approximately eleven months of delay not attributable to the player — including delays in the STJD appeal proceedings, late transmission of the case file to the CBF and then to FIFA, and delayed production of the disciplinary file to CAS — and applied Article 53 para. 2 of the FIFA ADR to set the commencement of ineligibility at 1 October 2011. The panel also credited the six months already served under the STJD's decision, even though that decision was set aside, to avoid a de facto total suspension of two years and six months.

Topics: Doping, ethics & governance at CAS

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