CAS Case Digest · Verified against the full award text

CAS 2018/A/5546 & CAS 2018/A/5571 — José Paolo Guerrero v. Fédération Internationale de Football Association (FIFA) & World Anti-Doping Agency (WADA) v. FIFA & José Paolo Guerrero

"Guerrero" · CAS imposed a 14-month ban on Peru captain Guerrero for cocaine metabolite found after he inadvertently drank coca tea.

What happened in Guerrero

José Paolo Guerrero, captain of the Peruvian national team and Flamengo professional, tested positive for the cocaine metabolite benzoylecgonine (BZE) following an in-competition doping control after Peru's World Cup qualifier against Argentina on 5 October 2017. The FIFA Disciplinary Committee imposed a one-year ban; the FIFA Appeal Committee reduced it to six months on proportionality grounds. Both Guerrero (seeking no sanction on no-fault grounds) and WADA (seeking up to two years) appealed to CAS, which consolidated the proceedings. The panel found, on the balance of probabilities, that the source was coca tea served in the Visitors' Room of the Swisshotel Lima — an area not covered by the team's strict food and beverage protocols — two days before the match. The panel rejected a no-fault finding because Guerrero had merely assumed, without inquiry, that protocols applied there. It classified his fault as 'light' on the Cilic scale, yielding a baseline of 14 months. It firmly rejected FIFA's proportionality argument that the ban should be capped at six months, holding that the WADC 2015 itself embodies proportionality and that panels cannot reduce sanctions below the prescribed minimum. The award matters because it authoritatively restates the five-part framework for establishing the source of a prohibited substance and closes the door on extra-statutory proportionality reductions under the WADC 2015.

Procedural history of CAS 2018/A/5546

On 5 October 2017, Guerrero provided a sample after a World Cup qualifier; both A and B samples confirmed BZE. On 3 November 2017, the FIFA Disciplinary Committee provisionally suspended him for 30 days; on 7 December 2017 it imposed a one-year ban. Guerrero appealed; on 20 December 2017 the FIFA Appeal Committee reduced the sanction to six months (decision 171331 APC PER ZH), crediting the provisional suspension served since 3 November 2017 and ordering Guerrero to bear CHF 3,000 in costs. Guerrero filed his CAS appeal on 29 January 2018 (CAS 2018/A/5546). WADA filed its own appeal on 19 February 2018 (CAS 2018/A/5571). The two procedures were consolidated by agreement under Article R52 of the CAS Code. Guerrero sought no sanction; FIFA sought confirmation of the six-month ban; WADA sought a sanction of between one and two years, proposing 22 months.

Key holdings in CAS 2018/A/5546

• An athlete must establish the source of a prohibited substance on the balance of probabilities with actual evidence, not mere speculation; the anti-doping organisation is not required to prove an alternative source.
• A finding of no fault or negligence is available only in truly exceptional circumstances and requires proof that the athlete exercised the utmost caution; reliance on unverified assumptions about team protocols does not meet that standard.
• A reasonable belief, grounded in long experience, that team officials would ensure the safety of food and drink in designated areas does not constitute a defence to an ADRV but bears weightily on the evaluation of the degree of fault.
• CAS jurisprudence under the WADC 2015 is clearly hostile to using proportionality to reduce a period of ineligibility below the prescribed minimum; the WADC 2015 has been found repeatedly to be proportional in its approach to sanctions, with fault already built into the sanction framework.
• Where an athlete is guilty of no significant fault or negligence, the period of ineligibility must fall within the range of one to two years; factors such as the timing of the sporting calendar and loss of earnings are expressly excluded from the fault assessment under the WADC 2015.

How the CAS panel reasoned

The panel identified three sequential issues: source, fault, and proportionality. On source, it applied five established principles and found, at just over 51% probability, that T2 — coca tea served in the Visitors' Room of the Swisshotel Lima — was the origin of the BZE. It rejected drug use based on Guerrero's clean record, his role as an anti-doping ambassador, the hair-test evidence, and the implausibility of recreational cocaine use days before a crucial qualifier. It rejected T1 and T3 on expert evidence about BZE concentration levels and the strict protocols governing those settings. On fault, the panel applied the Cilic taxonomy adapted to the WADC 2015, classifying fault as 'light' rather than moderate: the prohibited substance was in an ordinary drink, not a supplement; and Guerrero's belief that team officials ensured safety in designated areas was far from unreasonable given his long professional experience, even though it was an unverified assumption. The panel rejected NFN because Guerrero never inquired whether protocols applied in the Visitors' Room and took no steps to verify the tea's contents. On proportionality, the panel held that the WADC 2015 itself embodies a proportionate framework, that reducing the sanction below one year would make a nonsense of the prescribed minimum, and that legal certainty required strict adherence to the lex lata rather than judicial improvisation.

Why Guerrero matters in CAS jurisprudence

Guerrero is the leading CAS authority consolidating the five-part evidentiary framework for establishing the source of a prohibited substance under the WADC 2015. It also definitively forecloses extra-statutory proportionality reductions below the prescribed minimum sanction, reinforcing that the WADC 2015 is itself a proportionate instrument. The award's treatment of reliance on team officials as a fault-mitigating (but not fault-eliminating) factor has become a frequently cited reference point in contamination cases.

Cases cited in this award

CAS 2012/A/2759 CAS 2014/A/3615 CAS OG 16/25 CAS 2014/A/3820 CAS 2010/A/2230 CAS 2013/A/3327

Frequently asked questions about Guerrero

Why did Guerrero receive a 14-month ban instead of the 6 months given by FIFA?

The FIFA Appeal Committee had reduced the ban to six months by applying proportionality to go below the one-year minimum for no significant fault or negligence. CAS held that the WADC 2015 itself embodies proportionality and that reducing a sanction below the prescribed minimum of one year would make a nonsense of that floor. Applying the Cilic scale and classifying Guerrero's fault as 'light', the panel set the period at 14 months, crediting all suspension already served.

How did CAS establish that coca tea — not cocaine use — was the source of Guerrero's positive test?

The panel applied a five-part framework requiring proof on the balance of probabilities with actual evidence. It found, at just over 51% probability, that T2 — coca tea served in the unprotected Visitors' Room of the Swisshotel Lima on 5 October 2017 — was the source. Key factors included: both experts agreed the BZE concentration was consistent with coca-tea ingestion two days before the test; the hotel stopped serving coca tea in December 2017 and was uncooperative when asked to identify the waiter; and Guerrero's clean record and role as an anti-doping ambassador made recreational cocaine use implausible.

Did Guerrero's reliance on team food-safety protocols count as no fault or negligence?

No. The panel found that Guerrero's belief that team officials ensured the safety of food and drink in designated areas was reasonable given his long professional experience, but it was an unverified assumption — he never inquired whether protocols applied in the Visitors' Room. Because NFN requires the exercise of 'utmost caution' and is available only in truly exceptional circumstances, the panel rejected the no-fault plea. However, the reasonable belief did bear 'weightily' on the degree of fault, which was classified as 'light' rather than moderate.

Can a CAS panel use proportionality to reduce a doping ban below the WADC 2015 minimum?

No, according to Guerrero. The panel held that CAS jurisprudence since the WADC 2015 came into force is 'clearly hostile' to using proportionality to reduce a period of ineligibility below the prescribed minimum. The WADC 2015 has been found repeatedly to be proportional in its approach to sanctions, with fault already built into the sanction framework, and the definition of fault expressly excludes factors such as the timing of the sporting calendar and loss of earnings. Departing from the lex lata would undermine legal certainty.

Topics: Doping, ethics & governance at CAS

Source: official award. This digest was generated by LexXi from the full award text and machine-verified against it — every figure, article and citation above appears in the source. It is an editorial summary, not legal advice. See how ElevenLex verification works.