Can football players delegate their anti-doping responsibilities to their club? The case of Shir Tzedek

Published 26 June 2018 By: Boaz Sity

Football in front of white coat

Shir Tzedek is an Israeli professional football player for Hapoel Beer Sheva (the Player). On 22 August 2017, Tzedek played in a UEFA Champions League match against NK Maribor and was required to provide a urine sample for doping control purposes. One month later, on 22 September 2017, the Player was informed the prohibited substance Octopamine was detected in his urine sample. Octopamine is a specified stimulant and is only prohibited in-competition.

Subsequently, UEFA opened disciplinary proceedings against Tzedek for anti-doping rule violation, in accordance with the UEFA Anti-Doping Regulations (ADR). On 7 December 2017 UEFA's Control, Ethics and Disciplinary Body (CEDB) decided to suspend him for a period of eight months (decision available here1 – see page 117).

This article reviews the proceedings before the CEDB, focusing on:

  • The Player's position;

  • The CEDB decision;

  • The scope of suspension under the ADR; and

  • Comments and observations.

The Player's Position

The source of the prohibited substance

The Player submitted that the source of the prohibited substance was an energy drink named "Xtreme Shock". The Player mainly relied on analysis done by three different laboratories (one in the United States, one in Israel and one in Switzerland, none of which were WADA accredited) confirming the presence of Octopamine in the bottles of Xtreme Shock. Additionally, the manufacturer of the product confirmed that the same product sold in the United States contains Octopamine, as opposed to the version regularly sold in Israel, and recognized that it is "entirely possible" that some of the bottles distributed in Israel were mislabeled. The Player also submitted an expert report confirming the Octopamine level detected in the Player's urine sample is consistent with the estimated concentration in the respective bottles of the allegedly contaminated product.

Degree of fault or negligence

The Player admitted the existence of a certain degree of fault or negligence, which he deemed "light degree of fault or negligence"2. The Player's line of argument followed two prongs:

First, the Player routinely takes personal safeguards with regard to the use of supplement:

  • The Player limits his use of supplements and instead focuses on a healthy diet;

  • The Player only uses supplement products provided by his club or his national team;

  • The Player reads the labels of the products and investigates further if anything seems suspicious

Second, the Player relies on the expertise of his club, its professional staff and its nutrition experts:

  • The Player always asks the relevant professional staff whether any supplements provided are safe for use and have been checked for prohibited substances;

  • The club and its staff meticulously check the supplements provided to the players;

  • The club also consults a certified dietician with respect to the supplements products and players are only provided with products pre-approved by the certified dietician;

  • The club obtains its products from reputable stores that service professional athletes and professional football clubs.

In light of these circumstances, the Player pleaded that the appropriate sanction was a suspension period of no more than four months.

The CEDB Decision

The CEDB accepted the Player's assertion that the source of prohibited substance is likely the Xtreme Shock energy drink product, ingested by the Player before every match.3

The CEDB then turned its attention to assess the Player's purported intention, fault or negligence in the present case.

No intention to cheat

According to Article 9.01(a)(ii) of the ADR, the standard sanction for an anti-doping rule violation involving a Specified Substance, such as Octopamine, is a two-year suspension, unless "UEFA can establish that the violation was intentional", meaning, with the intention to cheat.4

In the present case, the CEDB was unequivocally satisfied that the Player had no intention to cheat, as there was no evidence in the case file that could suggest otherwise.

No fault or negligence

According to Article 10.1 of the ADR, "If a player or other person establishes in an individual case that he bears no fault or negligence, then the otherwise applicable period of suspension is lifted". The CEDB then recalled that "any breach of the Player's duty of care or lack of it relating to his particular situation would already justify the existence of fault". In the present case, the Player himself admitted the existence of fault, albeit of light degree; therefore the No Fault or Negligence claim was inapplicable.

No significant fault or negligence

As previously stated, the Player asserted he bore no significant fault or negligence, based on two prongs of argument: first, the Player's own actions with regard to the use of supplements, including only using supplements provided by his club, reading the labels of the product and further investigating the product if anything seems suspicious; second, the Player's reliance on the expertise of his club and its staff, including the assistance of a certified dietician, with respect to any products provided to the club's players.

However, the CEDB found failings in both prongs of the argument. Specifically:

With regard to the Player's personal actions:

  • The CEDB found that the Player did not carry out a basic internet research on the product and its properties, which would have "provided the player with important information of the potential danger of this product and, accordingly, called for the need to be more attentive and precautions". In particular, the CEDB noted that the commercial description given to the product on the distributor's website is close to the typical one given for other performance enhancing products, such as anabolic steroids. Additionally, the distributor's website established that the product sold in the United States includes Octopamine, as opposed to other versions of the product sold in Israel.

  • Furthermore, the CEDB also stated that the Player "lacked from a precautious attitude" when the club suddenly provided him with a drinking version of the product, instead of the regularly used powder version of the product.5 Specifically, the Player did not return to the club or its experts to reassure that the product in a liquid format was safe for use or took any precaution when the format change suddenly occurred.

With regard to the Player's reliance on the expertise of his club:

  • The CEDB pointed out numerous faults in the club's actions. For example, the club's staff apparently did not carry out a minimal internet research on the product. Also, the club's staff did not consult the expert dietician when it decided to switch from a powder version to the drinking version of the product; therefore the drinking version was in fact never approved by the expert dietician.

  • Nonetheless, in line with Maria Sharapova v. International Tennis Federation,6 it seems the CEDB was willing to accept that a professional football player may delegate responsibilities of his anti-doping obligations to the club, its professional staff and its experts. However in such case, the player is still required to monitor and supervise the club and verify how the club and its experts are meeting his anti-doping obligations. In this case, the CEDB concluded the Player failed to do so and therefore failed in his anti-doping responsibilities.

Having considered the Player's faults, the CEDB concluded the Player had a "normal degree of fault" from an objective perspective, meaning he Player was eligible for a reduction of the suspension period based on no significant fault or negligence.

The Appropriate Sanction

In line with the principles set out in International Tennis Federation v. Marin Cilic7, the CEDB determined that the period of suspension for "normal" degree of fault ranges from 8-16 months, with a "standard" normal degree of fault leading to a suspension of 12 months.8

However, the CEDB found subjective mitigating factors justifying a lower sanction than the applicable standard of 12 months, specifically:

  • The Player was reasonable in his selection of the relevant staff to assist him in complying with his anti-doping obligations;

  • The drinking version of the Xtreme Shock product sold in Israel doesn't contain amongst its ingredients the prohibited substance;

  • The manufacturer of the product recognized that it is "entirely possible" that some bottles marketed to Israel were mistakenly mislabeled, which might suggest that the product was in fact contaminated;

  • The Player had a reduced perception of risk, due to the fact that he had already passed a doping control beforehand while using the exact same product, and he did not test positive for prohibited substances.9

Consequently, the CEDB decided that the Player shall be suspended for a period of 8 months, rather than the standard 12 months period.

The Aftermath: Scope of Suspension under the ADR

Article 15.1 of the ADR defines the scope of the imposed suspension period: "No player or other person who has been declared suspended may, during the period of suspension, participate in any capacity in a competition or activity (other than authorised anti-doping education or rehabilitation programmes) authorised or organised by UEFA, a national association, a confederation, FIFA or a team, or other member organisation of a national association, in competitions authorised or organised by any professional league or any international or national-level competition organisation, or in any elite or national-level sporting activity funded by a governmental agency".

In the aftermath of the CEDB decision, Hapoel Beer Sheva won the Israeli national championship and wanted Tzedek, currently under suspension, to participate in the club's celebratory events, including the championship ceremony.

It was reported that the Player and the club sought clarifications from UEFA whether the Player may participate in such events during the last two months of his suspension, when the Player had already returned to team training. Subsequently, UEFA clarified that such celebratory events constitute an "activity organized by a team or other member of a national association", as defined in Article 15.1 of the ADR; therefore the Player may not take part in such activities during his suspension.10

Comments and observations

  • Delegation of anti-doping responsibilities in team sport context – In Maria Sharapova v. International Tennis Federation, the CAS Panel adjudicating the case ruled that "nothing prevented the player, a high-level athlete focused on demanding sporting activities all over the world, from delegating activities aimed at ensuring regulatory compliance and more specifically that no anti-doping violation is committed". A player who delegates his anti-doping responsibilities to another, shall be at fault if: he chooses an unqualified person as his delegate; fails to instruct him properly or set out clear procedures he must follow in carrying out his task; and he fails to exercise supervision and control over him in carrying his task. This ruling was applied in the context of a singles sport.11

It seems that the CEDB was willing to follow this line of reasoning. This suggests that a professional team sport player, i.e. football or basketball, may rely on his club's expertise and its staff in complying with his anti-doping obligations, essentially delegating his responsibilities. In this case, the CEDB deemed the Player's delegation of obligations to his club's staff as "reasonable", but found that the Player failed in exercising adequate supervision and control over the club's staff. However, his reasonable reliance on the club and its expertise was one of the mitigating factors which led to a reduced suspension.

  • The importance of internet research – This case demonstrates yet again the importance of carrying out a basic internet research, in the eyes of the judiciary panel. The CEDB regarded an internet search as a "minimum requirement" if the player seeks to plead he bears a light degree of fault. In this case, the CEDB found that neither the player, nor the delegate on his behalf, carried out a basic internet search on the product and its properties, which significantly hindered the Player's assertion that he bore only a minimal degree of fault for the violation.

  • Scope of suspension and provisional suspension – Interestingly, the CEDB decision also sheds light on UEFA's interpretation of Article 15 and 16 of the ADR.

- Article 16 of the ADR allows players to "voluntarily accept a provisional suspension in writing from UEFA", so that any period of provisional suspension shall be credited against any suspension imposed on the player. In this case, the Player elected to voluntarily accept a provisional suspension. However, the Player sought precise answers from UEFA as to whether he could: train with his team; use his team's facilities; and hire team staff members for individual training purposes, during the period of the provisional suspension. UEFA then confirmed that the Player could not train with his team or use its facilities during the provisional suspension, but could hire club's staff for individual training purposes.

- Additionally, as described above, UEFA clarified that players under suspension cannot participate in team-organized events, such as championship ceremonies or other celebratory events, even if the player had already returned to training with the team.

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Boaz Sity

Boaz Sity

Boaz Sity is a Partner at Ron Gazit, Rotenberg & Co in Israel.