Volume: 16 Issue: 9
The Peruvian national football team last qualified for the FIFA World Cup finals held in Spain 36 years ago. The South American nation was elated and looking forward to finally seeing its beloved squad compete in the finals on the back of its captain and all-time leading goal scorer Paolo Guerrero. In the months leading up to World Cup finals however, Guerrero was prohibited from competing in the tournament by virtue of a decision of the Court of Arbitration for Sport (‘CAS’). The CAS upheld an appeal by the World Anti-Doping Agency (‘WADA’) of a FIFA decision and imposed a sanction of a prohibition from competing for 14 months, which meant Guerrero would miss the 2018 FIFA World Cup finals in Russia. At that moment it was almost clear that at 34 years old el Pistolero had missed his only opportunity to play in a World Cup final. Ultimately Guerrero competed in the 2018 FIFA World Cup finals. The decision of the CAS was appealed to the Swiss Federal Tribunal (‘SFT’) on the basis that imposing such a sanction, resulting in the player being unable to compete, without the full grounds of the decision, was a violation of his rights. The result is that the SFT suspended the effect of the CAS award. The CAS panel did not release the full grounds of the award prior to the commencement of the tournament and as a result Guerrero ended up playing in the three group stage matches scoring a goal and assisting on another against Australia. Guerrero tested positive for the cocaine metabolite benzoylecgonine (‘BZE’). In the end it was established, as accepted by the CAS, that the substance entered the athlete’s body via the drinking of a Peruvian tea, known as a mate. The consumption of this type of beverage in Peru is not only very popular but quite common. These types of teas are consumed to combat nausea caused by high altitude, and has been used as such for centuries, as Peru is in the Andes. Despite establishing that this tea was not only common in Peru, and that it was taken in the hotel where, presumably, the nutritionist and doctors of the national team controlled the players’ diets, the CAS found that the player was ultimately responsible and that an anti-doping rule violation had occurred. In the end this was a ‘food’ case where the athlete was not intentionally cheating nor was he attempting to procure a sporting advantage. The effect of this decision is that the WADA Code places the onus on the player to ensure that all meals are to be clean, subject to the rules of negligence, and that an athlete cannot delegate this function to a nutritionist or a team doctor. Here, Juan de Dios Crespo Pérez and Paolo Torchetti, of Ruiz-Huerta & Crespo Sport Lawyers, who represented Guerrero in this case, review it from a substantive and procedural perspective and explain the legal issues. Juan and Paolo posit that the WADA Code is ill-equipped to deal with the realities of sport, medicine and human nature, and that this case is a perfect example of how and why the WADA Code ought to be reformed. Additionally, Juan and Paolo propose that WADA ought to amend the WADA Code so that (1) an exception be written in that athletes can delegate the exercise of the standard of care to accredited nutritionists and/or doctors; and (2) performance enhancing substances, supplements, contaminated food products and recreational drugs be treated differently.