CAS 2018/A/5546, José Paolo Guerrero v. Fédération Internationale de Football Association (FIFA), CAS 2018/A/5571, World Anti-doping Agency (WADA) v. FIFA & José Paolo Guerrero, Award of 30 July 2018 (Operative Part of 14 May 2018)

Despite the fact that CAS declared in FIFA & WADA (CAS 2005/C/976 & 986) that all sanctions must comply with the principle of proportionality, CAS panels have been reluctant to engage in a proportionality assessment in individual cases. Panels have asserted a variety of rationales for their refusal to assess proportionality in individual cases: (i) former ECtHR Judge and President, Jean-Paul Costa’s assessment, in a legal opinion issued in 2013, that the (2015) WADA Code’s sanction regime as a whole is proportionate; (ii) that a proportionality assessment is unnecessary in individual cases because proportionality is “built in” to the WADA Code; (iii) that a proportionality analysis is only permissible in an individual case where there is a “gap or lacuna” in the WADA Code; (iv) that a proportionality analysis would nullify the sanction regime of the WADA Code; and (v) that a proportionality analysis would lead to a landslide of cases risking the “exceptional mutat[ing] into the norm.” In the case of José Paolo Guerrero, despite outlining a series of circumstances that suggested that the 14-month sanction imposed by CAS was disproportionate, the CAS Panel refused to actually rule on the issue of proportionality, citing many of the rationales outlined above. The authors submit that a proportionality analysis remains a legal necessity in individual anti-doping cases, and that Judge Costa’s opinion that the sanction regime in the 2015 WADA Code is generally proportionate does not and cannot amount to a declaration that the sanction regime in the 2015 WADA Code will result in a proportionate sanction in every individual case. Furthermore, the oft-cited fear that a proportionality analysis will nullify the WADA Code or lead to a “landslide” of cases where a proper proportionality analysis supersedes the WADA Code is a fallacy that is not supported by the lex sportive.