It took 28 days from the submission until the decision on the request for suspensive effect for Gabigol to return to play for Flamengo. Now, the attacker is released to play and awaits the analysis of the merits at the CAS (Sports Court of Arbitration). But what was the defense strategy that achieved the suspensive effect?
The complaint was filed at the end of December, but the case dragged on throughout 2023, right after the episode that happened on April 8th at Ninho do Urubu. In August, there was a prior defense made by Rodrigo Dunshee, the club’s general and legal vice-president. From the first moment, the main argument argued that there was no fraud in the exam.
Flamengo understood that there was an act of indiscipline by Gabigol, but that it could not be classified as an attempt to cheat the anti-doping test. The close vote (5×4) that resulted in the sentence being suspended for two years was one of the arguments used in the request for a suspensive effect sent to CAS in early April. (See voting details here)
Striker Gabigol received a suspension effect and is free to return to the Flamengo team
Internally, those involved in the process understood that there was corporatism in the trial at the Anti-Doping Sports Court (TJD-AD) and that at the CAS the situation would be analyzed impartially. Gabigol’s defense believes that there was a significant delay by ABCD (Brazilian Doping Control Authority) in continuing the case.
Two facts are taken into account: ABCD did not pay its share of the legal costs and the attacker paid the amounts, and the documentation sent was not administratively accepted by CAS, which had to appoint the arbitrator in place of ABCD to analyze the request for suspensive effect.
Therefore, CAS appointed two of the three arbitrators. The panel was made up of an Englishman nominated by Gabigol’s defense, and another Englishman and a Swiss nominated by the Court. The three voted in favor and granted the suspension effect to the attacker.
The defense considered that the fierce trial in the Brazilian court would contribute to the request being accepted by the CAS and the attacker being released to play. In the argument, attention was drawn to the “periculum in mora” (the danger of delay) along with “fumus boni juris” (smoke from good law).
There was a call for the process to be analyzed quickly, as any loss of time could result in Gabigol serving a large part or even the entire period of the suspension imposed on him. Furthermore, the attacker’s history, without any precedent of doping in his career, was included in the documentation.
The unanimous victory was considered an ‘encouraging start’ to be able to reverse the appeal in the final judgment. The result brought even greater confidence to the player’s defense, who believe that the court would not have granted this decision if it had not seen that there were real chances of success at the end of the process.
Statistically, Flamengo understands that processes that carry injunctions have a reasonable chance of the final decision being similar to the injunction achieved. There is no date for the final judgment. The CAS mentioned that the ruling on the appeal could take up to a year.
Gabigol was punished on March 25th by the TJD-AD for attempted fraud in an anti-doping test carried out on April 8th, 2023. The penalty began to take effect from the date the test was collected at Ninho, even though the player was active in the last year, with a deadline of April 7, 2025. The attacker was represented by Bichara e Motta’s office, which had the participation of Rodrigo Dunshee as Flamengo’s representative to monitor the case.
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