Why can Peru’s Guerrero play at World Cup despite drug ban?

Leading sports law barrister John Mehrzad examines the curious case of Peru captain Paolo Guerrero.

Whats the background to the Guerrero story?

In December 2017 Fifa imposed a 12-month ban backdated to November 2017 on the Peru captain, Paolo Guerrero, after he tested positive for Benzoylegonine – a metabolite of cocaine – following a World Cup qualifier against Argentina in October 2017. That ban ruled him out of this summers World Cup.

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Guerrero then appealed to a Fifa committee, which reduced the ban to six months on the basis that Guerrero had consumed contaminated tea. As a result, his ban would end before the World Cup.

However, both Guerrero and the World Anti-Doping Agency then appealed to the Court of Arbitration for Sport seeking a further reduction and an increase in the ban respectively.

On 14 May 2018 the CAS increased the ban to 14 months, since the minimum sanction was a 12-month ban under Fifa rules. It looked like Guerrero was once again ruled out of the World Cup.

So why is Guerrero eligible to play in the World Cup?

Despite increasing the ban, on 31 May 2018 the CAS agreed to stay the ban pending an appeal to the Swiss Federal Tribunal.

The SFT had indicated that a stay was appropriate pending the appeal before it, given the upcoming World Cup was Guerreros first opportunity to play in the tournament – Perus first appearance since 1982 – and, at the age of 34, probably his last opportunity.

As a result, Guerrero is now once again eligible to play in the World Cup pending the determination of the SFT appeal.

The ban, though, still hangs over him and, unless the SFT changes the sanction on that final appeal, he will then be subject to a 14-month ban as soon as the stay is lifted.

If he scores a goal to knock out a team, would that losing team be able to take legal action?

No. Guerrero has a right of appeal to the SFT and the CAS has a discretion to order a stay to the ban. Pending the outcome of the SFT appeal, he is eligible to play.

It may be galling for any losing team and its supporters that Guerrero is now once again eligible to play in the World Cup, but he has merely exercised the legal rights that are still available to him.

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