CAS 98/212 Union Cycliste Internationale (UCI) / M. & Federazione Ciclistica Italiana (FCI)
- Cycling
- Doping (nandrolone)
- Determination of the competent appeals tribunal
- Endogenous substance
- “Effective” sanction
- Probation
1. Quantities up to 2 ng/ml are not considered to constitute a doping offence. The laboratories do normally not report concentrations below 2 ng/ml to the Federation. There is uncertainty among experts as to the maximum concentration of Nandrolone produced by a human body. Consequently, the mere finding of Nandrolone in a concentration between 2 and 5 ng/ml may constitute a doping offence, but requires further investigations in order to confirm the result of the analysis. However, within the “grey zone” the likelihood that Nandrolone is produced endogenously, is decreasing exponentially. The probability of an endogenous production of Nandrolone in quantities beyond 5 ng/ml was held to be very unlikely. Therefore quantities beyond 5 ng/ml are very likely to be confirmed by further investigations and may be regarded as sufficient evidence to constitute a doping offence.
2. Pursuant to the UCI Rules, a sanction, in order to be effective, must be served during the period of normal activity. As a consequence, a suspension falling to a considerable extent within a “dead period”, which means a period where the athlete does usually not compete, cannot be regarded as an effective sanction.
In May 1998 the Italian Cycling Federation (FCI), initiated by the International Cycling Union (UCI), has reported an anti-doping rule violation against the Italian Athlete M. after his A and B samples tested positive for the prohibited substances norandrosterone and noretiocholanolone (Nandrolone) in a low concentration.
On 31 August 1998 the FCI Disciplinary Commission decided to impose on the Athlete a 6 month period of ineligibility and a CHF 2’000,-- fine without specification of the starting and or ending of the suspension.
Hereafter in September 1998 the Athlete M. appealed the decision of the FCI Disciplinary Commission both with the FCI Appeal Commission and with the Court of Arbitration for Sport (CAS).
Also the UCI appealed in October 1998 the FCI decision of 31 August 1998 with CAS. Meanwhile in October 1998 the Athlete withdrew his appeal with CAS.
UCI requested the CAS Panel to impose a sanction on the Athlete of at least 6 months and to increase the fine.
The Panel finds that the Athlete M. was not able to give any reasonable explanation for the origin of the prohibited substances. He further failed to submit any evidence in order to support the motion that in his particular case the endogenous production of Nandrolone could reach or even exceed the threshold of 5 ng/ml. The Panel therefore held that the analysis of the A-sample, confirmed by the analysis of the B-sample, revealed the presence of prohibited substances in a concentration not only higher than 2 ng/ml but also beyond the unofficial “grey zone” and as such established an infringement of the AER.
With regard to the sanction, the Panel only partially agrees and therefore modifies the decision of the FCI.
Therefore the Court of Arbitration for Sport decides on 24 February 1999:
1.) The appeal by the UCI is partially upheld.
2.) The decision of the Federazione Ciclistica Italiana (FCI) dated 31 August 1998 is partially modified:
The Athlete M. is sanctioned as follows:
- disqualification from the “Settimana Bergamasca” 1998;
- suspension for nine months from 14 July 1998 to 13 April 1999;
the suspension is lifted by 21 January 1999 and M. is granted probation for the remaining period of suspension, i.e. two months and three weeks (according to Art. 95 UCI AER);
- fine of CHF 2’000.-- (two thousand Swiss francs).
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