TAS 2011/A/2684 Union Cycliste Internationale (UCI) c. Pasquale Muto & Comitato Olimpico Nazionale Italiano (CONI)
CAS 2011/A/2684 UCI vs Pasquale Muto & CONI
Cycling
Doping (EPO, ephedrine)
Passive legitimation of CONI
First or second violation
Aggravating circumstances
Duration of the suspension
Admissibility of a financial sanction in addition to the suspension
Calculation of the athlete’s fine
1. The ADR explicitly provides that a possible UCI appeal against a decision of a hearing panel of a national federation must be addressed not only to the athlete, but also to the federation and/or the body that has decided to delegate the latter. It further provides that when an arbitration panel finds that a body in question applied the regulations incorrectly, it would come up to condemn either the federation, or the body to pay the appeal costs. The national federation or the concerned body are therefore susceptible indebted in their liability to the UCI and the UCI must be able to assert its rights in this matter.
The body that rules as delegated by the federation, in this case CONI, has therefore passive legitimation and is a party as a respondent in the proceedings.
2. Although two separate anti-doping rule violations were committed, they constitute only one single first anti-doping rule violation when the notification of the first violation occurred after the second violation was committed.
3. However, as binding procedural application, besides being quite understandable, can lead to give the athlete the qualification of a second violation and establishing recidivism, whereas the disposition of this double violation is not questionable, this factual situation indeed constitutes aggravating circumstances.
4. Whereas the duration of the suspension can vary, it should be determined in compliance with the applicable rules and the principle of proportionality, depending on the case.
5. The International Federations may add a financial sanction to the suspension when the entire sanction complies with human rights and general principles of law, in particular the priniciple of proportionality. For all that they must verify that this addition is proportional regarding the duration of the suspension, the amount of the fine, adequate to the case.
6. As apparent in the regulatory provisions, the fine should be calculated on the basis of a full year’s net income the athlete normally is entitled to, and not the amount actually collected. This interpretation particularly arises from the term “normally”, because there is no provision for the calculation of the fine pro rata temporis, and finally, de context in which the provision was adopted as well the strived objective of this measure.
In May 2011 the International Cycling Union (UCI) has reported multiple anti-doping rule violations against the Italian cyclist Pasquale Muto after his samples - provided on two occasions on 25 March 2011 and on 10 April 2011 - tested positive for the prohibited substances Ephedrine and recombinant human erythropoietin (rhEPO). On 29 July 2011 the Tribunale Nazionale Antidoping del CONI (TNA-CONI), the CONI National Anti-Doping Tribunal, decided to impose a 2 year and 6 month period of ineligibility on the Athlete.
Hereafter in December 2011 the International Cycling Union (UCI) appealed the Italian decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the TNA-CONI decision of 29 July 2011 and to impose a 4 year period of ineligibility on the Athlete including a fine and payment of fees and costs. In this procedure CONI as party didn’t file a statement in their defence nor did the Athlete submit any response.
The UCI argued that the Athlete failed to establish how the prohibited substances entered his system, nor that the violation was unintentional. The UCI asserted that with aggravating circumstances imposing a sanction of 4 years is justified as the Athlete committed multiple anti-doping violations.
The Panel establish that the Athlete committed multiple anti-doping violations intentionally and he failed to provide an explanation for the presence of the prohibited substances in his system. The Panel concludes that the two anti-doping violations are to be considered as one single first anti-doping rule violation with aggravating circumstances and that a sanction of 3 years is appropriate in this case.
Therefore the Court of Arbitration for Sport decides on 14 September 2012 that:
1.) The UCI appeal of 28 December 2011 against the TNA-CONI decision of 29 July 2011 is admissible;
2.) The Decision No. 24/2011 of 29 July 2011 of TNA-CONI is partially modified;
3.) Mr Pasquale Muto is sanctioned with a period of ineligibility of 3 years starting from 3 May 2011;
4.) Mr Pasquale Muto is ordered to pay to the UCI a fine of EUR 19’250,-;
5.) Mr Pasquale Muto shall pay to the International Cycling Union CHF 2’500 as costs for the fees and the doping control results;
6.) The Decision No. 24/2011 of 29 July 2011 of TNA-CONI is uphold regarding the disqualification of the results obtained by Mr. Pasquale Muto.
7.) (…);
8.) (…);
9.) (…);
10.) All other or further claims are dismissed.
