So in the last post, I mentioned that CyclingNews.com had run a brief article suggesting that Floyd Landis might be under investigation for fraud related to the creation and fund-raising activities of the Floyd Fairness Fund from way back when.

And for several weeks, it appeared that the story was going exactly nowhere. I searched through Google News from time to time to see if other articles appeared relating to the story, and didn’t find any — until yesterday, that is. Turns out, Mark Zeigler of the San Diego Union-Tribune picked up the story and was able to confirm that the investigation is under way. And then, ESPN’s Bonnie D. Ford managed to get a comment from Landis, himself, confirming that he is, indeed, the target of an investigation of some sort. As Bonnie Ford reports:

“I can’t get into the substance of the investigation, but I am sure you can understand that I would prefer to not be under investigation,” he said in an email. “However, when I was living the lie of denying doping in cycling, it was an ordeal for me as well. Coming clean with the truth has been a stressful process, but I knew that would be the case when I decided to expose the truth about me and cycling.

“I am optimistic that when the prosecutors understand me and the whole situation, they are going to do the right thing.”

Zeigler gives us the low-down on the prosecutor investigating Landis:

Assistant U.S. Attorney Phil Halpern, head of the fraud division in San Diego, is pursuing the case against Landis. Halpern also has a racing license with USA Cycling, the sport’s national governing body. The U.S. Attorney’s Office in San Diego would not confirm or deny Landis is the subject of a grand jury investigation.

Ironic, perhaps, that it’s another racing cyclist who is leading the investigation of America’s most notorious cyclist (except for Lance).

Ford reminds us, in her article, that Landis didn’t have the ability to write checks from the money collected, and refers to an October 2010 story where Michael Henson, who administered the fund, said that the money collected went to pay Landis’ legal bills. I’ve got no reason to doubt Michael Henson’s word, so I’ll take it at face value that the money was spent the way they said it would be.

Unfortunately for Landis, he authored a book that said he never doped, and he made similar statements during fund-raising appearances. In light of his statements in 2010, where he admitted to doping during his career (and during his preparation for the 2006 Tour), we now know that his claims of never doping were, quite simply, false.

So, having made at least that false claim while assisting the people raising funds for his defense, did Landis commit fraud? In a word, yes. As one of my long-distance legal eagle pals told me in an email, “[I]it’s a pretty much classic definition of fraud: when someone gains something of value like money via intentional deception.”

Landis knew he had doped during his career — even if, as he claims, he didn’t use testosterone during the 2006 Tour. So to claim he’d never doped was a lie. And if he had told the truth and said, “Yes, I’ve doped in my career, but I didn’t do what they’re accusing me of,” well I doubt he would have been able to collect much money. Except, perhaps, from the wealthy donors who would probably have helped bankroll his defense even without the FFF. (I know I would have cast a jaundiced eye towards donating if I’d been aware that he wasn’t telling the truth on that score.)

So the question becomes, as my legal eagle correspondent said, “does someone accused of wrongdoing have the right to solicit contributions for his own defense? If so, does that right extend only to the innocent?” I think that as this investigation plays out, we will see what the answers to those questions might be.

Not to impugn the reputation of the prosecutor involved, but I find the timing a bit odd. Landis was cooperating with the Novitzky investigation of Armstrong and company, and that investigation was dropped. Now Floyd is under investigation for wire fraud/mail fraud, in relation to his fund-raising efforts. Payback, perhaps? Or perhaps Halpern had to wait his turn, until the whole Novitzky/Armstrong investigation was finished?

Meanwhile, Floyd Landis gets another round in the hot seat. And another chance to become one with the old saw, “O what tangled webs we weave, when first we practice to deceive.” More and more, Pat McQuaid’s advice to Landis back in 2006 (“shut up, take the suspension, and come back in two years”) is looking like sage advice.

Here’s my own bit of free advice to Floyd, for what it’s worth: You can’t change what’s already happened, it’s water under the bridge. That being the case, be ruthlessly honest with those Federal investigators. Even if they can’t get you on fraud charges, they could go after you for lying to investigators. So play it safe and tell the truth, however hard that may be.

Getting a bit rusty on this whole blogging thing. Which means it must be time for an update. Two curious stories have come to my attention in the past week. One, involving Michael Ashenden and the other involving Floyd Landis.

Oh No, Not You Again

First, the Landis story (props to Show Me The Money Landis! who tipped me off). CyclingNews.com (and from what I can tell through Google News, only CyclingNews.com) published a brief story a few days ago that Floyd Landis might be facing a fraud investigation in connection to the Floyd Fairness Fund, which was set up to raise money for his defense in his now-infamous doping case that we all know and love (well, maybe not love, but you get the idea). According to their brief article:

The news surrounding a possible federal case against Landis dates back to 2007, when in January of that year he set up the Floyd Fairness Fund. The fund was set up to accept donations to Landis’ legal case as he sought to clear his name. Landis was believed to have raised about $1 million in donations but Cyclingnews understands that the true figure was less than $300,000. In 2010, after his subsequent confession Landis said that he would try and pay back the kindness extended to him once he had the sufficient funds.

Cyclingnews understands that a Grand Jury in San Diego may charge him with fraud and that Landis has been notified by FBI agents.

As soon as word got out that Floyd had `fessed up, some folks wondered whether a fraud case could be made against Landis. If the CyclingNews.com report is correct, it certainly sounds like Landis could face new legal problems. I’m a bit puzzled, though. I would think that Landis might have made some sort of agreement with the Feds prior to spilling his guts to guarantee that he wouldn’t be prosecuted for anything he might admit to. Then again, there’s an old saying about when you assume.

I’ve got an email out to Floyd to see whether he will confirm and/or comment on this report. Odd that no other news organizations have picked up on this, yet. (At least, as far as Google News is concerned.) Not sure what to make of that, unless they are also suffering from a bit of doping fatigue (and I, for one, couldn’t blame them if they were).

The Price of Being Outspoken

And now on to Michael Ashenden (hat tip to B C, who emailed me a link to the BBC’s story last week). Ashenden is not known for hedging his bets when the subject of discussion is doping and the tests used to  whether an athlete has been using performance enhancing drugs and techniques. He’s also been known, at times, to criticize how the athletic federations (think UCI) and the anti-doping agencies handle certain cases.

It turns out that a new organization, called Athlete Passport Management Unit (APMU), has been set up to administer the biological passport at the Swiss Laboratory for Doping Analyses in Lausanne. And apparently the APMU included a confidentiality clause in the contract that experts such as Ashenden must sign in order to work for them. According to the Beeb’s article:

Dr Ashenden says his new contract requires him to get permission before offering personal opinions on any matter related to his role interpreting blood profiles. He says the APMU are “trying to manage the message”.

The scientist told the BBC: “It seems to me that too much emphasis is being placed on controlling what the media are told. There should be nothing to hide, so why stop the experts from talking?”

Quite. Ashenden went on to tell the Beeb:

“We constantly struggle to overcome [the athletes'] omerta, their refusal to tell us what is happening in their sport. We want them to blow the whistle on their colleagues. And yet here Lausanne is imposing its own ‘omerta’.

“In fact, it goes one step further and writes legally binding contracts to stop their experts from speaking out. It’s hypocritical, and suggests they talk the talk but won’t walk the walk.”

Ashenden is not totally out of the picture, though he won’t be advising the UCI or the IAAF from what I understand. CyclingNews.com, quoting an interview on the NYVelocity site, confirms that Ashenden will no longer serve on the panel in Lausanne, but…

I will not be an expert on Lausanne’s Passport Management Unit (APMU). I do intend however to remain a member of WADA’s Expert Panel. As well, Dan Eichner at the Salt Lake City lab has also convened their own APMU with a truly formidable panel of experts, and I’ve accepted their offer to participate on that panel. I’m enthusiastic about the prospects for that to grow and establish itself in the future.

Strange how things work in the world of the anti-doping agencies and labs. I suspect that this will be Lausanne’s loss and Salt Lake City’s gain.

And finally…

It’s been way too long since I updated the appendix to my book, but I’m thinking it’s time to do so. Here are some of the stories I’m thinking of updating:

• The Never-ending Saga of Floyd Landis
• Barry Bonds Gets Convicted
• Alberto Contador’s Tainted Beef
•  Ryan Braun

What other stories do you think should be included?

What a week for cycling scandals, eh? First, the Lance Armstrong investigation gets dropped on a late Friday afternoon with barely 30 minutes notice to the people doing the actual investigating. Then, on Monday Alberto Contador received a two-year (but effectively only six month) ban from the Court of Arbitration for Sport for his positive test result at the 2010 Tour de France. And this morning (US time), Jan Ullrich was handed a two-year ban for his involvement in the Operacion Puerto scandal from way back in 2006. (Press release is available here and the full decision here.)

To put it in perspective, Ullrich’s involvement pre-dates the Landis scandal that erupted in the wake of last-minute withdrawals (banishments?) from the 2006 Tour de France of riders connected to the Puerto investigation.

The CAS press release makes some interesting (if brief) reading. Among the highlights:

… the CAS panel ruled that it was possible, under the UCI rules, to initiate disciplinary proceedings against Jan Ullrich even if the athlete was no longer a UCI license-holder.

I have to say, my initial reaction to this could be summed up as, “WTF?” But in some sense, there is a bit of logic to this statement. As it might pertain to actions he took while being a licensed pro, it seems reasonable that the UCI could take action against Ullrich if the circumstances warrant.

And then there’s this chestnut:

Given the volume, consistency and probative value of the evidence presented by the UCI, and the failure of Jan Ullrich to raise any doubt about the veracity or reliability of such evidence, this Panel came to the conclusion that Jan Ullrich engaged at least in blood dopping in violation of Article 15.2 of the UCI Anti-doping Rules.

Ullrich didn’t try to refute the evidence presented? That’s another “WTF?” moment. Judging by the press release, the German rider didn’t attempt to present any sort of defense, except one on procedural grounds. Perhaps he’s paving the way for an appeal in the Swiss or European courts? Of does he not care too much the outcome?

On one point, at least, Ullrich’s legal team won. The UCI had been pressing for a lifetime ban, based on Ullrich’s out-of-competition positive test result for amphetamines from 2002. Arguing that since the use of amphetamines is now banned during competition, the panel chose to ignore that test result and impose the standard two-year ban for a first offense.

But we’re not done, yet. Ullrich’s ban is dated from August 22, 2011, which was the date of the CAS panel’s hearing on the matter. Contrast this to Alberto Contador’s ban, which was pegged at January 25, 2011 and credits time served, so that he will be back in action on August 6, 2012 (assuming he has a team, but that’s probably not too much of a stretch). By this panel’s logic, Contador’s ban should have been pegged to the November date of his hearing, which would have meant he would not be back to cycling until about May 2013.

Now that we’ve got the date of Ullrich’s “ban” squared away (he’s been retired for five-plus years, mind you), there’s the matter of what to do about his results. The panel chose to negate his results from May 1, 2005 through to the time he retired, stating they had chosen this start date “as it is established that Jan Ullrich was fully engaged in Dr. Fuentes’s doping program at least from that date.”

So, despite the lengthy delays, the UCI finally got closure on the Jan Ullrich affair. While it is certainly a victory, given the fact that Ullrich is long-since retired, the penalties seem somewhat toothless to me, except as a notice, perhaps, to athletes who are currently engaged in a doping regimen (or who were in the past) that no one can escape the long arm of the UCI.

I wonder, is this the end of the line for Operacion Puerto, or will some other athlete be penalized for his/her involvement in the affair?

If you’ve got the time and inclination, take a look at the CAS panel’s full decision.

As promised, the Court of Arbitration for Sport revealed their decision in the Alberto Contador case a few hours ago. According to the press release announcing the decision:

[T]he CAS has partially upheld the appeals filed by WADA (Ed: the World Anti-Doping Agency) and the UCI (Ed: the International Cycling Union) and has found Alberto Contador guilty of a doping offense.

As a result, Contador will serve a suspension that will end on August 5, 2012. And all of his results between his positive test result and today will be erased from the record books. Which means his 2010 Tour win, his 2011 Giro d’Italia victory and a slew of other placings in races he’s competed in during 2011 and the first part of 2012.

Given the World Anti-Doping Code and WADA’s/the UCI’s rules, the CAS came to the right decision. That said, I’m no fan of strict liability and a number of aspects of the agency’s rules. Contador may even be telling the truth, at least in some manner or fashion. As the panel’s press release notes:

Alberto Contador alleged that the presence of clenbuterol in his system originated from eating contaminated meat. The UCI and WADA submitted that it was more likely that the adverse analytical finding of the Athlete was caused by a blood transfusion or by the ingestion of a contaminated food supplement than by the consumption of contaminated meat.

The Panel found that there was no established facts that would elevate the possibility of meat contamination to an event that could have occurred on a balance of probabilities. Unlike certain other countries, notably outside Europe, Spain is not known to have a contamination problem with clenbuterol in meat. Furthermore, no other cases of athletes having tested positive to clenbuterol allegely in connection with the consumption of Spanish meat are known.

The panel concluded that both the meat contamination scenario and the blood transfusion scenario were, in theory, possible explanations for the adverse analytical findings, but were however equally unlikely. In the Panel’s opinion, on the basis of the evidence adduced, the presence of clenbuterol was more likely caused by the ingestion of a contaminated food supplement.

In other words, the panel is asking the question, “Where’s the beef?” This has been the problem with Contador’s defense since day one. If he could have collected another steak from the same animal and shown it to be contaminated with clenbuterol, his case would have been stronger.

The blood contamination that WADA/the UCI offered up as an explanation is also possible, but apparently the panel wasn’t convinced by the evidence. Contaminated food supplements (vitamins and such) have been at the heart of a number of cases, including the Jessica Hardy case. But in Hardy’s situation, she still had some of the supplement and it could be tested to determine if it was contaminated (turns out, it was). Her suspension was reduced as a result.

Contador’s strategy in all of this has worked out well for the cyclist, even if he has had all of his results nullified and even if he has to give back all his winnings. And even if the CAS rules at some point in the future that the Spanish rider will have to pay a fine of 2,485,000 euros (more than $3 million). How can I say this?

Well, even if he has to give all of the results and money up, Alberto Contador actually did train and race during his “suspension” — except for the 5+ months of his preliminary suspension (when at least one previous Tour winner would have been on vacation), and the six months from now until August. There’s no better training for racing than actually racing. And given that Contador has all that training and racing under his belt, he will lose less fitness than if he had been forced to sit out two entire seasons.

Contador will be coming back just a few weeks before the Vuelta a España. With a good training program and proper motivation (I’m sure he’ll have a stomach filled with anger and a head full of steam), he could well come out raging during the last of 2012′s Grand Tours and pull off a victory.

All that said, the Contador case raises an important issue. One which WADA needs to address. Given that the tests used by the anti-doping agencies are getting more capable of detecting ever-smaller amounts of banned substances, we can expect an increase in the number of doping cases that may be a result of environmental contamination. The agency needs to specify a threshold level for each drug, below which any result will be considered contamination and not an actual positive test result.

Otherwise, more and more athletes will be stuck in the situation of fighting a doping charge or accepting a suspension for an offense they didn’t commit. And the agencies may be forced to defend their cases in arbitration — an expensive and time-consuming prospect, to say the least. Beyond that, the agency should seriously consider modifying the list of banned substances for each sport to only those drugs/techniques that confer an actual benefit. In Contador’s case, clenbuterol might still have been on the list of banned substances, but the small amount found in his system would have been set aside as contamination rather than conscious doping.

So what do you think? Was the decision the right one or should Alberto Contador have been exonerated by the CAS?  For those who are interested, you can read the full text of the CAS decision here.

Speaking of “exoneration”

Did you happen to notice that the Lance Armstrong investigation was dropped late Friday afternoon? (A perfect time to bury a story, especially on Super Bowl weekend, by the way.) Charles Pelkey quickly wrote up an Explainer discussing the news. And I just ran across an interesting take on what happened over at Cyclismas.com. Take a few moments to read both columns if you get a chance. And feel free to continue the discussion of this development, too.

In the next few days Alberto Contador should learn his fate. [Update: The CAS has postponed announcing the Contador decision until February 6th according to CyclingNews.com.] Will the Court of Arbitration for Sport exonerate him of charges he used clenbuterol during the 2010 Tour de France or will they find him guilty and impose a suspension and require the forfeiture of his Tour win, his Giro victory in 2011 and all other results since he tested positive for the drug in July 2010? At this point, it’s anybody’s guess.

On the surface, the case should be fairly simple and straightforward. Current World Anti-Doping Agency rules state that even the slightest trace of clenbuterol is enough to cause a positive test result. And current WADA rules impose strict liability on the athletes, meaning that unless Contador can find a compelling and convincing explanation of how the clenbuterol showed up in his system, he should be getting a two-year, no-expenses-paid vacation from the world of professional cycling.

I’m not saying that’s the right or just result. Just that under the rules, that’s how this case should go. But anti-doping cases are funny things. The obvious result is not always the result that occurs.

Given the general framework of how this all works, the ball is in Contador’s court when it comes to proving his innocence or his inadvertent exposure to a banned substance. Contador’s defense has been that he ate contaminated beef, which in turn led to his positive test result. In some parts of the world (Argentina, China, Mexico), this would be easy to believe.

But Contador has a very big hurdle to overcome in proving his thesis, and that’s the fact that he doesn’t have a sample of that meat which could be tested to prove whether or not it was contaminated. And he has no way of proving the provenance of his steak. Where did it come from? Your guess is as good as mine. Spain? Most likely. Argentina? Possibly, Argentinian beef is exported to Europe, so it’s within the realm of possibility.

Still, the rebuttal from the other side can be summed up in the catch phrase popularized by Clara Peller in those Wendy’s commercials from back in the 1980s. “Where’s the beef?”

So, a few weeks back came this ESPN.com story (hat tip to Larry for prodding me with the link) that lawyers for WADA and the UCI were upset about how the hearings went. Apparently, they almost bolted the hearing due to a surprise move by the panel.

Contador says the clenbuterol came from beef he ate while on the Tour. Lawyers for the World Anti-Doping Agency and the International Cycling Union, the sport’s governing body, presented the CAS panel with another scenario for the failed test: Clenbuterol entered his body via a banned, performance-boosting blood transfusion.

The three CAS judges, however, stunned WADA lawyers by blocking oral testimony from one of their witnesses, Australian doping expert Michael Ashenden, hearing participants told the AP.

Hearing participants said Ashenden, if allowed, could have expanded on the theory that Contador may have had a blood transfusion on July 20, followed the next day by an injection of blood plasma.

The panel was right to block Ashenden’s testimony, though probably not for the reasons they did. WADA and the UCI don’t need to prove how the clenbuterol got into Contador. Contador does, and without another sample from the same animal, he’s really not got a very strong case. On the other hand, going for the blood transfusion possibility requires that WADA and the UCI convince the panel that the test for plasticizers was fit for purpose and that the test results can only be explained by a blood transfusion. To my knowledge, this test hasn’t been approved for that purpose, yet.

So, even if the test is valid, WADA and the UCI are wandering into murky territory by trying to refute Contador’s story. And, as I’ve said, they don’t have to. Their own rules state that they don’t need to prove anything other than that the drug was there. Contador has to prove why and how, and that only guarantees him a reduction in penalty, not full exoneration.

So why in the world would WADA and the UCI go off into the weeds and offer an alternative theory on how the drug got into Contador’s system? That question has puzzled me for  a while. For Contador to win, he must prove his exposure was a result of environmental contamination. And that’s perhaps what WADA and the UCI want to avoid. Environmental contamination throws a huge monkey wrench into the strict liability concept.

Why? Because as testing labs become more proficient at detecting ever smaller concentrations of chemicals, they run into the very real situation where extremely small amounts of environmental contamination could trigger a positive test result. I don’t know the situation in Spain, but in parts of the US it’s possible to find trace amounts of all sorts of prescription drugs in the water supply. And some of those drugs could, of course, be banned in athletic competition. If environmental contamination can trigger a positive result, WADA would have to move from strict liability to establishing threshold values which trigger a positive test result, instead.

And that presents the real possibility of cheaters finding ways to use just enough of a drug so they won’t test positive. On the flip side, if the thresholds are set low enough, the benefit of such a doping approach could be reduced to nil. But, establishing thresholds for each and every drug becomes a nightmare for the ADAs. The thresholds could be quite different from one drug to the next.

So offering up an alternative theory could be a way that WADA and the UCI seek to avoid dealing with the contamination issue. A win is a win, as the old saying goes. Who cares if it’s an ugly win or an elegant win? But it appears that WADA and the UCI weren’t able to completely present their alternative theory, and that they were so upset by the panel’s decisions that they may be paving the way for another appeal, this time into the Swiss federal courts. As the ESPN.com article relates:

… the WADA team filed a written complaint at the end of the four-day hearing. It alleged the CAS panel failed to respect WADA’s right to be heard, including barring questions to Ashenden on the transfusion scenario.

If the CAS clears Contador, this complaint could form part of a possible appeal to the Swiss Federal Tribunal, Switzerland’s supreme court. It can review CAS decisions on procedural grounds but would not rehear Contador’s case or the merits of the arguments presented. In practice, the court rarely sends cases back to the CAS.

If that happens, the Contador case may not be decided anytime soon. Which means that cycling fans may face the prospect of watching the Giro d’Italia and the Tour de France not knowing whether Contador’s most recent wins in each race will be nullified. So much for speedy justice in the sports world.

Tonight, we look at baseball. Truth be told, I don’t follow the sport much anymore. Haven’t done so since about 1994. Why? Well, that’s a story for another day. Two stories have come up in the last week or so that tie into the topic of doping in “America’s Pastime” and one of the stories has a new, unusual twist to it.

Hey batter, batter, batter…

First story up, is that of Ryan Braun, an outfielder for the Milwaukee Brewers, who apparently tested positive for an oldie-but-goodie, testosterone. At least, that’s what a number of stories I’ve seen have suggested. No great surprise that a baseball player would come up positive for man-juice. As I mentioned in my book, steroids have been a part of baseball since at least the late 1960s. And testosterone is — you guessed it — the father of all anabolic steroids (as far as performance-enhancing drugs, that is.)

Even though I live in Milwaukee, I’m not a follower of the Brewers to any great extent. Just enough to nod my head when someone at work makes a comment about last night’s game. So that’s a round-about way of saying I’ve noticed the story, but not had much of a reason to write about it until now.

This story has all the usual elements. Athlete tests positive. Someone leaks the results. Sportswriters go into overtime, writing up the story and getting some of the elementary facts wrong.

(Braun failed both the T/E ratio and the CIR tests. Somehow, the vast majority of baseball writers haven’t learned that a high T/E ratio doesn’t automatically mean excess testosterone, it just means the relationship to testosterone to epitestosterone exceeds a certain threshold. The numbers behind the ratio are unknown, so we can’t draw a conclusion about if the levels were “excessive” or not. But if you want a detailed discussion of that topic, see the very first post on this site.)

Somewhere along the way, the athlete denies that he did anything wrong. And maybe that’s the truth. Eventually we get to the rumors and innuendo, which is where the story stands today. When I saw this article posted by a friend on Facebook, my interest was piqued. Jamie Shoemaker writes:

What a nightmare Ryan Braun’s life has become. It’s unbelievable what has happened recently to him and baseball. What do we make of it? Why isn’t his camp saying anything? And the latest rumor swirling is Braun failed the test due to medication his doctor prescribed for Herpes.

If that’s the first time you’ve heard the news, take a deep breath. Try not to laugh. It’s serious business.

Shoemaker goes on to give a brief history of Braun’s fledgling doping scandal. And he digs up an interesting thing that Braun said about Alex Rodriguez:

“The best thing he can do is come out, admit to everything and be completely honest,” Braun said. “The situation will die a lot faster if he tells the whole truth.”

O, the irony.

So here’s the thing about this whole “herpes story.” Herpes genitalia is treated with anti-viral drugs. In doing a bit of research while we were discussing the story, my wife ran across a page that suggests there is a school of thought that high doses of testosterone can keep the virus at bay. This, however, is not the usual treatment.

What I don’t know is whether major league baseball uses the “therapeutic use exemption” concept so familiar to sports operating under the WADA code. But if they are, and if this his how Braun is being treated by his doctor, then testing positive for a drug that a player was known to be using would rate five “duhs” on the obvious-ometer.

While Shoemaker’s article suggests herpes as the medical issue, TMZ merely states this:

Ryan Braun‘s positive test for banned substances was caused by medication he’s taking for a private medical issue — NOT performance enhancing drugs … this according to sources directly connected with Major League Baseball. [formatting from the original]

This gets more interesting. “Private medical issue,” eh? Well, to go into full-scale speculation mode, that could also be low testosterone, which would be extremely embarrassing for an athlete in the prime of his career. And what’s that treated with? Testosterone patches. But again, if this were the case, Braun, the Brewers and MLB would all know about this and it wouldn’t be a big deal (except to those who want to gin up a scandal and sell a few papers/magazines/ads, perhaps). Finding something you know is there isn’t exactly earth-shattering news.

Sounds to me, though, like he should claim that he was either the “victim” of a contaminated supplement, or he was out on a wicked bender the night before he tested positive. Those are two actual explanations that could account for testing positive for exogenous testosterone (the result of the CIR test, apparently). And Braun could attack the science behind the test, though fat lot of good that’s done other athletes in the past (paging Floyd Landis).

But if I may be as bold as to offer Ryan Braun some advice, let me paraphrase Pat McQuaid, head of the International Cycling Union, and the advice he gave to Floyd Landis more than five years ago. “Shut up. Save your money. Accept the suspension.” And, to add a bit more: Be glad it’s only for 50 games, or about one-third of a season. If professional baseball were under the World Anti-Doping Code, Braun would be going on vacation for two years.

Thirty Days in the Hole

Looks like Barry Bonds got off fairly easy. Thirty days of home confinement, 250 hours of community service (just over 6 weeks of a normal schlub’s work schedule), and two years probation. Of course, even the people at the heart of the BALCO scandal didn’t wind up doing much in the way of jail time — with the exception of Bond’s pal Greg Anderson, and the lawyer who leaked grand jury info to the press. Anderson spent time occupying a cell because he wouldn’t rat out his pal Bonds, and the lawyer got significant jail time for passing info to the two San Francisco Chronicle reporters who were all over the BALCO story like white on rice.

Victor Conte spent less time in jail than Anderson or that lawyer. And he was at the epicenter of the whole thing, dealing drugs and giving advice to all manner of athletes on how to beat the tests. So  somehow Bonds’ sentence seems about par for the course.

I feel no pity for Bonds or the sentence Judge Susan Ilston handed down to him. But I have to wonder how much of a deterrent these high-profile prosecutions have been. Seems like a whole lot of time and money spent for fairly unimpressive results. And over here in Milwaukee, there’s a player caught up in the tangle of testing positive for one of the oldest PEDs in the modern PED playbook. Doping in sports. The story doesn’t change. Only the characters do.

Here we go again. Today was the first day that the Court of Arbitration for Sport actually heard the Alberto Contador case. And, faithful readers of this blog will already know that Contador’s case will be heard over the next three days. Then, the waiting for a judgement begins. Will Contador be cleared of any wrong-doing? Will WADA and the UCI prevail and send the three-time Tour de France champion on a two-year “vacation” from competition? And will his results since then, including a win at the 2011 Giro d’Italia in May, be thrown out because of an unfortunate test result at the 2010 Tour?

On the surface, Contador’s case should be a simple one. Clenbuterol, the substance he’s accused of using, is banned in any amount. Even the paltry 50 picograms per milliliter concentration found in Contador’s test sample is enough to declare a positive test result. Given WADA’s strict liability rule, unless Contador can provide a compelling explanation of how the drug got there and why he’s not to blame, he’s in line for an automatic two-year suspension.

And that’s where clenbuterol cases get murky. Contador’s defense has been that he ate some contaminated beef, which must have caused the positive test result. This is similar to Jessica Hardy’s explanation that she used a contaminated supplement. Lucky for Hardy, she still had some the supplement on hand, and she was able to get it tested to show it was a possible source of her positive test result. But even though she could do all that, she still got a year’s suspension.

The problem for Contador can be summed up in the old question Clara Peller used to ask in the Wendy’s commercial back in the mid-1980s. “Where’s the beef?” Without a sample from the same animal, there is no way to establish whether Contador’s theory is correct. And yet, the Spanish authorities gave him a pass, which allowed the cyclist to continue competing during the last year. Which is how we got here, because WADA and the UCI appealed that decision to the CAS.

Who gets suspended and who doesn’t? Well, it depends in part on where you’re from. As Bonnie D. Ford points out in her piece on ESPN.com:

The fact that Contador wasn’t suspended floodlit one of the key weaknesses in anti-doping jurisprudence: There is no uniformity in who gets to judge the athletes in the first round of hearings. National sporting authorities have an inherent conflict of interest that legalistic bodies like the U.S. Anti-Doping Agency do not.

That isn’t the only weakness the Contador case highlights. Another weakness to the system is that some tests and some labs are capable of detecting amounts of banned substances that may be present due to environmental contamination. The question then becomes, what should be done when a very faint amount of a substance appears in an athlete’s sample?

There are several possible explanations in such a scenario. One, the athlete doped and the lab caught a faint trace of evidence as the drug clears his or her system. If no other tests were performed around the same time, it’s hard to rule out this explanation.

Another possibility is that the athlete was exposed to something contaminated (the Spanish steak brought across the border for Contador). Having other samples of the contaminated substance would help prove the point, as Jessica Hardy was able to do. But in Alberto Contador’s case, the test results didn’t become public until two months after the Tour was over. Why it took so long is unclear. But the chances are that by the time the results came out any remnants of the supposedly contaminated meat were long gone.

Yet another possibility is that the athlete received contaminated blood during a transfusion. For that, the authorities would need to show evidence of blood doping. Except, actually, they don’t. In an anti-doping case it’s up to the athlete to prove his innocence, and the authorities could hold evidence of blood doping in reserve as a way of contradicting Contador’s theory. (Although, that seems a bit silly to me. If they could get him for blood doping, I don’t see why they wouldn’t pursue such charges.)

Judging by what Bonnie Ford reports, the two sides have quite a list of people lined up to speak on their behalf.

A list of 23 witnesses combined for both sides in the Contador case was leaked to the Spanish press this week. It doesn’t include Hardy, and more’s the pity. The Contador panel might have been informed by hearing her testify about a year she lost and can never get back.

Instead, the panel will hear from hematology experts, nutritionists, anti-doping analysts, police investigators, a biostatistician, a polygraph expert (for the defense, although there is no confirmation that Contador has yet submitted to a lie-detector test), a small convoy of Contador’s 2010 Tour teammates, a representative from the Spanish beef industry and the butcher who sold the steaks to one of Contador’s friends. No word yet on whether either side plans to call a baker and a candlestick maker.

But here’s the rub. The only evidence that the CAS is likely to consider is that which relates directly to the case. Police investigators, biostatisticians and polygraph experts may be able to talk knowledgeably about various issues, but I wonder what they can actually contribute in terms of direct evidence for the test result in question. It reminds me of certain testimony in the Floyd Landis case. A witness may be able to speak to what cyclists believe to be effective doping techniques, but if he doesn’t have direct knowledge of what Landis did or didn’t do prior to his ill-fated come-from-behind romp through the Alps, the evidence will have no bearing on how the panel makes its judgement. Same for Contador. If the person testifying has no direct evidence about what happened the day he tested positive, most likely it won’t play a part in the panel’s final ruling.

Bonnie Ford (who I have great respect for) makes the argument that no threshold amount should be set for clenbuterol, as that would have the perverse effect of letting those who dope know just how much they can use without testing positive. That’s a fair point, I suppose. As this article points out, the success rate for catching dopers is pretty low to begin with. So giving the bad guys more ways to beat the system isn’t exactly a good idea.

The counterpoint that I would make is this: As tests become ever more sensitive to miniscule amounts of chemicals and drugs, reasonable thresholds need to be established so that someone who’s the victim of environmental contamination will not be penalized by a positive test result. There are levels of drugs that are so low that no possible doping benefit would occur. If an athlete’s sample comes back at such a low level, the reasonable thing would be to do some targeted testing, to see if it’s a one-time incident or if a pattern can be found that might indicate doping. If a pattern emerges, that would be the time to pursue a case.

Still, as Ford points out:

There’s little dispute that clenbuterol contamination in livestock is a reality in China and Mexico [ed. and Argentina and ...], and the U.S. Olympic Committee has openly warned its athletes to beware of what they eat there.

But until and unless those countries are persuaded to clamp down on their agricultural establishment (and shouldn’t they do that for the sake of their general citizenry as well as elite athletes, since clenbuterol can cause some nasty side effects and is nothing to mess with?), doping cases that originate there involving resident or visiting athletes will continue to be headaches for anti-doping authorities.

Indeed, these cases will be headaches for the ADAs. But a little common sense on what amount triggers a positive test result could go a long way to reducing the number of headaches.

Regardless of what should be, the rule in place today is strict liability. No amount of clenbuterol is allowed. And unless Alberto Contador can come up with the beef, fair play requires that he be suspended for two years.

With Halloween just days away, stories of suspense and strange days are in the air.

And these are definitely strange days in the world of sports and doping. Perhaps the strangest of days have to do with a legal case in France. It’s a story of hackers writ large. A story about Arnie Baker, Floyd Landis and how certain documents were forged or spirited away from a certain anti-doping lab in the suburbs of Paris.

I have to say, this whole Arnie/Floyd/hacking story is more than a bit confusing. VeloNews.com appears to have gotten at least part of the story wrong, saying:

A French court has given Floyd Landis, in his absence, a suspended sentence of 18 months in prison for his alleged 2006 use of hacked material from the Laboratoire National Antidopage (National Antidoping Lab). The prosecutor in the case before the Correctional Tribune of Nanterre also asked for the same suspended sentence for Landis’ former trainer, Arnie Baker.

Meanwhile all the other media that I’ve seen, including CyclingNews.com, have reported the story a bit differently. In CyclingNews.com’s case:

The prosecutor investigating claims that Floyd Landis attempted to hack the computer of the French anti-doping agency in an apparent quest to change the data in his 2006 Tour de France doping case, has recommended the American be given an 18-month suspended sentence. An identical penalty has been recommended for Landis’ coach Arnie Baker, who is also named in the case.

Best I can tell, Landis and Baker are peripheral characters in a saga of hacking related to much bigger organizations than the French anti-doping lab. Both deny hiring the hacker(s) implicated in spying Greenpeace for the French energy company EDF. Regardless, as CyclingNews.com points out, neither Baker nor Landis is the main character in this saga:

The main character in the trial is Alain Quiros, who worked for a company named Kargus Consultants. He is accused of having hacked computer systems and illegally retrieved thousands of confidential documents for a multitude of clients, including Landis.

Further investigations however revealed more hackings, involving big industrial clients such as French energy firm EDF, who allegedly asked Quiros to spy on Greenpeace.

Quiros is reported to be held accountable also for breaking into the systems of Luxembourg firms Eurolux and Heine, who allegedly intervened in doubtful commission payments for the sale of submarines to Pakistan in 1994. This information led to a bigger investigation for presumed corruption, which currently involves several persons close to French president Nicolas Sarkozy.

VeloNews.com seems to think Vivendi is a part of this bizarre tale. Somehow, the media conglomerate is said to have brought the criminal case against Arnie Baker, Floyd Landis and others for hacking into the LNDD computer system. Huh? Say what? A private company brought a criminal case against Baker, Landis and others? I’m no expert on French law, but somehow that just doesn’t seem right.

Perhaps semi-regular reader/commenter Jean C can shed some light whether there is any truth the Vivendi connection. Update: Jean C sheds some light on the Vivendi case, which turns out to be separate from the Floyd/Arnie/hacker case in the first comment to this post.

It’s an odd case,with many twists and turns leading to who knows where, exactly. Of course, suspended sentence or not, I rather doubt that Arnie Baker or Floyd Landis will be traveling to France anytime soon. Especially in Floyd’s case. What with his new focus on becoming a NASCAR driver and all. NASCAR doesn’t do any races over there — do they?

Earlier today, I saw a news article on BBC.com which touches on the subject of doping at the 2012 London Olympics. Of course, with that being about a year away, it’s hard to say how many athletes who get a boost from performance-enhancing drugs will actually get caught during the upcoming Summer Games. And, as faithful readers here (and who isn’t at this point?) already know, just because someone doesn’t get caught doesn’t mean he or she wasn’t cheating.

So what could make the London Olympics the cleanest ever? Well, according to the Beeb’s article:

Prof David Cowan [who is in charge of anti-doping efforts for the 2012 Olympics] strongly indicated that a new test to catch blood dopers could be deployed for the first time.

Speaking at the British Science Festival in Bradford, Professor Cowan confirmed there would also be a new test for human growth hormone.

What’s special about this new test to catch those who are blood doping is that it is supposedly geared towards people who store and then reinfuse their own blood (which is known as autologous blood doping). Up to now, testing has been supposedly able to catch those who use other people’s blood, but catching athletes who use their own blood has been more problematic.

The article goes on to say:

At this meeting [Cowan] gave details of a new test that would compare the age of blood samples by looking at the genetic component of red blood cells.

“We’re working on a scheme where the nuclear material, not in the nucleus itself, but the RNA material in the cell has been shown to change and we are hoping that using those markers we’ll be able to distinguish stored blood from blood that’s in your body naturally,” he said.

I would be interested to see just how this test works. I’m not sure what change would happen over the lifetime of a blood cell that might show one blood cell is older than another. At least, not in the timeframe where blood doping occurs. I could imagine a test that could take a stored bag of blood from many years ago, and then compares those cells to existing cells to determine the age. But I can’t imagine that a cell from say two months ago is going to have a significant change in the nuclear material that could make it easy to pick which cell is older than another cell.

Professor Cowan was careful not to tell the BBC that the autologous blood doping test will be ready for the London Games. What he did say is this:

“I would never guarantee what we can deliver by a particular time, that’s the nature of research, we’re working very quickly on this, the progress is very exciting. I would put it the other way round, if you’re an athlete be careful – we may have a test in time,” he said.

Professor Cowan did confirm that an improved test for human growth hormone would be available next Summer and that tests for gene doping were also in the pipeline. His message to dopers was simple – cheats will be caught if they come to London.

I can imagine that a new, improved test for HGH might be available by 2012. Gene doping — that is, real gene doping where a person essentially changes one gene for another with the hope/belief that it will improve athletic performance — is probably not happening just yet. And testing for it will be problematic. Working on a test? Great. Knock yourselves out. Verifying that it’s accurate? Color me skeptical.

Why? Well, because gene replacement therapy is still not anything approaching safe and reliable and in the mainstream of medicine just yet. It’s still experimental, and the techniques — safe techniques — aren’t fully there yet. So anyone who attempts gene doping is literally risking his or her life. Because, not to sound melodramatic, people have died in gene replacement therapy trials. Short of actually getting before and after DNA samples to compare for modified genes, I’m not sure how the testing labs will be able to confirm that someone has engaged in gene doping.

There’s a part of me that suspects that stories like this are more about psychological warfare. If the anti-doping authorities can make the athletes believe there is a test that can catch certain types of cheating, then that (they hope) will convince the athletes not to engage in those forms of cheating.

Which could be a brilliant strategy, if it works. Problem is, the tests have to work, too. Otherwise the cheaters will eventually figure out that it’s all talk and nothing else. So if the tests really aren’t there, it’s only a matter of time before the cheats will be back to their old ways.

Still No Positives from the 2011 Tour de France

It’s still early days yet, but no new positive test results from the 2011 Tour de France have been leaked or announced. A while back, the UCI said that there were no positive test results (well except, perhaps, the Russian rider Kolobnev, who was unceremoniously booted from this year’s Grand Boucle). Of course, it seems to me that the whole Contador affair didn’t come to light until a couple of months after the 2010 Tour, so I wouldn’t go so far as to say the results are final just yet in the later edition of the race. Come November (more likely December or January) we will find out what the Court of Arbitration for Sport decides.

Who knows? Andy Schleck may go into the 2012 Tour as the 2010 champion, depending on how this all shakes out. And Alberto Contador may (or may not) be working on a cattle ranch in Andalusia, rounding up stray cows while riding a mountain bike. Yeah, I can just picture Alberto tossing a lasso while riding an MTB. At least he can stay in shape for his eventual return to the peloton. In about 2014.

The Gang That Couldn’t Merge Straight

Just a brief comment about the Leopard Trek – RadioShack merger. Seems like the two sides haven’t been able to get their stories to mesh, exactly. Almost makes me wonder how much time and thought went into the merger. Will the combination of the Schleck brothers and Johan Bruyneel’s helmsmanship lead to a Tour victory in 2012? Time will tell. Meanwhile, Team LeopardShack needs to finalize their roster for the coming year.

The Unbearable Lightness of Being … Lance

Interesting blog post in the Calgary Herald about the dichotomy of Lance Armstrong. Is he a cheat or is he a great human being? Can he be both a doper and a great humanitarian raising funds for cancer research and awareness? Does it matter if he doped, or was he the cleanest ever? (After all, Lance “never tested positive.”) Take a look and let me know what you think.

Well, not quiet, exactly, but subdued. Now that the Tour is over and the silly (a/k/a transfer) season is underway, let’s see what we’ve got. (Props to readers MikeG, Jeff , Larry and William Schart for providing links to the articles cited in this post.)

Contador hearing postponed

Color me not surprised that CAS case involving Alberto and the magical mystical beef was postponed until November. With a couple of other high-profile cases involving small amounts of clenbuterol working their way through the system, WADA seems to be edging closer to a threshold level for the drug. Given that at least some labs claim to be able to detect ever more minute amounts, and that in some places environment exposure and not purposeful cheating could lead to a positive test, this seems like a good idea. Which is to say that WADA will probably give the idea some consideration before returning to their previous stance that any presence at all constitutes an anti-doping violation.

Unless WADA actually does set some sort of threshold, look for more countries and teams to do what the US did in Beijing three years ago — travel with and prepare their own “drug free” food so as not to fail any anti-doping tests.

Alberto’s Ain’t The Only Spanish Case Dragging Along

Who’d'a’thunk it? Turns out that not only is Alberto Contador’s case moving at a positively glacial speed, the case involving Ezequiel Mosquera seems to be suffering from an underwhelming lack of velocity, too. Mosquera tested positive for the blood plasma expander hydroxyethyl starch at last year’s Vuelta a Espana. Seems that the case has a small problem, as CyclingNews.com explains:

Hydroxyethyl starch is a blood plasma volume expander that can serve to dilute the blood without decreasing the amount of red blood cells present. It may be used as a masking agent for EPO, for which he did not test positive.

However, the product is prohibited only if administered intravenously. It can also be taken orally. According to the Spanish website Biciciclismo, the AEA has submitted information to the ongoing hearing that it is not possible to say which method was used.

According to the AEA, while the tests showed the product in Mosquera’s urine sample, it is scientifically impossible to differentiate the method of use. “The methods of laboratory analysis detected selectively acidic decomposition products of the substance itself, there is no chance of defining the route of administration from the results.”

So WADA’s own rules seem to leave this case in a sort of legal limbo. If using hydroxyethyl starch is only banned when taken intravenously, and the urine test can’t differentiate between how the product got into the athlete’s system, there’s a loophole the size of a battleship that Mosquera’s lawyers can waltz through. Hmm. If only there were a test. Wait! What about that supposed test for plasticizers that has been talked about with Contador’s situation? Surely that could yield some interesting info. Assuming that it’s been approved for use. Which it hasn’t, as I recall.

Someone Hacked in to WADA?

Strange, but apparently true enough that WADA felt they needed to issue a statement. McAfee, the anti-virus company, recently claimed that a number of companies and organizations were victims of hacking attacks. One story suggests that the hackers were based in China. WADA, of course, denies that the hackers had the run of their network for 14 months. Why on earth would someone in China want to hack into WADA’s computer system anyway? Since most PCs and laptops come from their, why not just put Trojan Horses onto WADA’s equipment from the start? Why would some shadowy organization want to find out what’s going on in the anti–doping world? Well, my inner cynic wonders whether it was a government-sponsored infiltration, with the eye on learning about new tests and testing techniques ahead of time, in order to find better ways of beating the system.

There are easier ways, though. The East Germans set up their own anti-doping lab and then used the information they gleaned from tests of their athletes to devise ways to beat the tests. The East Germans, through their access to information about the tests themselves and through their own devices were pretty successful in gaming the anti-doping cops. Seems a whole lot easier than hacking into WADA’s network. And it’s not like the Chinese haven’t hired people from the former East Germany in the past.

Then again, maybe the Chinese wanted advanced warning before test results were announced to the rest of the world. I’m sure someone has already suggested that Floyd Landis was behind this latest security breach. But with Landis off to the world of NASCAR, I can’t imagine why he would want to hack into the agency’s computers, or even why he would care.

The Bio Passport Shuffle

Seems there’s a bit of a dust-up on Twitter and elsewhere over this article in which Gerard Vroomen of Cervelo and Michael Ashenden, the Australian anti-doping researcher, raise concerns about the UCI’s much ballyhooed biological passport. Predictably, the UCI isn’t too happy about the criticism. Again, from CyclingNews.com:

On Thursday the UCI also issued a stinging press release claiming that 1074 blood passport tests were done in 2010, with a further 1577 done so far this year. The UCI said this includes out-of-competition controls, pre-competition and in-competition controls on all major events during this period and team training camps.

The UCI criticised Vroomen’s assertions as “misleading, irresponsible, mischievous and clearly show a very weak understanding of this complex subject, an area which goes well beyond financial questions alone.”

Rant regular William Schart pointed out in a comment to the previous article that the number of tests, when one considers the number of professional racers, is pretty paltry. At best, the average number of tests per rider is in the range of two to three per year, assuming there are between 500 and 800 pros subject to the testing program between all the riders on the UCI ProTour, Pro Continental and perhaps the Continental teams.

Some time ago, I spoke with a person who has knowledge of the testing programs at a couple of well-known teams. The concern he raised was that the number of tests that need to be taken from each rider in order to gather sufficient data for the passport program to be effective is staggering. Rather than a few times a year as the current numbers suggest, more like four or more times per month. Perhaps, my source said, one might be able to get by with only a couple of tests a month. That still means 26 tests per rider per year. So let’s do the math. For the “maybe we can get by” standard, that works out to 13,000 to 21,000 test per year. Or for the more rigorous standard, 26,000 to 42,000 tests per year.

That would be a logistical and financial nightmare. So, while the UCI’s press release might have been meant to bolster their argument that the passport program is effective, going by what I’ve heard, I think that Vroomen and Ashenden are right to raise some concerns about how the program is currently being conducted.

Did I Say That? What I Meant Was …

Gotta love this one. A former rider for the US Postal Service squad gave an interview in June to NUsport, a Dutch sports magazine, and gave details of an organized doping program on the team. Then he changed his mind and didn’t want to be quoted. Too late, though, the horse done left that barn already. VeloNews.com (or whatever they’re calling themselves these days) published a brief article about it a couple of weeks back.

Memo to Max Van Heeswijk (the rider who wishes to recant): Before you speak to a member of the press, you’d better be prepared to live with the consequences of what you’re going to say. Once you’ve told your story, it can’t be untold, so to speak.

The”Just How Stupid Can They Be?” award goes to…

David Clinger, an American pro cyclist currently serving a suspension for an anti-doping offense, who tested positive for clenbuterol, of all things. Clinger admitted to using the drug, according to various reports, saying he used it to boost his performance. Really? Doing what? Not racing bikes, I presume. Clinger was given a lifetime ban for his second offense.

And Lest You Think I’ve Forgotten…

A belated congratulations to Cadel Evans for winning the Grand Boucle in style, pulling out a great time trial performance on the penultimate day to claim the yellow jersey just in time for the mostly ceremonial ride into Paris. Evans has chosen to either stay above the fray or obey the omerta (take your pick) by not commenting on who might be doping in the peloton. Glass houses and stones, don’cha’know, given that some reports say he worked with a rather infamous doctor earlier in his cycling career.

Farewell to HTC-Team High Road, who will be closing up shop at the end of the season. Bob Stapleton says he couldn’t find a title sponsor going forward. Sad, but not unexpected.

And besides that Russian rider (Kolobnev), no one has tested positive for anything at the 2011 Tour … or have they? Probably too early to say, given how the tests from the 2010 Tour played out.

And then there’s the curious case of Thor Hushovd not going to the Vuelta. Quite the dust-up between Jonathan Vaughters and some of the usual suspects on Twitter over why Hushovd won’t be on the squad. Maybe it has to do with the screwy UCI team points system. Or vindictiveness over the Norwegian leaving Garmin-Cervelo. Or maybe it was planned this way all along. We all saw how well Alberto Contador did by going to the Tour after having done the Giro, after all. Maybe Vaughters is smart enough not to subject his riders to that kind of punishment. Then again, if he were really mad at the current world champion, maybe he would send him to Spain.