Rules are rules, and if the powers that be want us to respect and follow those rules, then they’ve got to enforce them consistently. Which, in the world of sports and doping, doesn’t always happen. Sometimes, it matters who you are, and not what you did.
Consider these three athletes:
- Jessica Hardy
- Li Fuyu
- Alberto Contador
What do they have in common? Clenbuterol. Or, to be more precise, positive anti-doping test results that showed the presence of clenbuterol in their systems.
Li Fuyu, a cyclist on the Radio Shack team in 2010, tested positive for clenbuterol and was promptly sent packing. Although he claimed his positive result must have been the result of food contamination or other contamination, ultimately he didn’t fight the charge. Li got a two-year suspension, the standard suspension for a first offense.
Swimmer Jessica Hardy managed to find a likely source of the clenbuterol that showed up in an anti-doping test, in the form of a contaminated supplement. Under the rules, she managed to get a reduced suspension. One year’s hiatus from competition instead of two. Even though clenbuterol wasn’t listed as an ingredient and there was no way — short of being an analytical chemist or paying a lab to analyze the supplement before using it — that she could have known the supplement was contaminated. Hers is the best case scenario, a reduction in the suspension. Strict liability, the “if it’s in you, you’re guilty” standard, doesn’t allow for someone to avoid a suspension entirely, even if he or she can prove that the exposure was unintentional and through no fault of his/her own.
And then there’s Alberto Contador. Contador tested positive for clenbuterol during the 2010 Tour de France. According to this article on the VeloNews web site, it looks as if Contador will soon be free to race again.
The Spanish sports daily AS is reporting that Spanish authorities on Tuesday will clear Alberto Contador of doping allegations stemming from a positive test at last year’s Tour de France.
The newspaper reported on its web site Monday that the “comité de competición” of the Spanish cycling federation (RFEC) had decided to absolve Contador of his doping positive after 50 picograms of the banned substane clenbuterol were found in samples taken during the Tour’s second rest day.
The report says that Contador will be informed Tuesday that doping charges will be dropped. Without a ban, Contador would be allowed to keep his 2010 Tour victory.
And if that’s true, he will be able to race, effective immediately. Up to now, speculation has been that Alberto would get a one-year ban from competition, similar to Hardy’s fate — despite being unable to produce the tainted beef he claims to have consumed the evening before his positive test. Getting a complete pass from the anti-doping system is rare, as Juliet Macur reports in The New York Times.
Still, exoneration of athletes who blame food contamination for failed drug tests is rare, said Travis Tygart, the chief executive of the United State Anti-Doping Agency.
For that to happen, according to World Anti-Doping Agency rules, Contador would have had to prove he was not at fault for ingesting the banned substance and prove the origin of the tainted beef.
“It’s a very, very unique set of facts that would justify someone being completely cleared, so unique that we haven’t seen it at all, at least here in the United States,” said Tygart, who added that he did not have knowledge of the Spanish federation’s decision. “If there’s truly been a flip-flop, as reported, it appears to be a classic example of the fox protecting the henhouse. It would look like they are protecting a national hero.”
Tygart has a point there. Unless Contador’s team produced some rock-solid evidence that the disciplinary panel reviewing his test results couldn’t ignore (and without another steak from the same animal to test, that would be difficult, if not impossible to prove), the anti-doping rules require some sort of suspension. Even if they buy Contador’s argument, he should be getting the same as Jessica Hardy. One year.
Now, of course, even if the reports are correct, then both the International Cycling Union (UCI) and the World Anti-Doping Agency (WADA) can appeal to the Spanish federation’s decision to the Court of Arbitration for Sport (CAS). From the time the Spanish panel’s decision is made official, the UCI and/or WADA have one month to file an appeal. Although Contador could race in the meantime, he would be better advised not to. Why? Because if the UCI/WADA’s appeal were successful, Contador’s time out of competition would be that much longer.
As far as appeals go, the only question is just how fast an appeal would be filed. Personally, I doubt that either the UCI or WADA would wait until the last possible moment to set that process in motion. And, depending on just how fast the process takes to play out, Contador’s case might not be decided before the Tour starts in July.
On the other hand, if neither agency appeals then one couldn’t really be faulted for drawing the conclusion that the punishment is as much about who you are and who you know as it is about following the requirements set out in the anti-doping rules. Not that it would be the first time such a thing has happened.
He’s No Einstein, That One
Yes, Italian cycling enfant terrible Ricardo Ricco has once again proven that it doesn’t take a genius to be a professional athlete. Seems Ricco wound up in the hospital due to the after effects of a blood transfusion gone wrong. Various reports suggest that Ricco transfused his own improperly-stored blood. Not that I’d recommend that anyone try blood doping for themselves, but if you’re going to do it, then for heaven’s sake learn how to do it right so you won’t kill yourself. Ricco’s brush with mortality almost strikes me as the Gene Police pointing a finger at him and saying, “You! Out of the pool!” Too bad he’s already reproduced.
I agree. If “the rules are the rules” is how WADA is going to run things then it should apply to everyone across the board. Or……they need to get busy and re-write the rules.
Oh, and your last 2 sentences made me spit out my drink 😉
Rant, I understand where you’re coming from, but I think you’re wrong.
You want consistency? Well, then you can’t discuss the Jessica Hardy case side-by-side with the Alberto Contador case. Hardy’s arbitration panels (both in the U.S. and Switzerland) ruled that Hardy’s positive doping test was caused by a contaminated nutritional supplement. The WADA Code makes it clear (and USADA has clearly warned all U.S. athletes) that Hardy consumed that nutritional supplement at her own risk. Never mind the amount of investigation performed by Hardy in an effort to determine that the supplement was OK (if you read her arbitration decision, it’s astonishing how hard she worked to determine that the supplement was OK). Supplements are often contaminated. No athlete who tests positive from eating a contaminated nutritional supplement is ever going to avoid sanctions.
Contrast Hardy with the case that’s the closest parallel we have to Contador at the moment: German table tennis player Dimitrij Ovtcharov. Ovtcharov also tested positive for clenbuterol. His national table tennis federation accepted that Ovcharov likely ate meat contaminated with clenbuterol while he was in China, and that this was the cause of his flunked doping test. As a result, the federation determined not to sanction Ovcharov. WADA recently decided not to appeal the Ovcharov decision.
I think it’s clear: when WADA decided to let Ovcharov go without sanction, they gave the Spanish federation a signal that Contador need not be sanctioned.
Li Fuyu? He does not provide a precedent either, because the Chinese cycling federation is waiting for the Contador case to be decided before they finalize Li’s case. In other words, Contador will be the precedent for Li, not the other way around.
But Rant, even if there were clear precedent to sanction Contador, sometimes you have to break from precedent when you realize that precedent is unjust.
WADA’s got a big problem on its hands with clenbuterol, because the stuff is out there in the ambient environment in a way we’ve never seen before with other performance-enhancing drugs. Yes, we know from all we’ve read that clenbuterol is in Mexican beef, and Chinese beef, and that an athlete CAN test positive for clenbuterol simply by eating this beef. We also know that Wilhelm Schanzer, head of the Cologne lab that detected the clenbuterol in Contador’s urine, also co-authored a study in 2009 that contended that clenbuterol is commonly found in the environment in both livestock and the water supply.
Rant, you have to think long and hard about what this means. Even if clenbuterol contamination of the food supply is a problem only in countries like Mexico and China, is WADA supposed to tell international athletes that they eat meat in these countries at their own risk? What exactly IS a Chinese athlete supposed to eat when he or she is home? No beef, no nutritional supplements … and we can’t imagine that Chinese chicken or pork might not be similarly contaminated. Not to mention the water.
We might take the position that only Chinese and Mexican athletes (and athletes competing in China and Mexico) have an excuse for testing positive for clenbuterol. But then what happens to that even playing field we all desire? We’d essentially be giving some (but not all) athletes permission to microdose with clenbuterol.
Yes, you can strictly read the WADA Code and conclude that Contador is not entitled to a reduced sanction because he cannot prove that he accidentally ingested clenbuterol in contaminated food. But Rant, that rule was not written with widespread food contamination in mind. WADA long ago made the policy determination that it could legitimately require athletes to forego nutritional supplements. It cannot now take the same stance with food and water. A guy’s gotta eat, and WADA cannot tell the population of international athletes that they eat at their own risk.
Yes, I fully get the fact that Contador may actually have doped with clenbuterol during the 2010 Tour … though the likelihood that he would have done so is remote (clenbuterol is too easily detected, Contador knew he’d be subject to frequent testing and the benefits of clenbuterol in the midst of a long Tour do not appear to be significant). There’s also the possibility that Contador’s clenbuterol AAF was the result of blood doping … though WADA and the UCI are not accusing Contador of blood doping.
The simple truth here is, WADA screwed up. They should have established a minimum threshold for a clenbuterol doping positive, one that distinguishes between clenbuterol doping and the consumption of clenbuterol in food or water. WADA never did so. WADA’s principle of “strict liability” is so precious to them that they allowed this situation to get out of hand.
I don’t know whether Contador is going to be able to retain his 2010 Tour de France championship — I guess that may be up to the folks who run the Tour. Moreover, I guess it’s possible that WADA or the UCI will appeal any decision not to sanction Contador, even though WADA did not appeal the Octcharov decision. If WADA appeals, they’ll have the WADA Code (if not common sense) on their side.
But I’m not sure WADA WILL appeal. I don’t see how they get around a peer reviewed 2009 study, co-authored by the guy who runs one of their top labs, that clenbuterol is difficult stuff to avoid.
Think of it this way: imagine that there’s a growing consensus within WADA that a minimum threshold needs to be added to the clenbuterol test that is higher than Contador’s clenbuterol readings. WADA would then have two choices: they could forego putting this minimum threshold in place (and probably be confronted with many more cases like Contador’s), or they can let Contador off. But they would not be able to both prosecute Contador AND admit that Contador was being prosecuted under standards that even WADA no longer believed to be fair.
http://www.ncbi.nlm.nih.gov/pubmed/19680955
Rant, also consider that the 2014 Winter Olympics are in Russia. The 2016 Summer Olympics are in Brazil. Who knows how many international competitions are scheduled over the next few years in countries where there are (or may be) considerable amounts of clenbuterol in the food and water. We cannot tell athletes that they need to bring their own food with them into these countries … nor will the people who run these countries put up with the embarrassment of having WADA essentially say to the world that the food and water in these countries is not fit to eat and drink.
It may have dawned on WADA that they need to establish a threshold contamination amount for clenbuterol — and in a hurry.
JD,
Glad to give you a chuckle.
Larry,
Actually, you realize that I’m not really an advocate of “the rules are the rules and we can’t do anything that’s not in the rules,” right? I believe that the system needs more flexibility than the way it’s currently constructed.
Regarding clenbuterol, with the possible environmental exposure, it’s ridiculous not to make it a threshold substance. Especially given that some labs are able to find ever-smaller amounts of the stuff.
I agree that WADA is in a bind here, regarding how they’ve classified clenbuterol. And perhaps with other drugs, too. More and more, traces of all sorts of drugs are appearing in drinking water in this country and elsewhere. Which means that more and more, it’s likely that someone will test positive due to environmental exposure.
With Hardy’s case, you’re right. WADA and USADA caution athletes not to take supplements. So in that case, she could have avoided exposure (other than environmental exposure) by simply not using the supplement.
Where I find the contrast between Contador’s case and Hardy’s case interesting is that Hardy was able to show a very likely source of the drug in her system. In Contador’s case, there’s no direct evidence of where it came from. Only some educated guesses/conjecture.
But for the direct comparison, perhaps the best analogy is the Colo case. He’s the cyclist banned for a year for eating tainted beef in Mexico. So if we accept Contador’s contention of how he tested positive, Colo’s case offers somewhat of a precedent. Not necessarily the right decision, but a precedent. Maybe I should have left the Hardy case out and cited Colo’s situation, instead.
Maybe the powers that be are struggling to get this right. I would like to think so, anyway. But as long as they maintain the attitude that “the rules are the rules are the rules,” they should at least be consistent in how they enforce them.
Regarding your second comment. Remember back to 2008 in Beijing? The US Olympic Committee shipped in all of their own food for the athletes and told them not to eat any of the local meat, after having tested the food supply and determining that the meat was contaminated with banned substances to enough of an extent that it was likely someone could test positive. (Backs up Contador’s case, had he tested positive in China.)
Just thought you’d appreciate that little blast from the past. 😉
I call bullshit. This is all about money and the spaniards know it. With you on this one Rant. Jessica and Fuyu got screwed. The law is random, justice illusory.
I think the timecourse available on contador also works uniquely in his favor. Most of the time, you have a single isolated test which could be the tail end of some larger dose. In this case, contador was tested before and after the positive so we know the maximum blood level. This isn’t inconsistent with a transfusion scenario, obviously. But if the authorities are unwilling to even suggest a transfusion and I don’t think WADA or the UCI has, then what?
Interesting question. A number of outlets have mentioned that traces of plasticizers were also found in Contador’s sample, suggesting that this indicates a possible transfusion. Someone on the inside must have told a writer or reporter about those results (unless someone just made that up out of thin air), but it appears that WADA and the UCI and the Spanish federation either disagree with that claim, or are ignoring that data.
Since WADA hasn’t yet approved a test for plasticizers (as far as I know), their hands might be tied as far as pursuing that angle.
You’re right, though. If things happened the way Contador said, then there will be test results from before and after that will show little or no clenbuterol in his system.
Rant, you asked “Actually, you realize that I’m not really an advocate of “the rules are the rules and we can’t do anything that’s not in the rules,” right?”
Of course. That’s one of the reasons I took the time to write one of my thoughtful and insightful comments. ; ^ )
Thing is, your main post was animated by two concerns. First, that Contador was receiving better treatment than other athletes similarly situated. You’re right that he’s receiving better treatment than Colo, but that can be remedied by overturning Colo’s sanction. I think that Li will not be sanctioned now. I feel sorry for Hardy (you know that she may miss the 2012 Olympics too?), but WADA has drawn a distinction between supplements and food, and Hardy got caught on the wrong side of that divide.
The Hardy case actually SUPPORTS the Contador decision — if the alphabet soup agencies are going to take a strong stance against supplements, then they need to let people eat regular food.
The second part of your argument is, I think, that “rules are rules” at WADA. Agreed that this is a fundamental creed for the folks at WADA and that the Contador case represents a major departure from that creed — that is, assuming that WADA does not appeal this decision.
But mindful of 8-0’s “call” here that, er, justice is illusory, EVERY system of law proclaims that “rules are rules”, and every system of law reserves the right to change the rules. This is not a matter of, er, the waste product that is eliminated by cattle. This is fundamental to our concept of justice. Justice requires that similarly situated people be treated similarly, but it also requires that we get the rules right. The only way to accomplish the latter goal is (sometimes) to abandon the former goal.
You simply cannot get too indignant about a system of justice that has punished people because “a rule is a rule”, that later on proceeds to change the rule. Rant, millions of kids in the U.S. got inferior educations because “separate but equal” was the rule, and “a rule is a rule”. The U.S. finally summoned the courage in the 1950s to change that rule, thank heaven. But the U.S. still proclaims that “rules are rules”, and I think this is OK. People still need to be prosecuted for knocking off banks and selling Ponzi schemes.
I think YOU know that I am a consistent critic of the anti-doping systems. But I won’t criticize them for proclaiming that “rules are rules” and then going and changing one of their rules. Everyone does this, and everyone has to do this.
The question is, why are the authorities abandoning their “rules are rules” mantra in CONTADOR’S case? The assumption seems to be that Contador is getting special treatment because he’s the greatest cyclist in the world, and because the Spanish authorities are protecting their own. Maybe. I’m suggesting that there’s another reason, the same reason that WADA decided not to appeal the Ovtcharov case (and 8-0, unless you called BS on the Ovtcharov case and you’re aware of some vast amount of money in play in German table tennis, you’re going to have to consider why WADA is letting Ovtcharov skate).
Look at it this way. Rules are rules. You can’t have one set of doping rules applicable to international competitions held in China, and a second set of rules for those in France.
At this point, we need to hold our breath and wait to see what WADA and UCI will do. If WADA decides not to appeal, I think it’s because they’ve realized that there’s a rule in play here that needs to be changed. I think that once you realize that you have a rule in place that needs to be changed, the first logical step is to stop prosecuting people under that rule. I’m not SO anti-WADA that I’m unwilling to consider that these guys might be doing the right thing here.
Larry,
Points taken. Well said.
I’ll grant you that WADA, the UCI and the Spanish federation might be trying to do the right thing here. If they understand that there’s a rule which needs to be changed, clearly they should do so. And at the point they realize the need, stopping any prosecutions would be a good idea.
Then again, there’s this tidbit, which seems to be making the rounds. From The Telegraph:
And from CyclingNews.com:
Could it be that the decision to set Alberto free was based on a procedural irregularity, rather than concerns about how the clenbuterol got into Alberto’s system and/or whether he proved his case? Almost looks that way, doesn’t it?
Rant, I’ll respond over at your new post.