Looks like Alberto Contador’s time in the belly of the anti-doping beast may soon come to a complete end. Turns out the boy wonder has been cleared of charges stemming from a positive test result for clenbuterol at the 2010 Tour de France. Did he finally succeed in proving that it was, after all, the Tainted Beef that caused all his trouble, or was it something else?
Reports in at least two publications suggest that perhaps it was something else — a procedural irregularity in the way the authorities handled Contador’s case. If that’s true, it will only add to the impression that the people running the UCI’s anti-doping department bear more than a passing resemblance to the [[Keystone Kops]].
French newspaper L’Equipe, cited in this article at CyclingNews.com, sheds some light on the suggestion.
L’Equipe reported on Tuesday that there was a procedural flaw early in the case, which violated Spanish law. A letter sent from the UCI to the Spanish federation on November 8 was not also sent to Contador and his legal representatives, the French newspaper said. This was said to be in violation of the Spanish constitution and the “rights of the accused to be informed”.
Meanwhile, The Telegraph’s Brendan Gallagher reports:
There was also, apparently, a procedural issue which allegedly made the ban unsafe in Spanish law which insists the accused has to be informed of his alleged crimes at the same time as the accusation is made public. It seems that the alleged letter sent from the UCI to the Spanish federation on November 8 was not sent to Contador and his team.
O, the unintended consequences of criminalizing doping. I’ve long been a vocal proponent of a more balanced system, with attention paid to procedural protections for athletes. If the athletes are subjected rigid standards and draconian penalties, then the other side needs to be held to high standards, too.
But there’s a downside to criminalizing doping. One is the possibility that an athlete could be convicted of a criminal offense and subjected to punishment, when a regular Joe or Jane doing the same thing wouldn’t have the slightest problem — legally speaking. Then there’s the question of whose law applies? How do you guarantee that athlete X in Spain gets the same treatment and legal protection as athlete Y in the UK or athlete Z in China, and so on.
And then there’s the matter of appeals. Who can appeal a decision? The international sports federation? The World Anti-Doping Agency? Where does the appeal go? While the current system is far, far from perfect, it is at least self-contained. The lines of appeal are clear. After the national federation/anti-doping agency reaches its decision, the case can be appealed to the Court of Arbitration for Sport. Under a criminalized system, what court hears the appeal? The athlete’s home country courts, the CAS, both? Whose decision would rule over all others?
Assuming that the two reports above are correct, and that there was a procedural problem in Contador’s case, that makes things awfully murky for the UCI and WADA. Do they appeal the decision in the Spanish courts, or do they go to the CAS? Do an athlete’s legal (to use a local phrase, “Constitutional”) rights have precedence over the rules of the anti-doping system? Who decides?
I’m no legal eagle here. But it seems to me that the Spanish federation has handed the UCI and WADA a real challenge. I still wouldn’t be surprised to see an appeal to the CAS. But citing a violation of Contador’s rights under Spanish law as the reason for overturning a decision? That’s going to cause some serious heartburn in various quarters.
Right now, it’s a waiting game to see how the anti-doping authorities respond. But with today’s announcement, there’s a very good chance that Alberto Contador will be lining up for his first race of 2011 tomorrow. And depending on decisions made in Lausanne and Montreal, we’ll see how much more racing Contador will get to do this year.
For the moment, Contador is feeling pretty good. According to his team’s web site, the cyclist said:
“First of all, I’m relieved and obviously happy about this ruling. It has been some very stressful months for me, but throughout the case I have been totally available for all inquiries in relation to my case, and all the way through I have spoken in accordance with the truth. To both the team and the authorities I have explained, that I never cheated or deliberately took a banned substance.”
Will this be the end of the Contador story? Time will tell.
I like the decision, but I’m unhappy for the ‘apparent’ reasoning. I was hoping it would be made on the basis that they truly believed he DIDN’T cheat. To be quite honest, I think Floyd had as much of a case of procedural errors as Alberto, and look what that got him on HIS appeal to the CAS…an INCREASED penalty AND fine.
One question: Lets say either the UCI or WADA do appeal. Can he still race, or is he then unable to race until after the appeal has been decided?
Either way, for my own selfish motives I’m glad he was cleared (for the moment anyway). I REALLY want to see the Alberto/Andy gunfight this year. But if this is indeed a case of a guilty party going free on a technicality, that will surely cast a shadow on whatever he does in the future, and I can’t imagine the ASO will be so keen on having a ‘probably’ guilty doper in their races. Interesting developments for sure.
Will he race this years TDF? Will the UCI/WADA appeal? Will his team stand by him even though it appears he MAY have actually doped but was let go on a technicality? For these exciting answers and more, tune in for the next exciting episode of SOAP! (remember that show? It was a riot!)
Rant, it’s hard for me to believe that Contador was cleared over the procedural irregularity you mentioned (and yes, I’ve seen these reports too). Velonation reported that the UCI sent a letter to the Spanish Federation in November, listing four possible reasons for the rider’s positive test for clenbuterol, and apparently it was argued that Spanish law required UCI to send a copy of this letter to Contador.
First: how hard is it to figure out the four reasons that were listed in the letter? Reason #1: he doped with clenbuterol during the Tour; reason #2: he blood doped with blood contaminated with clenbuterol; reason #3: the steak he claimed to be contaminated with clenbuterol caused his positive test; reason #4: something else he ate or drank accidentally caused his positive test. I think Contador’s legal team already KNEW this.
Second: it would be very strange if Spanish law really provides an “out” for letters sent to Spanish authorities from outside of Spain. If such an “out” exists, then I suppose I could effectively free every Spaniard currently standing trial for a crime in Spain, with a simple letter-writing campaign. I’m not a Spanish lawyer, but if there’s any complaint to be made here, the complaint is that the Spanish cycling authority did not provide Contador’s team with a copy of this letter.
Third: it would be very strange if Spanish law requires the Spanish cycling federation to share with Contador every letter it receives from the UCI. Presumably such a rule would also have to extend to faxes, and emails, and maybe even telephone calls, and it would have to reach communications not only from UCI but also from WADA, ASO, the Cologne lab, and who knows who else. How could the Spanish authority function if it had no ability to privately communicate with anyone?
Fourth: even if the Spanish authority was required to share this letter with Contador, their failure to do so does not mean that Contador cannot be sanctioned. Don’t quote me on this, but it’s pretty rare around the world for an accused to escape punishment because the prosecutors violated some right of the accused.
Fifth: even if the Spanish authorities have concluded that they cannot sanction Contador, nothing here stops the UCI or WADA from seeking a sanction.
In short … I’ve read these same reports, and I’m not buying that Contador will race tomorrow because the UCI forgot to cc him on a letter.
From the German Table Tennis Association press release regarding Dimitrij Ovtcharov’s case dismissal:
“OVTCHAROV’s urine sample taken in August 2010 contained traces of the prohibited substance Clenbuterol. The athlete could conclusively point out that the most probable explanation for this test result was that Clenbuterol entered his body without his knowledge through food intake during his stay in China at the China Open, or on his trip to and from there. This argumentation was supported by assessments of the leading national Anti Doping experts Professor Dr. Wilhelm Schänzer (Head of the Institute of Biochemistry at the German Sport University Cologne, IOC/WADA accredited Anti-Doping Laboratory) and Dr. Detlef Thieme, Director of the Institute of Doping Analysis and Sports Biochemistry in Kreischa near Dresden.”
In other words, Ovtcharov proved, using the WADA lab’s own experts, conclusively, the source of the Clenbuterol. In contrast, published reports say the Spanish Federation was unable to prove that the Clenbuteral did not come from tainted cows. That reverses the burden of proof and likely cannot withstand scrutiny upon CAS review.
Further, the issue of the plasticizer allegedly found in 4 of Contador’s samples was not taken up by the Spanish Federation because Contador was not prosecuted there for that offense. WADA may choose to pursue that at CAS.
In addition, the WADA Code does not recognize “local law” (any Country’s National laws) such as the notion that a lack of notice violated Spain’s Human Rights Law. Spain’s Human Rights Law is simply not recognized by the Code.
However, should CAS rule against Contador, he could appeal to a Swiss civil court. Should Switzerland have a similar law to Spain’s human Rights law, the issue of lack of notice might become relevant as a violation of Swiss law.
Finally, if it is true that technical notice failed and if notice is “required” under the WADA Code, there is plenty of precident for the CAS arbitors to conclude that the letter of procedural requirements need not be adhered to if the “spirit” of the requirement was met, such as here, where Contador had actual timely notice as evidenced by the fact that he quit riding, hired lawyers and had a chance to create the Clenbuterol “tainted meat” defense.
It could be a case where the Spanish federation was looking for a way out, and this, flawed though it might be, was a convenient way. Of course, UCI/WADA might seek to pursue this further.
I don’t know about his status pending such a move. If UCI did decide to appeal the decision, they might see their way to putting him on a suspension or otherwise prevent him from racing. Race promoters might also decide to not accept him, a la the Paris-Nice flap a few years back. But technically, at this point he is presumably free and clear.
I find this resolution somewhat lacking. All the issues we have discussed here about this case have not been decided in any way. AC’s story has not been confirmed or denied, nor has there been anything decided about to what extent an athlete should be punished for inadvertent ingestion of a banned substance beyond what we already have. Which brings me back to my original point: this is a convenient way for the Spanish fed to let AC off without having to either accept his story or set a new precidence on inadvertent use.
If the UCI & WADA do not appeal the Spanish CYCLING Federation’s decision (note – NOT the decision of some independent anti-doping org as in the USA as there IS no such thing in Spain…), then pro-cycling is not just a joke & not just a FARCE, but the very definition of INANE.
Disgusting. And yet, not unexpected AT ALL!
And anyone who actually BELIEVES that lying PUNK got clenbuteral in his system by eating “TAINTED BEEF”, I have some “magic beans” to sell you…
William,
Like you, I find this resolution rather unsatisfying. No firm declaration that they believe he’s innocent. A hint of letting him off due to a technicality. No matter the decision, I’d have an easier time with it if it were a more crystal-clear bit of reasoning.
Bill,
Thanks for for the insights. Most appreciated.
Larry,
Much about this case is passing strange. Strange days, indeed.
Matt,
There’s something I haven’t seen or thought about in eons. Soap. Hillarious show.
SMTML,
I hear that Beano can neutralize those magic beans right quick. 😉
Bill, Ovtcharov proved NOTHING, at least nothing that has been revealed to us, except of course that he was present in China when he tested positive for clenbuterol. We have not heard that he ate meat when he was there, or that the meat was purchased locally. The only “evidence” I’ve heard was that Ovtcharov had his hair tested and that the results of this test was negative. From the reports, the lack of clenbuterol in Ovtcharov’s hair was evidence that Ovthcarov did not use clenbuterol in high doses or over a long term. But that’s far from any kind of proof that Ovtcharov’s positive test result was caused by contaminated food he ate in China.
I think many of us (myself included) thought that we could draw a distinction between doping cases in places like Mexico and China (where clenbuterol meat contamination appears to be common), versus doping cases in Europe and the U.S. (where clenbuterol food contamination appears to be rare). But with the benefit of some hindsight, I can see that this distinction is not tenable. You can’t have one set of anti-doping rules for Chinese and Mexican athletes, and another set for European and U.S. athletes … or one set of rules for competitions in China and Mexico, and another set for competitions elsewhere … or different rules for athletes who may have simply spent their vacations in China and Mexico.
There’s also the possibility that clenbuterol contamination is more common world-wide than we might expect. The 2009 peer-reviewed study co-authored by Dr. Schanzer of the Cologne anti-doping lab concluded that “with a detectability of clenbuterol at this low contentration, positive fndings in residue analysis and doping control could be due to the consumption of trace amounts found in [livestock] feed or principally also in the water supply.” Schanzer did not state that the problem here was in any way limited by geography.
One thing I failed to mention: WADA DID file an appeal in the Ovtcharov case, then decided last Friday not to pursue it. We’re focusing on what caused the Spanish federation to change its mind about the one year ban originally proposed for Contador. We haven’t asked what caused WADA to change its mind on appealing the Ovtcharov decision. My suspicion is that these two changes of mind ARE related.
I can easily imagine China putting pressue on international sports authorities to BACK OFF on sanctioning athletes for having levels of clenbuterol in their systems that might be common for folks who merely live in China. WADA’s decision to meekly back away from the Ovtcharov case would otherwise be difficult for me to explain.
We’ll know more when UCI and WADA decide whether to proceed against Contador before the CAS. I’ll stick my neck out and predict that neither body will appeal the decision not to sanction Contador.
Oh, and by the way: I STILL think that the WADA Code requires the Tour to disqualify Contador from the 2010 race, even if Contador is not sanctioned by the Spanish cycling federation, and even if WADA and the UCI do not appeal to the CAS. ASO is a wildcard here. My guess is that Contador does NOT race in France this year.
Larry, from what I can tell, Dr. Wilhelm Schänzer (remember him….. head of WADA’s Cologne Lab?) and Dr. Detlef Thieme (Ovtcharov’s expert?) both opined at hearing that the most probable explaination for Clenbuterol found in Ovtcharov’s sample was from food intake. The athlete bears the burden of proof (once the existance of a banned substance is established) to overcome srict liablility and that can be established through direct and/or cross examination. Since WADA personel are prohibited by WADA Code from testifying for an athlete, Schänzer probably was cross examined and opined that the sample contained Clenbuterol and that the most probable explaination for its existence was from an involuntary ingestion of tainted beef. Dr. Detlef Thieme, Director of the Institute of Doping Analysis and Sports Biochemistry in Kreischa near Dresden was likely the athlete’s expert and he concurred. Why or how both came to the same conclusion……. hair samples, prevelence of tainted cattle in China, whatever, (whether we agree or disagree with 2 independant expert’s conclusions) must have supported the ultimate conclusion that Ovtcharov was actually able to meet his burden and thus avoid the ban.
WADA might have appeal that, but, if its own expert who could not be called by the athlete, concluded that the most probable explaination was not intentional doping but rather eating tainted meat, then from what would they appeal…….. the conclusions of their own expert?
Contrast that with reports from Spain stating the Federation “could not disprove that the substance came from a contaminated cow”. That is a flipped burden and will not withstand CAS scrutiny.
I predict WADA appeals and wins.
Larry,
OK, I’ll bite. What part of the WADA code requires that Contador relinquish his 2010 Tour crown if he isn’t sanctioned, and if WADA and the UCI decline an appeal? Seems to me, in that scenario, that it would be a case of no harm, no foul. What am I missing?
Bill, good arguments! Serves me right for arguing with a judge.
To throw a little fuel on the fire, Schanzer just released a study showing that tourists typically return from China with measurable clenbuterol in their systems. http://sports.espn.go.com/oly/news/story?id=6124878. This study is a mind-blower — I was not aware of this study when I last posted comments. The study ran tests on 28 German tourists who had returned to Germany from China. The tourists were told in advance to eat whatever they wanted while they were in China. 22 of these tourists — more than 75% — tested positive for clenbuterol.
So I was wrong … merely being present in China IS an adequate explanation for a clenbuterol positive. No other evidence would be required. (Yes, I understand your point about expert testimony, but the testimony of an expert has to itself have some basis in fact. Now we have the basis in fact.)
Before saying anything else: based on this evidence, there are a LOT of athletes out there that need to have their doping suspensions overturned. The article above says that there are “dozens” of Chinese athletes that have tested positive for clenbuterol over the past three years and have received suspensions.
The question is, what does (or should) all of this mean to Albert Contador?
You can take the position that this means nothing to Contador, who was nowhere NEAR China when he tested positive. But I think this is not the right way to think about things. We are (hopefully) about to clear Li Fuyu and dozens (maybe more) athletes of their doping convictions, because these athletes can legitimately employ the new “China Defense”: these athletes had low levels of clenbuterol in their system, and there was no proof that these athletes doped intentionally.
Contador also had low levels of clenbuterol in his system. There was no proof (at least, none offered yet that any of the authorities is willing to stand behind) that Contador doped intentionally.
Think of it this way: what if Contador and Fuyu Li were both racing in the 2010 Tour, and both tested positive on the same day for the same concentration of clenbuterol. Could you really sanction Contador, and let Li off the hook, just because Li is Chinese? What if a third rider, Joe Shlatobnik, also tested positive for clenbuterol, only it turned out that he was recently in China on a vacation. Do you let Joe off the hook, and still prosecute Alberto? What if Li brings some food with him from China and shares it with his team? Does this let Li’s team off the hook, while Alberto’s team is still subject to clenbuterol sanctions?
Are we saying that riders get a free pass to dope during the Tour de France with clenbuterol, so long as the riders are smart enough to vacation in China before the Tour? Or in Mexico?
Bill, you have to have the same rules in place for everyone. If it’s OK for Chinese cyclists to ride with trace amounts of clenbuterol in their system, then how can we throw the book at a Spanish cyclist with a similar blood chemistry?
(And whatever your response to this question might be … can you voice this response to a roomfull of Chinese sporting officials without having your head handed to you?)
Rant, your response is next on my list.
Rant, start with Article 288 of the UCI Anti-Doping regulations, available here: http://bit.ly/f3Cfbf. Article 288 provides for disqualification rules applicable to “Competitions”. It provides that “A violation of these Anti-Doping Rules in connection with an In-Competition test automatically leads to Disqualification of the individual result obtained in that Competition.” It PROBABLY doesn’t help AC under this Article that a test result is based on a sample taken on a rest day. “In-Competition” is defined as “the period that starts one day before or, in the case of a major tour, three days before the day of the start of an Event and finishing at midnight of the day on which the Event finishes.” There are no exceptions to the rule set forth in Article 288.
If Article 288 applies to Contador, then I think he has to lose his 2010 maillot jaune. The applicability of Article 288 turns on whether the Tour de France is a “Competition”. A “Competition” is “a single Race organized separately (for example: a one day road race, each of the time trial and road race at the road World Championships) or a series of Races forming an organizational unit and producing a final winner and/or general classification (for example: a stage race, a track sprint race tournament, a cyclo-ball tournament).” The Tour de France IS a stage race producing a final winner or GC. From what we’ve examined so far, the rules seem clear: Contador has to be disqualified from the 2010 Tour.
Now is where I have to make the discussion more complicated. The UCI Regulations contain a second rule, set forth in Article 289, providing for disqualification rules applicable to “Events”. The Tour de France is a “Competition”, but it is also an “Event” (“Event” is defined to include “a single Competition organized separately”), so Article 289 also applies to the Contador case. The Article 289 rule is considerably more complicated than Article 288, but for our purpose we can focus on one feature of Article 289: unlike Article 288, there are exceptions to the disqualification provided under Article 289 relating to when an athlete can prove “no fault or negligence”, as Contador evidently has proven to the satisfaction of the Spanish cycling federation. (We’ll get to whether Contador is eligible for any of these exceptions in a moment.)
Reading Article 288 and 289 together is not a task for the faint of heart! You might say that these Articles need NOT be read together, that each Article is independent, and that Contador must be disqualified from the 2010 Tour under Article 288 regardless of what it says in Article 289. You might conclude that since both Articles 288 and 289 are applicable to the Tour, that the more lenient of these rules should apply (or could be applied at the discretion of the applicable authorities). Or you might say that these two Articles should be read together, to get a sense of when the UCI INTENDED to have a rider disqualified from the Tour de France. Since I can’t conclusively say which of these approaches is the correct one, I unfortunately have to dive into the mess that is Article 289.
Article 289(2)(a) provides that in a case like Contador’s, all of Contador’s “results” must be disqualified, except for results obtained in Competitions prior to the Competition in which the doping violation occurred and where Contador tested with a negative result. Since the Tour de France is a single “Competition”, it’s not 100% clear to me exactly how this rule should be applied, but I think the rule required Contador to be disqualified from the entire “Competition” that is the Tour de France. Even if you read Article 289 more narrowly and conclude that it only requires disqualification from the stages of the 2010 Tour that occurred after Contador’s positive test, the result would be the same: Contador must give up his 2010 maillot jaune.
But as I said earlier, there are exception to Article 289. These exceptions are set forth in Articles 290 and 291. Article 290 provides that where a rider can prove “no fault or negligence”, then “his individual results in the other Competitions shall not be disqualified except to the extent that they were likely to have been affected by the Rider’s anti-doping violation.” I don’t think Article 290 is any help to Contador. Article 290 appears to be applicable only to “Events” consisting of multiple “Competitions” — in such a case, the rider may appeal to Article 290 to avoid disqualification in Competitions other than the Competition where the rider tested positive. But Contador tested positive in the Competition where he is facing disqualification.
Article 291(1) is more complicated, and in the spirit of full disclosure, I’ll set it forth here in full:
“If the Event is a stage race, an anti-doping violation committed in connection with any stage entails Disqualification from the Event, except when (i) the anti-doping violation involves the presence, Use or Attempted Use of a Prohibited Substance or a Prohibited Method, (ii) the Rider establishes that he bears No Fault or Negligence and (iii) his results in no other stage were likely to have been influenced by the Rider’s anti-doping violation.
Comment: in the latter case the Rider shall be disqualified from the stage in relation with which the sample was taken only. This disqualification will entail that the Rider shall be removed from the final general ranking but any other result that is not incompatible with the Rider being disqualified in a single stage, shall not be disqualified.”
The lawyer who wrote Article 291 should probably be disbarred (for one thing, he or she is guilty of confusing “Events” and “Competitions”). We could spend days just trying to parse out what Article 291(1) is supposed to mean (for example, since Contador tested positive on a rest day, and Article 291(1) applies to doping violations in connection with “any stage”, does this make Article 291(1) inapplicable to Contador’s case?). It’s also clear that to be eligible for an Article 291 exception, Contador would have to prove that the presence of clenbuterol in his system did not affect his race results. As far as we know, no such proof has been offered, or is possible.
But I think the meaning of Article 291(1) is revealed in the second sentence of the Comment: Article 291(1) does not provide for an exception to Contador’s disqualification from the Tour de France — it simply allows Contador to argue that his results in individual stages need not be disqualified. Contador tested positive on a rest day, which does confuse matters, but he also tested positive in the three stages subsequent to the rest day. Article 291(1) provides no exception for disqualification from these three stages.
So, to sum up: Contador must be disqualified from the 2010 Tour under either Article 288 or Article 289. The UCI rules do not allow an athlete to win a race once it is proven that there were prohibited substances in the athlete’s system during the course of the race. There are no exceptions to this rule.
The rules you’ve mostly heard discussed in the Contador case are in Articles 296 and 297, but they relate to the length of suspensions and not to disqualification of results.
Any questions?
mmm hmm. So far the pundits are lining up in support of Rant and Bill, and against yours truly. Bring ’em all on, I say! I can take it! http://www.cyclingnews.com/news/media-reactions-to-contadors-clearing-on-doping-charges
Larry and/or Bill,
So here’s a quasi-philosophical question related to the discussion of the various articles a couple of comments up:
When is a doping offense a doping offense? When the lab declares an adverse analytical finding, or when an agency such as USADA determines that the AAF is, in fact, a doping offense? Or, after all the appeals occur and the CAS says that a doping offense occurred?
If it’s not really a positive test result until the final appeal is over, then how would that impact the discussion of whether Contador should forfeit/be stripped of his Tour title?
And, Larry, regarding that link. You have to admit, the Contador case has been one seriously strange case from the get-go. I’ve been wondering how they would or could find a way to let him off the hook. Seems like the RFEC found a way. Not sure if it will stand up on appeal to the CAS (I’m guessing not), but for the moment it looks like AC can race again.
Yes Mr. Rant, a very strange case indeed. I agree, I think that the UCI held onto this case for as long as it did, looking for an excuse not to proceed. I think that the UCI, understandably, did not want to see another Tour end in scandal and disqualification. It’s terrible for the sport. I think the UCI, understandably, wanted to get an understanding of what probably happened and what it meant: could this have been an accident? And did Contador get any benefit from the clenbuterol in his system?
Onto your “philosophical” question, which I think is more properly a question of legal procedure. I won’t cite chapter and verse this time. Each anti-doping case starts with the UCI under its results management process. If the UCI makes an assertion that an anti-doping rule violation has taken place, then it requests the rider’s national federation to instigate disciplinary proceedings. It is then up to the national federation to make a determination of what happened, but the UCI rules govern how the national federation is supposed to proceed. The decision in the case is the decision reached by the national federation. The decision is supposed to name the prohibited substances found, indicate the sanctions imposed, indicate any period of ineligibility including the start date, explain the reasons for any period of ineligibility, and indicate the events from which the rider has been disqualified. Interestingly enough, the UCI rules don’t say much about what the national federation’s decision must say when an athlete is acquitted.
The UCI rules DO provide (Article 287) that where a hearing body imposes a sanction that is less than that required by the UCI anti-doping rules, then the sanction shall “automatically” be replaced by the minimum sanction.
So … as I see it, the national federation makes the first determination of when a doping offense is a doping offense. If the CAS hears a doping offense case on appeal, then the CAS’ determination (when made) becomes the official determination. So in Contador’s case, the Spanish cycling federation can decide (if it wanted to) that there was no clenbuterol in Contador’s system, just like the USADA arbitrators might have decided (but did not, of course) that Landis did not dope with testosterone. If that’s what the national federation decides, then there’s no doping offense.
I think this circles around to my analysis of whether Contador has to lose his 2010 maillot jaune.
I THOUGHT that the Spanish federation had ruled that there HAS been a violation of the anti-doping rules but that Contador bears “no fault or negligence” for this violation. Such a ruling would bring the disqualification rules under Articles 288 and 289 into play. But yes, if the Spanish Federation has ruled that there was no violation of the UCI Rules in the Contador case, then Articles 288 and 289 would not come into play. This may be one reason why both WADA and UCI have indicated that they want to carefully study the RFEC decision.
The language I’ve read in the press articles does not clearly tell me what I’d like to know here. I’ve read that Contador is “cleared” and “absolved of all guilt”, which doesn’t tell me what I want to know. According to one source, the RFEC “accepted the theory of food contamination and the absence of any blame or negligence, based on article 296” of the UCI anti-doping rules. This would be effectively a finding that there was an anti-doping violation. If there’s an anti-doping violation, the RFEC has to disqualify Contador from the 2010 Tour (per my prior comment), and even if they don’t, the disqualification is “automatic” under Article 287.
This sort of thing makes even MY head hurt after a while.
Let me supplement my last post. Under Article 21 of the UCI anti-doping regulations, the presence of a prohibited substance in a rider’s bodily specimen is itself an “anti-doping rule violation”. This article specifies that “it is not necessary that intent, fault, negligence or knowing Use on the Rider’s part be demonstrated in order to establish an antidoping violation.”
I still maintain that it’s up to the national federation to determine whether there’s been an anti-doping rule violation. However, in order for the NFEC to conclude that there was no anti-doping rule violation in the Contador case, they would have had to have concluded that there was no clenbuterol in Contador’s system during the 2010 Tour. I don’t think this was the conclusion they reached.
1. I think he was cleared based no negligence under section 296, same as Ovtcharov. That is, that he carried the burden of showing that he ate tainted meat, and that there was no negligence in doing so.
2. I also doubt that any procedural irregularity played any decisive part in the decision. So he was cleared on the merits.
3. As to Ovtcharov, remember he also showed that many if not all the members of his team who were in China with him also tested positive for clen. This showed he got it from eating meat in China. Given the later study showing 75% of tourists returning from China test postitive for Clen, I think it was appropriated for WADA not to appeal.
4. As to whether, his TDF results should be canceled, I argued with Larry that one could read the rules to permit him to keep his results although I confess my reading was a little strained.
5. If you recall, I argued that he might be exonerated completely under 296 if he could show he ate tainted meat. This seems to be what the Spanish Federation did.
I thought that proving it would be a factual long shot. Since I haven’t seen the evidence submitted, especially whether plasticizer’s were found, I’ll withold judgment whether this decision is justified.
My guess is that WADA will appeal.
M, I didn’t know that other members of Ovtcharov’s team tested positive for clenbuterol. Interesting. Of course, his entire team might have been doping with clenbuterol. By the way, I have not heard that Ovtcharov claims to have eaten Chinese meat while in China.
The Ovtcharov case seems to have been decided by his merely having been present in China … and given the results of the study of those German tourists, I suppose that’s proof enough of how clenbuterol entered Ovtcharov’s system. Whether this is also proof of “no fault or negligence” is a different question. CONI has argued in the Colo case that Colo’s consumption of Mexican beef was somehow careless, and I suppose that the same argument would apply to Ovtcharov’s ingestion of Chinese food.
I’m not sure how much any of this matters. The German tourist study suggests that many or most residents of China would test positive for clenbuterol, and that many or most athletes competing in China would have to abstain from local food (and perhaps the local water, or anything prepared with or in the local water) in order to avoid testing positive. I don’t mean to pick on China; this situation may exist in many other countries. But you simply cannot enforce a doping rule that this many people are going to unintentionally fail. Nor can you enforce a doping rule differently depending on an athlete’s country of origin.
There are also questions of politics here. Imagine a situation where U.S. athletes were routinely testing positive because of some way we deal with our food and water that’s different from what they do in Europe. I think that the U.S. would protest this kind of treatment, especially in the absence of any proof that U.S. athletes possessed any performance advantage as a result of this situation. We would not like it if athletes from other countries brought in their own food and water supplies, and we would not like it if international competitions felt compelled to avoid holding events in the U.S. We would push for a change in the rules. China may be doing something similar, behind the scenes.
So I agree, WADA did the right thing not to appeal the Ovtcharov case. The question is, then, what to do about Contador?
I think this question turns on what WADA plans to do about its “China problem”. Personally, I don’t see how WADA can tell China that it will be a pariah in the international sports community until it eliminates clenbuterol from its food and water. So I think that WADA will soon establish a minimum threshold for clenbuterol, above the levels of clenbuterol that might be possible by ingesting clenbuterol in food and drink. If I’m right about this, and if (as I suspect) Contador’s measured clenbuterol is below this threshold, how in the world can WADA justify bringing an appeal against Contador?
By the way, Li Fuyu’s measured clenbuterol level was twice that of Contador’s.
Larry,
The difference between Li Fuyu and Contador is that C was tested both before and after the positive. So we know when the Clen was ingested and that the Clen was at a very low level. Too low for intentional doping, unless a blood transfusion can be shown.
Li Fuyu was only tested once. So we don’t know when it was ingested or the level, so it is harder for him to show no fault.
However, with the additional evidence about the level of Chinese clen, I think Li Fuyu’s sanction may be reduced or eliminated.
Rant, what a great place you have here, and what an amazingly educated bunch of comment’ers you have (with the exception of me I mean….you know…the ol’ saying that there’s one in every bunch? I figure that somebody has to represent the peasants). Hopefully both the UCI and WADA folk routinely come here to get the details on cases before they rule. I never need to read the actual code cuz you have people here who explain and simplify it. Thanks guys!
Call me crazy … but I suspect that the Contador case may represent a strategic retreat by WADA and the anti-doping forces, who have come to see that the continuation of his case may represent a threat to the doctrine of “strict liability” that is central to the WADA Code.
I have not done the research yet … but it appears that EU law restricts the ability of an organization like WADA to toss riders out of work. I’m not sure what laws these are — free competition laws, perhaps — but most jurisdictions recognize a public policy in favor of allowing people to work, and scrutinize agreements that prevent people from earning a living. There appears to be EU case law to the effect that WADA anti-doping rules can be tossed out if they unfairly bar an athlete from competition. To my knowledge, no European Court has ever ruled against WADA, but it appears that they have expressly reserved the right to do so in an appropriate case.
The LAST thing that WADA wants to see is an athlete like Contador going to a EU court and successfully overturning an anti-doping sanction. It would be much better for WADA-world if the powers that be could simply back away from the Contador case, and (as quietly as possible) change the rules to provide for a clenbuterol minimum threshold.
Jens Evald, the head of the Danish anti-doping agency, has come out with some strong statements on the Contador case, which you can see here: http://www.dailypeloton.com/displayarticle.asp?pk=18156. When the Danish version of Travis Tygart starts to question strict liability, I think that some serious stuff may be on the horizon. Evald called strict liability “obsolete” and “an anachronism”, and called for a minimum threshold for clenbuterol. Evald stated:
“There cannot be doping rules that punish athletes who happen to ingest contaminated food. That’s going over the line. It’s simply out of proportion to what is the real purpose of the anti-doping rules, namely the fight against doping and doping cheats. It was never intended to punish people who consume contaminated food.”
Blah, blah blah. In all this time no one has noticed that — remember the story Team Alberto told about the meat? — well, it couldn’t have happened that way. I know he’s lying, he’s always been lying, and the more that people concentrate on the biochemistry to the exclusion of anything else, the less likely it is anyone will ever ask the right questions.
M,
It seems as if the RFEC originally issued Contador a one-year suspension and then reconsidered. In their initial thinking, I can’t imagine they thought his side presented evidence that was at the level of no fault or negligence. So I find their turnabout puzzling. Of course, one could argue that the one-year suspension was not yet carved in stone, so that and $2 could buy you a medium/”Grande” cup of coffee at your local Starbucks.
Still, I’m curious about the change of approach. At the very least, it raises the question of why they decided to reverse course. Did Contador’s legal team produce new, compelling evidence? Or was something else at play? Given the tweet by a top Spanish politician and the timing of the announcement, I wonder about political/bureaucratic involvement in the latest version of the Contador decision. The tidbit about the missing/undelivered letter and how it violates Spanish law seems like a perfect “out” if the change was more politically motivated. Maybe I’m reading too much into that possibility, though.
Matt,
It is a smart crowd that hangs around here, isn’t it? Makes for some very interesting discussions.
Larry,
Zero-tolerance policies (which is what strict liability is, in addition to being a handy short-cut when it comes to conducting the prosecutions) create a huge potential for unintended consequences of the negative kind. I’m a fan of flexibility. Or maybe a better way to put it would be “fair rules, enforced fairly.”
Liggett junkie,
I’m often amazed at how seemingly obvious questions never get asked (or answered) — not only in sports reporting, but in political reporting and other types of reporting. Often, I think that the various powers-that-be are happy with and encourage that state of affairs, as that leaves their power unchallenged.
Larry,
Look at the Meca-Medina case for the EU law.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62004J0519:EN:HTML
The case suggests that unreasonable doping rules and penalties could potentially violate the EU anti-competition rules.
“48 Rules of that kind [doping] could indeed prove excessive by virtue of, first, the conditions laid down for establishing the dividing line between circumstances which amount to doping in respect of which penalties may be imposed and those which do not, and second, the severity of those penalties.
49 Here, that dividing line is determined in the anti-doping rules at issue by the threshold of 2 ng/ml of urine above which the presence of Nandrolone in an athlete’s body constitutes doping. The appellants contest that rule, asserting that the threshold adopted is set at an excessively low level which is not founded on any scientifically safe criterion.
50 However, the appellants fail to establish that the Commission made a manifest error of assessment in finding that rule to be justified.
51 It is common ground that Nandrolone is an anabolic substance the presence of which in athletes’ bodies is liable to improve their performance and compromise the fairness of the sporting events in which they participate. The ban on that substance is accordingly in principle justified in light of the objective of anti-doping rules.
52 It is also common ground that that substance may be produced endogenously and that, in order to take account of this phenomenon, sporting bodies, including the IOC by means of the anti-doping rules at issue, have accepted that doping is considered to have occurred only where the substance is present in an amount exceeding a certain threshold. It is therefore only if, having regard to scientific knowledge as it stood when the anti-doping rules at issue were adopted or even when they were applied to punish the appellants, in 1999, the threshold is set at such a low level that it should be regarded as not taking sufficient account of this phenomenon that those rules should be regarded as not justified in light of the objective which they were intended to achieve.
53 It is apparent from the documents before the Court that at the material time the average endogenous production observed in all studies then published was 20 times lower than 2ng/ml of urine and that the maximum endogenous production value observed was nearly a third lower. While the appellants contend that, from 1993, the IOC could not have been unaware of the risk reported by an expert that merely consuming a limited quantity of boar meat could cause entirely innocent athletes to exceed the threshold in question, it is not in any event established that at the material time this risk had been confirmed by the majority of the scientific community. Moreover, the results of the studies and the experiments carried out on this point subsequent to the decision at issue have no bearing in any event on the legality of that decision.
54 In those circumstances, and as the appellants do not specify at what level the threshold in question should have been set at the material time, it does not appear that the restrictions which that threshold imposes on professional sportsmen go beyond what is necessary in order to ensure that sporting events take place and function properly. ”
Meca-Medina can be distinguished, since Clenbuterol does not occur naturally in the human body as does nandralone, so it is unclear to me whether it’s reasoning should or could be extended to the Contador case so as to invalidate the Clenbuterol standard. I can see arguments going both ways.
Rant,
The news reports I’ve read suggest that Contador presented evidence excluding other sources for the Clen in his system and evidence showing that meat contamination was the most likely source. So I’m thinking that he prevailed on that basis, not some technicality.
“They assert that in the present case, among all the hypotheses concerning the origin of the substance, “four were the most likely: micodosing, microtransfusions, contaminated supplements and contaminated food, so following the evidence from RAD and the jurisprudence of CAS, they must be the only ones accepted when analyzing the case.”
They insist that thanks to the expert reports contributed and to the officials called upon at Spain’s State Anti-Doping Agency, “the lead attorney concludes that 1) three of the four possible explanations must be ruled out, which are: autotransfusion, microdosing and pharmaceutical products or nutritional supplements; and 2) value should be attached to the explanation put forward about food contamination.”
Contador’s defense say that, “applying the balance of probabilities standard, only the explanation of food contamination should be accepted as valid, following equally abundant jurisprudence from CAS (including the Gasquet case).” ”
http://www.albertocontadornotebook.info/media2011.html
M, your last two posts were terrific! Chapeau.
Yes, I’ve looked at the Meca-Medina decision earlier this week, though not as closely as I’d like. The clearly places some limit on the ability of WADA and the UCI to suspend riders. The decision recognizes that the goals of the anti-doping system are important enough to justify suspensions, but the decision ALSO states that under EU law, anti-doping penalties need to be “limited to what is necessary to ensure the proper conduct of competitive sport.” The decision specifically referred to the scrutiny that could be paid to “the dividing line between circumstances which amount to doping in respect of which penalties may be imposed and those which do not.”
I agree with you that the facts of the Meca-Medina case (alleged doping with an endogenous substance where the WADA code has a threshold, and where the court focused on whether the threshold was set reasonably high enough so that natural biological production of the substance would not trigger a positive result on a doping test) are not analagous to those in the Contador case (exogenous substance, no threshold, case focused on possible accidental ingestion of the substance in food or water). However, the “limit” on anti-doping rules discussed by the Meca-Medina court is potentially applicable to ANY anti-doping case where the athlete is looking at possible suspension of his ability to earn a living as an athlete.
I’m not an EU lawyer. But I read Meca-Medina as representing a potential threat to the way things work under the WADA Code. In particular, the Meca-Medina decision might represent something of a repudiation of the WADA notion of strict liability, that strict liability is OK so long as its application to a given case does not exceed what is required for the conduct of competitive sport.
EU law as set forth in the Meca-Medina decision may be the true reason why the Spanish cycling federation exonerated Contador. As I’ll get to in a minute, I’m personally not impressed with the “proof” offered that Contador must have eaten a contaminated steak. But the facts of the Contador case fit nicely with a potential argument under the rule described in Meca-Medina: is it necessary for the conduct of competitive sport to sanction an athlete for the presence of a small concentration of clenbuterol in his system, when (1) such presence MIGHT have been caused by eating contaminated food or drinking contaminated water, and (2) the concentration of the drug discovered probably could not have given the athlete any sort of competitive advantage?
Please understand, I’m laying out a possible argument for consideration, I’m not making it myself. There ARE counterarguments available (no known clenbuterol in Spanish beef, the need to test for small amounts of PEDs in order to deter microdosing or to detect drugs that have almost but not completely disappeared from the system of a doping athlete).
WADA and the UCI might well win a case against Contador under EU law. But imagine the consequences if they lost! A court might rule that WADA Code strict liability cannot be exercised in every case, at least not without a consideration of all of the facts of the individual case (the drug involved, the concentration of the drug found by the lab, whether the doping could have been accidental, etc. etc.). Such a decision would radically change the entire system of doping testing as we know it.
My guess is that WADA will not risk a Meca-Medina decision going against them. This is why I think WADA will not appeal the Contador decision.
M, I’m on record favoring no suspension for Contador (I probably DO favor his being disqualified from the 2010 Tour de France). But I don’t buy the arguments we think he presented to the Spanish cycling federation.
We’ve discussed this thoroughly: in order to get a reduced or eliminated suspension, Contador has to prove how the clenbuterol got into his body. We’ve seen from other cases that this proof does not have to be scientific or iron-clad, but there has to be at least a plausible explanation given. Contador’s problem is that he really doesn’t have a plausible explanation, given that there’s not supposed to be any beef in Europe that’s contaminated with clenbuterol.
So, Contador seems to be trying to argue that all other possible explanations for the clenbuterol in his system are implausible or impossible. It couldn’t be blood doping, because his biological passport numbers look too good. It couldn’t be intentional doping with clenbuterol, or else the lab would have measured a higher clenbuterol concentration. And so forth and so on. But even if Contador made terrific arguments on each of these points, AT BEST you can say that we don’t have a likely explanation for what happened. When all possible explanations seem implausible, I don’t see how there is “proof” for any of these explanations.
It would help if we knew more about this case than we know … but I simply don’t believe that the Spanish authorities were truly convinced by the contaminated beef theory. The possible threat of Meca-Medina type litigation still strikes me as the most likely explanation for what we’ve seen so far.
And yes, this is all speculation on my part.
Larry,
1. The Meca-Medina threat is much more important to WADA and the UCI in deciding whether to appeal, not to those sitting on the Spanish Cycling doping review board. If you’re looking for external considerations other than the factual case, the pressure brought by the Spanish prime minister, government and media would be much more influential on that Spanish panel.
2. I also thought making the factual case that the clenbuterol came from Spanish meat was a long shot, but I’m not prepared to condemn the decision until I’ve seen more of the factual record.
I seem to recall some wheel chair athlete who claimed, without any real supporting corroboration, that some weird hippy lady in a bar smeared cocaine on his lips while he was passed out to explain his positive test for cocaine (leaving aside the whole reused catheter story). The CAS panel (or at least 2 out of the 3) credited this testimony (uncorroborated if I recall) , even though an equally likely explanation was that he snorted the cocaine himself while partying. Perhaps the CAS panel was trying to achieve a just result, since the cocaine was not banned out of competition and was too low to affect performance in any case.
Maybe similar considerations played a part in the Spanish panel’s decision to exonerate Condador.
I am not a lawyer, and many of your discussions, while very interesting and informative, much is way out of my league. If you will be so kind as to permit me to interject some information I remember reading that a large amount of beef in Europe is imported from South America and that South American beef is much like Chinese beef–often contaminated . Could the fear of taking on the beef/import industry be a part of this wierd scenerio? My sense is that politics has played a big role in this decision. And, I am happy that Contador will be able to ride. I don’t support doping at all, but it would be a shame to have such a great athlete sidelined if there is even a small chance he is innocent.
pj
the only problem with your speculation is that the alleged meat in question was shown by the Contador camp to have come from a Spanish rancher
M, Jeff Adams is a friend of this site, and I think he impressed everyone here with his sincerity and intelligence. His case was also a particularly crazy case, involving not just an assault (so ruled by the CAS) that caused Adams to unwillingly ingest cocaine, but his use of a catheter in competition that was contaminated with cocaine from his earlier use of the same catheter after the assault. (Interesting to note: while Adams’ suspension was revoked by the CAS, his results in the competition where he tested positive were still forfeited.)
To clarify … Adams never claimed that he was “passed out” when the cocaine in question was forced upon him (he was pretending to be asleep). He claimed that the woman forced cocaine into his mouth with her fingers as they sat next to each other at a Toronto goth bar. Yes, it’s a crazy story, as Adams himself was quick to admit. “If I was going to invent a story, it would have been more believable than this,” Adams was quoted as saying. The CAS decision made note of Adams’ “uncontroverted testimony and high character.” The CAS decision was unanimous in Adams’ favor.
I agree that the Spanish authorities may not care about the threat to WADA strict liability represented by the Meca-Medina case. But they MAY care about upholding the principles articulated by Meca-Medina. I don’t know enough about the politics or the personalities at stake here … but it may be that the Spanish authorities are motivated by considerations of fairness and human rights, and not merely by the desire to protect their own or to please their superiors in the Spanish government.
PJ, the Spanish beef industry is very upset about the Contador decision. http://www.cyclingnews.com/news/spanish-meat-production-association-denies-contadors-allegations.
So, do we know more about the rationale behind the decision? Did the Spanish fed base this only on the technicality or did they officially buy the co contaminated beef story? If they did buy the story, why bring up the issue about notification, unless they were trying to stake out a fall back position, in case WADA/UCI decides to appeal? Unless we have something in the decision about the beef story, it looks to me like, whatever they might think in private, the Spanish fed took the easy way out: base the decision on some point of law which is easy to prove rather than on the facts of the case, which are more debatable. To what extent Spanish law trumps the WADA code, I will leave that up to those well verses in EU law.
Regarding the idea os strict liability, this is similar to ideas like “zero tolerance” and mandatory sentencing. They all take away leeway for the deciding authority to make judgements on a case by case basis. So we get first graders suspended for “sexual harassment” for kissing a classmate of the check, and skiers banned for using an inhaler with trace amounts of some banned substance, too little to have been of any benefit. But if we allow decisions to be made on a case by case basis we run the risk of decisions being made based on factors other than the merits of the case. While it is possible that AC’s beef was contaminates and deserves a break because of that, he should not get a break because he is a great athlete or because we don’t want another scandal in the Tour, when a back of the pack domestique might get nailed under similar circumstances. Nor do we want AC to get nailed because he is well known, while that domestique gets a break because he is a nobody.
William, the RFEC decision is supposed to be on the internet somewhere, in Spanish. It’s supposed to be translated into English sometime this week. I cannot find the decision, not that I could read the Spanish, but it would be interesting to use something like Google to translate it.
The final decision is here, in Spanish: http://www.as.com/misc/resolucion_caso_contador.pdf.
I am pushing this through Google Translate, piece by piece, and I’ll make it available to Rant once I have it done.
Larry,
Thanks for citing the Spanish decision.
I skipped to the end. Pages 28-29, and 32, state the basis of the decision is that Contador carried the burden of showing that the most probable cause of the Clen was that he ate contaminated meat, and that this was without negligence on his part. Reasoning seems very cursory. Rejects intentional doping and transfusion as very low probability which leaves the meat. Does not appear to deal with Contador taking a contaminated supplement, but I didn’t read all the stuff preceding the punch line.
Relies on the Gasquet case for the no negligence reasoning, as I anticipated.
I’m sure the decision will be appealed.
M, I will hand off the Google translation to Rant. I don’t read Spanish, and I don’t like trusting the nuances of Google translations, so I probably do not understand everything perfectly in this decision. But a few observations (despite their length, these are “quick” observations):
1. The decision was based on substantive considerations. The RFEC ruled that under the facts of this case, Spanish constitutional law did not require the UCI to copy Contador on its correspondence to the UCI. HOWEVER, the RFEC left open the possibility that this constitutional law claim might be reopened if the UCI or WADA bring up new findings of fact on appeal. (M, note what seems to be a veiled threat here.)
2. As you’d expect, the decision focuses on what should happen to Contador. But the decision also seems to state that a minimum threshold needs to be applied to the rule prohibiting clenbuterol use. There is again the suggestion that application of the existing rule (without a threshold) could violate principles of “legal certainty” under Spanish law.
3. The RFEC seemed quite upset by WADA’s and UCI’s failure to provide it with additional requested information. This is likely to become a hot topic of discussion between the Spanish and international authorities should this case be appealed. According to the decision, after the RFEC received documents from Contador, the RFEC sent two official letters to the UCI, WADA and the Spanish state anti-doping agency (AEA), requesting that these agencies undertake technical analyses deemed appropriate in light of the Contador documents. The AEA responded; WADA did not. UCI asked for an extension of time to provide a response but never responded. As a result, the RFEC decision appears to rely almost exclusively on the evidence provided by Contador.
4. The RFEC decision gives a rather loose interpretation to the requirement in Article 296 that a rider prove how the prohibited substance entered his body. In a case where the athlete alleges consumption of contaminated food, it is not necessary for the athlete to both prove that he ate the food AND to offer up the food he ate for scientific analysis. Instead, it appears to be good enough to consider all of the possible reasons how the doping substance might have entered the athlete’s body AND to then conclude that the consumption of contaminated food is more likely than any other reason. It is not necessary for the rider to rule out all other possibilities.
5. Possibly the most controversial part of the RFEC decision is the way the decision rules out the possibility that Contador intentionally doped with clenbuterol. M, you’re right, there’s not much discussion of this — the decision says that it reached this conclusion based on the documentation provided, so you need to examine the decision’s discussion of this documentation to get at the decision’s reasoning. Contador provided evidence that (a) the clenbuterol measured in his system was less than what would have been produced by the range of existing pharmaceuticals on the market, and (b) Contador could not have microdosed with an amount of clenbuterol smaller than that available in the market, since deliberate microdosing with clenbuterol is not consistent with the existing data on this drug. This is radical thinking on the part of RFEC: they’re saying in essence that you can look at the concentration of a doping substance in an athlete’s system and (so long as you have some confidence that this concentration is the peak concentration for a given period) conclude SOLELY BY LOOKING AT THE CONCENTRATION that the athlete was not doping intentionally.
6. The RFEC conclusions are equally radical regarding the possibility of blood doping, assuming that I can safely rely here on the Google translation. It appears that Contador provided expert evidence that his biological passport numbers do not show that he was blood doping. Of course, this is a far cry from saying that the biological passport numbers prove that Contador did NOT blood dope. There was also some evidence doubting that clenbuterol would remain in the blood in detectable form after a transfusion
7. The evidence on contaminated supplements appears to be limited to an affidavit from Contador’s team officials stating that Contador took the same supplements as everyone else on the team. Even the RFEC decision appears to admit that this evidence came without any supporting documentation.
8. The reasoning seemed to be that the only remaining possible reason for Contador’s positive test was contaminated Spanish beef (or more precisely, contaminated beef purchased in Spain; the decision notes that there’s beef for sale in Spain that is not produced in Spain). On this point, the RFEC simply refused to believe the evidence that there are no uncontaminated cows in Spain. The RFEC bought into Contador’s evidence that they’d have to test a lot more cows for clenbuterol before you can have conclude anything with a high degree of statistical probability. The decision also took a “stuff happens” approach, citing a widespread case of dioxin contamination of pigs and poultry in Germany.
9. The decision does not speak to whether Contador should be disqualified from the 2010 Tour.
On the surface, there’s no way that UCI and WADA can let this decision stand. The decision allows an athlete to escape strict liability if the athlete can argue that under all of the facts and circumstances, it seems unlikely that the athlete doped intentionally. The decision also allows an athlete to “prove” an unlikely theory for how a banned substance entered his body, simply by showing that all alternative theories are even more unlikely.
But reading between the lines, the true basis for this decision seems to be that it’s unfair to sanction athletes for clenbuterol at the concentrations found in Contador’s samples. If WADA or UCI appeal this decision, the case is likely to end up in a EU court, where a binding precedent could be set allowing the EU courts to review and overturn WADA rules.
So WADA is in a tough spot. WADA might get out of it by announcing that it disagrees with the Contador decision and will not follow it … but at the same time it is bowing to the wishes of some of its lab directors and is instituting a minimum threshold for clenbuterol … and given this decision, it feels it is inappropriate to sanction Contador.
Hmm. If WADA is about to add a minimum threshold for clenbuterol, then David Howman doesn’t seem to be aware of it. http://supersport.com/cycling/international/news/110222/Wada_warns_Contador_doping_case_not_finished.
WADA director general speaks out on Clen today:
“Howman does not support a threshold below which positive tests for substances such as clenbuterol are not considered doping.
“I think the issue is this. If you introduce a threshold, then what you might do is miss a person who has taken the substance let’s say three months ago, and it’s still in their body. So when they test, it’s not a huge amount, it’s a small amount because it’s left over from three months ago.”
The decision, he said, is for Wada policy-makers to take. ”
http://supersport.com/cycling/international/news/110222/Wada_warns_Contador_doping_case_not_finished
I still think WADA and UCI will appeal.
Well, that seems to explain things better than some of the early reports. Apparently the lack of notice was not a basis for this decision, but such technicalities might come into play if WADA/UCI decide to appeal and win.
I must admit that I am not totally comfortable with this decision. On the basis of what AC has provided in public regarding evidence that he ate contaminated beef, I don’t find this very compelling. And I don’t think that other possibilities have been really ruled out.
The idea that the concentration is lower than what would result from intentional doping is, well, “interesting”. Now I seem to recall when this originally broke, the official word from WADA or whoever was that the test used was only a pass/fail test and that there was no (at least no official) data on concentration. However there were other people who were drawing conclusions from some alleged information about the concentration. So what’s the deal here? Is there valid data on the concentration found? Or are some people making unwarranted conclusions about concentration? Or is WADA/UCI playing coy about concentrations, perhaps because they are lower than what one would expect from intentional doping?
Whatever the truth is here, I for one don’t feel that even if the concentration is low, intentional use can be ruled out. Since micro-dosing is one strategy often discussed as a way of beating testing, it is not beyond the realm of possibility that AC might have been trying to microdose with clem. Riders and their retinue are not scientists and may well make decisions based on invalid reasoning. If microdosing with one PED gives one some benefit while avoiding detection, might it not work with another? This could well be a athletic version of smoking banana peel or drinking coke and aspirin.
M, it’s hard to know what WADA and UCI will do. I thought for sure they would not appeal; now I’m not certain. For the moment, let’s not read tea leaves. Let’s ask the question: for the good of sport, what SHOULD WADA do? (NOTE: I’m relying below on the translation of the decision I was able to make using Google; the language quoted below is from this terrible translation.)
Clearly, there’s much about the Contador decision that WADA should not like. We know from the Landis case that there is no “stare decisis” at play here, meaning that no one is required to follow any precedent we might otherwise think was set in the Contador case. But the decision reached by the RFED is a thumb in the eye to WADA and to the ADAs of most other countries, as it out-and-out sets up a different and far more lenient law for Spanish athletes.
The problem is this: the way I read the horrible translation I prepared of the decision is that the RFED is prepared to view any sanction of Contador as a violation of Spanish and EU law. The RFED decision is based solely on the UCI Regulations (more accurately, on RFED’s strange reading of the UCI regulations), but it seems to me that the RFED would have reached the same decision even if they had decided that the anti-doping rules required the imposition of a sanction. For example, the decision appears to be critical of the doctrine of strict liability. The decision says that the principle of strict liability “reverses the burden of proof” (that presumably should fall on the prosecution), and imposes an “impractical” and sometimes “quite impossible” burden on the athlete “not only” to prove how a prohibited substance entered his body but also to “rule out any other possibility.” This is described by the RFED as “one of the main problems” with strict liability.
The RFED decision also stresses that the concentration of clenbuterol in Contador’s body could have had no performance-enhancing effect. This is again a challenge to strict liability, where the actual performance-enhancing effect of the discovered drug is not supposed to be relevant. Imagine if Floyd Landis could have argued in his defense that testosterone patches applied mid-race were not performance-enhancing.
The decision is actively critical of WADA and the UCI. The exact language of the decision is unclear, but it appears that RFED expressed “astonishment” at “the lack of cooperation” it received from WADA and UCI. The decision scarcely acknowledges the information provided by WADA, though the conclusion reached by RFED directly contradicts the WADA-provided evidence (that Contador could not have tested positive unless he ate steak from a highly contaminated cow that had been slaughtered “against all logic” shortly after the last administration of clenbuterol). Another example: the decision specifically references the fact that there’s non-Spanish beef for sale in Spain; WADA’s documentary evidence indicated that Contador’s steak came from a Spanish animal.
Another interesting situation: the Spanish ADA gave RFEC information in response to the evidence provided by the Contador team, and in some instances this information ran counter to the information provided by WADA. For example, the Spanish ADA agreed with Contador that not enough Spanish cows are tested to rule out the possibility that Contador’s steak might have been contaminated. Also, the Spanish ADA appeared to recommend that a threshold be established for a clenbuterol positive.
This brings us to another highly unusual aspect of the case: the RFED devoted the last section of its decision to a recommendation that WADA change its rules. If I read the decision correctly, RFED is recommending both that a minimum threshold be established for clenbuterol AND that all WADA labs be required to detect the presence of clenbuterol at this standard. The RFED expressed concern both about tiny concentrations of clenbuterol AND about the fact that some but not all laboratories can detect these small concentrations. (Remember the Landis argument that labs like the one at UCLA would not have interpreted his results as positive?)
Finally, there’s the question of what I perceive as veiled threats against UCI and WADA should either appeal. As I noted, RFED was not concerned about the Constitutional issue raised by Contador concerning the UCI letter to RFED that was not provided to Contador. However, the RFED wrote that “any findings later brought up by the parties could lead to the collapse of the right” protected by this provision of the Spanish Constitution. Similarly, the RFED rejected Contador’s argument that this case violated “the principle of equality and legal certainty”, since not all labs can detect clenbuterol at the quantities found in Contador’s system. However, this rejection did not seem to be total – I’ll need a better interpretation of paragraph THIRD to understand what the RFED was saying. The decision DOES seem to refer positively to the “basic legal principle that the analysis of urine samples with identical Clenbuterol numbers” should not vary depending on the lab performing the analysis.
So … the RFED decision re-reads the WADA Code in an unusual way that is also highly favorable to Spanish athletes – and they also appear to be willing to bring a broad challenge against WADA and its code should its decision be overturned. WADA is going to need to decide what is worse: allowing the Contador decision to stand, or risking a more damaging decision should Contador defend himself by bringing an action in a EU court. An EU court decision would affect more than just Spanish athletes – it would set up a Europe-wide binding precedent that might challenge the very heart of the WADA Code.
Even if WADA ultimately determines that it cannot forever avoid a challenge to its authority brought before a EU court, you’d have to figure that WADA would choose carefully which such challenge to allow to reach the EU court. The Contador case may be a difficult case for WADA to win … it might be better for WADA to lose this battle in order to eventually win the war.
But if the Contador case remains unchallenged, it will serve as a model for future athletes to bring broad challenges to their doping positives, and will encourage the anti-doping authorities in other countries to be more protective of their national athletes. After all, why should a U.S. athlete like Jessica Hardy miss the 2008 Olympics (and maybe even the 2012 Olympics), when THEIR athletes get to compete even when they dope accidentally?
For me, the latter argument carries the day, and I think WADA should appeal the Contador decision (that is, unless it is prepared to change its rules to meet the concerns raised by the RFEC). I think this is the right thing to do. Because WADA never does what I think is right, I think they won’t appeal. But I’m not 100% sure.
To clarify: I think the BEST course of action open to WADA is to change its rules on clenbuterol, drop the case against Contador, and reverse the sanctions applied to any athlete that has tested positive for clenbuterol. But I don’t think they’re going to do that. So, the NEXT best plan is to appeal.
William, it may be the result of my terrible Google translation of the Contador decision, but I think that you should not be comfortable with the decision. It’s a terrible decision, poorly and lightly reasoned in critical areas.
Here’s my biggest problem: the anti-doping system is based on the logical presumption that the most likely explanation for a positive doping test is that the athlete doped intentionally. Any good anti-doping system should allow for the athlete to combat that presumption by providing some level of proof that he doped accidentally. But Contador did not do this; at best, his evidence shows that there could be cows contaminated with clenbuterol anywhere in the world, and that it’s possible to test positive from eating meat prepared anywhere in the world. That’s not much in the way of “proof”.
I think the Contador decision stands for the insane proposition that an athlete can duck a doping charge simply by arguing that it’s not likely that he doped intentionally. I think it’s always possible to scrape together some facts that make any individual case of doping seem unlikely. We were all able to do this in the Landis case: you find something odd about the testing, argue that no athlete would dope in that way at that stage of the race, claim that the doping in question could not have been performance-enhancing, etc. In this particular case, I don’t think it’s likely that Contador intentionally took clenbuterol during the Tour, but I don’t think this is any way to decide an anti-doping case.
Let me put this another way: if we can’t validly use the proposition (in the absence of persuasive evidence) that positive doping tests are caused by intentional doping, then the WADA Code system of strict liability falls apart. And honestly, I think this is what the RFEC decision is REALLY saying. I think that the RFED pulled their WADA Code arguments out of their, er, ears, and that the true basis for the decision is that it’s fundamentally unfair to sanction athletes for tiny concentrations of clenbuterol
We had some discussion here a way back on whether the clenbuterol test is quantitative. According to one expert cited in the RFED decision, “the method of analysis of Clenbuterol is qualitative, not quantitative, which is why [it] has an associated level of uncertainty that leads to the estimation of concentrations.” On what this means exactly, your guess is probably better than mine.
Let me make some arguments somewhat in support of the Spanish decision based on the Gasquet and Jeff Adams case.
1. In both cases we only had the word of the athlete as to how the prohibited substance (cocaine) entered his body, and in both cases the corroboration was weak or non existent. Gasquet testified that he kissed a lady in a bar, who was a known user of cocaine. There was evidence that she was a known user, but no evidence that she was using on the night in question. Jeff Adams’ case was even weaker. He testified that some hippy lady smear his lips with cocaine in a bar. There was no corroborating evidence as far as I remember, or even how he was supposed to know it was cocaine (unless he had tasted it previously LOL!) In both cases the CAS panel credited the testimony of the athlete, and found that the athlete met the burden of showing no fault (granted the Jeff Adams case was 2 to 1). In both cases, the substance was cocaine which was legal out of competition and would not confer much if any competitive advantage in the circumstances of the case. I suspect this played a part in both decisions.
2. In the Contador case we know on which day the prohibited substance entered his system and that it was at a very low level because he was tested on multiple days. Before that date there was no Clenbuterol in his system and after that date the level decreased as one on expect. So Contador testifies that he ate Spanish meat on the day before and that he took no supplements other than what his team took. Based on Gasquet and Jeff Adams a court would be entitled to believe that testimony.
3. Contador has attempted to show that it would be highly unlikely if not impossible for the Clen to have entered his system on the date in questioned based on intentional doping, supplements, or blood doping.
4. As to the intentional doping the evidence is circumstantial. It would be stupid to dope at such a low level since it would confer no competitive advantage. This seems to be similar to arguments in the table tennis case since there also the athlete showed that the levels of Clen in his system was too low to confer a competitive advantage and thus intentional doping could be ruled out. So this seems a reasonable argument.
5. As to the blood doping, Contador relies on his blood passport data, presumably supplemented by expert opinion (which I haven’t read) stating that he could not have blood doped during the time period in question. This seems weaker, but may nevertheless provide a reasonable basis to exclude blood doping. Why? Because apparently the UCI and CAS did not submit any evidence to counter these arguments, in particular, evidence of plasticizers or other expert testimony. I may be off base here since I haven’t read the decision which Larry provided.
6. As to the supplements, Contador testified that he took no supplements other than what his team took. If there is evidence that some of his team members were tested, and no clen was found this seems a reasonable argument that supplements did not cause the clen result. I also assume that he could testify that he took no supplements around the date in question. So a good argument can be made that supplements were not the cause of the Clenbuterol.
7. From what I read, it appears clen at such a low dosage would not confer any competitive advantage if consumed around the date in question. So again this would be a reason for the panel to rule in Contador’s favor as in Gasquet and Jeff Adams.
8. But Contador should still provide some plausible basis for why the meat is a likely reason for how the Clen entered his system, if only by a 51% probability. Given the low levels of clen in European meat this seems the weakness in the case, because Contador has the burden of proving this point if only by that weak 51% probability. Granted that he has shown that the likelihood of the Clen entering his system by intentional or blood doping or supplements is very very low, but can he meet his burden by showing that the meat source is a somewhat higher, if still low, probability. Again I haven’t read the evidence in the case as to the meat so I might be off base here.
So it looks like this case will turn on the athletes burden of proof to show how the prohibited substance entered his system. And this seems to be the weakness in Contador’s case, should WADA and the UCI appeal as I think somewhat likely.
M, I’m in an odd position. I’m attacking a decision that reached a result that I happen to agree with. I think it’s nuts to put Contador on the shelf for 2 years over something like this. If there was such a concept as “prosecutorial discretion” in anti-doping, then this would be a great case to apply that concept.
But the reasoning used by the RFEC is, in my opinion, crazy.
I think it’s crazy to base an anti-doping decision by lining up all of the reasons how a doping substance could have gotten into an athlete’s system, and examining the likelihood of each reason. I think it’s particularly crazy in a case like this one, where (arguably) none of the reasons seem particularly likely. What are we to conclude in this case, that there’s a 1% chance that Contador’s positive test result was caused by a contaminated steak, but that this 1% is more likely than any other explanation we have? How in the world are we supposed to make decisions based on such small probabilities?
The only way we can get to a 51% probability in the Contador case is with the Sherlock Holmes reasoning that when all the other explanations are impossible, you have to go with the unlikely explanation. Problem is, the other explanations are not impossible. Contador could have intentionally microdosed with clenbuterol – I think the chance of this is unlikely, but it’s not something we can 100% rule out. Ditto for blood doping, regardless of the evidence from the biological passport (which is designed to detect suspicious blood readings, and not to conclusively prove to a 100% certainty that the subject could not have blood doped).
If strict liability makes any sense, then we have to start with the likelihood that anyone who tests positive doped intentionally. I agree, the facts of the Contador case do not suggest intentional doping to me, but if strict liability makes any sense, we have to start with intentional doping as the most likely explanation for a positive test. I then look at Contador’s contaminated beef theory and ask, is that more likely than the presumption we start with that Contador doped intentionally? Given the lack of evidence of clenbuterol-contaminated cows in Spain, I can’t say that this is a likely explanation for anything.
Yes … the Gasquet and Adams cases clearly stand for the proposition that we don’t need an ironclad doping excuse backed by scientific proof in order to overturn a doping positive. We know that WADA fought the results reached in both of these cases. But at least in the Adams case, we know that he was present in a bar where there probably WAS cocaine – the presence of cocaine in Canadian goth bars is a lot higher than the presence of clenbuterol in Spanish cows. We also have to consider that Adams testified in his own defense, and that the CAS panel found his story to be believable. The CAS panel IS a finder of fact. If the CAS believed Adams’ testimony, then they had grounds to reach the decision they reached.
Gasquet did better than Adams, as he proved he kissed a girl that was a habitual cocaine user. Again, that doesn’t PROVE with scientific accuracy that he ingested cocaine in one or more of those kisses. In fact, unlike the Adams case, Gasquet could not testify that he actually ingested cocaine when he kissed the girl. On that point, the CAS had to weigh the odds that kissing a known cocaine user might result in the accidental ingestion of cocaine. That’s why we HAVE CAS arbitration panels.
Contador’s case goes way, WAY beyond Adams and Gasquet. In both the Adams and Gasquet case, it seems HIGHLY likely that both athletes were at least in a bar where people were using cocaine. We may not be certain about whether the cocaine in the bar could have innocently entered the system of either athlete, but at least we know that the opportunity was there. In contrast, when Contador sits down at a meal during the Tour, we have GREAT reason to doubt that clenbuterol is present in any of the food.
My main problem with the Contador case is this: it seems to provide an out in any case where the athlete can make an argument that he never would have doped under the relevant circumstances, and where there’s a plausible (if tiny) chance that he might have doped accidentally. It seems to me that there are a LOT of cases like this, so many in fact that you might as well toss strict liability out the window and decide every doping case on its facts.
Larry,
You claim it’s highly likely that Gasquet and Jeff Adams were in a bar where cocaine was used. I don’t buy that, but even if true it’s a long way from that to specifically showing that the cocaine entered their system on that particular night in the way that their uncorroborated (at last in the case of Jeff Adams) testimony claimed, and not because of some other escapade. If you are talking odds, the odds are that these guys took the cocaine voluntarily for fun, rather than some stranger crammed it into their mouths.
Similarly, Contador can show that it’s “higly likely” that he ate beef on the day before the clen showed up in his system. Just as Gasquet and Jeff Adams didn’t have to make much of a showing that the substance they ingested contained a prohibited substance, maybe Contador doesn’t have to either.
You claim that the Contador decision makes it too easy to claim an accidental ingestion of a prohibited substance. You should equally if not more so blame the Jeff Adams case for the weak evidence needed to sustain such a claim
M, there’s always been a “Catch-22” to these accidental doping cases. In order to argue that the doping was accidental, the athlete has to come up with a plausible story as to how the accident happened. But in order to show due care and lack of negligence, the accidental doping could not have been reasonably anticipated.
It’s not easy to come up with a story that has both of these elements. For example, Contador’s case has the latter but not the former. Jessica Hardy’s story had the former and not the latter.
To win one of these cases, the court has to react to the athlete’s story by saying “Wow, that’s a crazy story, no one could have anticipated THAT happening, but I guess that’s the way it happened.” I think we need to start here, that all of these cases are going to have an element to them that strikes us as improbable.
This being said, the Adams case is not remotely like the Contador case, because Adams KNOWS whether or not his story is true. If Adams is telling the truth, then we all know how the cocaine got into his system. You’re having trouble believing Adams (see above discussion of necessity for a story that’s improbable on the surface), but the CAS believed Adams’ story. They’re the finder of fact and they’re entitled to find the facts. (BTW, there was some minimal corroboration; two witnesses testified to an “immediate commotion”.) Nothing says that the athlete’s testimony cannot be “proof” of how the prohibited substance got into his body.
In contrast, all Contador can testify to is that he ate steak. Yes, I suppose he can testify that he did not blood dope and that he did not intentionally ingest clenbuterol, but such testimony is not “proof” of how the clenbuterol got into his body.
OK, granted, we’re walking a funny line here. Obviously, the WADA Code does not permit an athlete to escape the consequences of a doping positive by testifying that he did not dope intentionally. The finder of fact is not going to believe this testimony (or alternatively, such testimony does not matter given the doctrine of strict liability). But it’s a short distance from testifying that “I did not dope with cocaine” to testifying that “I had cocaine forced on me by a girl in a bar.” The Adams case means that no one ever need to serve a suspension for cocaine use, so long as they can testify to the Adams story in a way that the CAS finds believable. The Adams story is potentially a sort of “get out of jail free” card for cocaine users (so long as they can tell the story convincingly).
So, you can argue that Contador’s case provides a similar “get out of jail free” card for clenbuterol users — all they need to do is to testify that they ate a steak. So long as an athlete eats meat, he can’t be sanctioned for clenbuterol. To be honest, I don’t have a huge problem with this either, so long as the concentration of clenbuterol found is suitably low. This “get out of jail free” card is just the equivalent of WADA establishing a minimum threshold for clenbuterol, which is what I think they should do anyway.
My problem is what the Contador case means for other kinds of doping offenses. Go back to the Landis case. Using the Contador precedent, Landis could point to things such as only one metabolite testing positive, that it was unlikely that any rider would use testosterone and then ride like hell to win the stage so that he’d be immediately tested, that there’s no proof that topical application of testosterone improves performance so why would he have used it, etc. Then all he’d need would be some improbable (but not impossible) excuse for how the testosterone accidentally got into his system (tainted meat would do), and he’d be home-free.
At least with the Adams case, we’re talking about a “get out of jail free” card that’s limited to recreational drugs. At least with the Adams case, we’re dealing with a CAS panel who may have given Adams’ testimony more weight than it deserved but at least respected the rule that the athlete’s excuse must be 51% proved. With Contador, the 51% is out the window; any excuse will do and any form of doping is fair game. That’s a big jump from the Adams case.
Larry,
“With Contador, the 51% is out the window; any excuse will do and any form of doping is fair game.”
The Spanish panel claims they are following the 51% rule., and that Contador met this burden.
I, as you, think they are wrong on the facts and will be overturned on any appeal to CAS.
One thing that worries me, is that apparently neither the UCI or WADA submitted any expert evidence to counter Contador’s experts who ruled out blood doping and micro-dosing. Does this suggest that they are purposely caving in here?
M, regarding your question about “purposely caving in”, I’ve asked myself the same question. The RFEC clearly was, er, miffed, that the UCI and WADA did not respond with information as requested. UCI has already given the impression that they weren’t anxious to prosecute this case. I don’t know what to make of WADA’s failure to respond. Dr. Christiane Ayotte of the Montreal WADA lab has been quite vocal about clenbuterol doping resulting in low concentrations in her testing, so certainly WADA could have said something about microdosing.
As for the 51% point, it will help to see a proper translation of the decision. The decision clearly points to UCI Article 22, which sets forth the 51% rule.
Page 29 of the decision, states that the “most probable cause” of the clenbuterol was eating contaminated meat, according to my reading of a fractured google translation.
“Therefore we must refer to Article 22 of the RAD, which states:
“When Anti-Doping Rules place the burden of proof on the licensee accused of committing a doping rule violation in order to rebut a presumption or establish certain facts or circumstances, the standard of proof must be a balance possibilities, except in sections 295 and 305, in which the licensee must satisfy a higher burden of proof. ”
For its part, the art. 3.1 of the CMA states that “the standard of proof in all cases must be greater than a mere balance of probability but less than proof beyond reasonable doubt.”
In short, “the standard of proof to be submitted to the Antidoping panel is similar to the standard that applies in most countries to cases involving professional misconduct” (Commentary to Article 3.1 of that CMA).
Based on that right balance and documentation in the record, that rules out the possibility that the occurrence of the prohibited substance: a) is likely to caused by voluntary doping by the rider because the tiny amount detected to improve athletic performance,
and b) arising from the use of vitamin compelementos, microdose or autologous blood, the Committee considered the ****most probable cause***** of the detected positive was the consumption of contaminated meat and is, therefore, the fact that should be assessed.
Indeed, as already mentioned, the rider has demonstratedthat 20 and July 21, 2010 he ate meat purchased at a butcher shop where no Spanish person, in principle, could expect… [doped] meat]”
M, my problem is this. The most generous reading of the facts is that we don’t know how the clenbuterol got into Contador’s system. The RFEC decision argues (not persuasively in my opinion) that Contador could not have doped intentionally, or blood doped, or gotten the clenbuterol from a supplement. Let’s assume for the moment that all this was indeed conclusively proven (I don’t believe this, but for the moment let’s assume).
The RFEC’s reasoning is that there could only have been four possible explanations for Contador’s positive test (in spite of the UCI’s opinion documented in the decision that there could be other possible explanations unknown at this time), and with the above three reasons ruled out, the only remaining explanation is the contaminated beef excuse offered by Contador. This is, I think, how the RFEC is able to reach a conclusion regarding “the most probable” cause of the clenbuterol positive.
But note: “the most probable” cause is not necessarily a 51% probable cause. If you assume that there are only four possible explanations and you assign a 0% probability to the first three, the fourth explanation could be a million to one long shot and still be most probable.
I don’t think this is what’s called for in the WADA Code. I don’t think that the athlete is required to come up with an excuse that’s only credible because all other explanations are more incredible. I think that the Code’s call for “proof” requires that the athlete come up with an excuse with a probability that stands up on its own.
Go back to the Gasquet and Adams cases. Yes, I know that the “cocaine kiss” and the “cocaine assault” excuses each strain credulity. But in each case these excuses were examined on their own merits. There was no use of “comparative probability” where the finders of fact weighed the probability of these excuses against all alternative explanations for how the cocaine got into the systems of these athletes. To win their cases, Gasquet and Adams had to persuade the court that their stories were more probable than not.
In the Contador case, the best you can conclude from the RFEC decision is that it’s not impossible to eat a clenbuterol-contaminated steak from Spain and test positive as a result. The WADA Code requires a lot more than an excuse that might conceivably be valid.
Remember, there’s nothing in UCI Article 296 that REQUIRES the finder of fact to pick a most probable reason. In MOST cases involving accidental doping, we’re not going to be able to figure out how the doping happened. And if we can’t figure out how the doping happened, then the doctrine of strict liability demands punishment.
The Contador case is one where, again being generous to the athlete, we don’t know what happened. And unless we’re willing to chuck strict liability into the trash heap (which IS tempting), I don’t think an athlete can escape sanctions merely because we don’t know how he happened to dope.
Sorry guy to interfere through Contador’s case but Lance’s 1999 urines samples, and maybe more, have been requested by US !
About Contador, if I were WADA, I will challenge Contador, asks him if he doped… lose the case. Then come in 1 or 2 year with plastic test and badaboum !
Jean
Jean C! So, what do you hear about AFLD’s 12-year chain of custody records? Do they have much in the way of peer-reviewed study on the accuracy of their testing protocols on urine frozen for 12 years? Oh, and how exactly does AFLD know which urine belongs to Armstrong — aren’t they supposed to store the urine by collection number, with only the UCI knowing which urine belongs to who?
I heard that at the same time AFLD offered up Armstrong’s urine, they also made a pitch to become the testing lab for the 2011 Tour. Is the “We Ship Urine World-Wide” part of their new campaign? Ah well. Plus ça change, plus c’est la même chose.
So, Jean C: what are they saying about Contador in France? Have the French realized yet that the decision by the RFEC does NOT speak to whether Contador should be disqualified from the 2010 Tour? Will ASO strip Contador of his 2010 title if the UCI and WADA fail to act? M may disagree, but I think that the ASO has the power to award the 2010 Tour to Andy Schleck.
Good to hear from you, you were always one of my favorites.
Greetings All,
Quite the discussion going here. Been too swamped and too under the weather to participate the last week. Glad to see everyone carrying on in my absence.
Larry was kind enough to send me a machine-translated version of the Contador decision. You can view it here, if you’re so inclined.
Got a bit more stuff to dig out from under, so it’s back to the salt mines for me.
Cheers.
Larry,
About the chain of custody, I have heard nothing. Is it a real problem?
Is it possible to tamper samples? It was sometimes mentionned that if it were possible lab and WADA would be pleased to use them to test their own process or the labs!
If it were possible, I do think that Lance would have trumpetted that fact!
About identification of samples, until Ressiot got the key numbers of Lance’s samples from Lance and UCI, no one knew whose belonged to Lance. LNDD wrote a research report that was probably sent to other WADA lab for approbation of their work.
Later, Ressiot got that report… and then matched the positive samples of Lance.
The storing of the samples were done in LNDD, access is controled, even Vrijman could not enter into because he didn’t follow the official procedures. Of course, it’s not Fort Knox but who want to stole piss except athletes? and to tamper 8 specific samples through 83, request the help of UCI run by Lance’s friend verbruggen.
Despite the farcical report of Vrijman, Lance’s lawyers should have hard time with the initial testing, I am speaking about logical points, not about the Justice procedures that could lead to “strange” results.
http://www.wada-ama.org/en/News-Center/Press-release/WADA-Completely-Rejects-Vrijman-Report/
Then they could have to face the US retesting results, that could be on EPO and other PEDs
Seems that all US Postal samples were sent to USA, need to be confirmed.
About Contador, we are thinking that he doped.
But ASO is in silent mode. Since Lance’s lobbying for coming back resulting Patrice Clerc’s dismiss , the anti-doping stance of TDF dropped a lot.
I believe that they will let WADA and UCI manage it. Since German TV dropped his direct broadcasting contract, maybe they would put some secret pressure to have less positive cases and to avoid another scandal.
I believe too that they prefer to be silent and avoid too much noise around Contador’s doping case, less talking about, less damage!
Enjoy to read your well-writen english and your thoughts.
Well, another thing I have trouble with is the arbitrary assignment of “probability” to the various hypotheses about how the clem got into Contador. Seems to me they are nothing more than a WAG, and your WAG might be different than my WAG. If the various ideas discussed are exhaustive, then the probabilities assigned should add up to more or less 1. If we are talking about the contaminated beef hypothesis having a probability of .01, and the various other ideas (intentional doping, blood doping, contaminated supplements, what else?) are all much less than .01, so much less they are considered to have a probability of 0, then there must of necessity be something(s) else out there to explain what happened, and those yet un-named hypotheses, at least when added up, should have a combined probability of somewhere around .99. So in one way or another, we have missed the boat here. Either one of the ideas mentioned is far more likely to be true than what RFEC has assigned, or there is some other far more likely explanation.
So far, it looks like WADA is not impressed with Contador’s defense … OR with the Schaenzer study that tourists visiting China are testing positive for clenbuterol. http://bit.ly/h3dz4r.
William, agreed strongly. The athlete should be required under the WADA rules to produce a 51% case that he doped accidentally. It should not be good enough to argue that all possible explanations are improbable, so the least unlikely possible explanation is thus “proven”. If the most probable explanation is that we don’t know what happened, then strict liability demands a sanction.
Jean C, interesting that ASO is keeping quiet for the moment. The proof is in, Contador DID race the 2010 Tour with clenbuterol in his system. The arguments made by Contador and considered by the RFEC fell under UCI Article 296, which addresses suspension and not disqualification. M and I have discussed whether Contador can avoid disqualification under the UCI rules, and perhaps he can (M thinks maybe, I think not), but if so it’s a different set of arguments under other UCI rules. For the life of me, I cannot figure out why this issue is not being discussed.
I would also think that the ASO would be VERY WORRIED that Contador’s racing in the 2011 Tour would be a negative story that would overwhelm all other positive attention that the Tour might receive … also that Contador might receive an extremely hostile reception on the roads of France.
Seems to me that whatever damage to the “reputation” of the Tour could occur from the AC affair has already occurred, and thus DQ’ing him will not adversely affect the Tour. Indeed, I think that in the mind of many people who are not particularly cycling fans, but do see the headlines regarding doping, giving him a pass on a potential DQ could be perceived as sweeping the dirt under the rug. If there was good, solid evidence that the clem was unintentional and that there was no real advantage confirmed, it might be different. But right now it looks like all we have is some debate over whether the Tour is a “competition” or an “event”, since apparently the 2 categories have differing provisions regarding DQs.
William, have you seen the debate between “competition” and “event” anywhere but here?
No, not that I’ve actively looked. I’ve seen a few news articles in the local paper on the case, and about all they’ve mentioned is that there is a possibility he could be DQed. But I could see that if a formal decision, one way or the other, is based on that distinction, it could well become more widespread. And it is also possible that there is or has been some debate in official circles on that matter.
I sort of have the feeling that WADA, UCI, and possibly ASO have been sitting back to see what would happen and perhaps what reactions are to the RFEC decision, before they take any further action (including the possible action of taking no action). I don’t think we have heard the last of this.
Very nice. And COMPLETELY IRRELEVANT. The entire analysis, both here and in/on any cycling magazine/site you can name, is based on the assumption that Alberto Contador went to China for dinner and came back the night before he left.
LJ, not sure what you’re referring to by the “entire analysis” here, which has been wide-ranging. By “entire analysis” you seem to be focusing on whether Contador could have ingested clenbuterol through contaminated meat, so that’s where I’ll focus.
First, we’re not just dealing with a China problem. We’re dealing with a problem also known to exist in Mexico and Latin America. The problem in Mexico is bad enough that CONI (the Italian anti-doping agency) has said in essence that it’s careless for an Italian athlete to eat meat while in Mexico. (Apparently, CONI expects its riders to subsist on photosynthesis.)
Second, this is a problem that does not respect national boundaries. We know that Mexican beef is imported into Spain (though the evidence is that Contador consumed steak from a Spanish animal). I’m no expert, but Chinese protein powders seem to be exported world-wide and could show up in U.S. produced drinks and supplements. http://nyti.ms/gazBBk.
Third, you seem to forget that we’re dealing with WADA. WADA has told us that you can’t test positive for clenbuterol by eating meat. And they’re continuing to tell us this, in spite of evidence to the contrary from one of their own labs. http://es.pn/dHcNWQ WADA is motivated here not by truth or fairness, but by a fanatic determination to defend its notion of strict liability against any possible challenge.
Look. If you’ve read through these comments, you know that I’m highly critical of the logic used by the RFEC. Nevertheless, there’s a difference between saying that Contador did not prove his claim and that Contador’s claim is logically impossible. The truth here is the same as the truth in most every anti-doping case: absent a confession from the athlete, we don’t know what really happened. In this case, the fact that we don’t know what happened means that Contador should be sanctioned under the existing WADA rules. It’s an open question whether this result is fair; I’m on record saying that this result is NOT fair, and in defending my position, so far I’ve been able to avoid any speculation that Contador might have spent part of his Tour rest day in China.
Liggett junkie,
Actually, not entirely irrelevant. Spain imports something like 10 or 20 percent of its beef from Argentina and other South American countries, where clenbuterol is actually used on the cattle. And, of course, an unscrupulous Spanish rancher could perhaps have used clenbuterol on his herd.
Problem for Contador is that he doesn’t have records of where the supposedly tainted beef actually originated from, much less actual test data to show it was contaminated with clenbuterol.
So there’s a slim chance Contador is telling the truth, even if he can’t prove it. Then again, maybe he has access to one of those Star Trek transporters and managed to beam himself to Beijing for a steak dinner and get back before anyone noticed he was gone. 😉
William,
Going back to your point about probabilities, I like your critique. For the possibilities that they chose, shouldn’t the total probability of the events (p1 + p2 + p3 +p4 + …) equal 1? If not, then I think there’s a gaping hole in their analysis. (Which, it seems to me, there is.) They appear to reject certain possibilities pretty much out of hand. Seems to me the truth is murky, at best. But the chance of microdosing isn’t so far-fetched that it should be entirely dismissed, for example.
If all four options are highly unlikely, then what is that missing option that would be highly likely? Seems to me, that missing option could also include using the drug on purpose — perhaps even for a therapeutic purpose, for which he didn’t get a TUE. Otherwise, how could one explain the test result? Environmental contamination? Possible, I suppose, given the low level detected. Lab error? Perhaps.
Still, there’s a something missing to the RFEC’s analysis. In the end, I expect the decision to be appealed. And it wouldn’t surprise me terribly much if at the CAS, Contador loses.
Larry,
You are right Contador’s case is not fair.
But not fair for who? For Contador or his clean opponents?
Of course, he could have ingested contaminated meat.
He could have proved it by giving hair for analyse like did Otcharov.
How much meat should he have eaten to get such results?
So yes there is a very slim chance that Contador is telling the truth, but the odds are close of 1 that Alberto is lying according what we know about sport and doping.
If “Justice” is too perfect and release most of all culprits, there is no deterrence, so it’s become worthless. The difficulty is too find the right balance : to catch enough even sometimes an innocent to avoid to have too many innocents abused by unpunishable bad boys.
Rant,
“Still, there’s a something missing to the RFEC’s analysis. In the end, I expect the decision to be appealed. And it wouldn’t surprise me terribly much if at the CAS, Contador loses. ”
Wow really sticking your neck out here!!!
By the way, it seems to me that you should stop trumpeting the “strict liability” bugaboo.
In Gasquet, Jeff Adams, Ovtcharov, and now Condador, the athlete was exonerated by the powers that be when he was able to show no negligence, and as I’ve argued the showing didn’t need to be very strong.
M, that’s still “strict liability”: the lab shows a positive test result, and the burden shifts to the athlete. The ADA is not required to prove intent or that the PED had any real effect. Remember also that the athlete cannot question the validity of the test methodology, and that the lab is assumed to have followed all procedures correctly.
In the entire history of WADA anti-doping, we’ve had all of three athletes who tested positive and got away without a sanction (well, Gasquet was sanctioned for time already served in his provisional suspension). I won’t count Contador as the 4th athlete, not yet. That’s not enough cause for Rant to stop trumpeting anything.
Gasquet and Adams were very strange cases (Adams with his used catheter; Gasquet testing positive for a drug only banned in-competition based on a test performed as he was withdrawing from competition because of injury). Agreed, the showing of proof was not strong in either case; maybe these cases really stand for the proposition that we’ll try to find a way to exonerate athletes from cocaine positives when the athlete never actually performed in competition with cocaine in his system.
The case that’s truly a departure from the norm is Ovtcharov. As far as I know, we have no written decision from Ovtcharov’s federation explaining how his case was resolved, and we have nothing more than the briefest of statements from WADA regarding why they chose not to appeal Ovtcharov’s case. I would agree with you that Ovtcharov and Contador (possibly to be followed by Li Fuyu) are cases where the powers that be refused to enforce strict liability rules when it came to clenbuterol. I think this had more to do with concerns about clenbuterol, and less to do with some huge loophole in the doctrine of strict liability created by Messrs. Gasquet and Adams.
But I do agree (this is an “agree”, isn’t it, M?) that the Contador case could severely damage the doctrine of strict liability in anti-doping.
BTW, it’s Rant’s job to stick his neck out in his posts, and to be gentle with us in the comments — why do you think the two of us have managed to survive here as long as we have? It is your job and mine to stick our necks out in the comments, which we do admirably if I do say so myself!
Jean C, I will keep saying this, your ASO can and probably should strip Contador of his 2010 Tour title. Doing so is perfectly consistent with the RFEC ruling. Someone needs to let M. Prudhomme know that the question of “justice” here is partially his responsibility. I will tell M. Prudhomme this if I see him in a coffee shop here in Hollywood, but you may have a better chance of bumping into M. Prudhomme in a bistro in your neighborhood!
As for the hair sample, Contador may have had a haircut before he learned of his doping positive. Besides, the hair test would not have proved he ate contaminated meat. It might only have helped prove he was not continually doping with clenbuterol. But the Tour doping tests already tell us this. It is everyone’s assumption that clenbuterol was not present in Contador’s system until that rest day.
We are also hearing that EU law may be violated if WADA’s anti-doping laws are seen as punishing innocent athletes. I guess you could get rid of the EU! I wouldn’t mind; I still have some French Francs I forgot to exchange for Euros before the deadline.
“Going back to your point about probabilities, I like your critique. For the possibilities that they chose, shouldn’t the total probability of the events (p1 + p2 + p3 +p4 + …) equal 1? ”
Exactly one of the points I was trying to make. Either there is some explanation which is highly likely but unmentioned by RFEC, or there are a bunch of other explanations whose combined probability adds up to .99 or so. In either case, the logic that the contaminated beef theory with a probability of .01 is the most likely explanation falls. Looking at it another way, if indeed the probability of the contaminated beef story is .01, there is a probability of .99 that it was something else. Now maybe that something else is some situation where Contador shouldn’t be held culpable, and maybe it is something where he should be. We don’t know, nor do we really know what the truth is. WADA seems to require that the athlete has to make a pretty good case for his story, else he is going down. An additional problem with RFEC’s logic is that there is no real basis for assigning probability to the various explanations. I could just as easily argue there is a .011 probability he was deliberately micro-dosing and so should be held accountable.
However, all this is rather moot: the decision has been rendered. Unless WADA decides to appeal.
William, there’s a difference between the probability that event X happened, and the weight of the available evidence supporting event X. The difference here is equal to the information we don’t have, the amount we don’t know.
Yes, with the reasoning we’ve been given from the RFEC, we have a .99 probability unaccounted for. Maybe we can assign some of this unaccounted for probability to yet-unexplored possibilities, such as LJ’s tongue in cheek theory that Contador may have dashed off to China for some dim sum. But what I think the .99 represents is the state of what we don’t know.
I’ve had some difficulty articulating what I find wrong with the RFEC decision, but perhaps you’ve given me the best way to do it. Under WADA’s system of strict liability, we’re not supposed to analyze the probability of various events, hoping to get those probabilities to add up to something like 1.0. We’re supposed to start with the assumption that a positive doping test is the result of the athlete’s violation of the rules. We’re supposed to start with the assumption that it’s 100% likely that Contador intentionally doped, or that he accidentally doped under circumstances where the WADA Code provides him with no excuse. Given strict liability, WE DON’T NEED TO PROVE THIS PROBABILITY, THE PROBABILITY IS A GIVEN BASED ON THE FAILED TEST. Then Contador is supposed to come up with proof of an alternative explanation that’s at least 51% likely and that DOES provide him with a Code-based excuse. It’s the athlete’s proof of an alternative possibility that pushes the probability of a doping offense below 50%.
But the RFEC ignored the probabilities that are required by strict liability, and instead looked at the probability of intentional doping as an open question. The RFEC did not conclude that the chance of intentional doping was below 50% because the chance of some alternative explanation was above 50%. Instead, the RFEC ignored strict liability and tried to figure out based on the evidence what the chances were that Contador intentionally doped. They essentially reasoned that Contador could not have intentionally doped, because no sane cyclist would intentionally have used clenbuterol in a way that would have produced the results measured by the WADA lab in Cologne. I agree with RFEC — the risk of taking clenbuterol at this stage of the race seems too high, and the potential benefits too low.
But what I think does not matter under the WADA Code. We know that athletes do crazy things with PEDs, and that a lot of PED cases seem crazy on their face until we learn more. For example: how long was it until we understood why a cyclist like Floyd Landis might use testosterone during the course of a Tour? Some of us had the same reaction when we heard about Manny Ramirez’s failed test: why would a baseball player want to take a female fertility drug?
It’s not supposed to be a defense under the WADA Code that no sane athlete would do what the accused athlete is supposed to have done. But this is precisely the reasoning used by RFEC in their decision. This is the reasoning used by the RFEC to calculate their competing probabilities, and that’s not supposed to be kosher under the WADA Code.
I’ve checked in for an occasional read from time to time. Life has been interfering with me getting involved in the debate. While I’m interested in some of the learned opinions, overall, it’s just not that compelling anymore.
That said, the portions of the debate about Contador and a haircut are off base. Consider how hair grows and adjust accordingly.
Jeff,
Hair grows by an average of 1.2cm/month!
I believe that Contador’s clenb is the result of a blood transfusion.
How old was the reinfused blood? Can we check that period within Contador’s hair?
To avoid it Contatdor didn’t provide hair!
The point was that short of shaving his head or getting a buzz cut, there was hair available on his head for testing that grew during, and would have been relevant to, the 2010 TdF time period. That hair would have been available for quite a long span of time. I don’t recall Contador offering his hair for testing. To be fair, I’ll add that I have not read any credible report that the soup requested his hair for testing and Contador declined. If I am wrong I’m sure you’ll let me know with a cite. Until then, it’s my opinion that the hair issue is a red herring.
BTW, I don’t buy the tainted meat defense in this case and I don’t buy what has been reported to be the Spanish Federation’s reasoning. If WADA and/or UCI appeals and prevails (likely), then they will get to the hypothetically correct answer in spite of their blundering. Clen is clearly present in the normal everyday food supply in at least several well populated regions throughout the world. WADA pretending it isn’t, and failing to incorporate that reality into the Code, is not a positive endorsement for the competence of WADA/UCI/CAS as a whole. YMMV.
I think I’ll sign off and spectate for a while again. Cheers and carry on…
Aw Jeff, it’s more fun when you comment.
If WADA and/or UCI appeals and prevails, then Contador and his allies in Spain are going to bring this case to an EU court and argue that UCI has unreasonably denied Contador the right to make a living at his chosen profession. The EU court will not care a whit about WADA’s precious notion of strict liability. The EU court is going to ask whether Contador’s suspension serves the legitimate interest that cycling has in clean and fair competition. The EU court will look at the possibility of ingesting clenbuterol in the food supply, and they’ll also consider the performance advantage conferred by a 50 pg/ml concentration of clenbuterol in Contador’s system, and they’ll probably conclude that Contador’s suspension does not serve any sporting interest that’s more important than Contador’s individual right to make a living. And this decision will blow WADA’s anti-doping system to kingdom come.
Which is why WADA and UCI may not appeal.
IMHO.
Regarding hair, it would have done Contador no good to submit a hair sample. Under ISL Section 5.2.4.4 6.2.4.3, testing results contained from hair cannot be used to counter a doping positive from urine or blood.
Contador was not requested to provide hair samples, he was already found clenbuterol positive, his burden was to prove he involuntary ingested clenbuterol, Otcharov dod like that, he freely provided hairs.
Contador can go to EU court, that could be a Pyrrhus win if plasticizer are seen later of blood doping. Worst the test could be run at the same of his EU trial.
Another point, Contador deserves the right to make a living but that cannot be done by defrauding others.
And the last threat on Contador’ s head is arevenge of WADA and UCI : a retesting of his all 8 years old samples.
In case any of you wonder what the “@IIATMS” means in my name here: http://bit.ly/frUn20.
I spend my time wondering why Andy Rihs and John Lelangue have a team in the Tour de France and whether Fabian Cancellara buys his jeans off the rack or has them specially made.
Liggett junkie,
Regarding Rihs/Lelangue, it’s the politics of money, wouldn’t you say? Or the politics of something, anyway. 😉
I’d have a hard time calling it the politics of anything, unless there is a politics of amnesia. Or maybe they don’t get the Wall Street Journal translated into French. Remember this article from last July?
“Before the 2006 season, Mr. Landis thought he had a good chance to win the Tour de France. That winter, Mr. Landis said, he sat down with Andy Rihs, owner of the Phonak team, and told him that to win the Tour he would need to carry out the same kind of blood doping he had done with U.S. Postal. Mr. Landis said Mr. Rihs supported the plan, and agreed to pay for Mr. Landis’s program.”
http://online.wsj.com/article/SB10001424052748704911704575326753200584006.html