Here We Go Again

by Rant on November 21, 2011 · 17 comments

in Alberto Contador, Cycling, Tour de France

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Still, as Ford points out:

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

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

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

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

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Theresa Hanssen November 22, 2011 at 9:14 am

I hate doping cases! I clearly understand both sides. The amount is so small, but he did not have the beef checked. I think Hardy got screwed. But a 2yr ban for Contador seems over-kill, but then everything the agencies do seem like over-kill. And yet, I think of all the athletes than have been banned over nutritional supplements, differences in Over the counter meds, etc, how can they protect themselves if they are in a different country?

Rant November 22, 2011 at 10:43 am

Theresa,

I’m no fan of doping cases, either. I agree with you. Jessica Hardy got screwed over, and a two-year ban for Contador may well be overkill. What I think needs to happen is that there needs to be both consistency in enforcement from one country to the next, and a greater flexibility so that cases of contamination don’t automatically lead to a suspension.

That might sound a bit contradictory, but it isn’t, really. All that needs to happen is what I suggested in the piece. Low concentrations don’t automatically lead to a suspension, they lead to more testing to see if the test result was a one-off kind of fluke. If not, then perhaps a doping pattern can be detected, which would then trigger an anti-doping case.

Until that happens, we’re stuck with the rules WADA has created, and that leads to some potentially ridiculous punishments for minor and/or unintentional infractions. I’m not saying that’s the case for Alberto Contador, but it certainly seems that way on the surface.

Jeff November 22, 2011 at 11:40 am

Mistakes are inevitable even when intelligent human beings act with the very best of intentions. What we see unfolding here is what typically happens when the process was corrupted from the very start, an unmitigated mess.

The process was corrupted from the very start when the IoC created WADA, after a series of high profile doping scandals, to help ensure the money would continue to flow into the hands of its evil bureaucracy by promoting the illusion of a righteous fight for the health of the athletes, fair play and against cheaters who would sully the movement by the use of chemical or other enhancement. TV, advertisers, and gullible fans love that fairy tale story and continue to ante up every four years. The key word, however, is “illusion”. There is nothing noble about the olympic movement or its alphabet soup spawn. The IoC, WADA, UCI, and the ADAs (with few individual exceptions) could not give a rat’s rear end about fair play or the well being of the athletes who serve as pawns on their gilded chess board. No folks, it’s all about the money and the exercise of power that said money permits.

It is not a question of what is fair, just, or right. WADA Code requires Contador to be suspended and certain of his results nullified. That’s about half of the unmitigated mess part. Those affected include Contador, his competitors, his team mates, race organizers, broadcasters, advertisers, and much undervalued bike racing fans. Not one of the stake holders mentioned in the previous sentence benefits from a potentially results altering decision being made in January of 2012 by CAS regarding an event that occurred during a race in France during July of 2010.

The other half of the unmitigated mess revolves around the questions or who, what, where, when, and why was the Code created in the first place? Also, why is clenbuterol a no threshold substance according to the Code when it is clearly present in a good portion of the world’s food supply? Why does WADA’s scientific brain trust seem unpersuaded by that inconvenient fact? Why are only certain labs able to test clenbuterol to minuscule amounts that would not indicate a competitive advantage and how did Contador’s samples just happen to end up there? Why is mention of a plasticizer test being floated alluding to possible transfusion when there is currently no legitimate plasticizer test in existence?

If Contador, his competitors, his team mates, race organizers, broadcasters, advertisers, and much undervalued bike racing fans don’t benefit from this laughable process, then you have to ask yourself, “Who does?”. That’s an easy question to answer. Just follow the money.

One thing is for sure. If the results of big races continue to be routinely re-written, then few will care and fewer will care to watch.

In other news: French Law trumps WADA Code. AFLD embarrassed. Jeannie Longo acquitted.
http://www.deseretnews.com/article/700200246/Cyclist-Longo-cleared-of-doping-by-federation.html

Rant November 22, 2011 at 12:36 pm

Jeff,

Well said. No illusions here about what WADA was created to do. It’s a big CYA for the IOC, to be sure. Why am I not surprised by the news about Jeannie Longo, either? ;-)

MikeG November 28, 2011 at 1:25 pm

Interesting article, especially coming from Frankie:
http://www.bicycling.com/news/pro-cycling/contador-case-cyclings-integrity-line

Too many $$$, too much temptation/conflict of interest…IMHO.

Jeff November 28, 2011 at 6:54 pm

From the article above cited by MikeG:

FA wrote: “If Contador can get caught with as little as 50 picograms in a sample, that sends a clear message that the tests work.”
Makes an assumption that is not necessarily a fact. Perhaps not even likely a fact? Interesting take by Frankie that seems to ignore WADA General Director, David Howman’s recent comments on testing for EPO, that may or may not be extended to other substances? (Probably can be) http://www.cyclingnews.com/news/howman-reform-needed-in-anti-doping-fight (also cited by MikeG)

FA wrote: “The next step is to follow up with the correct penalties to back up the tests.”
I have to disagree with Frankie. I think the first step is to get the list of banned substances for each sport correct. Next should be to validate the tests with the opportunity of peer review. Next might be to follow up with the correct penalties? The trouble is that the current “penalties” are out of the range of being reasonable or correct and they don’t work as currently administered. An argument can certainly be made that the current testing practices coupled with contemporary sanctions actually encourages doping to a certain degree. Frankie is accepting at least a couple of false premises here if he believes his own writing on the subject.

FA wrote: “Without the penalties the tests are useless.”
I’ll agree with Frankie that the tests are essentially useless. WADA General Director, David Howerman shares a similar opinion on that point. I’ll go a step further and say the penalties are nearly useless as well. It appears I’m agreeing with Frankie on his quote, but to be fair, we certainly interpret his quote differently.

In all seriousness, I’m not really for an open class of racing where anything goes. I’m also against WADA creating catch-22”s in the Code and stacking the adjudication deck heavily in its favor.

I find Bonnie Ford to be a writer who does her research and is well informed on the subjects which she writes. However, I can’t see how she can reconcile her opinion that there should be no threshold for clenbuterol. While I appreciate her point about doping to the limit, the issue of no threshold for clenbuterol is a sticky one because no one can guarantee the substance won’t find its way into the food supply. It is present to varying degrees in regions throughout the world, including some densely populated areas. Ignoring that reality sets athletes up for the kind of catch-22’s that the bureaucrats responsible for these rules would never accept being subject to themselves.

WADA, and its alphabet soup minions, would do well to employ a dose of the “Golden Rule” in the implementation of its Code.

Jean C November 29, 2011 at 10:47 am

For Contador, they should restest his old samples, especially the Giro’s ones, for CERA and then the case would be over.

MikeG November 29, 2011 at 11:30 am

Anti-doping certainly has become a slippery slope! If we allow some clen in athletes from certain regions (given the assumption/fact that clen exists in their food supply), will other athletes start getting their licenses, and/or training in those regions to be held to a lesser standard…at least for clen? I know some cyclists register in other countries, but I’m not sure of their motivation. “The Chicken” comes to mind – registered in Monaco, and trained in Mexico if I remember correctly. It sure seems to me the path/method for anti-doping we are on is no longer viable, maybe never was. Complete reform, with an independent group overseeing the process has to be established for any real, fundamental change to take place.

This article from RKP touches on the discussion as well. More from the sponsorship angle, but doping certainly affects sponsorship!
http://redkiteprayer.com/?p=6753

BTW: While I agree with Frankie’s overall thought that “everyone should be held to the same rules/standards”, I certainly do not agree with his approach/response – the current system in place, simply does not work. I think that has been proven numerous times over the last few years.

Jeff December 7, 2011 at 10:04 am

Every now and again, Floyd says something both profound and succinct:
“The doping problem in cycling has not improved simply because those enforcing the rules are no more trustworthy than those they accuse of breaking them.”
http://velonews.competitor.com/2011/12/news/floyd-landis-responds-to-wada-officials-apparent-support-for-his-charges_199303
I think that about sums it up…………………………

MikeG December 7, 2011 at 1:41 pm

Yea, I think Floyd understands the situation well, and nailed it with that statement! I guess he ought to know, though….

SHOW ME THE MONEY, LANDIS! December 12, 2011 at 11:56 am

What’s the equivalent of “50 games” in cycling? Three races? Four? What a FARCE….

Jeff December 12, 2011 at 2:14 pm

I don’t follow the “pastime”, but if recollection serves, then ~1/3 of the season, or a bit less?
Given baseball is a farce and a waste of passing time, I’ll have to technically agree with you.
However, I find WADA’s draconian, one size fits all, sanctions to be a farce and counterproductive to boot. YMMV.

Rant December 12, 2011 at 2:19 pm

Yep. Just under a third of the season. Regular season is 162 games, IIRC. Which could be a pretty sharp bite into the old pocketbook.

Jeff December 16, 2011 at 8:46 am
Jeff December 16, 2011 at 4:09 pm

Well it looks like U.S. District Judge Susan Illston is no Judge Roy Bean, and her sentencing of Barry Bonds was true to her previous sentencing patterns, especially regarding athletes.

Bonds got 2 years probation with 30 days of home confinement. Much less than the prosecution requested……..

Edit: The sentence was stayed pending an appeal of the conviction by the defense.
That takes balls. Just saying……

SHOW ME THE MONEY, LANDIS! December 19, 2011 at 12:21 pm

Yes, I believe Bonds wants to stay in his freakin mansion 60 DAYS!

And how much did this pile of horsesh*t costs we taxpayers?! And they can’t even put this PROVEN drug cheat & perjurer into the slammer for a measly day. That’ill teach all those would-be dopers!

Liggett junkie December 19, 2011 at 6:18 pm

As far as I’m concerned, whatever Barry Bonds gets is less than what’s coming to him. I’m not even talking about the steroids. (But, folks, did you ever LOOK at a baseball player in the 1990’s? Surely this can’t have come as a surprise.)

I’m talking about the day I gave up watching baseball. I’ve forgotten most of this, but here are the details from some poor mutt who still cares:

http://www.behindthesteelcurtain.com/2011/4/2/2085798/pirates-braves-1992-nlcs-barry-bonds-sid-bream

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