Closure for Contador?

by Rant on January 29, 2012 · 14 comments

in Alberto Contador,Tour de France

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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{ 14 comments }

SHOW ME THE MONEY, LANDIS! January 31, 2012 at 12:50 pm

DATELINE 2020 :

Today CAS (motto : “RUSHING IS FOR RACING NOT JUSTICE”) announced the verdict in the Contador-2010 TDF doping case will be delayed “JUST one more week”. An unidentified CAS representative was overheard laughing as he stepped into his limo, “Yes, this is the 112th ‘delay’ & Contador retired 4 years ago, but justice takes TIME (& money, lots & lots of money)”.

Rant February 1, 2012 at 3:21 pm

Been a while Su … er … SMTML. That’s a good sample of the SMTML satire that we all know and love. It is satire, isn’t it? ;-) (What with the many delays, the cynic in me wonders if this might be more than prescient.)

SHOW ME THE MONEY, LANDIS! February 3, 2012 at 4:57 pm

Er, yes. “SATIRE’ is my middle name. ;)

But the BIG news that just hit – the FEDS are DROPPING the charges against Lance. I’m happy for 2 reasons – (1) I thought it was a freakin WASTE OF MONEY & (2) it gives me great pleasure to envision the steam coming out of the ears of all the Lance-haters. Like those WB cartoons.

Now, if I could just GET MY MONEY BACK FROM LANDIS, this is shaping up as a hell of a year. :)

Jeff February 3, 2012 at 6:57 pm

Let’s see how many cliches we can collectively get in here.
I’ll start off with, “It ain’t over till it’s over”
The Grand Jury bit is done, but the alphabet soup are pros at taking many bites out of the apple:

http://www.cyclingnews.com/news/lance-armstrong-inquiry-concludes-with-no-charges-filed

“CEO of USADA, Travis Tygart indicated that today’s decision by the US Attorney may help his agency pursue Armstrong on doping violations..

“Unlike the U.S. Attorney, USADA’s job is to protect clean sport rather than enforce specific criminal laws,” read the statement from Tygart. “Our investigation into doping in the sport of cycling is continuing and we look forward to obtaining the information developed during the federal investigation.”

That information includes the statements of several of Armstrong’s former teammates and staff members, including Tyler Hamilton, who later appeared on the television news show “60 Minutes” with details about the doping at US Postal including an eye witness account of Armstrong using EPO.

A doping sanction based upon “non-analytical positives” is not unprecedented: Former Rock Racing rider Kayle Leogrande, whose home was searched in an early part of the same investigation that involved the USPS team, was given a two-year suspension based upon anecdotal evidence from his team and associates.”

Over? Don’t count your chickens……………………

Larry@IIATMS February 3, 2012 at 8:55 pm

I wonder what kind of sanction Tygart has in mind? In case Tygart hasn’t noticed, Armstrong is retired. Tygart can devote most of his agency’s budget in an effort to ban Armstrong from participating in a sport he’s already left behind.

Talk about your Cold Case Files!

Ah well. I guess so long as Armstrong lives, there’s going to be some agency interested in pursuing his case. But Tygart has a problem: there’s an 8-year statute of limitations in UCI’s anti-doping rules. So if Tygart commenced a case against Armstrong tomorrow, he’d be limited to (alleged) doping violations that took place in 2004 and afterwards. In other words, Hamilton’s testimony would be useless, and Landis’ testimony would be limited to 2004 only.

One chicken, two chickens, three chickens …

Larry@IIATMS February 3, 2012 at 9:43 pm

A few added thoughts. May I never again have to dive deep into the ADA rules, but I don’t think USADA has the independent ability to bring an anti-doping case. I think USADA can only prosecute anti-doping cases brought by a national or international sports federation (USA Cycling or UCI). Neither federation seems to be inclined in the slightest to bring a case against Armstrong.

Four chickens, five chickens, six chickens …

Even if Tygart can bring a case, what’s he going to base his case upon? The grand jury testimony against Armstrong is out of bounds, and I don’t think Tygart can force witnesses to testify via subpoena. The testimony of Hamilton is barred by the statute of limitations, and the testimony of others who rode with Armstrong prior to 2004 (such as Andreu) would be similarly barred. Tygart can, of course, decide to cozy up to our friend Floyd Landis … but Tygart’s had the ability to do so for quite some time. Similarly, whatever documentary or test evidence the feds got out of the French during their investigation has ALSO been available to Tygart for a long time now.

The feds were a serious threat to Armstrong, as they could compel testimony under penalty of perjury. I don’t blame Tygart for wanting to see whatever the feds have dug up and can share with him, assuming that the feds can or will share anything. But the threat to Armstrong was the testimony of guys like Hincapie. Hincapie is not going to appear voluntarily as a witness for USADA.

Seven chickens, eight chickens, nine chickens … (with a friendly “wink” in Jeff’s direction)

Jeff February 3, 2012 at 10:00 pm

Keep counting those eggs Larry. It’s unclear how many will hatch.

http://www.velonation.com/News/ID/11059/Updated-charges-dropped-in-Lance-ArmstrongUSPS-doping-investigation.aspx#ixzz1lMjxufMK
“Statute of limitations overruled this week in another case:

In relation to USADA’s vow to dig deeper, the question will naturally be raised as to how far back it will be able to delve and to penalise if it does feel that rules were broken.

Although a statute of limitations of eight years normally applies under the WADA Code, USADA issued a ruling yesterday in relation to the track and field athlete Eddy Hellebuyck which extended further back than this.

He tested positive for EPO in 2004 and served a two year suspension. However information received recently plus his own statements led USADA to conclude that his doping extended back to 2001.

He argued that the statue of limitations prevented further penalty, but the American Arbitration Association (AAA) panel concluded that his previous denials meant this was not the case.

“We are pleased the Panel has upheld the fundamental principle of fairness for clean athletes,” stated Tygart yesterday. “This decision sends a clear message that you can’t use performance enhancing drugs to cheat, conceal your violations, and when the truth is revealed, attempt to hide behind the statute of limitations.”

That ruling may prove relevant in USADA’s ability to fully investigate the USPS team. As for federal agents, though, it appears their delving has come to an end. The various factors in this decision will presumably emerge in time.”

With that information aside:
*My personal opinion (just an opinion) is that Tygart is a publicity whore who is uninterested in the issues revolving around doping in sport but is highly motivated to promote himself and is anxious to keep his name in the news. YMMV.
*WADA’s, and by extension – USADA’s Code is clear as mud. When is a Statute of Limitation not a Statute of Limitation?
*Athletes under WADA review are chattel. Some athletes, like LA, have acquired the resources that enable them to utilize tactics to effectively buy themselves out of IoC/WADA slavery. Good for them!
*IoC collectively lacks the grey matter to allow them to realize their corrupt system is unsustainable and makes them a laughing stock. Who won the 2006 TdF? It was Floyd. Most can’t name the joker who was awarded the win after the fact. The majority of those who can are unlikely to believe the next few in line for the win were any less guilty of doping than Floyd was. Who won the 2010 TdF? I say it was AC. WADA and UCI seem intent upon making Andy the winner. Trouble is he doesn’t want to “win” by a re-writing of the results almost 2 years later. Most who lined the course in 2010, watched over the boob tube, or glommed on via the inter webs heartily agree with Andy and applaud him on that point. Even after the Grand Jury investigation folds w/o charges, Travesty Tygart still wants to press ahead by flogging a dead equine! ASO must be pleased. (good time to back an independent league, non?)

I’m no fanboy.
I dislike Armstrong, but USADA is nuckin futs!

Friendly wink back at you Larry. You can actually start counting those chickens.
Even if USADA pulls a rabbit out of a hat, they have to depend upon USAC to enforce any sanction.
Even if LA is sanctioned by USADA, fat chance it will be enforced by a USAC beholden to Thom Weisel. Just sayin……….

Of course the silver lining to this news is that it is the spark renewing Betsy’s histrionics. Poor woman. That’s a lot of anger to hold on to for such a long time. Google away. Now that’s comedy folks!
Poor Frankie, poor poor Frankie.

Larry@IIATMS February 4, 2012 at 1:34 am

Jeff, the Hellebuyck case is a special case, where the arbitrators ruled that Hellebuyck perjured himself at his original doping hearing in 2004, and as a result the arbitrators did not expunge his records going back to 2001. The perjury was not discovered until 2011, at which point the case against Hellebuyck was reopened. Under these facts, the arbitration panel ruled that Hellebuyck should not have the benefit of applying the 8-year statute of limitations to protect his 2001-2003 results. We can argue whether this decision is correct, but it clearly has nothing to do with Armstrong, who has never previously been charged with an anti-doping offense.

I agree with everything else you said. I remember who was awarded the 2006 TdF after the fact, but I have to go on the internet to get the correct spelling of his name.

Jeff February 4, 2012 at 11:33 pm

Larry, we are going to have to disagree about the possibility or probability of USADA/WADA creating a link between LA and the Hellebuyck “When Statute of Limitations are not Statute of Limitations” Case.

Perhaps you can offer an opinion as to why Fahey & Tygart seem to think the US being a a signatory to the World Anti-Doping Code, and the US Government having ratified the UNESCO International Convention against Doping in Sport would trump confidentiality associated with Grand Jury investigations?
http://www.velonation.com/News/ID/11070/WADA-president-says-he-expects-US-investigators-to-hand-over-US-Postal-files-to-USADA.aspx

http://www.law.cornell.edu/rules/frcrmp/rule_6#

http://www.unesco.org/new/en/social-and-human-sciences/themes/sport/anti-doping/international-convention-against-doping-in-sport/

I have a theory, but it revolves around Fahey & Tygert tugging something out of where the sun does not shine……….

Larry@IIATMS February 5, 2012 at 4:54 pm

Jeff, I concur in your theory. As to your question, I’d say that nearly any point one might argue under the heading of “Conflict of Laws” has a veneer of respectability.

MikeG February 6, 2012 at 10:04 am

Did you guys catch this snippet:
The CAS ruling revealed that WADA tried to introduce a protected witness at Contador’s hearing. The panel, however, rejected the anonymous testimony about “events that allegedly happened in 2005 and 2006.”

From the story on MSNBC. Is that referring to Michael Ash…(can’t spell it), or another witness? The anonymous part really throws me off!

Jeff February 6, 2012 at 10:36 am

Ashenden (or however you spell it) was not anonymous, so likely someone else? WADA attempted to present him as a witness.

Now, on to my Rant:
Machiavellian bureaucratic multiple POS.

Initial take aways, from my point of view:
* 2 year ban was entirely expected and required by the (fatally flawed) Code.
* No surprise the 2010 TdF victory and subsequent results are to be vacated as expected per the Code.
* Through some “creative” reasoning, it’s effectively ~6month ban with the 2012 Vuelta being the next major race Contador will be eligible to contest. (that’s an “unusual” 2 year sanction)
* Technically, Saxo Bank gains a TdF win with Andy Schleck’s ascension following Contador’s disqualification. (Andy still considers Contador the winner in spite of the alphabet soup’s gerrymandering, and good for Schleck! Bad for the morons at WADA/UCI)
* In spite of adding a TdF victory to the team’s palmares today, Team Saxo Bank is in jeopardy. The current sponsorship agreement is due to expire at the end of this year. Should Saxo Bank, or another potential sponsor, desire to extend or initiate support for the team, it is an uphill battle for the team to retain a top level license. Its highest point scoring rider’s points will not be counted toward team ranking for 2 years following his return from sanction. Without a guarantee of World Tour status, the team is much less marketable and increased the chances it will go the way of High Road and so many other teams in recent memory.
* Contador may be on the hook for fine in excess of $2 million. CAS delayed a ruling on the fine requested by UCI. If Bert is fined $2+ million, who gets the money? Does it go to charity, rider safety initiatives, health programs for competitors, improved testing procedures, or will it most benefit the bureaucrats who imposed the fine? (my money is on the usual UCI conflict of interest)
* Like Andy Schleck, Michele Scarponi lays no claim to a 2011 Giro win and considers Contador the victor. Good for Scarponi! Bad for the morons at WADA/UCI.
* The recent tradition of serially re-writing the results all three Grand Tours directly devalues the events. Why invest time, energy, or money in following an event that is likely to have its top results altered weeks, months, or years after the fact? If even the guy who is awarded the win post ceremony is ambivalent or dismissive of the re-write, then where is the incentive for for the public to watch and where is the incentive for businesses or corporations to be associated with such a poorly run circus?
* Eddy Merckx thinks there are elements of the soup who are trying to kill cycling as a sport. I’m not sure if he’s correct or not? There is certainly an argument to be made that WADA has gone to war with professional cycling. In spite of their best efforts, WADA has not been outdone by UCI. It’s tragically ironic that the supposed “guardian” of the sport is responsible for so much damage.
* WELL DONE PADDY AND CRONIES!

Rant February 6, 2012 at 10:36 am

Hi Mike,

Haven’t seen the full ruling yet. Not sure who that protected witness would be. I don’t think it was Michael Ashenden, though. Sounds like it might have been someone else. Strange aspect to the case. But, given the rules, the case was only about the positive result in 2010. Other allegations, if they had merit, would have to be addressed in one or more different cases. Not allowing the testimony was the right decision, based on WADA’s own rules.

Jeff February 6, 2012 at 1:19 pm

edit of my previous post:
Looks like it is effectively a ~1year ban, rather than the ~6 months I mistakenly quoted earlier.
CAS fixed the start date of the 2 year sanction as January 25, 2011.

Here is a link to the full CAS Arbitral Award:
http://www.tas-cas.org/d2wfiles/document/5648/5048/0/FINAL20AWARD202012.02.06.pdf

Further on Saxo Bank:
They will need to tread lightly if they would like to keep their current license. UCI may suspend their license for at least 2 reasons.

One reason being their highest profile rider has been sanctioned for doping. While I place little faith that the ruling is legitimate and fully understand Contador was riding for Team Astana when the violation occurred, I believe that will matter little to UCI should the “governing body” choose to suspend the team.

Secondly, and while I have not done the math because UCI makes it difficult or impossible to calculate their licensing criteria formula, it is likely Saxo Bank does not retroactively qualify for their license when Contador’s points, earned from January 25, 2011 forward, are subtracted.

No shortage of UCI slight of hand opportunities with retroactive licensing and results finagling. “I call that UCI Results Management”.

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