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.