As promised, the Court of Arbitration for Sport revealed their decision in the Alberto Contador case a few hours ago. According to the press release announcing the decision:
[T]he CAS has partially upheld the appeals filed by WADA (Ed: the World Anti-Doping Agency) and the UCI (Ed: the International Cycling Union) and has found Alberto Contador guilty of a doping offense.
As a result, Contador will serve a suspension that will end on August 5, 2012. And all of his results between his positive test result and today will be erased from the record books. Which means his 2010 Tour win, his 2011 Giro d’Italia victory and a slew of other placings in races he’s competed in during 2011 and the first part of 2012.
Given the World Anti-Doping Code and WADA’s/the UCI’s rules, the CAS came to the right decision. That said, I’m no fan of strict liability and a number of aspects of the agency’s rules. Contador may even be telling the truth, at least in some manner or fashion. As the panel’s press release notes:
Alberto Contador alleged that the presence of clenbuterol in his system originated from eating contaminated meat. The UCI and WADA submitted that it was more likely that the adverse analytical finding of the Athlete was caused by a blood transfusion or by the ingestion of a contaminated food supplement than by the consumption of contaminated meat.
The Panel found that there was no established facts that would elevate the possibility of meat contamination to an event that could have occurred on a balance of probabilities. Unlike certain other countries, notably outside Europe, Spain is not known to have a contamination problem with clenbuterol in meat. Furthermore, no other cases of athletes having tested positive to clenbuterol allegely in connection with the consumption of Spanish meat are known.
The panel concluded that both the meat contamination scenario and the blood transfusion scenario were, in theory, possible explanations for the adverse analytical findings, but were however equally unlikely. In the Panel’s opinion, on the basis of the evidence adduced, the presence of clenbuterol was more likely caused by the ingestion of a contaminated food supplement.
In other words, the panel is asking the question, “Where’s the beef?” This has been the problem with Contador’s defense since day one. If he could have collected another steak from the same animal and shown it to be contaminated with clenbuterol, his case would have been stronger.
The blood contamination that WADA/the UCI offered up as an explanation is also possible, but apparently the panel wasn’t convinced by the evidence. Contaminated food supplements (vitamins and such) have been at the heart of a number of cases, including the Jessica Hardy case. But in Hardy’s situation, she still had some of the supplement and it could be tested to determine if it was contaminated (turns out, it was). Her suspension was reduced as a result.
Contador’s strategy in all of this has worked out well for the cyclist, even if he has had all of his results nullified and even if he has to give back all his winnings. And even if the CAS rules at some point in the future that the Spanish rider will have to pay a fine of 2,485,000 euros (more than $3 million). How can I say this?
Well, even if he has to give all of the results and money up, Alberto Contador actually did train and race during his “suspension” — except for the 5+ months of his preliminary suspension (when at least one previous Tour winner would have been on vacation), and the six months from now until August. There’s no better training for racing than actually racing. And given that Contador has all that training and racing under his belt, he will lose less fitness than if he had been forced to sit out two entire seasons.
Contador will be coming back just a few weeks before the Vuelta a España. With a good training program and proper motivation (I’m sure he’ll have a stomach filled with anger and a head full of steam), he could well come out raging during the last of 2012’s Grand Tours and pull off a victory.
All that said, the Contador case raises an important issue. One which WADA needs to address. Given that the tests used by the anti-doping agencies are getting more capable of detecting ever-smaller amounts of banned substances, we can expect an increase in the number of doping cases that may be a result of environmental contamination. The agency needs to specify a threshold level for each drug, below which any result will be considered contamination and not an actual positive test result.
Otherwise, more and more athletes will be stuck in the situation of fighting a doping charge or accepting a suspension for an offense they didn’t commit. And the agencies may be forced to defend their cases in arbitration — an expensive and time-consuming prospect, to say the least. Beyond that, the agency should seriously consider modifying the list of banned substances for each sport to only those drugs/techniques that confer an actual benefit. In Contador’s case, clenbuterol might still have been on the list of banned substances, but the small amount found in his system would have been set aside as contamination rather than conscious doping.
So what do you think? Was the decision the right one or should Alberto Contador have been exonerated by the CAS? For those who are interested, you can read the full text of the CAS decision here.
Speaking of “exoneration”
Did you happen to notice that the Lance Armstrong investigation was dropped late Friday afternoon? (A perfect time to bury a story, especially on Super Bowl weekend, by the way.) Charles Pelkey quickly wrote up an Explainer discussing the news. And I just ran across an interesting take on what happened over at Cyclismas.com. Take a few moments to read both columns if you get a chance. And feel free to continue the discussion of this development, too.
Not so sure about the Vuelta comeback date?
edit/correction of my previous post:
I think I incorrectly wrote Contador’s sanction is effectively a ~6month suspension based upon multiple media articles quoting that time period for a return to competition.
CAS fixed the start date of his 2 year sanction as January 25, 2011.
That looks like it makes it an ~1 year effective suspension with Contador eligible to return to competition on January 26, 2013.
Where am I missing the part of the calculation that puts him back in time for the 2012 Vuelta?
Link to CAS Arbitral Award (not the press release):
http://www.tas-cas.org/d2wfiles/document/5648/5048/0/FINAL20AWARD202012.02.06.pdf
Re: Team Saxo Bank
Team Saxo Bank will likely need to tread lightly with UCI officials if they intend to retain their license, if the team losing its license is not already a foregone conclusion.
UCI could rescind the license because Saxo Bank’s top rider has committed a doping violation. My guess is that UCI cares little that Contador was riding for Team Astana when the violation occurred. UCI has not shown itself to be shy about settling scores, especially when it can do so unilaterally. My guess is UCI is not appreciative of Contador putting them through the trouble of having to appeal the RFEC ruling to CAS. Terms of the license give UCI wide latitude when determining if a licensee is satisfactory fit. (Something along the lines of, cough/cough, bringing the sport into ill repute)
UCI could rescind Team Saxo Bank’s license for lack of qualifying points? While I have not done the math because it is a waste of time due to UCI’s less than transparent licensing criteria, it is likely that by subtracting the points Contador had earned for the team from January 25, 2011 forward, Saxo Bank would no longer have enough points to rank high enough for their current license. (done and done, if they’d like)
If Team Saxo Bank is to keep their license, Riis’s nose may have to become tanner and tanner by the hour.
No shortage of UCI slight of hand opportunities with retroactive licensing and results finagling. “I call that UCI Results Management”.
It may not matter anyway. Saxo Bank could very well pull the plug on its sponsorship any time now……
Jeff,
According to the CAS press release, they’re crediting Contador time for the provisional suspension from August 2010 to January 25, 2011 (5 months and 19 days). When you subtract that from January 25, 2013, that gives a comeback date of August 6, 2012 — a few weeks before the Vuelta. I assume that the “math” of his suspension is worked out in the full award, too.
Update: I just looked at the award. On page 98 (last page):
Okay, got it.
The math part can be found in Section #502 of the Award.
(Provisional suspension was calculated to add up to 5 months and 19 days)
The murky reasoning behind it can be found in the preceding sections.
Yep, looks like Contador can compete in the 2012 Vuelta, if he has a team to ride for, and that team is invited to the race………
Yeah, it is a bit murky if he’ll have a team to ride for at that point. Didn’t the UCI used to require ProTour teams to fire riders convicted of doping violations? To your point, I agree that Team Saxo Bank is going to have to tread very carefully — both sponsor-wise and UCI-wise.
Who knew CAS gave out their suspensions in REVERSE DOG YEARS?
CAS “2 years” = human 6 months.
From now on, I’ll think of a verdict being appealed to CAS as GOING TO THE DOGS.
The really hysterical thing is all the WAILING by the other Spanish cyclists (& assorted other cycling blowhards, yes, including Merckx in this case). For god sake, he got to race ALL of last year & even up til freakin last WEEK. Yes, he has to forfeit his results but at least HE was able to stay in competition fitness. Unlike ALL the OTHER guys who get a “BAN”. And only 6 MONTHS til he can race again?! A JOKE!
UCI has already taken a shot:
http://www.cyclingnews.com/news/uci-licence-commission-to-decide-saxo-banks-worldtour-fate
UCI has asked its “independent” (cough, choke) License Commission to review Saxo Bank wrt its status with the WorldTour. Not looking good for Team Saxo Bank.
Zomegnan thinks the CAS decision is nonsense:
http://www.cyclingnews.com/news/zomegnan-says-stripping-contadors-2011-giro-title-is-nonsense
If you read the decision, you’ll begin to understand why so many (team mates, competitors, former Director for Contador @ Astana-Martinelli) are saying he is being sanctioned without being culpable.
Jesus Hernandez says: “He’s been punished without being considered culpable, the sentence makes me laugh. I’m sad, indignant and speechless.”
CAS found the most likely explanation was that Contador ingested a “tainted” supplement, thus requiring he be suspended for 2 years as Contador offered no evidence that would mitigate the prescribed sanction.
In the last 10 years, we’ve had different winners declared in all three Grand Tours, post podium ceremony:
Vuelta: Heras to Menchov
TdF: Landis to Pereiro
TdF: Contador to Schleck
Giro: Contador to Scarponi
Now it looks like the UCI is going to final nail into the coffin of a reasonably longtime and successful sponsor.
But hey, cycling has plenty of sponsors waiting in the wings ready to break down the doors to sponsor pro teams.
I kind of like the new math and reverse dog years sanction as applied to Contador, at least in as much as there was no way around a sanction. The bone CAS threw Contador was the least they could do.
What I don’t like is the chasing away of sponsors.
My take on the points issue is they were earned when Contador was eligible to ride. You can’t turn back the clock and pretend he wasn’t competing on the road
You can’t roll back the clock and pretend Heras, Landis, and Contador did not earn their wins on the road. Granting the win to the runner up does nothing to account for the variables involved in deciding a winner had the retroactively suspended rider not been involved. You can pretend you can roll the clock bad, but all it amounts to is pretending.
If the thugs at the UCI are intent upon pretending, I’d be grateful if they would select different toys and do it on their own time……..
This is a sad, sad situation no matter how it is viewed. I spent long hours reading and posting here defending the virtuous Floyd Landis at the height of his doping scandal. I saw the data, watched the proceedings through the AAA that were open to the public, myopically viewed everything through my rose tinted lenses to come to the conclusion I wanted, and just like that, Floyd was forever innocent in my eyes, until the day he came out saying he actually did it, as I once posted here. So I have to acknowledge that at least a part of me feels vindicated that it wasn’t just an American witch hunt while also admitting that I’m not the biggest Contador fan for a number of reasons, but the primary being that I could see this guy win more than 7 Tours, and I kind of like having that record on this side of the pond.
However, all of that said, there are no winners here, and there was no “right” decision. I can understand why CAS delayed their ruling as much as they did because I would have agonized over this one. In so much as the letter of the law is concerned, Rant correctly points out that it needed to be applied and therefore Contador needed to be found in violation. As well, Rant has also correctly pointed out that being able to detect these drugs in such trace amounts brings up another possibility – that of environmental contamination. As I understand it, 50 picograms is not near enough to cause any kind of discernable performance gain, and as there was only one lab in the world that was even capable of detecting this kind of amount at the time of this positive, it seems the most prudent thing to do would be to use this test as evidence that environmental contamination minimum thresholds need to be set, never publish the result as a positive and move forward. Of course, the flip side to that argument could be that the anti-doping authorities had inside information into the alleged dubious affairs of Mr. Contador and specifically targeted him and then sent his test to the only place that could detect what they were looking for. This could be a conspiracy theorists dream. Lastly, a very dangerous precedent would have been set in that any athlete to test positive could simply claim some sort of food contamination to explain the test should Contador have been exonerated. Of course, those that dug deep with the Floyd Landis affair and subsequent proceedings with the UCI, WADA, and CAS, precedent seems to be something they largely ignore.
Once again I find myself at odds with my head and my heart. Knowing that I’m not the biggesst fan of Contador, my heart literally cries out for the guy if he is indeed innocent. As the English jurist William Blackstone once noted, ’tis better that ten guilty persons escape than that one innocent suffer. That’s my heart. My head says thank goodness they followed their own rules. My eyes say, how in the world did a world class climber that could barely hold onto his yellow jersey in the 2007 Tour de France final time trial become one of the best time trialists by 2009? Could it be done through training? Absolutely it could. Could it be done through training, and training alone without hindering his natural ability to climb? Doubtful. Those of us with real world racing experience at the amateur level (yes, that is me and I assume most people reading this blog) can attest to the fact that we can often improve our weaknesses on the bike, but that comes at the expense of weakening stronger areas as less time is devoted to those.
In the end, the only reason we feel the need to talk about this is because something has been taken away from all of us. The anti-doping authorities were really in a no-win situation here. Contador may well be going through something completely unjust. And the fans, well, as has been the trend in recent years, we are no longer able to enjoy our chosen sport based on what we believe to be pure and true racing decided on the road. This, my friends, is the worst of all outcomes. As well, had Contador been exonerated, that too, would have been the worst of all outcomes. As a fan of sport, this is as hard a place to be as there can be…..
One minor idea is, if a winner is DQed for doping, vacate the win but leave other placings as is. Some precedence for this, a few years back the NCAA sanctioned some school (the name escapes me, and is not important in this context). The wins were stricken from both the school and coaches record, but opponents records were left as is.
SMTML,
Reverse dog years. I like that phrase. Might have to steal … er … borrow it from time to time. 😉
Jeff,
Where to begin? If it weren’t so ludicrous and funny, it would be sad. Actual, it is sad to see the people who should be promoting the sport actively tearing it to bits. Sort of reminds me of the quote from a Vietnam-era military official/officer, “We had to destroy the village to save it.”
Sean,
Well said. It’s sad, any way you look at the situation.
William,
Good idea. It’s been done in the past in several sports (though not cycling, as far as I know), it could work for cycling.
Rant –
I’ve skimmed the decision — a close read of the decision would take hours, and the requisite analysis longer than that. But the decision is a wild ride. It is NOT a simple application of the principle of strict liability. Instead, the CAS bought the argument of the Contador team that he should be exonerated IF (the big “IF”) his contaminated meat theory was more plausible than any single theory the ADAs might advance for the clenbuterol in Contador’s system. In other words, if there was a 1% chance that Contador’s positive test was a result of eating contaminated beef, and a 0.5% chance that the positive test was a result of some other theory advanced by the ADAs, then Contador would have won his case. This is NOT the way I read the WADA Code, which just goes to show why no one in this case hired me to represent them!
So in as strange a decision as I’ve ever read, the CAS analyzed the minute possibility that (1) Contador ate a contaminated steak, (2) Contador received an illegal autologous blood transfusion that contained clenbuterol and (3) Contador got the clenbuterol through a contaminated food supplement. And what do you think? The CAS found that the contaminated food supplement was the most likely explanation. Why? Well, because, you know, food supplements are sometimes contaminated.
Honestly, as far as I can tell, that’s the reasoning: Contador consumed beef, and he consumed food supplements, and supplements are more suspicious than beef. There was no evidence adduced that Contador actually consumed any particular food supplement that was contaminated or could reasonably be suspected of having been contaminated.
With me so far?
A rational human being might say, why would Contador face sanctions for accidentally ingesting clenbuterol in a food supplement he thought was clean, but would get off without sanctions if instead he accidentally ate clenbuterol in a steak he thought was clean? But Rant, your readers know the answer: athletes take supplements at their own risk.
A rational human being might also ask: if the CAS was weighing the likelihood of how clenbuterol got into Contador’s system during the 2010 Tour, wouldn’t the most likely explanation be that Contador actually doped with clenbuterol during the 2010 Tour? Strangely enough … not only was intentional clenbuterol doping during the Tour NOT found to be the most likely explanation, it appears (and remember, I did a quick reading) but the possibility of such doping was not considered by the CAS or even argued by the UCI or WADA. You may want to confirm that …
But this is what the case came down to: Contador arguing that Spain is full of contaminated beef, UCI and WADA arguing that Contador had an illegal transfusion, and all sides considering the possibility of a contaminated supplement, even though there was nothing remotely constituting proof of any of these theories.
As a result, the WADA Code is on a shaky foundation: so long as an accused athlete can concoct an excuse for doping that’s more plausible than the possibility of a contaminated supplement, the athlete stands a chance of winning their case or (at minimum) dragging the ADAs through an 18-month long legal process. At the same time, the ADAs can bring as evidence in such a case the kind of stuff that would cause admirers of due process to hold their respective noses: for example, that Contador associated with the wrong people.
I hate to advocate for a stronger WADA Code, but WADA needs to amend its Code to provide that an athlete’s excuse must be more plausible than not, that the excuse has to be proven to be at least a 51% probability. Otherwise you end up deciding cases like Contador’s with reasoning such as: the contaminated beef excuse is highly unlikely, the blood transfusion theory is equally unlikely, so we’ll go with contaminated supplements because that excuse is better than the highly unlikely ones.
Larry,
Im glad youve skimmed the decision. It sounds like a wild ride, indeed. I was wondering about how they came to the conclusion that the most likely explanation was a contaminated supplement when Contadors side didnt even broach that possibility.
I wonder why his team didnt go for that theory, instead. Perhaps he didnt take any supplements? Or perhaps he didnt have any of the supplement left? If it were really a supplement, then Contadors side might actually have been able to prove their possibility — assuming they had a sample of that supplement to test.
I havent started reading the panels full decision, yet. I have a feeling that it is pretty dense stuff and probably a good cure for insomnia. 😉 Ill be wading through the thing over the next few days.
“In the Panel’s opinion, on the basis of the evidence adduced, the presence of clenbuterol was more likely caused by the ingestion of a contaminated food supplement.” As a farmer and someone familar with drug testing in livestock competitions, the steak story always seemed like hogwash. If AC didn’t ingest as a part of a performance scheme and if it was contamination of a supplement, then it is too bad he didn’t have a sample to offer as evidence like Hardy. Thanks for linking the full CAS report.
Before reading the full report I had never read that the steak was veal, which decreases the possibility of the meat coming from another country. Veal is more tested under targeted and suspect testing protocols than mature beef. Does anyone know why AC would not take supplements on rest days and only on race days as stated in paragraph 467 (page 90)?
Maybe AC’s team tested the supplements he had used and they were clean. If that was the case, it MIGHT explain why they did not try that path.
Cofidis manager Eric Boyer has an interesting take. His assertion may, or may not reflect reality, but the basis of his statement assumes facts nowhere close to being in evidence. It should be noted that neither UCI’s nor WADA’s appeal asserted conspiracy.
Here is the Boyer Quote:
“I would like to see investigations take place to find out who made it possible for him to dope. There are ill-intentioned people who helped him to get (the Clebuterol). I don’t know if they can be found but they have to be sought, because it’s them who damage the sport most.”
http://www.cyclingnews.com/news/prudhomme-jalabert-and-boyer-on-contadors-doping-ban
That should also help the cause of pro cycling.
When a ship wrecks, it’s interesting to watch how the rats scatter……….
And for Rant:
The Tour of Beijing affair clearly revealed how willing the UCI is to poison the well to protect both their personal and bureaucratic interests. McQ threatening sponsors to ensure top level competitor participation was over the top, especially considering he and at least one member of his family stood to profit from the race. It also demonstrated that the concept of conflict of interest is either foreign to McQ or he feels empowered to simply ignore it?
As I’m on the subject of conflict of interest, there is still the matter of a possible fine for Contador that CAS has delayed ruling upon. The amount we are talking about is somewhere north or 2 million Euros, so it’s not chump change.
Here is a quote found in CyclingNews:
“It is not clear to whom the fines would be paid, and what would be done with the money. Nor is it known whether the prize money would be returned to race organisers and subsequently paid to the new winner, or whether the forfeiture would include bonuses paid by the team or sponsors.”
http://www.cyclingnews.com/news/suspension-could-cost-contador-millions
I’ll dare to speculate on a few of the subcategories. I will guess Contador is on the hook for returning prize money and that the correct channel is the individual ace organizers, assuming they are still in business and not defunct. Individual race organizers would be responsible to redistribute prize money. I don’t know what should be done with “gifts in kind” sorts of prizes, if any? However, what should be done regarding 2010 TdF prize money? Presumably, Contador followed tradition and split it with his team mates, omitting a share for himself? The larger point is that it is not so easy. Returning prize money sounds simple enough, but is sometimes complicated.
I’m not going to get into the issue of contracts with Saxo Bank as they are rightfully confidential and I assume all sides involved had the means and option of competent representation.
Then there is the issue of the punitive fine. Presumably, that goes to the UCI, which is where we get into a truly active and aromatic can of worms. Where does that money go? If it were NASCAR, it would go to charity. I bring NASCAR up because it has a reputation as a less than benevolent dictatorship that can sometimes be accused of be greedy. Yet even NASCAR has the good sense to give a passing acknowledgement to the concept of “conflict of interest”, as they do with the issue of fines and where fine money goes.
I’m less confident with UCI, McQ, and cronies. The Tour of Beijing fiasco showed UCI, McQ, and cronies don’t give a rat’s rear end about either the appearance of impropriety or actual impropriety. My best guess is that if, and/or when, McQ and cronies get their hands on serious fine money originating from Contador, it will most likely find its way to where it most benefits McQ and cronies. They might save themselves the trouble and simply arrange a bank transfer? I’d like to be proven wrong, but doubt that will happen.
There are plenty of examples of breakaway sanctioning organizations in the USA and throughout the world, particularly in mountain bike racing, but also in road racing. I’ve had experience with at least two (2) and they did a great job, especially in comparison to their UCI derived USA Cycling counterparts. If the Tour of Beijing threats were not enough to push the top pro teams to form a breakaway league, then the soup’s handling of Contador’s case and the jeopardy it put a previously top tier team (Team Saxo Bank) in, certainly should be a sufficient catalyst? I don’t know how much more it takes? It’s well past time that the rug be pulled out from under the UCI thugs.
I think it’s crap that they’re stripping his 2011 Giro win. One, I can’t believe even Contador would’ve been so stupid to dope then with a poz at the Tour already and the narcs on him like bloodsucking leeches as a result. Two, why should Contador get punished for the process taking a gazillion years? Sure, he used it to his best advantage, but it’s the governing bodies that set it up. Do feel rather sorry for Bjarne Riis, too–first he bets on Basso at CSC, now Contador…the poor guy’s due for a scandal-free pick!
farmer,
Interesting about veal being tested more. As for only taking supplements on race days, that just seems odd to me. I’d be taking them every day, if I thought they would help my athletic performance.
Mike,
If Contador had gone for the contaminated supplement defense (if that’s what really happened), he would only get a reduced penalty. He was going for the “no fault or negligence” defense, in the hopes of no penalty at all. He rolled the dice and lost. If he had taken a contaminated supplement, it could have been tested (assuming that any was still available at the time he was notified of the doping test results). A one year penalty (what he would have gotten for taking a contaminated supplement) would be a better end result than what he got.
Jeff,
Good points you raise. Charles Pelkey, in his latest Explainer addresses the topic of who pays the money back, and comes to the conclusion that no matter how Contador might have distributed his winnings, it will fall on Contador to give the money back. His teammates and staff aren’t legally on the hook to return the money. As for that punitive fine. I hope Alberto has managed his money well, as he’s going to be forking over a huge pile of cash to various entities. If he doesn’t have the cash, I hope he has a good bankruptcy lawyer. 😉
racejunkie,
I think a good argument could be made that Contador’s suspension should start as of Monday, with credit for time served, and that the results he got last year be allowed to stand. That would mean he would be out of competition for another 18.5 months, rather than 6.5 months.
Rant, Thanks for the Explainer link. I agree it is up to Contador to return TdF winnings. I just used the “winnings split between team and staff” example to illustrate complying with the ruling is not as straight forward as is might sound.
Contador will soon find out who his real friends are, if he isn’t aware already. If Contador is a stand-up guy, I wouldn’t expect him to ask for his TdF team riders or staff to return the prize distribution. By the same token, I would expect members of his team and staff make a sincere offer to return prize money, if they are stand-up people.
I’m much more concerned about what the UCI does with fine money and the Explainer didn’t explain that component. I have not had much luck in searching, although I’ve learned a bit about what UC Irvine does with fine money it collects. Maybe a knowledgable Rant reader can enlighten me as to the bicycle thug guys?
Summary on Team Saxo Bank, Contador, and license issues:
1) Contador was signed by Team Saxo Bank before his non-negative from the 2010 TdF was announced.
2) Riis did not sign a rider that he knew was under investigation for doping.
3) The announcement that Contador tripped a non-negative was released after Contador was signed by Riis / Team Saxo Bank.
4) Subsequent to Contador’s signing, UCI made Riss and company aware of the potential team points loss and its ramifications. (UCI wanted Contador fired)
5) Riis didn’t have much of a legal or ethical basis to fire Contador, UCI’s whim not withstanding, as he was cleared by RFEC to ride.
6) Contador was, however, suspended by Team Saxo Bank, in accordance with the rules, pending the RFEC decision to clear him to ride.
7) Contador raced only when cleared to ride, under the rules in place at the time.
8) Following a protracted appeals process, Contador has been retroactively suspended from all races he was cleared to ride following the RFEC decision and also from the 2010 TdF.
9) All points earned during the time Contador was cleared to ride by RFEC, but retroactively declared ineligible by CAS, are to be deducted. All prize money is also to be returned.
10) The points in question are related to WorldTour license eligibility.
11) Removal of Contador’s points retroactively renders Team Saxo Bank ineligible for a WorldTour license.
12) So, being unlucky enough to sign a rider who is later announced to have triggered a non-negative (post signing) when he rode for another team, will put your team in jeopardy of loosing its license or having a license demotion, if that rider carried a lot of points.
My version of the imaginary conversation:
(imagine McQ’S voice to be that of Cartman from South Park)
UCI to Riis; You know that Contador guy you just signed? Well, you have to fire him. He tested positive for Clen in the TdF.
Riis to UCI; Jesus, thanks for the f’in heads up! How long have you been sitting on this info? Damn it. He’s already signed and we’re late in the game to sign any replacements, even if we could. It’s too freakin late to be telling us this. Thanks!
UCI to Riis; That’s your problem, not ours. Fire him. You know he’s going to be found guilty. We’ll make sure of it. And by the way, quit your bitchin and mind your tone with us. We’ll tell you anything we want whenever we want. We’re in charge. Mind you place.
Riis to UCI; I’ll see what we can do. I doubt we can fire him, but he is certainly suspended by us until he’s officially sanctioned.
UCI to Riis; That’s not good enough. Fire him. If not, there will be consequences.
Riis mumbles to himself; Oh feck, there are already consequences. A$$holes.
Riis to UCI; We can’t fire him and have to reinstate him. RFEC cleared him to ride.
UCI to Riis; RFEC (not to mention Zapatero) is about as useful as you are. You’ve both made serious mistakes that we will remember.
Riis to UCI; We’ve done all we could. There are employment laws, we have to honor contractual obligations, and we’re obliged to follow your rules.
UCI to Riis; Don’t mention rules to us. We write the rules. We make the rules. We interpret the rules. We do what we want. You do what we say. Contracts and laws, pssst.
UCI to Riis; We told you to fire him. Now he’s been sanctioned. CAS backs us up. At least the arbs do if they want to go anywhere with IoC. We’ve asked for our “independent” licensing committee to review your WorldTour license. Good luck with that.
Riis mumbles to himself; Feck!
YMMV
It looks to me like the CAS changed the anti-doping rules in the Contador decision. No one seems to have noticed, since Contador lost the case, but if the Contador case is a precedent, then it has become much more complicated for the ADAs to prevail and impose a full doping sanction if the accused athlete has even a marginally plausible excuse (“it was the beef”) for how the PED got into his/her system. It’s not going to be enough to say that the athlete must prove the excuse — instead, the ADAs will have to try and prove some alternate theory (“it was a blood transfusion” or “it was nutritional supplements”).
This change is a BIG DEAL. The whole reason why the WADA Code relies on “strict liability” is to avoid having to inquire HOW a drug got into someone’s system — merely finding the drug in someone’s system is enough to prove a doping case. True, we can make arguments based on notions of fairness that an athlete should not be sanctioned for something he or she did not intentionally do … but from a process standpoint, it’s going to get very expensive (in terms of time and money) to examine every doping case as closely as the CAS examined Contador’s case.
My guess is that the process in the Contador case and the reasoning in the CAS decision were intended to head off an appeal to an EU court that the WADA Code violates the basic human right of an athlete like Contador to make a living. I’m no expert, but in an EU court appeal Contador would argue that “strict liability” under the WADA Code does not properly balance the athlete’s rights against the interest of combating doping in sport. Contador’s argument would be based both on the fairness of imposing sanctions where no fault is shown, AND on the lack of any need to impose sanctions in PED cases where the PED cannot be shown to have had a performance-enhancing benefit. In response, the ADAs can argue that Contador received 18 months and millions of Euros of due process, which is as much (probably more) fairness than any anti-doping system can reasonably afford.
Larry,
Interesting observations. I haven’t read the full decision yet, but my impression is that the CAS evaluated two possible alternatives put forward by the UCI/WADA and rejected one (the contaminated blood transfusion) in favor of the other (tainted supplement, even though neither side identified what supplement it might be). What I find strange is that although there have been a number of cases involving tainted supplements (clenbuterol, DHEA and other things showing up), Contador didn’t suggest this as a possibility. Suggesting possible explanations is what the accused has to do to shift the the burden of proof back onto the UCI/WADA.
The UCI and WADA chose to advance possible explanations, even though the WADA code didn’t require them to do so. It almost appears as if they actually believed that Contador’s theory was well within the realm of possibility, and felt they needed alternative explanations to flip the burden back onto Contador.
I continue to believe that a winning argument for the UCI and WADA would merely have been to ask, “Where’s the beef?” Unlike the Hardy case and others, Contador wasn’t able to provide a sample steak for testing that could back up his explanation. That being the case, his side would lose regardless of whatever theories or explanations the accusers might advance — and they didn’t need to mention a single one.
If a precedent is set– ironically, because the UCI and WADA chose this type of prosecution — won’t they have themselves to blame, rather than the CAS?
Perhaps we file this under “the law of unintended consequences”?
I’m not sure that WADA is all that much into precedence. We seen cases where the ruling was justified by “it may be harsh to sanction an athlete who unknowingly ingests a PED, but rules leave us no choice” and seemingly similar cases which went in the athlete’s way.
But it seems to me a big problem is how is the probability assigned. Seems to me, that with out both the beef and any nutritional supplement to test, either story is just that: a story without any basis in fact. But then this just might be a way out of the problem Larry describes: WADA can simply assign probability to alternative stories so as to ensure the desired result, whatever that might be.
Rant, a critical read on this case is at paragraphs 241-265, in the way that the CAS defined the burden of proof placed on Contador to establish his theory that clenbuterol entered his system by his eating contaminated meat. Admittedly, this is some of the driest language in the decision – no one is going to mine a headline for this case from these paragraphs.
The CAS’ reasoning is this: (1) in order to meet the burden of proof, the party assigned this burden of proof (let’s call this the “initial party” – in this case, Contador) would have to prove “on a balance of probability” (the standard in the UCI anti-doping rules, Article 22) that clenbuterol entered his system through the suspect steak, (2) to meet a burden of proof, the initial party has to make some sort of minimal case supported by some minimal presentation of facts, at which point the burden shifts to the opposing party (in this case, WADA and the UCI) to make an opposing case, (3) an exception exists to the general rule described in clause 2 in cases where the initial party “is faced with a serious difficulty in discharging its burden of proof”, because (for example) the necessary case “cannot be proven by direct means” because a party “needs to prove ‘negative facts’”, (4) in a case falling under clause 3, fairness demands that the opposing party (a) “must substantiate and explain in detail why it deems the facts submitted by the [initial] party to be wrong”, and (b) “cooperate in the investigation and clarification of the facts of the case”, and finally (5) even in cases falling under clause 3, the burden of proof remains with the initial party; in other words, if the opposing party meets the procedural requirements in clause 4 and the facts required to meet the initial party’s burden of proof STILL cannot be established, then the initial party will have failed to meet its burden of proof.
With me so far? I don’t blame you if you’ve drifted off to the kitchen to make yourself a sandwich. I’ve spent years in legal practice and I’ve never encountered reasoning like this. Serves me right for not going to law school in Switzerland.
OK, back to the case. The CAS ruled that proving meat contamination involves “a form of negative fact” that would be difficult for Contador to prove. On this basis clause (4) above kicks into effect, and WADA and UCI were required to “contribute through substantiated submissions to the clarification of the corresponding facts of the case.” The CAS ruled that UCI and WADA met this requirement “by submitting and substantiating two additional (alternative) routes as to how the prohibited substance could have entered [Contador’s] system.”
So when you wrote that “[t]he UCI and WADA chose to advance possible explanations, even though the WADA code didn’t require them to do so” – well, I agree with your reading of the Code, but the CAS disagreed with both of us. If WADA and UCI had not advanced those explanations and had not otherwise “contributed” to the effort to understand how Contador came to test positive, then Contador would have won his case. Your “where’s the beef” argument would have been a losing argument.
We might go further and argue that Contador won before the RFEC PRECISELY BECAUSE WADA and the UCI DID rely on a “where’s the beef” argument back in 2010.
More later.
Larry,
I follow you. But now my head hurts. 😉
Rant, BTW, there’s a good reason that Contador never sought to blame his doping positive on contaminated supplements: the defense wouldn’t have done him any good. Remember, a doping excuse works as a partial or complete defense to a suspension only if the athlete can show lack of negligence. Taking a contaminated supplement is negligent, as the athlete is supposed to know that supplements may be contaminated.
This is part of the Catch-22 of the WADA Code: the only excuses that are any good are the most unlikely ones — like a Spanish steak contaminated with clenbuterol. Then good luck trying to prove the excuse.
Larry,
Quite right. Contador was going for exoneration, not a reduced sanction. Admitting to taking a contaminated supplement would, at best, only get him a reduced suspension and would have caused him to forfeit the Tour title. Given the end result, I think he should have gone that route, instead. He’d be racing right now, given how they applied the math of the final result. And he would have given up less in the way of results (though still he would have had to forfeit the Giro title, too).
Unless and until the authorities change to a system of thresholds to remove the possibility of environmental contamination (through tainted meat, the drinking supply, etc.), it’s going to remain a huge Catch-22 for athletes. The only way to be exonerated, like you said, will be to try and prove unlikely, and even ridiculous sounding, theories.
Rant, I’m not sure that Contador could have gotten even a reduced suspension if he’d based his defense on contaminated supplements. The Hardy case is instructive, as she received a reduced suspension. But Hardy produced the contaminated supplement, complete with a lab certification that the supplement was, indeed, contaminated. She also had a lengthy record of investigating the supplement, checking with the manufacturer to see if it was OK, determining that the supplement had never shown up in a prior contamination case, etc. In contrast, Contador did not produce a contaminated supplement. Contador produced only a list of the food supplements used by the Astana team (27 in all), and apparently no one tested any of these supplements. Moreover, the CAS refused to rule out the possibility that Contador took supplements in addition to those on the list.
Yes, the CAS’ finding is more than a little strange. As Contador’s team argued, there was no actual evidence of a contaminated supplement. This lack of evidence would have been fatal in the more usual case, where it’s THE ATHLETE who blames a doping positive on a food supplement. Really, the better way to understand the CAS decision is that Contador failed to meet the WADA Code burden of proof, in that his contaminated meat theory was judged to be no more likely than any other possible explanation for the doping positive.
And … it’s still weird that the parties never even considered the idea that Contador intentionally doped with clenbuterol during the Tour. As unlikely as Contador’s beef excuse may have been, all concerned seemed to think that there was no likelihood whatsoever that Contador intentionally did the only thing that the ADAs were ever able to prove that he did do.
Larry,
True, Contador would actually have had to produce evidence of the contamination if he’d gone the contaminated supplement route. Doesn’t sound like his legal team even contemplated that line of argument, though. If they had, then they were completely remiss not to be testing all the supplements used by Team Astana (assuming they could actually get their hands on the actual bottles/containers of supplements used during the Tour). It seems that Contador rolled the dice on trying for total exoneration, and that the dice came up snake eyes.
It’s not clear to me that the UCI/WADA didn’t consider the possibility of intentional doping during the tour — they did offer up the blood contamination theory, which is to say they figured he doped, but not with clenbuterol during the Tour. One could estimate the amount of Contador’s clenbuterol exposure, based on the time he ate the veal and the half-life of the drug in the average person’s system. Perhaps his initial dosage was low enough that the UCI and WADA didn’t think it very indicative of intentional use of clenbuterol?
Rant, in response to your last question, I think all agreed that there was no sane reason for Contador to have intentionally taken clenbuterol during the Tour. It’s too easily detected and wouldn’t have done him much good … or ANY good at the doses detected.
Agreed, if this punishment makes any sense (beyond defining the bastion of strict liability), it’s because the ADAs concluded that Contador blood doped. Not that they could prove this — not even to the point that blood doping seemed more likely to the CAS than contaminated meat eating.