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Opinion: Not so black and white

The Contador case is more complex than saying simply "he is a cheat" or not

Cheat (v): act dishonestly or unfairly in order to gain an advantage.
– The Oxford Dictionary

Now that you’ve read and understood the definition of ‘cheat’, read what World Anti-Doping Agency (WADA) president, John Fahey, told the Associated Press this week, following Monday’s announcement by the Court of Arbitration for Sport (CAS) that Alberto Contador had been found guilty of a doping offense:

“Anyone who is found by a tribunal in a matter in which he was found to be a cheat, is a cheat,” Fahey said.

“The simple fact is that anyone who has a prohibited substance in their system is a cheat. It is as simple as that. The only argument then comes as to what was the nature of how that prohibited substance got into the athlete’s system. But you’re a cheat, effectively, the moment you’ve got that substance in there.”

What a silly, overly-simplistic view of such a complex matter.

The thing is, I agree with the decision by CAS. Clenbuterol is, and remains, a zero-tolerance drug under the WADA code of prohibited substances.

In the July 21, 2010 test, the second and final rest day of that year’s Tour de France (at the time, Contador was leading the race by a margin of eight seconds over Andy Schleck), the Spaniard was found to have clenbuterol in his system, and as such violated Article 21.1 and 21.2 of the UCI anti-doping rules, vis-à-vis:

21.1: The presence of a Prohibited Substance or its Metabolites or Markers in a Rider’s bodily specimen.

21.2: Use or Attempted Use by a Rider of a Prohibited Substance or a Prohibited Method.

Article 21.1 also states, under 21 (1) (1):

“It is each Rider’s personal duty to ensure that no Prohibited Substance enters his body. Riders are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their bodily Specimens. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Rider’s part be demonstrated in order to establish an anti-doping violation under article 21.1.”

And 21 (1) (3) states: “… the presence of any quantity of a Prohibited Substance or its Metabolites or Markers in a Rider’s Sample shall constitute an anti-doping rule violation.”

So, yes, as soon as the Cologne lab found those miniscule 50 picograms of clenbuterol in his urine, Alberto Contador Velasco committed a doping offense. Given the strict liability associated with the prohibited drug, the consequence was a two-year suspension, which he will now serve until August 5 this year.

Nowhere, however, in the UCI rules or CAS finding does it say or imply Contador is a cheat – that he consciously acted in a dishonest manner to enhance his own performance.

Quite the opposite, in fact.

In Paragraph 487 of the 98-page CAS finding it says:

“Considering that the Athlete took supplements in considerable amounts, that it is incontestable that supplements may be contaminated … and that the Panel considers it very unlikely that the piece of meat ingested by him was contaminated with clenbuterol, it finds that, in light of all the evidence on record, the Athlete’s positive test for clenbuterol is more likely to have been caused by the ingestion of a contaminated food supplement than by a blood transfusion or the ingestion of contaminated meat.”

In other words, on the balance of probabilities – and that’s what we’re dealing with here; as Dutch scientist Douwe de Boer, who assisted Contador in the early days of the case, said: “Nobody can prove anything” – Contador most likely ingested the clenbuterol inadvertently.

Most likely, according to the CAS panel, Contador was not a cheat.

Why the CAS arbiters needed to posit their own theory is beyond me – they did not have to. For me, it weakened what was otherwise a well-deliberated set of findings, albeit delivered after a highly protracted judicial process that was delayed no less than three times (for what it’s worth, the Tyler Hamilton and Floyd Landis cases took even longer).

From what I read, there was no solid evidence to support CAS’ theory that food contamination was the likely source – so why suggest it? To confuse matters further, the report later said: “This does not mean that the Panel is convinced beyond reasonable doubt that this scenario of ingestion of a contaminated food supplement actually happened.”

Go figure that one out.

Still, at the end of the day, Contador was seeking complete exoneration. As such, the burden of proof fell on his legal team to prove his innocence (which explains the guilty-till-proven-innocent scenario he found himself in).

Read part of the CAS summary findings: “In order for the Athlete to avoid a two-year sanction, he had to establish, on a balance of probability a) how the Prohibited Substance entered his body and 2) that he committed no fault or negligence, or no significant fault or negligence.”

Contador, unfortunately for him, was not unable to do so: “The Panel found that there were no established facts that would elevate the possibility of meat contamination to an event that could have occurred on a balance of probabilities.” The CAS report also noted Spain does not have a known problem with clenbuterol-boosted cattle, nor were there any recorded cases of athletes having tested positive for clenbuterol in connection with the consumption of meat bought from Spain.

In short, “none of the conditions for eliminating or reducing the period of ineligibility were met” – leaving the CAS panel no choice but to sanction Contador for two years. (They are yet to rule on a separate request by the UCI to fine him “at least 2,485,000 Euros”, or $3.295 million.)

It is also possible – actually, make that probable – the blood transfusion theory, as suggested by the UCI and WADA, was not fully explored in the November 21-24 hearing.

As you may have read, WADA intended to call on expert witness, Australian anti-doping scientist Michael Ashenden, to analyze Contador’s blood samples before the court. WADA’s theory was that Contador re-injected his own blood on July 20, when still-unofficial tests showed high levels of plasticizers in his system. The following day, they say, Contador injected himself with plasma (cell-free blood) to balance his blood count, but in the process, unintentionally added clenbuterol to his system.

In Paragraph 407 of the CAS findings, it was in fact an anti-doping scientist on Contador’s team, Paul Scott, who explained that “for long-term storage, red blood cells needed to be stored in DEHP bags (PVC bags containing plasticizers) to prevent the breaking down of the red blood cells, where there was no such necessity for the storage of plasma.”

And in Paragraph 409, it says “the Panel cannot rule out the possibility that the blood transfusion theory is possible”, adding that, “the absence of a spike in the level of plasticizers could be explained if the plasma was stored in a DEHP-free bag”.

Also, the media leaks that both the UCI and WADA were not entirely satisfied with from the November hearing were indeed correct. These were outlined in Paragraphs 147 and 148 of the CAS report, where, to begin with, the UCI said it was “surprised by the way the experts’ conferences were dealt with and did not find it entirely adequate”.

WADA, too, raised a number of objections that were countersigned by the UCI and presented on November 24 at the close of the hearing, alleging that, “the Panel decided to conduct the hearing in a manner that significantly restricted the rights of the parties to ask questions to the witnesses and experts”; they also alleged they were “prevented from examining its experts on crucial elements supporting its blood transfusion scenario”.

Paragraph 148 c) reads:

“On 22 November 2011, WADA’s lead Counsel agreed that he would delay his questioning of Dr Ashenden on the issue of the phthalate (plasticizer)-free bags to the following day. The Appellants understood from the response of the President of the Panel that the request was granted. The decision of the Panel on 23 November 2011 not to allow WADA to put questions on this point to its expert was therefore unexpected and inconsistent with the Panel’s indications of the previous day.”

Still, the possibility that the UCI or WADA will appeal is about as likely as Mark Cavendish winning the Tour de France. They won, after all – even if UCI president Pat McQuaid said the day of the verdict, “There are no winners when it comes to the issue of doping.”

As for Contador? He has till March 7 to lodge an appeal to Swiss Federal Tribunal, Switzerland’s Supreme Court.

However, the court can only review the CAS decision on procedural grounds, not rehear the case or the merits of the arguments presented. In practice, it rarely sends back cases to CAS for a retrial; in its 27-year history, the federal court has sent back three cases to CAS for review. Furthermore, unlike the UCI/WADA, not once in the findings did Contador’s legal team raise doubts or concerns about the hearing process, meaning that even if an appeal was lodged, it would likely come to naught.

Doping cases, like life itself, are rarely black and white.

Complete coverage of Alberto Contador’s clenbuterol case