Opinion: Absolution of Alberto a perilous precedent

Anthony Tan's views on "Postalgate" and "caso Condator"

The closure of the FDA investigation into what may or may not have happened in the late 1990s and early 2000s at the United States Postal Service Professional Cycling Team was inevitable and unsurprising.

If one is to read about the extraordinary lengths lead investigator, Jeff Novitzky, went to in his investigation of BALCO, as documented by two San Francisco Chronicle reporters in the 2006 book Game of Shadows: Barry Bonds, BALCO, and the Steroids Scandal that Rocked Professional Sports, you will understand the same federal agent, in his quest to nab Lance Armstrong, would have done absolutely everything he could.

With BALCO, Novitzky was working in real time: staking out offices and homes, rummaging through garbage bins, tracing suspicious packages, and digging up dirt on nefarious associates. Marion Jones, Barry Bonds, Roger Clemens, and others had no time to react, to dispose or destroy evidence, or to fabricate stories that would hold up in court. Because, at the time, they had no idea they were being investigated.

However, in Armstrong, Novitzky was working with events that may or may not have transpired 10 or more years ago. Should there have been any detritus of incriminating evidence, only the most foolhardy would still have it with him, knowing he was under investigation.

And Lance, as we all know, is no fool.

For me, Friday’s closure of ‘Postalgate’ by the US Attorney’s Office is relevant because, like the case of Alberto Contador, it has been protracted beyond belief.

Note the reasons for their decision to shelve the investigation – read the statement: “The United States Attorney determined that a public announcement concerning the closing of the investigation was warranted by numerous reports about the investigation in media outlets around the world.”

In other words, the federal probe was ostensibly closed, not because there was no evidence, or too much taxpayers’ money had been wasted, or Novitzky, as Armstrong’s defense team repeatedly claimed, had an axe to grind, but due to the number of leaks to the press.

The majority of these leaks emanated from the federal grand jury established in Los Angeles, which subpoenaed a number of Armstrong’s associates, including former teammate Tyler Hamilton, physiologist Dr. Allen Lim, and close business associate Stephanie McIlvain, an employee of Oakley.

The Wall Street Journal and New York Times, as well as, were the primary beneficiaries – augmented in January 2011 by a Sports Illustrated investigation and then in May, by Hamilton’s appearance on “60 Minutes,” where, throughout the interview, he looked like a rabbit caught in the crosshairs; in my estimation, it only strengthened Armstrong’s credibility.

The point is this: the longer a high-profile investigation drags on, the greater the propensity for leaks and by consequence, the great the chance of a mistrial or of a case being dropped.

The FDA investigation into Armstrong was almost two years long; caso Contador, meanwhile, is 19 months and counting.
While Contador’s November 21-24 hearing last year with the Court of Arbitration for Sport (CAS) was supposed to be a closed trial, certain participants have not been so muted.

Perhaps most concerning for the plaintiff is the three-panel judge’s decision to block oral testimony from Australian anti-doping scientist, Michael Ashenden. Still no World Anti-Doping Agency (WADA)-ratified test exists for either plasticizers (said to have been found in the July 20, 2010 test, but not on July 21, the date of Contador’s positive test for clenbuterol) or autologous blood doping; Ashenden’s testimony, therefore, would have been crucial to corroborate the UCI/WADA’s purported theory that clenbuterol entered the Spaniard’s blood via transfusion. WADA, however, denied filing a complaint to CAS.

As in the case of Novitzky’s efforts to nab Armstrong, those not-so-silent voices will only delight the defendant. CAS has already blamed the media for the delay of its verdict, originally due mid-January but now expected Monday in Europe.

Adopting the strict letter of WADA law, Contador should be penalized and handed a two-year suspension, and have all his results from July 21, 2010 annulled, including that year’s Tour de France victory and his Giro d’Italia triumph the following year, as the anti-doping agency reportedly argued in the November CAS hearing.

Clenbuterol is and remains a zero-tolerance drug. The contaminated beef, as claimed by the Spaniard, no longer exists in any form – and is therefore impossible to prove as such. “I think it is very difficult for either side to prove,” Douwe de Boer, who assisted Contador in the early days of the case, told the AP in November last year. “Nobody can prove anything.”

Alas, we will never know how the clenbuterol got into Bertie’s body. Yet the onus of responsibility lies on him to tell us so: “He has to prove where the clenbuterol came from. That’s what the code says,” Howard Jacobs, a leading American sports lawyer told the AP.

Paradoxically, however, Contador, due to the protracted nature of his case, and the inevitable media leaks that have interspersed it, will likely walk free – guilty or otherwise.

In turn, a landmark, though perilous, precedent will be set: an athlete who tests positive for a substance like clenbuterol and claims food contamination as a defense can be excused without the need to prove the source of the contamination.

Should we be surprised, then, that the majority of blue chip companies continue to view investing in professional road cycling as anything other than a risk?

Just ask Bob Stapleton. He’ll tell it to you, straight-up.

Realizing life in advertising was nothing like Mad Men and buoyed by the Olympic Games in his Australian hometown of Sydney, Anthony Tan turned his back on a lucrative copywriting career in 2000 in pursuit of something more cerebral. Combining wordsmithing with his experiences as an A-Grade club racer and an underwhelming season competing in Europe, a career as a cycling scribe beckoned… More than a dozen Grand Tours and countless Classics later, it’s where he still is today. He has been a contributor to VeloNews since 2006. In 2010, he won Cycling Australia’s media award for best story. Follow him on Twitter: @anthony_tan