The Explainer: So, the UCI is appealing …

So what is the basis for the UCI’s appeal? Are they going to attack the evidence — or lack of it — or are they going to go after Spain’s decision? Where does WADA come in? Why is Contador still racing?

Q.Dear Explainer,
Well, the other shoe has dropped and the UCI will appeal the Spanish federation’s decision to give Alberto Contador a pass on doping. Didn’t everyone already know that was going to happen? Why did they take so long?

So what is the basis for the UCI’s appeal? Are they going to attack the evidence — or lack of it — or are they going to go after Spain’s decision? Where does WADA come in? Why is Contador still riding and still talking about racing in the Giro? When Floyd Landis and Tyler Hamilton were popped, they stayed off their bikes all the way through the appeals process. What happens to Contador’s results earned this spring? What if he wins the Giro?

A.Dear Randy,
It did come down to the final hours, didn’t it? Still, I can’t blame the UCI for taking its time in reaching a decision as to whether to appeal or not. The UCI’s anti-doping rules provided for a one-month review period and the UCI used almost every minute of that to review the decision and then, one must imagine, engage in a heated internal debate over whether to appeal or not. The time limit gives the appealing party ample time to review its options and to prepare its appeal brief. Those things aren’t easy to draft and I would wager that the UCI’s appeals brief has been thoroughly reviewed before the governing body met its filing deadline.

Most certainly, the delay doesn’t hurt Contador’s side. The UCI’s decision comes as no surprise and Contador has been adding to his legal team in anticipation. Now leading the charge on Contador’s behalf is Belgian sports attorney Jean-Louis Dupont, whose reputation in the field is quite impressive. Dupont successfully argued the case of Union Royale Belge des Sociétés de Football Association ASBL & others v. Jean-Marc Bosman before the European Court of Justice in 1995 that forever altered the structure of European football by creating the relative equivalent of free agency in the sport. It’s a landmark case and Contador obviously went looking for the best when it came to lawyers.

Dupont has been working on the case since he was hired on March 4 of this year. He has some experience in anti-doping cases … and he’s bound to get quite a bit more before all of this is over.

What’s WADA’s role?

The UCI invoked its right of appeal under its own anti-doping rules (Articles 277 and 333) and filed within the one-month time limit. Had the UCI waived its right of appeal, Article 13 of the World Anti-Doping Code provides WADA with another 21 days in which to review and determine whether it wants to appeal on its own.

It would be an unusual step, but the rules do not bar WADA from filing its own appeal and joining the UCI in its effort to overturn the Spanish Cycling Federation’s ruling.

The reason Contador continues to ride is a simple one. Unlike Floyd Landis and Tyler Hamilton — whose cases also ended up before CAS —Contador actually won his hearing before his national anti-doping review panel. While Hamilton and Landis were appealing adverse rulings, it’s the UCI that’s appealing a ruling in the rider’s favor. Until CAS is able to render a decision in the case, the ruling of the Spanish Federation stands.

So Contador is able to compete and he’s said to be focusing on the Giro. It’s a near certainty that the Giro will be long over before we hear anything from CAS. The time required by CAS to review documents, entertain motions from both sides, hold a hearing for oral arguments and then render a decision means that we won’t get a final and official word until much later this year. Indeed, we could see this thing pushed into late summer or early fall.

What will be appealed?

The UCI has several options when it comes to appealing the Spanish federation ruling. First is the Spanish federation’s interpretation of the rules when it comes to a finding of no fault.

While the WADA Code and the UCI’s anti-doping rules have evolved over the years, there is still a commitment to the principle of “strict liability” when it comes to doping violations. The reasoning is that if an athlete, even accidentally, ingests a banned substance, it gives him or her an unfair competitive advantage over those athletes who had not used the same substance.

In other words, the most logical course for the UCI to pursue might be to concede the whole question of bovine contamination, agree with the Spanish federation’s conclusion that no fault existed, but argue that even so, Contador must at least be penalized by having his 2010 Tour de France results negated.

The finding of no fault does not mean that there shouldn’t be a penalty, the argument could be made, and the Spanish Federation’s interpretation of the rules is fundamentally flawed when the decision resulted in no penalty at all.

Articles 289 to 291 of the UCI Anti-Doping rules provide for such a ruling, calling for the disqualification of results from the event in which the violation occurred, but leaving in place those results achieved in other events, as long as the banned substance played no role in the outcome of those events. What the Spanish federation has to do is to show some justification for imposing no penalty at all.

What about fault?

A more difficult avenue to pursue would be to attack the entirety of Contador’s original defense and argue that there was no basis for the finding of no fault. It may be that at that point, the UCI may be prepared to introduce the whole plasticizer argument, noting that elevated levels of the chemicals present in medical storage bags and tubing are an indication of blood doping and the presence of trace amounts of clenbuterol is just further evidence of that.

If that’s the UCI’s strategy, it’s likely the governing body will be asking for a full two-year suspension and that would include the negation of Contador’s 2010 Tour de France. It is unlikely, however, that results earned while the UCI was appealing the ruling would be disqualified. The recent Valverde case did result in the rider’s suspension, but did not result in the negation of results while the case was on appeal.

If CAS were to impose a full two-year suspension, it would have the option of counting the time Contador spent on his provisional suspension, stopping that clock when the Spanish Federation ruled in the rider’s favor and then resuming the count when it handed down its opinion. Under that scenario, we wouldn’t see Alberto Contador in competition until late 2012 or early 2013.

Of course, at this point, all of this is largely speculative. The first thing for cycling fans to do is to wait and see when the court actually schedules a hearing in the case. Then we wait for a decision that will have a significant on sports doping law, no matter what the final ruling.

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