The Explainer: What is taking so long?

A reader wants to know why the UCI is dragging its heels in addressing the doping charges against Tour de France winner Alberto Contador.

Dear Explainer,
Simple question: Why is the UCI farting around with their ruling on Alberto Contador? It seems pretty clear that if you test positive, you get suspended. I’m not aware of any hearing, or any event wherein the determination will be made.

Dear Dave,
I guess the simple answer to a simple question is that one man’s “farting around” can be considered another man’s “due process.”

Not only is she blind, she can move slowly at times.
Not only is she blind, she can move slowly at times.

Keep in mind that the last time a Tour de France winner was charged with a doping violation, the entire process took nearly two years. News of Floyd Landis’ positive at the 2006 Tour came out on July 27 of that year. His original violation occurred on stage 17, which was on July 20. His hearing in the case was held in May 2007. The ruling came out in September 2007.

Landis — as was his right — then appealed to the International Court of Arbitration for Sport and a hearing on that appeal was held in March 2008. The final ruling in the matter was issued on June 30, 2008 … more than 23 months after the original violation occurred.

Similarly, Tyler Hamilton’s homologous blood-doping case began with a sample taken on September 11, 2004. With a hearing and an appeal, that case was fully adjudicated on February 15, 2006, when CAS rejected his final appeal. Say what you will about either of those cases, but both men fully exercised the rights afforded them under the provisions of the World Anti-Doping Code. Both took time, a lot of time.

It’s pretty easy for journalists and fans to reach a conclusion based on the available — or at least publicized — evidence. Trip the Dope-O-Meter® and you’re toast. Plastic in your blood? Must have been an illegal infusion. Guilty! Case over. Next case, please, bailiff.

The problem is that the charges are not as cut and dried as they might appear. In the Contador case, the UCI is probably still debating the questions around the low levels of clenbuterol (50 picograms per milliliter of urine) and the whole question of plastics. They may have some reluctance to forward the case to the Spanish authorities until they have a prima facie case fully assembled. Some suggest they’re “sitting on” the matter, but with as much public attention on this one, I doubt anyone is realistically hoping the whole thing will just go away. Let’s give it some time.

Your comment that “it seems pretty clear that if you test positive, you get suspended” is in keeping with the World Anti-Doping Agency’s “strict liability” approach to doping violations, but even WADA leaves a little wiggle room in the rule book.

Not-so-strict liability

Strict liability simply means that the “intent” element of a crime isn’t considered when judging guilt or innocence. Under the rules of most modern legal systems, prosecutors have to show that the defendant intended to commit a serious crime. (It’s what lawyers call mens rea, since using Latin phrases for what can be easily said in plain English sounds smarter and lets them bill more.)

In other words, if you kill someone and the prosecution fails to prove that you intended to kill that person, the crime is treated quite differently than if you had carried out a plan to commit that act. Generally only the most minor crimes, or regulatory violations, are treated on a strict liability basis. It is not, for example, a valid defense to tell the court that you lacked the requisite intent to drive your car at 125mph. The simple fact that you did it is proof enough.

So when the World Anti-Doping Code was first adopted, the agency staked out an early position that doping violations were going to be treated with that same strict liability approach. In §2.1.1 of the Code, the Agency makes that position clear:

It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an antidoping violation. …

So, if Contador’s body showed traces of clenbuterol, then that’s it. He’s guilty. Case over. The Code is clear on that, right?

Well, yeah, but the Code also included a provision that did make some allowances for “no fault or negligence.” Section 10.5.1 allows a review panel to consider some element of the intent question — at least when it comes to accidental ingestion or sabotage — after all:

If the Athlete establishes in an individual case involving an antidoping violation … that he or she bears No Fault or Negligence for the violation, the otherwise applicable period of Ineligibility shall be eliminated.

The following section goes on to note that if an athlete bears no significant fault, then a reduced sentence might be considered.

WADA argues that its “no fault or negligence” and “no significant fault or negligence” provisions are intended to strike a “balance between those Anti-Doping Organizations that argue for a much narrower exception, or none at all, and those that would reduce a two-year suspension based on a range of other factors even when the Athlete was admittedly at fault.”

(You can read the full Code at WADA’s website. The best way to take note of the sometimes-subtle changes made to the Code since its initial draft and the amendments adopted at the Third World Conference on Doping in Sport in Madrid in 2007, is to review the Redline Version, which tracks all of the changes made at that meeting.)

Unlike a defendant facing a criminal charge, though, the prosecution in a doping case doesn’t have to prove the intent element. It’s up to the defendant to present evidence of mistake, accident or sabotage. And here comes Contador’s beef, so to speak.

Beef, it’s what’s for … proving lack of intent

So Contador’s tainted-beef defense is clearly an effort to show that he bears “no fault or negligence” as defined under §10.5.1. He is not trying to gain cover under the provisions of §10.5.2, however, since a reduced sentence would invariably include the negation of his results from the point of the violation onward and that would obviously include the Tour de France.

So, while a doping hearing, its appeal and final disposition could theoretically occur within a time frame as short as two weeks, it isn’t going to happen in this case. It’s going to be a science-heavy debate made even more complicated by the fact that the Cologne lab found more than just minute traces of clenbuterol.

To some, the presence of plasticizers would also be an indication of guilt, suggesting that it wasn’t a tainted meal but rather a blood transfusion that caused the brief appearance of clenbuterol. But as we touched on a couple of weeks ago in this column, that test is far from being certified.

It’s not that the science and technology are lacking when it comes to detection. That’s already well established. The question is one of interpretation. What does the presence of a plasticizer actually represent? In addition to its presence because of the use of blood bags and medical tubing, there are questions of environmental exposure. There has to be some allowance for that, but how high should that level be? Should a single sample be deemed positive? Would it take longitudinal analysis of several samples to look for a spike in levels? All of those questions have to be answered first.

So how long will it be?

Everyone, from Contador to UCI president Pat McQuaid to Tour director Christian Prudhomme to all of us on the sidelines, is hoping the case will be settled quickly.

McQuaid recently conceded that the agency is taking a cautious approach, handling the case differently than it might were the defendant a Cat. 3 who tested positive for clenbuterol at the local industrial-park criterium.

“We don’t treat him differently than the others, but let’s be honest, the fact that it was Alberto Contador means that we have to be certain we take the right decision,” McQuaid said.

It is the Tour de France. It will take time. That said, there are ways that the process can be accelerated, but mounting a defense, particularly when it’s one focusing on fault and negligence, can be time-consuming. Will it take the nearly two years that the Hamilton and Landis cases took? It could, but we suspect it won’t.

We’ll just have to wait and see.

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