Alberto Contador has been determined to have Clenbuterol in his system. Clenbuterol is a banned substance. Contador is guilty of doping, right?
Maybe, maybe not. Let’s consider the situation in the abstract. Let’s imagine Contador as the driver of a car and doping as a pedestrian.
Scenario 1: A guy driving down the street at night doesn’t see a pedestrian step out from behind a car. The pedestrian is drunk, stumbles backward and falls in the driver’s path. The pedestrian is run over and dies. The driver stops and waits for the police at the scene.
Scenario 2: A guy driving down the street at is speeding, enjoying his new sports car. He’s traveling 110 mph and when he suddenly sees a pedestrian in a cross walk. He hits the brakes, but it’s too late; his car fishtails and hits the pedestrian, killing him. The driver stops and waits for the police at the scene.
Scenario 3: A guy driving down the street at night and sees the boss who fired him a week before for stealing from the company. In a fit of rage he swerves and bowling pins the old boss, killing him instantly. The driver flees the scene, but is caught soon after.
Scenario 4: A guy is pissed that his boss fired him for stealing from the company. He waits in his car outside the guy’s house. When the ex-boss comes out of his house, the guy steps on the gas and runs him over. Unsure that the boss is definitely dead, he backs over the guy, spins his tires and then flees the scene, but is caught soon after.
We have four different events that share a death. What separates them is intent. The principles of jurisprudence in most countries hold that in scenario 1, the driver is not at fault; no crime was committed. However, in scenario 2 the driver didn’t mean to kill the pedestrian either, but he failed to take adequate care for the health and safety of others; a crime was committed, involuntary manslaughter. In scenario 3, the driver murders his boss, pure and simple, but it was an act committed as an “act of passion.” His future prospects aren’t good; in most places, he faces a likely prison sentence of life. In scenario 4, the driver has planned his murder. As human beings, we generally agree that premeditated murder is one of the worst crimes you can commit. In some places, he faces a possible death sentence.
With Alberto Contador’s case, I believe we can outline three possible scenarios by which the Clenburterol entered his body.
Scenario 1: Contador raced the Tour de France clean and ate steaks that his team chef traveled with in an effort to control his diet as rigorously and responsibly as possible.
Scenario 2: Contador raced the Tour but accepted a bottle from a fan out on the road. The fan happened to want to see a certain Luxembourger win and also happened to be a fan of Macchiavelli. Because ends justify means in the authors world, the fan spiked the bottle with Clen, hoping a positive test would knock Contador out of the Tour.
Scenario 3: Contador took Clenbuterol to help him lose weight in the spring and withdrew blood too shortly after taking the Clenbuterol, which is why the concentration was so low.
Scenario 2 is far-fetched the way a walk to Nevada is, if you’re starting in Texas. Still. Due to the concept of strict liability, any rider who has a banned substance in his body is guilty. It is the responsibility of the rider to demonstrate that the substance arrived by means not nefarious.
It is my personal belief that unless Contador proves conclusively that the Clen entered his body accidentally, he hasn’t distinguished himself from the rider who meant to dope. This isn’t American jurisprudence and so the notion of reasonable doubt isn’t at issue. Dog-ate-homework excuses have been trotted around by every doper since admitting doping became a career liability … which was fairly recent, in fact.
Let’s put this another way: Strict liability means a rider is guilty of scenario 4—murder—unless he proves otherwise. A rider is literally as guilty as can be. Think of strict liability as a bit like Napoleonic code: guilty until proven innocent.
The Napoleonic code seems a barbaric way to mete justice. It can be difficult and often downright impossible to prove a negative. With doping, the situation is different. We start with a given: a test reports that a rider tested positive. Because the rider agreed to the rules of his national federation and the UCI, this is no time to say he doesn’t like the system. If he didn’t dope, he must prove he was a victim of circumstance.
Contador has offered up a reasonable explanation. However, according to the rules handed down by the UCI, that’s not sufficient. To deserve anything less than a typical two-year ban, he really must prove his case. Had he produced a steak purchased from the same butcher who sourced it from the same rancher, I expect the Spanish Federation and the UCI could have reasonably given him a one-year sentence. I don’t think it’s as rigorous scientifically as the sport deserves (it certainly wouldn’t stand up in an episode of CSI Miami), but the UCI (not to mention the Spanish Federation) isn’t exactly a bastion of logical thought.
From everything I’ve been able to find out Contador has provided nothing more than a story and when doping is present, stories are worth less than chaff, and to most reasonable people, anything short of a smoking steak isn’t adequate.
Were Contador to prove his intent, I’d immediately change my position on him. Further, I’d put it, and an apology, in a post.
Image: John Pierce, Photosport International