Intent

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

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17 comments

  1. sophrosune

    Thank you, Padraig, for this clarification. One of my issues with this are that I am not sure that producing a steak from the same butcher that contains clenbuterol is the only way of proving his innocence. In fact, it’s not clear that has been the threshold for innocence in other cases that received one year bans instead of two.

    The other issue is one that you yourself hint at and that is that our access to all the information in this case may not be as comprehensive as we think. And I might add that information that we do have might be false, i.e. plasticizers in his blood.

    I will turn this around somewhat and suggest that WADA should be careful about having strict rules about any substance for which they know can be found environmentally, like people’s food. They should look to develop tests that remove any doubt as to the source of those substances.

  2. randomactsofcycling

    It’s good to talk rationally about this topic and analyse various points of view. Certainly it helps those from opposing corners understand why those on the other side of the argument are so passionate.
    One would logically think that a farmer in Spain that uses Clenbuterol on his cattle, would more than likely also use other chemicals, not just for the cattle but on his land and in his feed. Is there not some way to also trace those and identify a single common source? I just don’t think Contador’s defence is rigorous enough. As you have said Padraig, it smacks of ‘the dog ate my homework’.
    My remaining question regarding intent relates to the UCI: what was their intent in waiting so long to ‘announce’ Contador’s positive test? Is there, as sophrosune suggests, other information that has not been made public? Was the delay a desperate plea – “for God’s sake, we’ll keep it quiet for as long as we can but come up with something good!”…..

  3. Jim

    On the merits, the anti-doping regulations are strict liability rules. That means that WADA and the national bodies don’t ask you what your subjective intent was when you took the substance, they only ask if you have the subtance in your body above certain measurable levels, and if so, then you are guilty, and maybe they will listen to your plea of mitigating factors. So intent doesn’t enter into it at the outset, but maybe it has an effect on the ‘sentencing.’

    One the broader question of dopers generally, and their claimed innocence… nobody is guilty in prison, either. Just ask ‘em. Cops, judges and cheated on spouses all stop believing after a while, and woe betide the innocent man who stands before them protesting his innocence. It falls on deaf ears. Most of us seem to have a limited reservoir of credulity. Mine ran dry somewhere after Floyd’s bust, and Joe Papp’s testimony.

  4. Mike

    To Jim’s point, pro cyclists today comprise a group who have a very poor track record when it comes to claiming they were wrongly accused where doping is concerned.

    I’ve never had any issues with Contador in the past but feel I would be a fool to beleive his story that he ingested this drug by accident. In the past I’ve given cycling stars accused of doping the benefit of the doubt and I’ve been made the fool each time.

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  6. Doug P

    I will store my blood in wine bottles this season. It is Burgundy in color, and goes in the ‘fridge just like a fine Bordeaux. Perfect refreshment for those TDF rest days. My point is no reliable test exists for autologous blood doping. I assume all racers do it. At least the winners.

  7. Phil

    Here’s something that I’ve been rolling around in my head for some time now, and it’s all very pie-in-the-sky stuff, but it’s something that I’ve been able to rationalise in my head.

    When this great melodrama first saw the light of day, Contador had quite matter of factly stated that he would retire from professional cycling if he were banned, and at that stage it was presumed, for two years. Missing out on two years of racing in any level of cycling is bad enough, but from the pro peloton – it would be rather hard to come back to. Unless your name is Ivan Basso.

    Originally, to me this said that Contador may well be innocent. The man cares enough about his sport that he would turn his back on it if he were slighted by the governing body in such a manner. The more I thought of it though, it didn’t seem to fit quite well enough. Then the information about plasticizers present in the blood took the “where there’s smoke, there’s fire” idea up another notch.

    Now Mr Contador has said that he won’t retire because “he drew comfort from the fact that the Spanish federation RFEC appeared to accept his explanation that the positive test was due to the consumption of tainted meat rather than anything more sinister”. This sort of about face smacks of “welp, I’ve gotten away with it!”. He’s changed his tune now that he doesn’t lose out on so much income and has almost gotten away with it (I can only imagine there would be a significant reduction in income that accompanies a two year ban).

    If he’d have stood by his word to retire if suspended, I would have had a higher opinion of him because he would have shown character like that of Bartali or Poulidor. Now, he’s shown (to me) that he had intent, he’s gotten away with it, and can continue leading everyone down the primrose path.

  8. Jay

    I have two questions about this whole affair:
    1. Has anyone, anywhere proven that ingesting Clenbuterol tainted meat will produce a positive blood test? The way our body works is a little more complicated than just A+B=C. If a cow ingests Clen and then that cow is slaughtered, then the meat is cooked and eaten, will the Clen still be present and work its way into the bloodstream in the same fashion as if it was taken by a human originally? Has anyone proven that this is a viable scenario (it should be noted that the Fat Cyclist offered on his blog in a very amusing column)? In addition, I wonder how long it would take the Clebuterol to show up?

    2. Secondly, is is normal for a cyclist to ingest a large steak during a rest day of the Tour? I know that they are eating 10,000 calories a day, but is steak a usual meal?

  9. Robot

    @Jay – Eating clenbuterol tainted meat will produce detectable amounts in urine starting 1/2 hour after ingestion and lasting for 3-5 days. The substance can be found in the liver for longer than that, and there is a retinal tissue test that they use with cattle that can detect contamination up to 5 months after contamination.

    Periodically, there have been outbreaks of clenbuterol poisoning that bear out all this information.

    See here, for example:

    http://www.sciencedirect.com/science?_ob=ArticleURL&_udi=B6TCR-3YS33K4-6&_user=10&_coverDate=04%2F03%2F2000&_rdoc=1&_fmt=high&_orig=search&_origin=search&_sort=d&_docanchor=&view=c&_searchStrId=1627053660&_rerunOrigin=google&_acct=C000050221&_version=1&_urlVersion=0&_userid=10&md5=3943b886e1ccfa858484414b059c5061&searchtype=a

    To your question about diet, I don’t think there is anything “normal” about a cyclist’s intake during a three week tour.

  10. Brett

    A broad question slightly askew from topic for any takers out there:

    Where is the line between medical attention and doping?

    Elecrolytes are okay. Swallowing thermometers is okay, apparently. Replenishing red blood cells by use of transfusion? A big no no. If someone was put on an IV for severe dehydration post race, where would that fall?

    Any opinions?

  11. Robot

    @Brett – More good points. It bears thinking about that Aldo Sassi described what he did in the ’90s as science, but admitted that it was now seen as doping.

    I think the answer to your question though, lies in the banned substances list. The UCI has said what doping is. Things racers do now within the rules may later become doping, but at any given time, there are rules that cover banned practices.

  12. BikeRog

    While Padraig’s explanation is well-reasoned and very informative, with a substance like clen, which can easily enter the body accidentally, wouldn’t cyclists, cycling itself, and the various governing bodies be better served if the rules contained a threshold before anti-doping regulations and strict liability rules were applied?

    Since the minute amount of clen found in Contador’s system were not enough to produce any impact on his results, I think cycling would be better off with some threshold having to be met prior to applying the current rules.

    Now you still could mount a pretty convincing argument that discovering plasticizers in his body, even with the small amount of clen found, indicates something more than accidental ingestion of Clen (unless, of course, he also ate the shrinkwrap the beef was packaged in), the fact remains that there is a very big difference between believing that Contador doped and proving it.

  13. Brett

    @ Robot: Thanks again, and thanks for taking the question. You take the line I think most do and are correct in; that the standards are already there to be upheld.

    I guess another way to say it is this: If you can openly say you are doing it, it’s okay to do it.

    I was thinking more on the big broad spectrum than specifically what is in the books. But that may be a discussion for a medical ethics class or some such thing.

    BikeRog makes a great point too. True, the plasticizer finding does change Contador’s case a bit, but threshold rules seem beneficial.

  14. Robot

    @Brett – I think the rules can/should/will evolve, but at the moment, we have the rules we have. It doesn’t do anyone any good to write one rule and enforce another. In my mind, it only opens the door that much wider for people who really do mean to cheat.

    I think the reason Clenbuterol lives in the strict liability portion of the rules is that, while it is possible to ingest it accidentally through contaminated meat, it is equally possible to ingest it intentionally in order to gain an advantage. Because it is virtually impossible to differentiate between the two simply by detecting the presence of the substance, the rules have to assume its presence is doping. Other wise, there is no point in banning it. Everyone would do it (like so many of them have had “exemptions” for asthma treatments) and just say the ingestion was accidental.

    Right?

  15. Brett

    @ Robot: I have to agree.

    I should also say that I don’t disagree with the way things are, just wonder where it will change, how, and why. Thanks to all for creating moving discussion here.

  16. Robot

    More info:
    The Spanish daily La Vanguardia claims that WADA investigators have tracked the meat Alberto Contador blames for his positive clenbuterol test to a Spanish provider whose products have never before shown traces of clenbuterol. The paper also reports that only one case of meat contamination turned up among 286,748 quality control tests conducted on European beef in 2008, and that lone sample was found in Italy. (from VeloNews)

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