The Spanish Cycling Federation has determined that Alberto Contador is innocent of doping charges. The four-member panel hearing the case elected to rule based not on the presence of Clenbuterol in his specimen, but on article 296 of the UCI doping regulations that stipulates:
If the Rider establishes in an individual case that he bears No Fault or Negligence, the otherwise applicable period of Ineligibility shall be eliminated.
The important verb here is “establishes.” It’s not quite “proves” but it’s a fairly high standard. Article 22 states:
The UCI and its National Federations shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the UCI or its National Federation has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where these Anti- Doping Rules place the burden of proof upon the License-Holder alleged to have committed an anti- doping rule violation to rebut a presumption or establish specified facts or circumstances, the stan- dard of proof shall be by a balance of probability, except as provided in articles 295 and 305 where the License-Holder must satisfy a higher burden of proof.
Nothing we’ve learned about the case suggests that Contador submitted anything to demonstrate contamination in a conclusive manner, which makes his primary defense a claim, no more. His lawyer also sought to rebut the alternative theories such as microdosing and transfusion, reasoning that if the alternative theories are disproved then only their explanation can remain. That level of logic wouldn’t pass muster in a court, but it is good enough for the Spanish Cycling Federation, whose president, Juan Carlos Castano clearly wanted Contador absolved of wrongdoing. The basic strategy here is to say, “You didn’t find evidence of transfusion in his blood passport, so he didn’t transfuse.”
Not so fast. As Riccardo Ricco’s current condition demonstrates, it is possible for a cyclist to transfuse and not be immediately caught. Even if Contador’s defense absolutely proved that he didn’t microdose or transfuse, they wouldn’t have proven that no other possible deliberate doping could have cause his positive test.
Back to the burden of proof. As stated in Article 22, the burden of proof is placed on the License-Holder, Contador. The bar is fairly high, higher than just the balance of probability, or what we would tend to call “likely”, as it says:
This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt.
Had the RFEC simply given Contador a one-year ban, it is more than conceivable that Contador would have gotten off with a sanction lighter than the rules suggest he deserves. While it is possible that he is the victim of tainted beef, nothing in the record shows that he has proven this. And because he hasn’t proven that his test was caused by tainted beef it is also possible that his test came as the result of deliberate doping, and for that reason, a two-year sanction seems to be the appropriate outcome.
But one year wasn’t good enough for the RFEC and Jose Luis Zapatero, Spain’s prime minister, who inexplicably suggested that there was no legal basis to sanction the Tour de France champion. Zapatero might as well have claimed there was no Clenbuterol in Contador’s sample for all the sense his statement made. He would have been very nearly right, but he was exactly wrong about the legal basis bit.
By absolving Contador of any wrongdoing and foregoing any sanction, the tribunal has almost certainly forced the hand of the UCI to appeal the case to CAS. If the UCI doesn’t appeal the case to CAS and lets stand the RFEC ruling, scores of cyclists will appeal their suspensions to CAS. Tops on that list should be Scott Moninger. Standing in the queue with him would almost certainly be Fuyu Li who also tested positive for Clenbuterol as well as Tom Zirbel who tested positive for DHEA and claimed the positive was the result of tainted supplements.
If a claim of inadvertent ingestion not back by proof is allowed to stand as an adequate defense, the ramifications threaten to undermine countless doping cases and the future quest for a cleaner cycling, for if a claim that the rider didn’t intend to dope is ruled sufficient, ladies and gentlemen, it will be open season on doping.
Image: John Pierce, Photosport International