Contador Wins, for Now

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
, , , , , ,

29 comments

  1. Hank

    It may be that the UCI rules (the authorities don’t have to prove anything beyond a reasonable doubt) are in conflict with Spanish law but Spanish law does not apply outside of Spain. Contador probably would have been better off to proclaim his innocence and take the year. This could get much messier and more drawn out for him now.

  2. bd

    What about the plasticizers that were reported to be found during his drug test? Why aren’t we hearing anything more about this? That, to me, seems to be the proof in the pudding. I hope this element of testing doesn’t get hidden under the rug. Thanks for the continued reporting on this.

  3. Pingback: Tweets that mention Contador Wins, for Now : Red Kite Prayer -- Topsy.com

  4. Joe

    Open season on doping, where have you been? For a guy who is so insightful about the sport, you sure are naive about how it works. Doping has a long standing tradition in this sport. From Eddy Merckx to Paul Kimmage, Marco Pantani to Ricardo Ricco, doping is nothing new.

    The mess you see now, is what happens when cycling actually tries to enforce their doping regulations. Those regulations are a mess because they’ve never really been needed, because they’ve never been really been enforced. Because they never really wanted to bust anyone. You, follow?

  5. Hank

    My understanding is that the test for the plasticizers is not yet recognized and so was not considered in any of the proceedings. Of course it was a big consideration in the press and the Spanish doctor who developed the test had this to say: “Those reported parameters are an unequivocal indication [that a blood transfusion took place],” “However, we should look at all the data and see if there are any sudden changes in the levels in the samples taken before and afterwards.”.

  6. Pugliese Sherman

    Let it be so. Contador’s explanation, though not proven, is plausible. I’d like to see the concept of innocent until proven guilty upheld whenever possible. Although I know this is not always possible in sport. However as a fan I want to see him race and if he is/was a doper, we’ll notice in the upcoming results. Won’t we?

  7. Fitomatic

    Not accepting one year ban (if he were guilty would accept it because it is less than 2 yers (mathematics) dont doubt) shows that he thinks he is innocent. i am not gonna be as parcial as your article, where it can be clearly read between the lines you think contador is guilty.
    been innocent or not, it is clear that antidoping laws has to be renewed as doping habits and methods are constantly changing, and because these kind of charges cant be going from one estate to another without a clear and accurate resolution, and because UCI wants to have the hands clean, being now RFEC the source of all the anger.
    despite what you might think, im not spanish (im basque) and i dont mind what happens with contador, i mind the future of the cycling because i love it, even these dark days
    sorry for my english, im trying
    greetings

  8. randomactsofcycling

    I fail to understand what there is to be gained from upholding Contador’s appeal. The UCI will almost as a matter of procedure appeal to the CAS and he will be banned for two years. Of course this will take three years and we have another Landis/Pereiro situation for cycling to hold up to the public in all its glory.
    It does seem that Contador has only presented a claim about how the drug ‘could have got there’. There is zero science or investigation involved.
    Whether he is guilty or innocent, if the UCI does not appeal this, they are crapping in their own nest.

  9. sophrosune

    It seems, Padraig, that there was only one way for Contador “to prove” his tainted meat defense for you and that was to produce more meat from the same cow. As I suggested earlier, I thought I had read early into this investigation how that scenario had become impossible. I couldn’t locate where I had read it, but I have since come across a comment that covers the same material.

    Basically, the comment said that delays by the WADA lab is part of the reason it was tougher to find meat from the same cow. The WADA lab based in Cologne had 10 total samples and it took over a month for it to release its findings. In comparison, the Lausanne returned all of their results within 72 hours. The comment went on to say that if you started looking for the meat 4 days after it was bought, then you stood at least a small chance of getting meat from the same animal.

    In additon to the long delay in getting the results from the Cologne lab, the commenter pointed to recent arrests for clenbuterol as evidence of its widespread use. “Despite what the media told us about Spain’s perfect system, the Basque Government was unable to track down that animal and farm. They narrowed it down to 3 probables. The most likely is one that was previously busted for Clenbuterol,” he said. “There’s a strong belief that the meat bypassed the official process, just like the meat that caused 6 arrests this week. There are farmers arrested in Spain every year for using Clenbuterol.”

    Now, aside from the finding meat from the same cow, it seems the defense provided various forms of scientific evidence indicating that ingesting tainted meat was the most likely scenario. Now this may not be sufficient to your reading of the UCI bylaws, which by the way I am pleased to see you referring to now rather than just WADA’s strict liability laws. However, this panel of judges are lawyers for the most part, as I understand, and imagine they recognize that this decision rests on a razor’s edge of intent.

    I am sorry to say that branding this decision as one that will undermine countless doping cases strikes me as a bit grandstanding. I am sure you are not alone in this assessment and will likely be used by UCI and WADA officials.

    If I could suggest another way to look at this is that it may be a decision that undermines the rather poorly structured anti-doping universe, which I think could ultimately be extremely beneficial for anti-doping efforts and for cycling.

  10. randomactsofcycling

    @Sophrosune: firstly, please accept that I and everyone else writing here is as frustrated with the current anti-doping laws as you.
    Let me state before making my next comment that of course it is easy for us, the armchair critics to pass judgment from outside the eye of the storm. We do not have all of the facts to survey. However, bear the following in mind;
    One would think it unlikely that a grazier would feed only one of his slaughtered animals Clenbuterol. A more likely scenario would be that there is extensive use in his herd and that his Veterinarian may have something to do with it’s administration, perhaps implicating other farmers and their animals. A grazier does not send only one of his herd to the Sale Yard. More than likely it is dozens. From there they are purchased, slaughtered, sliced and diced, purchased by the butcher from a wholesaler then diced some more at the butcher shop. From what I have read of this case, Contador’s Team was unable to produce a tainted sample of meat. To suggest that there is wide use of Clenbuterol in Spain, as many have been, and to not be able to produce another sample is in my opinion showing contempt for the anti-doping regulations. It would make no difference be the delay a day or a year, there is tainted meat out there. The only thing that surprises me more is that a Spanish newspaper has not gone out and found some.
    Is it possible AC ate contaminated meat? Yes. Is it probable? Wow, that’s a stretch.
    Has the defence offered any reasonable doubt to the allegation that AC doped? Not by a long shot.
    By the reasoning of some, Ricco could emerge from hospital, hire Contador’s defence team and claim to be allergic to Clenbuterol, which he got from tainted meat on a pizza. Would you believe him?

  11. Hank

    randomactsofcycling, as there have been multiple arrests in Spain for Clenbuterol use in beef in the time since Contador’s positive it is obvious that the Spanish authorities have found multiple cases of Clenbuterol in Spanish meat. The Spanish are looking at the UCI to provide proof beyond reasonable doubt that AC is guilty, while for the UCI it’s up to the athlete to provide proof positive he is not guilty.

    If I was arrested for something, I’d want to be considered innocent until proven guilty beyond reasonable doubt, which is how US criminal law works. That is not how WADA’s doping rules work and AC seems to have gotten the local authorities to use the standards of justice of criminal law in Spain. That will work for him in Spain but may not help him outside of Spain where he wants to compete.

  12. Hank

    Putting the case of Contador aside criminal law in the US puts the burden on the authorities to prove their case beyond reasonable doubt on the premise that it is not worth having the innocent jailed to catch a few more of the guilty.

    I think the rule that it does not matter how a substance got there, you are still guilty even if you were innocent of doping is ridiculous. Athletes who unlike Contador have provided clear proof of innocence still were handed 1 year bans.

    Just to be clear, personally I think AC was doping as where most of the top guys he was competing against. The fact that he rode for Bruyneel and the plasticizers in the sample all reenforce that suspicion.

  13. Mike

    Pat McQuaid said: “At the UCI we don’t know the case sufficiently.”

    How … after all this time … can the UCI not “know the case sufficiently?” This, I believe, is part of the problem.

  14. Big Mikey

    Great article, Padraig. I like the game theory approach that accepting a 1 year suspension was likely the best AC was going to get. Now, Spain has forced the UCI’s hand in appealing to CAS, which never works out well for the rider.

    The most interesting issue is not actually whether AC cheated, but the flagrant abuse of power and rampant conflict of interest that exists in national governing bodies, especially in Spain. First Puerto, then Valverde, now AC…incredible.

    They can accuse Americans all they want, but NOBODY does old-school, backroom, under-the-table corruption like the Europeans.

  15. Harper

    No matter whos side you are on, this just sucks for pro cycling. As a casual observer who doesnt know the rules inside and out, it seems like a double standard. I know I felt bad for Zirbel whose unknowningly took a supplement with a banned substance in it. Now the Tour champ does the same and he gets exonerated?

    I know the devil is in the details, but I just want a fair standard to be applied, regardless of who I cheer for. At the end, it will be the UCI at fault, not the riders for destroying the integrity of the sport.

  16. Cormw

    One thing that seems to be escaping all of this doping discussion is that AC was experiencing “allergy” problems early on in the 2010 season. Look at his performance on the first stage of Criterium International…So he wants us to believe that after having “allergy” issues, that he ingested tainted meat with the same medicine that has previously been used to treat asthma? I’m surprised he hasn’t used this as an excuse for his positive result.

  17. Touriste-Routier

    Many of you are missing a key point. Under WADA rules, Contador is guilty of doping. WADA has a strict liability policy; even trace amounts, regardless of their source is a violation of the anti-doping rules. Whether one believes the “consumption” was intentional or not, does not change his guilt or conviction.

    There may be a conflict between EU Law, Spanish Law, and UCI/WADA rules. Which ones take precedence is a matter for CAS, and quite possible Swiss and EU courts to decide. The stakes here are very high, and go way beyond sport.

    An athlete can escape punishment via rule 296 “Elimination or Reduction of Period of Ineligibility based on Exceptional Circumstances”. However, this does not affect guilt or innocence; all it says is that if an athlete “establishes” (the legal definition/level of burden of proof are unclear to me), the period of ineligibility period may be reduced or eliminated; it does not overturn the conviction, it only affects the punishment. Furthermore, Contador can still lose his Tour victory, even if CAS upholds the Spanish ruling, as he has been convicted of a doping violation during the Tour.

    Keep in mind, we have not seen all of the evidence, but the defense is appears to be hanging their hat on tainted beef rather than tainted milk, or a spiked drink, etc. Have they met the burden of proof required under Rule 296? We don’t know, and most likely CAS will be the party to determine this.

    The UCI is in a tough position. If they do not appeal the decision (or at least support WADA if they appeal), then this further reveals inconsistency in their application of their rules, and showcases favoritism towards certain riders, which make Landis’ claims more credible.

    The politics of this whole episode run very deep. Stay tuned, I predict the wild ride continues for quite a while.

  18. Alex

    I´m with Mike.

    UCI is clearly a problem rather than the solution. They look lost yet they try to pass the impression of having a firm grip of things. The time it takes to work through the whole bureaucracy and processes is ridiculous. So much so that if a rider has higher status and resources – which is Contador´s case – then he has ways to benefit from it.

    So we have the guy racing all cool in Portugal, while lower profile riders are serving sentences for the same accusations. That brings credibility down and makes “the system” look old, dated and corrupt in the eyes of insiders and outsiders. UCI needs a complete turn of tables asap or it´ll harm cycling beyond solution.


    1. Author
      Padraig

      Hi All, and thanks for your passionate comments on this. I’d love to respond to each and every point made, but time demands that I address only a few of them.

      Pugliese Sherman: You’re right, Contador’s explanation is plausible. But according to the UCI rules, that’s insufficient proof for which to dismiss a case.

      Fitomatic: Thanks for joining the conversation. Whether I believe Contador doped or not isn’t at issue here. My concern is for a system of justice that addresses doping in a thoroughly just manner and I don’t believe that has happened. I’m with you; I want a healthy cycling.

      Sophrosune: Again, I’ll ask you not to put words in my mouth. I think asking Contador’s defense team to produce meat from the same cow is an unreasonable expectation. However, a grazier who has used Clenbuterol on one cow likely used it on all or nearly all of them, and is likely still using the stuff today. Remember, Contador and his defense team knew about this case for a full month before we did. I think asking the defense to find the producer is perfectly reasonable, and nothing of what has been revealed about the case indicates that was done. As proof goes, it’s circumstantial, but I think it would have been a discussable smoking gun. Strict liability isn’t really at issue here as that was the demonstrated reason for the case; the aspects of the UCI code to which I referred bear on how the case is decided. I’ll grant the mention of Moninger’s case was grandstanding as I think any window of opportunity for an appeal has lapsed, but if Fuyu Li didn’t appeal based on the current outcome, I’d be shocked, and I hope everyone else would be as well. I do agree with you 100% that this decision further undermines our belief that doping cases will be decided based on actual evidence derived through rigorously scientific means.

      RandomActs: Spot on.

      Hank: Though there have been arrests for Clenbuterol use in Spain, these are allegations, and not proven with convictions yet. And just because a grazier has been convicted doesn’t allow the illogical leap that Contador ate tainted beef. More importantly, you are wrong on the point of the burden and level of proof required. The doping code is based on Napoleon’s system of justice where one is guilty until proven innocent, but the bar is not as high as “beyond a reasonable doubt.” Spain’s system of law has no jurisdiction over professional cycling, just as American law has no jurisdiction.

      Mike: McQuaid’s statement referred to the dossier based on the RFEC decision, which the UCI has not yet had a chance to review. This is one occasion when he wasn’t half-baked.

      Big Mikey: Thanks for the kind words. As to the back room deals, I really want to believe this is just a mishandling of justice, not corruption. That said, I don’t know which would be harder to fix.

      Cormw: Contador didn’t advance that excuse for two reasons. First, he didn’t have a Therapeutic Use Exemption (TUE). Second, you can’t get one Clenbuterol anymore.

      Touriste-Routier: The laws of a rider’s resident country don’t bear upon doping cases. There was some exploration of a legal strategy to try to bump the Landis case out of CAS and into U.S. courts, but it was abandoned, I suspect, because it was all but impossible to achieve. You’re right about 296 only eliminating punishment and it’s interesting that the wording the RFEC used (in translation, of course) reads that they have dismissed not just the punishment, but the charge as well.

      Finally, someone asked if WADA can appeal if the UCI doesn’t, and the answer is yes.

      Thanks for reading.

  19. Sophrosune

    Keep in mind that WADA too will be guilty of a double standard if they appeal Contador’s punishment because they did not appeal the decision of the German table tennis federation when it decided not to ban Dimitrij Ovtcharov after he claimed he ingested tainted meat in China. As far as I know, Ovtcharov’s defense was the same in that he did not produce meat from the same cow.

    I would like to see a serious argument presented on how the inadequacies of the current anti-doping regime can be rectified because this is just a mess.

  20. todd k

    Interesting timing with the WADA decision to not continue its CAS appeal in the Ovtcharov case and the rumblings in the news last week that the Spanish federation was determining to not sanction Contrador. I haven’t the time to map out the chronology, but I am betting that the Spanish Federation was increasingly confident in making a decision to not sanction Contrador once WADA communciated they would drop the CAS appeal in the Ovtcharov case.

  21. Touriste-Routier

    There was speculation (due to comments made by Spanish officials) that a potential reason for removing his ban, was that Contador was not properly notified of his “offense”, as is required under Spanish Law, even though the UCI performed the notification per their guidelines.

    Since riders are subject to the jurisdiction of their national federation, at some level they will be subject to their nation’s laws, unless that nation allows the applicable laws to be waived and/or assigned to another jurisdiction (such at the UCI).

  22. Souleur

    its amazing to me really…simply amazing. Its like Albert Einsteins definition of insanity, doing the same thing over and over again yet expecting a different outcome..to paraphrase.

    Our commonalities are we have so many interests, so much love of the sport, such heritage, such respect, so much passion, and so many rules/regs/laws on many different levels; yet we find our sport so fragmented, so little communication, so legalistic, so dysfunctional.

    there must be a better way, the question is when…just when will the sport authorities push for a plausible solution to the chaos that dope brings with each accusation/case, or will we accept status quo in terms of justice and outcomes?

  23. seveneight

    just a thought – if i have to pee in a cup for work and for some reason happen to test positive for an illegal substance chances are pretty good i will lose my job.

    if i have not knowingly taken any illegal substances i might have an argument in my defense.

    if, while i was at a recent christmas party, i ate one or two brownies from a tray that had been baked with THC and didn’t know and never felt the effects of it then chances are i would have no grounds to say the THC that caused my positive pee test was a result of those brownies as i had no idea it happened.

    if, while i was at a recent christmas party, i ate one or two brownies from a tray that had been baked with THC and thirty minutes or so later i was high, knowing that i had to pee for work i would have alerted all authorities and interested parties in an effort to mitigate the circumstances prior to failing my required pee test.


    1. Author
      Padraig

      Seveneight: Your responsible conscience and proactive nature make you utterly unsuited to the rigors of professional cycling. You should stick to things where ethics actually help to foster success. Where that is, I’m not sure, but it definitely leaves out Wall St.

      Seriously, though, environmental contamination is a colossal problem and one for which there is no easy answer. And that’s rare with regard to doping; most of the answers (from a moral compass standpoint) are pretty clear cut.

  24. michael

    I am printing my “Free Fuyu Li!” t-shirts as we speak. I’m gonna be rich I tells ya!

    edit – the middle-east is at the boiling point, world food prices are skyrocketing as we speak, Saudi Arabia reached peak oil a couple of years ago and 75% of the world’s permafrost will melt and release millenia of CO2 accumulation, increasing the worlds average temp by over 4 degrees celcius by the year 2100′ish or so.

    In the grand scheme of things, this is a pretty silly thing to be fretting over. I love cycling, but really at the end of the day the most important bit about cycling is about YOU getting out on your damn bike and going for a ride.

    Not whether xxx-rider chose to hit the juice cause he is allergic to dandelion pollen for 2 months of the year.

  25. seveneight

    @padraig: it is less about being proactive and good ethics, and more about damage control to prevent one’s livelihood and all they’ve worked for thus far being from pulled out from under him.

    nevertheless, my main point was that if AC never felt the effects of the drug then he has no frame of reference as to when it might have been ingested. if he has no such frame of reference then he can’t attribute his positive result to a specific meal, and thus can’t cry tainted steak. there is a certain logic there.

Leave a Reply

Your email address will not be published.

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>